'in ^^Srs. f '~^-i J. V,. v*3. I i,'"^i» ' ) ^ ?;. taS?"!^ K< fi-s-y*' *r- r »,« ,t Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February i/i, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FmST OEAN OP THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS ■ Cornell University Library KD 288.A22 1852 An analytical digest of the cases publls 3 1924 017 963 244 ^-^ Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017963244 AN ANALYTICAL DIGEST OF THE CASES PUBLISHED IN THE NETV SERIES OF THE LAW JOURNAL REPORTS AND OTHER REPORTS OF DECISIONS IN THE COURTS OF COMMON LAW AND EQUITY, In tSe lEtcksfasttcal anlj atfrnfraltg CCottm, BY THE HOUSE OF LORDS, THE PRIVY COUNCIL, And ELECTION COMMITTEES of the HOUSE OF COMMONS, AT NISI PRIUS, glnir in aSanferuptcg, From MICHAELMAS TERM 1845 to TRINITY TERM 1850, INCLUSIVE. By FRANCIS TOWERS SJREETEN, Esq. AND HENRY JOHN HODGSON, Esq. Barristers-at-Law. LONDON : Printed by Jamea Holmes, i, Took's Court, Chancery Lane. PUBLISHED BY EDWARD BRET INCE, 6, QUALITY COURT, CHANCERY LANE. 1852. This DIGEST is in continuation of five others, published at diiferent times, con- taining the cases reported in the Law Journal Reports, and other contemporary Reports since the year 1822, either of which may be had as published, at the following prices : — First, 1822 to 1828, price 11. lis. 6d. boards. Second, 1828 to 1831, price 15s. boards. Third, 1831 to 1835, price 11. 5s. boards. Fourth, 1835 to 1840, price 11. 10s. boards. Fifth, 1840 to 1845, price 11. 10s. boards. A LIST OF THE REPORTS AND ABBREVIATIONS IN THIS DIGEST. Abbreviations. Bar. & Ar. Beav. Car. & K. CI. & F. . Coll. C.C. Com. B. Rep. De Gex . De Gex & S. Den. C.C. Dowl. & L. P.C. Exch. Rep. Hall & Tw. Hare H.L. CaB. Law J. Dig. Law J. Rep. (n.s.) Chanc. Law J. Rep. (n.s.) Bankr. Law J. Rep. (n.s.) Q.B. . Law J. Rep. (n.s.) C.P. . Law J. Rep. (n.s.) Exch. Law J. Rep. (n.s.) M.C. . Law J. Stat. L. M. & P. Mac. & G. Mee. & W. Moore In. App, Moore P.C Ph. Q.B. Rep Rob. Robert, Sim. Reports. Barron & Arnold's Reports . . . ^ Beavan's Reports Carrington & Kirwan's Reports Clark and Finnelly's Reports Collyer's Chancery Cases Common Bench Reports De Gex's Reports De Gex & Smale's Reports Denison's Crown Cases Dowling & Lowndes's Practice Cases . J Exchequer Reports Hall & Twells's Reports . - Hare's Reports House of Lords' Cases . Law Journal Digest. Law Journal Reports, New Series ( Magis- < trates' ( Cases Law Journal Statutes . . . . Lowndes, Maxwell, & Pollock's Practice Cases .... Macnaghten & Gordon's Reports Meeson & Welsby's Reports . Moore's Indian Appeals Moore's Privy Council Cases Phillips's Reports . Queen's Bench Reports Robinson's Reports Robertson's Reports Simons's Reports . Courts, ^c. I Election Cases and Cases \ on Appeal from Revis- ing Barristers. Chancery. Nisi Prius. House of Lords. Chancery. Common Pleas. Bankruptcy. Chancery. Crown Cases Reserved. Queen's Bench, Common Pleas and Exchequer. Exchequer. Chancery. House of Lords. Chancery. Bankruptcy. Queen's Bench. Common Pleas. Exchequer. Queen's Bench, Common Pleas, and Exchequer. Abridgment of Statutes. Queen's Bench, Common Pleas, and Exchequer. Chancery. Exchequer. ! Privy Council. Chancery. Queen's Bench. Admiralty. Ecclesiastical. Chancery. Digest, 1845—1850. TABLE OF TITLES. ABANDONMENT.— See Pbaoticb. ABATEMENT. Of Sdit. By Death of Pan-ties, 1 Effect of, as ta Costs, 1 Pleas in Abatement. Time for Pleading after Oyer, 2 Afier Deimv/rrer and Amendment, 2 To the Jurisdiction, 2 To Damages or Part of Causes of Action, 2 Non-joinder of Go-contractor, 2 Non-joinder of Assignee of Imohent, 2 Auter Action pendent, 2 Coverture of Plaintiff, 2 Special Demurrer to, 2 Affidavit of Truth of Plea. Form and Seqtmites of, 2 Waiver of ly Plaintiff, 3 ABORTION, 3 ACCIDENTAL DEATH.— See Action- Case. ACCORD AND SATISFACTION. What amounts to. Agreement by Creditors to accept Composition, 3 Accepta/nce of Negotiable Instrument, 4 Agreement to forego Balamce of Mortgage, 4 Payment of Balamce of A ccount im Satisfaction of larger Sum, 5 Retaining Goods seized for JRent in Satisfaction of Debt, 5 Accord without Satisfaction, 5 Pleadings. Traverse of Agreement, 5 Must be formally pleaded, 5 Issuable Plea, 6 ACCOUNT. AT COMMON LAW. Action of Account. By Tenant in Common against Co-tenant, 6 Against Eepresemtati/oes, 6 Account stated, 6 IN EQUITY. In general. When am, Account mU be decreed, 6 ConchmveTiess of Accovmt between the Pa/rties, 7 Bill foe an Account. In what Cases it may be filed, 8 At what Time, 8 Pa/rties to the Suit, 8 Interest and Costs, 8 Decree, 8 ACCUMULATIONS, 8 ACQUIESCENCE.— See Account, in Equity- Adoption — Banker. ACTION. When maintainable. Notwithstandmg Statutable Remedy, 9 Bight conferred by Statute, 9 Whenfownded on am, Illegal Contract, 9 Against the Simdred. — See Mine. Religious Ceremonies im India, 9 Parties to Actions. — See Parties. Notice of Action. In Name of Deceased Pairty, 9 Cliamge of Attorney, 10 Stating Cause, without Form of Action, 10 Statement of Place, 10 Fw Distress, Action being.im. Trespass, 10 Act dons im pv/rsuance of Statute, 10 Boim Fides amd Reasonable Belief, 10 Want of, when to be pleaded, 11 Consolidation of Actions, 11 ADMINISTRATION. When and to whom granted. In Conform/ity with Gramt of Foreign Court, 11 During Absence abroad of Admimistrator, 11 To Sitsbami when no Executor appointed, 11 WitJiout citing sole swnming Executor who had renownced, 12 After Renunciation of Executor imreti'acted, 12 Aifter Retraction of Renunciation, 12 Limited Grant of, 12 Revocation of Grant of, by Consent, 12 Administration Bond. Suing on after Death of Ordina/ry, 12 Application to put im Suit, 12 To be attended with im Equity, 12 Interest of Next-of-Kin to oppose testa- mentary Papers, 13 Justifying Security, 13 Letters of Administration. Colonial, 13 Stamvp, 13 ADMINISTRATION OF ESTATE. In general, 13 Under the Court. What Debts may be claimed, 13 Refimdmg Debts vyrongly paid, 14 Sale of real Estate, 14 Marshalling Debts, 14 Interest on Debts, 14 Marshalling Assets, 14 Practice, 15 ADMIRALTY. , Jurisdiction of Court of. Equitable Jurisdiction, 15 Pendimg Proceedimgs in Scotland, 16 In cases of hiring for specific Sum, 16 In Claims for Wages under 201., 16 TABLE OF TITLES. In Questions of General Average, 16 In Questiom issuing out of Mortgage Deeds, 16 In Claims for Advances to Master of Foreign Ship, 16 In Claims for Salvage of Haft of Timber, 16 To enforce Bond given to Receiver of Droits, 16 ADOPTION, 16 ADTJLTEEY. — See Divoece — Mabbjage. ADVEESE POSSESSION.— See Ejectment— Limitations, Statute of — Teust and Tbustee. ADVOCATE-GENEEAL OE MADEAS.— See Chaeitt. AEFIDAVIT. By whom to be made, 17 When and how to be entitled, 17 Befoee whom and when to be swoen, 18 Jueat, 18 Date [when it mat be supplied by Jueat], 18 Deponent's Desoeiption, 18 Inteelineation, 18 Amendment. — See When and how to be entitled. Waivee [op Want of Addition], 18 Filing and taking off the Pile, 18 Costs [upon Dischaegb of Rule foeDefeotivb Affidavit], 19 Feesh Affidavits [Second Application upon], 19 AGENT. • — See Attoeney and Solioitoe — Peincipal and Agent. AGEEEMENT. — See Assumpsit — Conteact — Specific Peepoemance. ALIEN, 19 ALIMONY, 19 ALLOCATUR EXIGENT.— See Outlawey. AMENDMENT. When and in what Cases allowed. In general, 20 To save the Statute of Limitations, 20 Misprision of Office. — See Of the Postea. Of the Hecord, 20 Of the Postea, 21 Writ of Error, 21 At Nisi Peius. In Cases of Variamce vmder 3*4 Will. i. c. 42. «. 23, 21 When Amendment renders Pleadings denmr- rable, or deprives Defendant of Motion in arrest of Judgment, 22 On Terms, 23 By the Couet. Special Finding of Jwry under Z & i Will. 4. 0. 42. s. 24, 23 Under Agreement in special Case, 23 Costs, 23 AMOTION.— See Oppiclal Pbesons. ANIMALS, 24 ANNEXATION.— See Pbeeogative. ANNUITY. Eneoljient op. When necessary, 24 Form and Eequisiies of Memorial, 24 Eights and Liabilities of Annuitant, 25 APOTHECAEY. — See Suegeon and Apo- theoaey. APPEAL. — See Cleegy — Inpeeioe Codet — Parliament — Pkivy Council — Rate — Sessions. ' APPEARANCE.— See Pkaotice. APPOINTMENT.— See Power. APPORTIONMENT, 25 APPEENTICE, 26 APPEOPEIATION. — See Bond — Chuech — Goods sold and delivered — Money had AND EBOEIVBD — PAYMENT. AEBITRATION. Submission and Refebenob. In general, 26 Authority of Attorney to refer, 27 Making the Submission a Rule of Court, 27 Aebiteator. Powers and Duties, 27 lAahility, 28 Award. Enlarging Time for meting, 28 Certainty and Conclusixen^ss, 28 Fimding on several Issues, 30 Damages, 31 Sending haek to ArliUratof, 31 Not Evidence of Accovmt stated, 31 Remedies foe enforcing Awards. Rule and Attachment, 31 Action. [And Pleadings therevn.\ 33 In Equity, 34 Setting aside Awards. Grownds for, 34 Matters of Practice as to, 36 Costs. In general, 37 Of ArUtrators, 37 Taxation of, 38 Signing, and moving in Areest op Judg- ment, 38 AREEST. In geneeal. On Swnday, 38 Without Warra/nt, 38 Affidavit and Oedbe under 1 & 2 Vict. 0. 110, 38 Pkivileoe feom Aeeest. Servants of the Crown, 39 Members of PaHiament, 39 Barristers, 39 Pa/rty to Suit attending Registrar's Office, 39 Protection from Arrest by Statute, 39 ARSON, 40 ART-UNION, 40 ASSAULT. What amounts to an Assault, 40 Conviction for. Upon Indictments for Robbery, 40 Upon Indictments for Manslaughter, 40 Upon Indictments for abusing Children, 40 ASSESSED TAXES.— See Revenue. ASSIGNMENT. Property assignable. Salary, 41 TABLE OF TITLES. College Fellowship, 41 Monies due, 41 Valeditt op, 41 Notice of Absignment, 41 ASSIZE, 41 ASSUMPSIT. CONSrDEEATION TO SUPPORT. Jn general, 42 Forbearance to sv£ and Belinguishment of Claim, 42 FiUwre Mamtenance of Child, 42 Past Seduction and Cohabitation, 43 Compromise of AssanU and Riot, 43 ATTACHMENT. When it lies. For Contempt, 43 On Bule of Cvwrt, 43 On second Application, 43 Service of Kule pok, 43 Practice on shewing Cause against, 44 ATTAINDER, 44 ATTORNEY AND SOLICITOR. .Articles of Clerkship. Betv/rn of Premi/um, 45 Affidamt of Execution of, 45 Admission, 45 Certificate, 45 Amendment of the 'Roll [Change of NameI 46 Bights, Powers and Privileges. In general, 46 Arrest, 46 Sumg amd being sued in the Superior Oou/rts, 46 Venue, 46 Plea of PriiAUge, 47 Duties and Liabilities. In general, 47 On their Undertakings, 47 AttachTnent, 48 By Courts of Load, 48 By Cowrts of Equity, 49 Strildmg of the Soil for Misconduct, 49 Negligence, 49 Retainer, 50 Appointment and Change op Attorney, 51 Dealings with Client, 51 Bill op Costs. Delivery of, 51 Heading amd Contents of, 52 Taxation of. In general, 63 What Bills a/re taxable, 54 Order of Cowrie for, under 6 &7 Vict. c. 73. s. 37, 54 Upon Terms, 54 Upon special Ci/rcmnsta/nces after Verdict, Writ of Inquiry, or Expiration of a Yea/r, under 6 cfc 7 Vict. c. 73. «. 37, 54 Upon special Ci/rcmnstances after Payment, under, 6 & 7 Vict. c. 73. s. 41, 55 Entering wp Judgment, v/nder 6 cfc 7 Vict. c. 73. s. 43, 56 Notice of Taxation, 56 Appealfrom Judge's Order for Taxation, 56 Costs of Taxation, 56 Remedies for. Against whom, 56 By Action, 56 By Execvtion, under 1 ise,Manufactded, by inserting the words proved. Held, also, that if the amended words could have been answered by a plea of justification, and the words originally inserted could not, the counsel for the defendant should have applied to the Judge to postpone the trial. Southee v. Sennji, 17 Law J. Rep. (N.s.) Exch. 151 ; 1 Exch. Rep. 196. (C) By the Court. (o) Special Finding of Jury, under 3 S^ i Will, 4. , c. 42. s. 24. The indorsement of the special finding of the jury, made by the officer of the court on the back of the Nisi Prius record, will not be treated by the Court above as the postea, on motion for a new trial, no application to have the facts found specially and the finding stated on the record having been made at the trial until after the jury had delivered their verdict. Semble — it is too late to apply to have the facts found specially after the jury have given their ver- dict. Baird y, Hodges, 18 Law J. Rep. (n.s.) Exch. 435. (i) Under jigf;eement in special Case. A guarantie expressed, that in consideration of advances made and to be made by C and D, bankers, or by any other persons of viihom their firm might from time to time consist, in the way of loan, payments, discount, or otherwise to F, H and S jointly and severally thereby gua- ranteed to i C and D the repayment of the said advances, and to indemnify them against any loss by reason of such advances, their liability not to exceed the siim of 1,000/. The guarantie to be a continuing guarantie, and to he a security to the said C and D to the extent of 1,0002. as aforesaid, for the whole of any balances which might from time to time or at any time become due to C and D, or to the persons for thetime being constituting the firm of the said banking-house: — Held, that this was a good and binding guarantie for both the past and future advances, such future advances having been made. i • m A declaration framed on this guarantie, after stating the past advances^ stated that in considera- tion of the said advances so made as aforesaid, and that the plaintiffs (C and D) would! from time to time make advances to F of monies in the way of loan, &c, the defendant (S) guaranteed and pro- mised the plaintiffs the repayment of the said last- mentioned advances,, and to indemnify them by reason of such advances; and further promised that the said guarantie "should he. a continuing gua- rantie and a security to the plaintiffs to the extent of 1 ,000t as aforesaid) for the whole of any balance which might from time to time become due to the plaintiffs or to the persons for the time being carry^ ing on the said trade or business." Averment, that the plaintiffs did afterwards make advances to J- : — Semble, that the plaintiffs might thus state the promise to have been for the payment of the future advances: but held, that there was a variance between the declaration and the guarantie in the statement of the consideration, which in reality consisted of advances tobe made not merely by the plaintiffs, but by the persons constituting their firni-i sMi semble also, that there was a further variance in theipromise, in fact, being to pay the balance which might he due to the plaintiffs, or the persons for the time being carrying on the said^ trade or business ; but held also, that such variances were amendable by a Judge: at Nisi Prius, and that an agreement in a special case that the Court should be at liberty to amend any part of the plbadings.as they might think proper, did riot extend that power. ehapmanv. Sutton, 15 Law J. Rep. (n.s.) C.P. 166 ; 3 Dbwl. & L. P.Ci 646j'2 Com. B. Rep. 634. (D) Costs. The 'Reg. Gen. Hil. term, 4 Will. 4, give certain forms of issues, &c.j 'and' provide that, in case of non-corapliancfe, the Court or a Judge may give leave to amend: — Held, that the application - to amend should be imade to a Judge al chambers, and defendant having oomei to the Court in a vexatious and experisive' manner,, his rule' was discharged with ; costs unless he consented to pay thd costs ot the amendment.! Duke of BrunsvAdk V. Sliman, 17 Law J. Rep. (n.s.) G.P. 81 ; S Cora. B. Rep.218. A 'fatal variance having in the course of a cause been discovered between the' declaration and the evidence, the plaintiff applied to - the Judge • to iimend the ^declaration, which was done, and the following order made : " Upoii heariogv counsel and by consent it is ordered thatlthe reoord'be withdra"wn, and that the plaintiff do have leave to 24 AMOTION— ANNUITY. amend the record" : — Held, tliat although the order was silent as to costs, the plaintiff was liahle to pay the costs of the day. Skinner v. London, Brighton, Sjc. Rail. Co., 19 Law J. Rep. (n.s.) Exch. 162 ; 4 Exch. Rep. 885 ; I L. M. & P. 189. AMOTION. [See Official P:^ksons.] ANIMALS. [Keep of when impounded, see Distress. And see Cruelty.] Liability for keeping mischievous and ferocious Animals after Knowledge and without Negligence, Declaration for an injury to plaintiff 's wife by a ram, alleged that defendant wrongfully and in- juriously kept it, knowing it to be prone and used to attack and injure mankind: — Held, in arrest of judgment, that the declaration was not bad for not averring that defendant negligently kept the ram. Jackson v. Smithson, 15 Law J. Rep. (n.s.) Exch. 3 1 1 ; 15 Mee. & W. 563 j 4 Dowl. & L. P.C. 45. Whoever keeps a mischievous animal (either domestic or feree natures) with knowledge of its mischievous propensities is bound to keep it secure at his peril, and isprimd facie liable to an action on the case, at the suit of any person attacked or injured by the animal, without any averment of negligence or default in the securing or taking care of it. The gist of the action is the keeping such an animal after knowledge. Quare — Whether, to an action on the case for injury caused as above stated, it would be a defence that the injury was occasioned solely by the wilful- ness of plaintiff, after warning. May v. Burdett, 16 Law J. Rep. (n.s.) a.B.64; 9 Q.B. Rep. 101. Declaration stated that defendant wrongfully and injuriously kept a ferocious dog, well knowing him to be ferocious ; that defendant kept his said dog so negligently that he bit and worried divers sheep of the plaintiff: — Held, that the plea of not guilty put in issue the scienter, which is a material averment in the declaration. Card v. Case, 17 Law J. Rep. (n.s.) C.P. 124; 5 Dowl. & L. P.C. 509 ; 5 Com. B. Rep. 622. ANNEXATION. [See Pkerogative.] ANNUITY. [See Apportionment — Pleading — Replevin — Stamp.] (A) Enrolment op. (o) When necessary. (6) Form and Requisites of Memorial. (B) Rights and Liabilities op Annuitant. (A) Enrolment op. (o) When necessary. [^Marriage v. Marriage, 5 Law J. Dig. 23 ; 1 Com. B. Rep. 761.] A, who was in possession of lands which had been conveyed to such uses as he should appoint, and until appointment to the use Of himself for life, remainder to a trustee for his life, in trust for A and to bar dower, remainder to A*s heirs and as- signs, granted to B an annuity of 240/. charging the lauds therewith. The lands were of greater annual value than the annuity, beyond any other charge thereon: — Held, that this annuity deed was within the exceptions of the statute, 53 Geo. 3. c. 141, and did not require enrolment. Doe d. Butler v. Ken- sington, 15 Law J. Rep. (n.s.) Q.B. 153 ; 8 a.B. Rep. 429. An annuity granted in consideration of a debt existing at the time of the grant does not require any memorial of enrolment. Doe d. Church v. Pon- tifex, 19 Law J. Rep. (n.s.) C.P. 145. It is the duty of the grantee of an annuity to enrol it under 53 Geo. 3. c. 141 ; and he cannot set up the want of enrolment against the grantor, al- though the statute declares that in case of non-enrol- ment the deed shall be void to all intents and pur- poses. Molton V. Camroux, 1 8 Law J. Rep. (n.s.) Exch. 356 i 4 Exch. Rep. 17: — affirming the judg- ment of the Court of Exchequer, 18 Law J. Rep. (n.s.) Exch. 68 ; 2 Exch. Rep. 487. (6) Form and Requisites of Memorial. [Abhott V. Douglas, 5 Law J. Dig. 23 ; 1 Com. B. Rep.,483.] Where, in the memorial required by 55 Geo. 3. c. 141, under column "Consideration, and how paid," the statement was 5,000Z. made up of five several sums of 300?., 200/., 2,000/., 1,500/., and 1,000/., previously lent and advanced by C H to or for the use of J L and E J L, and owing to C H on security of five several bills of exchange, drawn by E J L upon, and accepted by, J L and indorsed by E J L, the said consideration being paid and satis- fied by the cancellation of the said bills and a re- lease, &c. : — Held, a fair statement, and one with as much detail as the nature of the transaction permitted. The statement of a pre-existing debt need not shew how such debt has arisen. Hall v. Lack, 17 Law J. Rep. (n.s.) Exch. 43 ; 1 Exch. Rep. 300. Part of consideration for an annuity was stated in the memorial to be for 1,303/., money lent and advanced in the sums and at the times following ; "the sum of 250/. paid by the cheque of the defen- dants, on and dated the 29th of December 1837, drawn by them on their bankers Messrs. P & S ;" the further sum of 500/. paid by » like cheque, dated the 24th of February 1838, &c.— Held, that the memorial sufficiently stated the time when the different sums were paid. Doe d. Church v. Pon- tifex, 19 Law J. Rep. (n.s.) C.P. 145. In the memorial of an annuity to be enrolled un- der the 53 Geo. 3. c. 141, under the head " Con- sideration, and how paid," it is only necessary to state the amount paid, and whether in cash, notes, &c. And it is not necessary io state " to whom " ANNUITY— APPORTIONMENT. 25 the consideration was paid. Moody v. Hebberd, 17 Law J. Rep. (n.s.) Chanc. 381 j 7 Hare, 182. In consideration of 5001. paid by A to B, B gave a bond to A for 500/., conditioned to be void on payment of an annuity of 601. to A for his life ; and B also deposited with A the title deeds of a real estate belonging to B, with a written memorandum. The bond was enrolled, but not the memorandum. B became bankrupt. A petition by A for a sale of the mortgaged property, and the application of the purchase-money to his claim, was dismissed, with costs. Ex parte Miller, re Suiann, 18 Law J. Rep. (n.s.) Bankr. 9. (B) Rights and Liabilities of Annuitant. By an annuity deed A granted to B, the grantee of the annuity, a right to enter and distrain for the annuity if in arrear for fourteen days after any day of quarterly payment, and if in arrear for twenty- one days, a further power to e'nter and hold posses- sion until all arrears should be paid up. And, by the same deed, for the further and better securing of the payment of the annuity, A with B's consent, and by his direction and appointment, granted and demised the premises to H for a term of years, in trust, to permit A to receive the rents until default in payment of the annuity for thirty days, and upon such default, after demand, out of the rents, or by demising, selling, leasing, qr mortgaging the same or any part thereof, for all or any part of the term, to raise and pay off the arrears, with all expenses ; A still to receive the surplus rents, and upon death of the cestuis que vie, and full satisfaction of the an- nuity, the term to become void save as to any mortgages made by H under the power for answer- ing the purposes of the term. It was further pro- vided in the deed, that as to the premises of which A was in occupation at the time of the grant, they were to be considered as held by him as tenant to H at a rent of 5001., payable on the same day as the annuity : — Held, that upon default in payment of the annuity, ejectment on the demise of B might be supported against A, though no notice to quit had been given, B's right of entry not being defeated by the dutstanding term in H, his trustee. Queere—li H had assigned or mortgaged the term under the powers for that purpose given, whether^'s right of entry would have been defeated. Doe d. Butler v. Kensington, IS Law J. Rep. (n.s.) Q.B. 153; 8 QB. Rep. 429. If an annuity be granted out of land, with power to the grantee and his assigns, in case the annuity be in arrear, to enter and retain possession of the land until payment, and the grantee enter for non- payment of the annuity, and die in possession of the land, the arrears being still unpaid, — Semble, that the executor of the grantee takes such an interest in the land as will entitle him to maintain an eject- ment. Doe d. Sugden v. Weaver, 2 Car. & K. 754. A Judge having made an order, under the 1 & 2 Vict. c. 110. and 3 & 4 Vict. c. 82, charging an annuity, payable out of the suitors fund by order of the Lord Chancellor, under the 46 Geo. 3. c. 128, ■ — the Court of Exchequer considering it doubtful whether the Judge's order might not be enforced, left the question of its validity open, and discharged a rule nisi to set aside the order. Witham v. Lynch, 17 Law J. Rep. (n.s.) Exch. 13 1 1 Exoh. Rep. 391. Digest, 1845—1850. To induce the Court to set aside a warrant of attorney given to secure an annuity, on the ground of an improper returning or retaining of part of the consideration-money, the fact of such returning or retaining must be unequivocally sworn to. At the time of executing an annuity deed, the grantor, an attorney, received the full amount of the consideration-money, 170/., and immediately paid thereout 81. 6s. Sd, for the costs of preparing the securities and enrolling the memorial, and 201. to the grantee's agent, in satisfaction of a liability to him (the agent) upon a bill of exchange drawn by the grantor upon and accepted by his father, and which was within a week of maturity : — Held, that this was not such « transaction as would warrant the Court in setting aside the security eleven years after the date of the grant. Barber v. Thomas, 7 Com. B. Rep. 612. An annuitant, with power of sale over property on which the annuity was secured, employed A & B as her solicitors to sell the property by auction ; and A & B procured the consent in writing of the grantor to the sale. The purchaser at the auction declining to complete on the ground of defect of title, A. & B. subsequently obtained from the grantor an assignment of the property to a trustee for themselves at the same price that it brought at the auction, but without disclosing to the grantor certain facts, and that they were purchasing for themselves : — Held, that A & B were the agents as well for the grantor as for the annuitant ; and, as such, were under all the disabilities of an agent purchasing for himself; and the Court declared the assignment invalid. Re Btoye's Trust, ex parte Lewis, 19 Law J. Rep. (N.s.) Chanc. 89 j 1 Mac. & G. 488; 2 Hall & Tw. 140. APOTHECARY. [See Surgeon and Apothecaet.] APPEAL. [See Clergy — Inferior Court — Parliament — Privy Council — Rate — Sessions.] APPEARANCE. [See Practice.] APPOINTMENT. [See Power.] APPORTIONMENT. [See Tithe.] The act 4 & 5 Will. 4. c. 22, for the apportion- ment of rents, annuities and other periodical pay- ments, extends to Scotland. Fordyce v. Bridges, I H. L. Cas. 1. Au accumulating fund formed by investing money in bank annuities, was charged with 150/. a E 36 APPORTIONMENT— ARBITRATION. year to A for her life : — Held, that A's executors were entitled to a proportionate part, for the interval between her death and the last day of payment. Carter v. Taggart, 16 Sim. 447. A testator gave freehold, copyhold and leasehold estates to a trustee upon trust to maintain his man- sion-house, and pay various expenses, and for that purpose to expend annually not exceeding 600^, and permit his wife to reside therein, &c., and after some other deductions, to pay five eighth parts of the net rents of his estates unto his wife /or her own use during her life, and the other three-eighths to his daughters. The wife received her portion of the net rents up to Lady-day 1847, and died on the 24th of July 1847. The personal representatives under her will, by a petition in the cause, claimed a proportionate part of the rents from the last pay- ment up to and including the day of her decease: — Held, that the tenant for life was not affected by the payments of the rents, as they were payable to the trustee : that a right of the trustee to pay arose with his receipt : that the right of the wife to receive accrued under the will: that there was nothing to prevent the payments being made at fixed periods; and that the personal representatives were entitled to a proportionate part of the rents up to and including the day of the death of the wife. Knight y. Boughton, 19 Law J. Kep. (n.s.) Chanc. 66; 12 Beav. 312. By a settlement, dated in 1820, trustees were directed to invest a sum of money in their hands in East Indian securities, and to pay the dividends to A for life, and after his death to the persons therein mentioned. The trustees invested this sum in the loan effected by the East India Company in 1822, and afterwards transferred that debt to the loan opened by the company in 1834. The dividends in respect of the last-mentioned loan were payable on the 15th of January and the 15th of June in every year. A died on the 2nd of June 1846: — Held, that the dividend payable on the 15th of June 1846 was not apportionable, and belonged wholly to the persons entitled in remainder. Warden v. Ash- burner, 17 Law J. Rep. (n.s.) Chanc. 440 j 2 De Gex & S. 366. APPROPRIATION. [See Bond — Chukch — Goods sold and de- livered — Money had and beceived— Pay- ment.] APPRENTICE. -{See Mastek and Servant — Poor, Settlement — Slave.] A sum of 99/. 19s. was paid as an apprentice fee, and was stated as the consideration in the indenture. Contemporaneously with the indenture, a written agreement was made between the master and the apprentice's uncle that the latter should pay 1501. more for the board of the apprentice during the term, 501 of which was paid, and notes given for the residue. This was not stated in the indenture : — Held, that the consideration was truly stated, and that the indenture was not void, under the statute 8 Ann. c. 9. Semble — That if parties choose to divide their contracts, so as to lessen the amount of stamps, they may legally do so. Hankim V. Clulterbuck, 2 Car. & K.810. ARBITRATION. [See Friendly AND BenefitSocieties — Lands Clauses Consolidation Act — Pkactice, Irre- gularity — Stamp. ] (A) Submission and Reference. (a) In general. (b) Authority of Attorney to refer. (c) Making the Submission a Rule of Court. (B) Arbitrator. (a) Powers and Duties, \b) Liability. (C) Award. (a) Enlarging Time for making. (6) Certainty and Conclusiveness. (c) Finding on several Issues. (d) Damages. (e) Sending back to Arbitrator. (/) Not Evidence of Account stated. (D) Remedies for enforcing Awards. (a) Rule and Attachment. \b) Action. lAnd Pleadings therein.'] (c) In Equity. (E) Setting aside Awards. (a) Grounds for. (6) Matters nf Practice as to. (F) Costs. (o) In general. (A) Of Arbitrators. (c) Taxation of. (G) Signing, and moving in Arrest op Judgment. (A) Submission and Reference. (a) In general. The 9 & 10 Will. 3. c. 15. is not confined to re- ferences of existing controversies. Parkes v. Smith, 19 Law J. Rep. (n.s.) a.B. 405; 15 Q.B. Rep; 297. On the trial of two indictments^ one for perjury and the other for conspiracy between the same parties, it was arranged by the counsel on each side that verdicts of not guilty should be taken, and an order of Nisi Prius was drawn up by con- sent, whereby the indictments and all matters in difference between the prosecutor and the defendant (including suits in Chancery) were referred to arbitration, the costs of the indictments to be in the discretion of the arbitrator, but no power was given to him to alter the verdict. After various attend- ances before the arbitrator, the defendant revoked the submission, and proceeded with the suits in Chancery. On a rule for an attachment for con- tempt, — Held, that this was not, in effect, a reference of the indictments, which were at an end by the verdict; and also that the reference was not illegal as being made upon a corrupt agreement to stifle the prosecutions. ARBITRATION ; (A) Submission and RErEEENCE. 27 Held also, that the instrument of reference could not be treated as a submission under 9 & 10 AVill. 3. e. 15, so as to make it irrevocable under 3 & 4 "Will. 4. c. 42. s. 39. That, assuming it to be valid as an order of Nisi Prius, the defendant was entitled at comtnon law to revoke the submission, and not being made in an action that power was not taken away by S & 4 Will. 4. e. 42. ». 39. But, qutsre, whether the~ order was valid as it embraced nothing before the Court ' except the costs. Qluare also — ^Where a cause and all matters in dif- ference are referred by order of Nisi Prius, whether as to the matters in difference, the order operates as an agreement of reference under the statute. An indictment for perjury cannot be referred to arbitration. Quare, whether an indictment for conspiracy can 1 Regina v. Hardey, 19 L51W J. Rep. (N.s.) aB. 196. [See Parkes v. Smith, post, (D) (6), as to submis- sion by covenant in a deed. Also Faviell v. Eastern Counties Rail. Co. (E) (a).] (6) Authority of Attorney to refer. An attorney authorized to appear for a party in a suit has incidentally authority to refer it with- out any fresh authority to that effect, and the attorney having appeared for the corporation, to the knowledge of the directors, the corporation were bound by his acts as attorney, though he was not authorized to appear by an authority under seal. Faviell y. Eastern Counties Rail. Co., 17 Law J. Rep. (n.s.) Exch. 297 ; 2 Exch. Rep. 344. An attorney appeared for defendant in an action of assumpsit, and consented to a Judge's order, re- ferring the pause to an arbitrator, who awarded a sum of money in favour of plaintiffs. The order of reference was made a rule of court, and plaintiffs executed a power of attorney, authorizing D to demand the money. After great difficulty in find- ing defendant, who astutely evaded service, a per- sonal demand was made upon him by W. On a rule to shew cause why the defendant should not pay the money according to the award, &c. — Held, that an attorney authorized to appear in a cause has also an implied authority to consent to a re- ference. Held also, that under the special circumstances there was a suiGcient service on the defendant of the demand of the money. Smith v. Troup, 18 Law J. Rep. (n.s.) C.P. 209; 7 Com. B. Rep. 757. , (c) Making the Submission a Rule of Court. An ordsr of Nisi Prius, referring a cause to arbi- tration, may be made a rule of court, without any express reservation of a power so to do. Millington V. Claridge, 3 Com. B. Rep. 609. Where an award is made on a submission by order of reference at Nisi Prius, the order .of referr ence does not belong exclusively to either party, but the party holding it holds it for tlie benefit of both parties, and is bound to produce it in order to its being made a rule of court. Where a submission was by order of reference at Nisi Prius, and the defendants in whose favour the award was made had possession of the order of reference, and although requested by the plaintiff, delayed making it a rule of court till it was too late to move within the time ordinarily limited for setting aside an award, the Court ordered the defendants either to make the order of reference a rule of court, or to file it with one of the Masters,, so as to enable the plaintiff to make it a rule of court, and allowed the plaintiff to move to set the award aside in a subsequent term nunc pro tunc. Bottomley v. Buckley, 4 Dowl. & L. P.C. 157. A, one of the parties to an award, had reason to believe that B, the opposite party, in whose hands the original deed of submission was, was going to make it a rule of court, and B, in point of fact, intended to do so, and was prevented hy accident only. On the last day but one of the term next after the making of the.award, A obtained a rjile nisi to set aside the award, and also a rule nisi for B to file the submission with the Master, in ordei; to its being made a rule of court as of the day on which the motion to set aside the award was made ; and that the rule to set aside the award should be drawn up on reading such rulej and the Court, in the following term, made the rule absolute. In re the Midland Rail. Co. and Heming, 4 Dowl. & L. P.C. 788. An order of reference of a borough court of recor4 expressed to be made by consent of the attornies or the parties, and containing a consent clause for making the order a rule of pne of the superior courts at Westminster, may be made a rule of that superior court under the stat. 9 & 10 Will. 3. c. 15, as an agreement of reference between the parties. Harlow v. Winstanley, 19 Law J. Rep. (N.s.) Q.B. 430; IL. M. &P. 425. A submission to arbitration may be made a rule of court after the award has been made, and not- withstanding the expiration of the time allowed by the 2nd section of 9 & 10 Will. 3. c. 15. to either party to take objections to the award, on the ground of corruption, and undue means. Hem- ing -v. Swinnertan, 16 Law J. Rep. (Ns.) Chanc, 287 ; 5 Hare, 350. [See (D) Reijiedies, (c) In Equity,} (B) .ARBITKATOn. (a) -Powers and Duties. An arbitrator has no power to order judgment non obstante veredicto. Toby v, Lovibond, 17 Law J. Rep. (NS.) C.P. 201 ; 5 Com. B. Rep. 770; 5 Dowl. & L. P.C. 768. Where a cause is referred, the arbitrator to be at liberty, to state any point of law for the opinion of the Court, and he declines to do so, the Court will not interfere with his discretion. Miller v. Shuttle-- M'orM, 7 Com. B. Rep. 105.,, After issue joined, in an ejectment, the matters at issue in an action, together, wjth all claims. In. respect of mesne profits, and all matters in difference between the parties, and of the, costs of thp action, and of the reference, were referred by a Judge's order. The award directed j,udgm?,nt to be, entered for plaintiff in the action, with Is. damages, and that plaintiff should recover, under the same judg- ment, a plot of land (describing it by pietps and! bounds), and that defendant should pay l^J. as mesne profits, and plaintiff's costs in the action, to be taxed by the proper officer, and part of the costs of the reference and award: — Held, first, that 28 ARBITRATION; (B) Arbitrator. the' arbitrator had no authority to direct judgment to be entered up, and final judgment, which had been signed, was set aside ; but that, rejecting all that related to the judgment, the award sufficiently decided the matters referred. Doe d. Body v. Cox, 15 Law J. Rep. (n.s.) Q.B. 317; 4 Dowl. & L. P.C. 75. An arbitrator or umpire has no power to fix his own fee in the award, and to make the taking up of the award conditional upon the payment of the fee, unless the submis.'iion specijicaUy give him that power. Certain matters in diflference between A B and C D, were refeiTed to two arbitrators, with power to appoint an umpire, and, by the terms of the submission, the -costs of the submission and award were to be in the discretion of the arbitrators or umpire, who, by their award, might direct by and to whom the same should be paid, with power also to make the submission a rule of court, (which was done). An umpire was appointed who made an award, and thereby found a certain sum to be due from A B to C D; and he awarded and directed all the costs (specifying the sum) of the submission and award, including therein the costs of taking up the award, to be paid on a specified day by A B. The fees of the arbitrators and umpire were included in the costs. — Semble, that the award was bad ; and that C D, having paid the amount to take up the award, might recover back the amount beyond what was reasonably due, in an action for money had and received. In re Coombs, 4 Exch. Rep. 839. An inclosure act empowered A B (who was not the inclosure commissioner) to declare by an award under his hand, &c., within six months after the passing of the act the annual amount of rent-charge payable to the rector of M, and also provided that in case the said A B should die, neglect or refuse to act, another arbitrator should be nominated with like power by the Bishop of O. Through the delay of the inclosure commissioner under the act in making his award, A B was prevented from making his award, and in fact did not make it within six months. After that period he made an award which was bad on the face of it. The Bishop of O subse- quently appointed another arbitrator under the power contained in the act of Parliament. An action being brought on this award, the declaration alleged that A B neglected to act in the matters submitted to him, and did not make his award within six months, hut neglected so to do, and that the bishop appointed another arbitrator under the act of Parliament. The defendant pleaded that A B made his award, which was acquiesced in by the plaintiff, absque hoc that the said A B neglected, &c. for six months : — Held, under this issue, that A B in permitting six months to expire without making an award, had neglected to make one within the meaning of the act. Wilhvghby v. IVilloughby, 16 Law J. Rep. (n.s.) Q.B. 251 ; 9 Q.B. Rep. 923. [See Scott v. Van Sandau, post, (C) (i); also (E) Setting aside Awards.] (b) Liability, A contracted with a company to execute, for a specified sum, certain works, subject to such omis- sions therefrom and additions thereto as might he directed by H, the engineer of the company. The contract provided that the value of such omissions and additions should be estimated according to a schedule of prices in cases where the same would apply, and where not, by the valuation of H ^ that the certificate of H should be necessary to authorize any payment to A, and that in case of any dispute touching the contract, the award of H should be final. H having given his final 'certificate of the balance due, A filed his bill for an account against the com- pany and H, stating that certain variations directed to be made were respectively of a specified amount, and that H had declined to make any estimate of such works, and charging that the said certificate was a fraudulent contrivance of the company and H for the purpose of enabling the company to avoid paying the amount justly due to the plaintiff. The bill interrogated H as to whether the particular items were not of such an amount respectively as stated. The defendant H, by his answer, denied fraud in general terms, and answered all interro- gatories except those which related to the amount in value of the particular items, which he declined to answer, on the ground that, as arbitrator, he was not bound to disclose the data upon which his award was founded. Upon exceptions, held, affirm- ing the decision of the Court below, that an arbitrator could not, by a general denial of fraud, protect himself from answering those facts which, if omitted, would tend to shew the fraud alleged. The 38th Order uf August 1841 does not enable a defendant, by his answer, to decline answering a question from which he could not, previously to the Order, have protected himself from answering by demurrer. Padley v. Lincoln Waterworks Co., 1 9 Law J. Rep. (n.s.) Chanc. 436 ; 2 Mac. & G. 68 J 2 Hall & Tw. 295. (C) Award, (u) Enlarging Time for making. The Court has power, under 3 & 4 Will. 4. c. 42. s. 39, to enlarge the time for an arbitrator to make . his award, where the arbitrator had power to enlarge the time, but had omitted to exercise it. Leslie v. Richardson, Richardson v. Leslie, 17 Law J. Rep. (n.s.) C.P.324; 6 Com. B. Rep. 378. The 3 & 4 Will. 4. c. 42. s. 39. enables a Judge to enlarge the time for making an award to a period beyond that to which the power of the arbitrator to enlarge is limited by the submission. Parlces v. Smith, 19 Law J. Rep. (n.s.) Q.B. 405 ; IS G.B. Rep. 297. [See Bowen v. Williams, post, (D) (a), where, after order enlarging time for arbitrators to make award, award made by umpire; also Parlces v. Smith, post, (D) (6).] (6) Certainty and Conclusiveness. [Stoneheiver v. Farrer, 5 Law J. Dig. 3 1 ; 6 Q.B. Rep. 730; Grenfield v. Edgecombe or Grenfell v. Edgcome, 5 Law 3. Dig. 32 ; 7 G.B. Rep. 661 ; Hawkyard v. Greenwood or Stocks, 5 Law J. Dig. 33 ; 2 Dowl. & L. P.C. 936.] Before plea, all matters in difference between the parties in a cause were referred to arbitration, costs of the action to abide the event of the award, and costs of the reference and award to be in the discre- tion of the arbitrator. The declaration contained ARBITRATION; (C) Award. 29 two counts in case for false representations. The award, after reciting the order of reference, and not stating " that it was made of and concerning the premises," ordered that the defendant should pay to the plaintiff a sum of 167 J. 6s. 2d., and that the costs of the reference and award and all other costs connected therewith should be paid by defendant : — Held, bad, as it was uncertain whether the payment of i67l. 6s. 2d. was to be made in respect of the action or of other matters in difference. Crosbie v. Holmes, 15 Law J. Hep. (N.s.) Q.B. 125 ; 3 Dowl. & L. P.O. 566. Where the arbitrator was empowered to raise a point of law, and he directed what should he done in case the Court should be of a certain opinion, and a certain sum to be paid at all events, — Held, that the award'was final: also, that after notice of the arbitrator proceeding, and a refusal to attend, denying his authority, tlie arbitrator might proceed in the absence of the defendant. Scott v. Fan Sandau, 6 Q.B. Rep. 237. In an action, in which two issues were raised, each of which went to the whole cause of action, all matters in difference were referred ; the costs of the cause to abide the event. The arbitrators awarded generally that the action should be no further pro- secuted, and that a sum should be paid by defen- dant to plaintiff: — Held, that the award sufficiently ascertained the event, and was final. Hobson v. Stewart, 16 Law J. Rep. (n.s.) Q.B. 145 ; 4 Dowl. &L. P.C. 589. Agreement of reference recited, that a Chancery suit for a dissolution of partnership existed between the parties, and that, in order to put an end to it, they had agreed to refer all matters in dispute arising out of their accounts or otherwise ; and power was given to the arbitrators to assess and apportion the costs of the suit as well as the other costs. The arbitrators found a sum of money to be due from one of the parties to the other, and apportioned the costsx)f the suit and the other costs : — Held, that the award was final, and sufficiently adjudicated on the Chancery suit. In re Marsh, 16 Law J. Rep. (n.s.) Q.B. 330. One of the questions submitted to an arbitrator in an indenture of reference was, whether plaintiff was liable to discharge a sum of money secured by a mortgage executed by him to the testatrix on or about the 29th of September 1818. The arbitrator found that "the plaintiff was not liable to discharge a sum of money secured by mortgage executed by him to the testatrix on the 26th of September 1817, which was by the defendant produced to me as the mortgage in the said indenture mentioned as, and by the plaintiff admitted to be, the mortgage executed by the plaintiff to the said testatrix on or about the 26th of December 1818." The only deed mentioned in the indenture of reference was the mortgage deed. In an action upon the award, — Held, that it suffi- ciently appeared, notwithstanding the errors in the date, that the arbitrator had decided on the liability of plaintiff upon the mortgage deed referred to him. Spooner v. Payne, 16 Law J. Rep. (n.s.) C.P. 225; 4 Com. B. Rep. 328. An action of trespass was brought in the Court of Exchequer by a plaintiff against three defendants, and all matters in difference between the said par- ties were referred by order of Nisi Prius to an arbi- trator, a verdict having been taken for the plaintiff; and by another like order, made at the same time, an action of replevin brought in the Court of Queen's Bench, by the same plaintiff, against one only of the defendants, was also referred to the same arbitrator. The main question agitated on both sides was, whether or not the plaintiff had, in 1842, become tenant to that party who was defendant in both actions. No other tenancy was ever set up, or brought into question before the arbitrator. The reference of the replevin suit was first proceeded in, and the evidence taken in it was, by consent, read over as evidence in the action of trespass. The arbitrator awarded in the action of replevin, that the plaintiff had good cause of action against the defendant; and was entitled to a verdict. In the action of trespass he awarded nothing as to the costs of the action of replevin, or whether at the date of the order of reference of either action a tenancy of the plaintiff to the party, who was defendant in both actions, existed : — Held, that the award was good, these matters, if in difference, not having been brought before the arbitrator at the hear- ings. The arbitrator having the power of a Judge at Nisi Prius, did not award execution, but ordered the damages and costs to be paid at a stated time and place. That part of the award was held void pro tanto, as surplusage. The plaintiff had replevied in the county court, but on the sale by the three defendants of thfe goods replevied, dropped that suit, and brought the action of trespass against them ; — Held, that as the pro- ceeding in the county court was not brought before the arbitrator, his award was good, though he had not awarded on it. Qutsre — "Whether, on a reference of- a cause and "all matters in difference between the said parties," they being A on the one part, and B, C and D on the other, an arbitrator must award on a cause and matter of difference pending between A and B only. Rees V. Waters, 16 Mee. S-W. 263. By order of Nisi Prius a cause and all matters in difference were referred to the award of A B, with power to enter a verdict for either party, the costs to abide the event, and neither party to be at liberty to bring a writ of error. It was contended before the arbitrator that the third and sixth pleas were bad in law, and, though proved in point 6f fact, that plaintiff was entitled on the issues raised on them to judgment non obstante veredicto. The . award directed a verdict to be entered for plaintiff on the second and fifth issues, with Is. damages, " which sum, except for my finding upon the other issues, the plaintiff would be entitled to recover in the said cause." The first, third, fourth and sixth issues were found for defendant: — Held, that the arbitrator had no power to order judgment non obstante veredicto ; and that as regarded the damages the award (as above) was sufficiently final. An award of mutual releases in general terms is sufficient. Toby v. Lovibond, 17 Law J. Rep. (n.s.) C.P. 201 ; 5 Dowl. & L. P.C. 768 ; 5 Com. B. Rep. 770. An attorney appeared for a corporation in an action of debt, and consented to a Judge's order, referring " all claims made in the action" to an arbitrator. The arbitrator having awarded to plain- 30 ARBITRATION; (C) Award. tiiF a sum actually claimed in the action, — Held, that the question, whether that sum was a debt or not was submitted to the arbitrator, and that his decision on the point was final, even if erroneous. Faviell v. Eastern Counties Rail. Co., 17 Law J. Rep. (n.s.) Exch. 297 ; 2 Exch. Kep. 344. Pending a reference, the parties, — by a memo- randum to which the arbitrator was an assenting party,^ — agreed that a particular portion of the account in dispute betv/een them should be settled and adjusted by a third person, whose report was to be adopted by the arbitrator as conclusive evidence : — Held, that this was not an improper delegation of authority by the arbitrator. Sharp v. Nowell, ti Com. B. Rep. 253. Where a cause and all matters in difference were referred to arbitration, costs of reference and award to be in the discretion of the arbitrator, and the award found a specific sum to be due *' in respect of all the matters in difference so referred," &c., — - Held, a sufficiently certain finding, although the declaration contained several indebitatus counts, to all of which the defendanthad pleaded non assumpsit and payment. Held, also, that the recital in the award, that it had been drawn by a person who, under the terms of the submission, attended the aihitrator as an attorney, shewed no improper de- legation of authority; and further that the award containing no order to pay the sum found due by the defendant was no objection to a rule calling upon the defendant to shew cause why payment should not be made. Baker v. Cotterill, 18 Law J. Rep. (n.s.) Q.B. 345; 7 Dowl. & L. P.C. 20. By a rule of reference of a cause and all matters in difference, the arbitrator hadpowej to determine, define and adjust, and for ever set at rest all dis- putes touching all and all manner of rights of water or depths of weir; and was authorized to order to be erected and put up, and for ever there- after to be kept in repair, any erections in or about the weir of defendant, &c. It was also ordered that, in the event of any application being made to the Court on the subject of the award, the Court if it should see fit should have power to send the matters, any or either of them, bact to the arbitra- tor for his reconsideration and determination. The award ordered that defendant was entitled to keep and maintain his weir at the depth of fourteen inches and no more. It proceeded to direct that for the purpose of defining and perpetuating the depth at which defendant might maintain the weir,. " such durable marks and directions be placed on the land adjoining the weir as B may direct," &c. On motion for a rule to pay the amount of costs pur- suant to the award, the Court held that the direction in the award as to the depth of the weir was suffi- ciently certain, but that the award was not final, since the direction that such durable marks should be placed as B should direct, was a delegation to B of the arbitrator's authority, and consequently bad; and that the bad part was not separable, as the consideration for the submission was not only the settling existing differences, hut the for oversetting at rest of all disputes touching the water rights, which latter object wa§ attempted to be effected by the faulty direction. The Court consequently dis- charged the rule, but remitted the award to the arbitrator to reconsider the prospective directions which should be given for the purposes of defining and perpetuating the depth of the weir. Johnson v. Latham, W Law J. Rep. (N.s.) Q.B. 329; 1 L. M. & P. 348. Where a submission to arbitration stipulated that the costs of the submission, of the arbitrator, of the award, "and of making the submission » rule of court," were to be in the discretion of the arbitrator, wlio awarded correctly as to the costs of the submis- sion, &c., but directed that " the costs of making the submission a rule of court shall be borne by such of the parties in difference through whose default in the performance of the award the same shall become necessary," the Court set aside the award as uncer- tain and not final. In re Smith and Wilson, 18 Law J. Rep. (h.s.) Exch. 320; 2 Exch. Rep. 327. Where agreement of reference contained a stipu- lation that the costs of the agreement, of the refer- ence, and of the award should be in the discretion of the arbitrator, and should be defrayed as he should direct, and the arbitrator awarded a sum of money to be paid by defendant to plaintiff, but made no award as to the costs, — Held, that the award was therefore bad. Richardson v. Worsley, 1 9 Law J. Rep. (U.S.) Exch. 317; 5 Exch. Rep. 613. An action by plaintiffs for two bills of costs against defendant, a managing committee-man, was referred tg an arbitrator, to whom were referred the cause and the subject-matter of the cause, and the rights of the parties in relation thereto, as well at law as in equity, to order and determine what he should think fit to be done by either of them re- specting the matters in dispute. The arbitrator awarded that plaintiffs would be entitled to receive from defendant 375Z. and 400/., as soon as they should have discharged the demands of certain local agents of the company, which plaintiffs had undertaken to satisfy; and upon production by plaintiffs to defendant of the vouchers of the local agents, and "vponproqf" that thesaid demands had been discharged, defendant was directed by the award to pay to plaintiffs 3752. and iOOl. : — Held, that the award was final ; that the words " upon proof" might either be rejected as surplusage, or that the arbitrator as to that matter had awarded the very thing that the parties had agreed should be done. Miller v. De Burgh, 19 Law J. Rep. (h.s.) Exch. 127; 4 Exch. Rep. 809; 1 L. M. & P. 177. [See Armitage v. Coates, post, (D) (6).] (c) Finding on several Issues. To a declaration consisting of three indebitatus counts, there were pleas of non-assumpsit, tender, set-off and payment, upon which issues were joined. The cause having been referred at Nisi Prius, the costs of the cause to abide the event of the award, the arbitrator found on the first, third, and last issues for plaintiff, and on the second issue for defendant: — Held, that this was a sufficient finding, and that it was not necessary that there should be distinct findings on the issues raised by the plea of non assumpsit upon each separate count of the declaration. Adam v. Rowe, 15 Law J. Rep. (K s.) Q.B. 223 ; 3 Dowl. Ss L. P.C. 331. An action of trover, with pleas Not guilty and Not possessed as to part, and payment into court as to the residue, was referred to an arbitrator, who adjudged that the verdict should stand, and that ARBITRATION ; (C) Award. 31 the damages should be reduced to 91/.: — Held, that the award was good, the arbitrator having suffi- ciently decided on all the issues. Wilcox v. Wilcox, 19 Law J. Rep. (n.s.) Exch. 27; 4 Exoh. Rep. 500. {d) Damages. By a Judge's order made in a cause of A ». B, it was ordered by consent of the parties and of C (a stranger), that a verdict should be entered for plain- tiff, damages 5W., subject to the award of an arbi- trator, who was to settle all matters in difference between the parties in the action, and also between B and C. The arbitrator awarded that all proceed- ings in the action should cease, &c.; and that the plaintiff had a good cause of action against defen- dant in the said cause, and was entitled to i verdict therein, and assessed the damages at 40s., " to be paid by the defendant to A and C, who had consented to become a party to the said cause.'" An action being brought by A and C ». B on the award, — Held, on demurrer, that the award was good. Hawkins v. Benton, IS Law J. Rep. (n.s.) Ci.B. 139; 8 Q.B. Rep. 479. Quare — Whether upon breach of covenant " to make yearly one fourth part of the arable lands a good fallow, or otherwise pay 201. per acre per annum, for every acre which should be used con- trary to the covenant, over and above the rent re- served by the indenture, to be paid forthwith, or to be recovered by the plaintiff as ascertained or liqui- dated damages," an arbitrator or jury is bound to assess the damages at 201. per acre, or only at the amount of damage actually caused by breach of the covenant? Fuller v. Fenwick, 16 Law J. Rep. (n.s.) C.P. 79; 3 Com. B. Rep. 705. (e) Sending back to Arbitrator. [Nickalls v. Warren, 6 Law J. Dig. 34 j 6 Q.B. Rep. 615.] Where an award is sent back to the arbitrator to be amended, he is not bound to give the parties notice to attend him thereon. Howett v. Clements, Clements v. Howett, 1 Com. B. Rep. 128. By an order of reference the Court had power, on the validity of an award being disputed, to remit the matters referred to the reconsideration of the arbitrator. An award having been made, and con- taining a defect, the attornies agreed verbally that the arbitrator should amend it; subsequently to which the defendant's attorney obtained a Judge's order that the matters referred should be remitted to the arbitrator for his reconsideration. The arbi- trator altered the award without giving notice to either party of his intention to do so, neither party having requested him to hear fresh evidence, and he did not recite the Judge's order : — Held, that the arbitrator was not bound to give notice to the parties, or to recite the Judge's order. Baker v. Hunter, 16 Law J. Rep. (n.s.) Exch. 203 ; 16 Mee. & W. 672 ; 4 Dowl. & L. P.C. 696. The Court will not amend an order of reference drawn up by one of the parties thereto, upon affi- davits by such party that an error was made by him in copjring a document attached by consent to the order of reference. A cause wSs referred by an order of Nisi Prius ; and it was agreed that the balance due to the plaintiff in February 1842 was 700i, and in 1843 400i, and that these suras (among others) should be inserted in a statement of account, and annexed to the order of reference. By consent the order was drawn up by the plaintiff's attorney, whose clerk by mistake inserted in the account annexed to the order 400i. as the balance due to the plaintiff for 1842. The arbitrator acted on the figures laid before him, and the mistake was discovered wheli the award was published. The plaintiff applied to the Court to amend the order, and send back the award to the arbitrator : — Held, that the Inistaki was the mistake of the party, and that the Court would not interfere. Wynn or Winn v. Nicholson, 18 Law J. Rep. (n.s.) C.P. 231 j 7 Com. B. Rep. 819. After an award made in favour of B against W, on a submission to reference between them, which contained a clause empowering the Coiirt to remit the matters to the reconsideration of the arbitrators, W moved to send back the award to the arbitra- tors, on the ground that since the award he had discovered a letter in the handwriting of B, which contained material evidence in his favour. The arbitrators deposed that had such aletter in the hand- writing of B been produced at the referenpe their decision would have been materially affected. B, in answer, swore that the letter was not in his hand- writing, but was an absolute forgery. The Court remitted the case to the arbitrators for them to say if the letter were in B's handwriting, and if they found that it was, then for them to reconsider the matters in difference. Bwrnard or Burnand v. Wainwright, 19 Jjaw J. Rep. (n.s.) Q.B. 423; 1 L.M.&P.455. Where a cause was referred, with all matters in differehce, at Nisi Prius, and the order Of reference empowered the Court of Queen's Bench, in the event of any application being made' on the subject of the award, to refer the matter back to the arbi- trator for further consideration, — Held, that the application to refer back must be inade within the same time as an application to set aside an award. Doe d. Banks v. Holmes, 12 Q.B. Rep. 951. [See Johnson v. Latham, ante, (fc) Certainty and Conclusiveness ; 3\sa FulUr v. Fenwick (E) (o).] (/) Not Evidence of Account stated. An award is not evidence of an account stated between the parties to the submission. Bate's v. Townley, 19 Law J. Rep. (n.s.) Exch. 399 ; 2 Exch. Rep. 152. (D) Remedies for enfohoing Awards. (a) Rule and Attachment. A rule obtained with the view to issue executioji under 1 & 2 Vict, c, 110. s. 18, for paymcfnt of money due under an award find Master's allocatur, which have been personally served, is notwith- standing such service a rule to shew cause only; and the Court refused to make that rule absolute without a personal service of it, there not appearing to be any difficulty in effecting it. Winwood v. Hoult, 15 Law J. Rep. (N.s.) Exch. 10; 14 Mee. & W. 197 ; 3 Dowl. & L. P.C. 85. In an action in which several, issues were raised all matters in difference were referred to two arbi- trators and an umpire, the costs of the cause to 32 ARBITRATION ; (D) Remedies tor enforcing Awards. abide the result. The umpire awarded that all further proceedings in the cause should thenceforth cease, and be no farther prosecuted, and that plain- tiff should pay to defendant 12s. OJrf., being the amount which the umpire found to be due to him. A demand of 211. 16s. 2d., being the costs of the cause, had been made upon plaintiff, and payment refused, but no demand had been made of the sum of 12s. O^d. A rule having been obtained calling on the plain- tiff to shew cause why he should not pay to the defendant both those sums, the Court, under the circumstances, refused to make the rule absolute for payment even of the one sum that had been demanded. Tattersall v. Parkinson, 17 Law J. Rep. (n.s.) Exch. 208 i 2 Exch. Rep. 342. A submission of reference, after referring the amount of damages caused by certain trespasses, provided that the costs and the charges of the agreement, and the costs, charges,' and expenses of, and attending or incident to the arbitration, includ- ing the payment to be made to the referees and their umpire, and for any proofs that might be required by them, should be borne and paid by J S, and should be awarded accordingly. The award found the amount of damages, and then found a further sum to be due for costs, but did not distinguish the amount due to the referees, and awarded the sum so found due for costs to be paid to one J 0, who was only mentioned in the attesta- tion clause of the award as clerk to the attornies of the successful party: — Held, that a rule might be granted to compel the payment of the sum awarded for damages, for that if the award of the costs were in any degree defective, it was separable from the rest of the award. Held, also, that a mis-recital in the award of the date of the enlargement was immaterial. In re Lloyd, In re Addison, 18 Law J. Rep. (n.s.) G.B. 151. Where an award does not ascertain the exact amount of money to be paid, the Court will neither grant a rule for an attachment, nor a rule; under the 1 & 2 Vict. i;. 110. s. 18, calling upon the other party to shew cause why he should not pay the money since ascertained (by the applicant) to be due under the award. Graham v. D'Arey, 18 Law J. Rep. (n.s.) C.P. 61 ; 6 Com. B. Rep. 537. In order to obtain a rule for payment of money due under an award under the 1 & 2 Vict. c. 110. s. 18j it is necessary to shew that a copy of the award was served on the party sought to be charged, and the original shewn to him at the same time, in order that he may be enabled to see that the copy is a true one. Lloyd v. Harris, 18 Law J. Rep. (n s.) C.P. 316 ; 8 Com. B. Rep. 63. Where on a rule nisi ordering the defendant to pay a sum of money due under an award, a ques- tion was raised as to the validity of the award, on the ground of its having been executed by the arbitrators at different times and not in the presence of each other, the Court refused to decide that question on such amotion, and discharged the rule. Where a cause has been referred by a Judge's order, semtle that a party shewing cause against a rule to pay the sum awarded is confined to objec- tions apparent upon the submission and the award, and cannot bring the pleadings before the Court on affidavit for the purpose of objecting to the suffi- ciency of the award. Wright v. Graham, 18 Law J. Rep. (n.s.) Exch. 29 ; 3 Exch. Rep. 131. A party attached for contempt in not performing an award, and sentenced to imprisonment for a definite period, is not, by undergoing such impri- sonment, exonerated from the performance of the award. And, semble, that an action upon the award may be maintained at the same time. Course of proceeding for enforcing performance of an award by attachment. liegina v. Hemsworth, In re Hemsworth v. Brian, 3 Com. B. Rep. 745. Where, in an agreement to refer an action and all matters in difference, the parties agreed to abide by the award " of and concerning the action, and of and concerning the other matters in difference," — Held, that the arbitrator ought to have made an award concerning the action, and the other matters separately; and the award having been made gene- rally, the Court refused to enforce it by attach- ment. Rule V. Bryde, 16 Law J. Rep. (n.s.) Exch. 256 ; 1 Exch. Rep. 151. A party cannot, on shewing cause against an attachment for non-performance of an award, good on the face of it, use affidavits impeaching the award. Where an award between A and B directed that the costs of the arbitrator should,Jn the first in- stance be paid by A and afterwards reimbursed and paid by B to A, and by the Master's allocatur on taxation, after giving A credit for having paid the arbitrator's costs, a certain sum was specified as the " balance to be paid by B to A," — Held, that it was not sufficient, in order to support an attach- ment against B for non-payment of such sum, to shew a demand of it, as due by virtue of the allo- catur, without also shewing, by affidavit, that A had first paid the arbitrator's costs. Masters v. Butler, 18 Law J. Rep. (n.s.) O.B. 328. Where a cause was submitted to the arbitration of certain arbitrators, and, in the event of their not agreeing, to an umpire, power being given to exa- mine the parties, and the defendant died without having been examined, and the time for making the award was enlarged beyond the period specified in the submission, by an order of a Judge at chambers, in the month of October, by which order the arbi- trators were to make their award, and subsequently the award was made by the umpire ; the Court re- fused to grant a rule nisi to set aside the order, on the ground that the application, being made towards the latter end of Michaelmas term, was too late ; but intimated that they would not enforce the award by attachment Held also, that the term " arM^ra/ors" in the order was satisfied by the award having been made by the umpire. Bowen v. Williams, 3 Exch. Rep. 93. An arbitrator awarded that a party should, on or before the 23rd of March next, execute a certain indenture. No demand of the execution of the indenture was made on or before that day, but was made at subsequent times, when execution was re- fused : — Held, that an attachment ought not to be granted. Quare — Whether under the above circumstances an action would lie against the party for his refusal to execute the indenture. Doe d. Williams v. Howell, ARBITRATION ; (D) Remedies pok enfokoing Awards. 33 19 Law J. Rep. (n.s.) Exch. 232; 5 Exch. Rep. 299. [See ante, Smith v. Troup, (A) (i).] (i) Action. \_And Pleadings therein.2 Declaration in debt stated that an action had been brought by plaintiff, as assignee, to recover IjOOOi. due to the insolvent; that all matters in dif- ference in the action and between the parties were referred to arbitration, and thereupon in consider- ation of plaintiff then agreeing to perform the award on his behalf, defendant agreed to perform the award on his behalf; that the arbitrator awarded that plaintiff was entitled to recover from defendant the sum of S721. 3s., and stated, that, in finding that sum to be due to plaintiff, he had allowed for all and singular the sums which were ever paid to the insolvent before he became such insolvent. Declaration then averred that defendant bad not paid the sums awarded : — Held, on special demurrer, first, that the declaration being in debt on an award, was rendered bad by the introduction of mutual promises; secondly, that the plaintiff was not bound to aver that the reference was made with the con- sent of the major part in value of the creditors ; thirdly, that the award was not bad in omitting to set out the dates and amounts of the sums paid by the defendant to the insblvent. Sutcliffe v. Brooke, 15 Law J. Rep. (n.s.) Exch. 118; 14 Mee. & W. 855; 3 Dowl. & L. P.O. 302. To a declaration in debt on an award, the defen- dant pleaded a special plea shewing that the arbi- trator had not awarded on all the issues in the cause referred to him : — Held, that the plea of "no award" means no valid award, and, therefore, that the above plea was bad on special demurrer, as being an argumentative denial of the validity of the award. Dresser v. Stansfield, 15 Law J. Rep. (n.s.)- Exch. 274; 14Mee. &W. 822. To a declaration stating that the defendant cove- nanted that he or A would pay the plaintiff 6,800i. by certain instalments, with interest thereon at il. per cent, with a proviso that in a certain event there should be deducted from the five last instal- ments sums not exceeding 4,8001, and that in that event the plaintiff should repay to the de- fendant and A all interest which should have been paid in respect of the sum deducted, and that in default of payment of any of the instalments the whole should be recoverable, and averring that de- fault had been made, and that no sum was deduct- able under the proviso, the defendant set out the deed on oyer, which contained a mutual covenant between the plaintiff, defendant, and A, that if any disputes or differences should arise touching the sums which should be deductable under the pro- viso, it should be and was thereby referred to an arbitrator, and that the said parties should abide by his award, so as it should be made on or before a certain day, with power to him to enlarge the time to a period not exceeding the 1st of July 1847, and that the present submission should be made a rule of court; and the defendant then pleaded as to the five last instalments and interest thereon, that cer- tain differences had arisen between the parties to the deed touching the sums deductable from the five last instalments, and that the plaintiff, defendant, and A, did, in pursuance of the covenants in the Digest, 1845—1850. indenture contained, submit to, refer, and did then refer the said differences to the said arbitrator, and the same were then referred to him to deter- mine what sum (if any) not exceeding 4,800i. should be deducted by the defendant and A, or either of them, from the said five last in- stalments ; but the arbitrator duly enlarged the time for making his award until the 30th of June 1847; that before that day a Judge's order was made further enlarging the time until the 1st of December 1847, and that before that day the arbi- trator awarded that the whole of the 4,800i., being the total amount of the five last instalments, should be deducted from the said five last instalments; and that the defendant did therefore claim to deduct and deducted the said sum of 4,800/. from the said five last instalments, whereof the plaintiff had notice. On special demurrer, the plea was held a good plea in bar as to the 4,800^. and interest. Held, also, that the covenant in the deed became a good submission in writing within the 9 & 10 Will. 3. c. 15, as soon as the controversy arose, and that the Judge had power to enlarge the time under 3 & 4 Will. 4. c. 42. Parkes v. Smith, 19 Law J. Rep. (N.S.) Q.B. 405; 15 Q.B. Rep. 297. A count in assumpsit for non-performance of an award, stated the pending of an action be- tween the plaintiff and the defendant, wherein the plaintiff claimed damages from the defendant for work and labour, materials, and goods sold and de- livered, a reference by Judge's order to an arbi- trator, the award to be made on or before the 16th of April next ensuing, with liberty to the arbitrator to enlarge the time, but not beyond the 1st of May ; the costs of the cause .to abide the event The de- claration then alleged mutual promises to perform the award so to be made and published, and stated two enlargements, by Judge's order and consent, made respectively on the 18th of April and on the 19th of May, until the 29th of May ; and an award made on that day, whereby the arbitrator ordered and determined that there was due from defendant to plaintiff, after balancing the accounts between them, and giving' credit for all sums paid by defendant to plaintiff, and every item of set-off, the sum of 2201. 8s. the clear balance, and ordered payment thereof, and also of the costs of the 'reference and award. It then stated the amount of the costs of the cause and award, and averred non-payment by defendant : — Held, first, that even if it had appeared that there were pleas of payment and set-off in the action, the award was final; secondly, that the pro- mise was well laid, the enlargement of the award not affecting the original promise. Held, also, that a plea commencing by an admis- sion that the arbitrator made an award, purporting to be under and by virtue of the said orders, of refer- ence, and then setting out facts to shew that the award was not final, was bad, as ambunting to rail tiel agard. Held, also, that a plea that the arbitrator did not make an award before the 16th of April, the time of making the award under the order of reference, or any enlarged time according to the said order of reference, nor before the 1st of May, nor until the 29th of May, was bad for argumentativeness. Armi- tage V. Coates, 19 Law J. Rep. (n.s.) Exch. 95; 4 Exch. Rep. 641. 34 ARBITRATION ; (D) Remedies eor enforcino Awards. A declaration stated that matters in dispute were referred to A and B " and to such third person as should be chosen and agreed upon by the said A and B, and appointed by writing under their hands, to he indorsed on the agreement of submission before proceeding on the said reference, to arbitrate, &c. jointly with them of and concerning the matters in difference, so as the said arbitrators, or any two of them, should make their award on or before a certain day, and that the costs of the reference and award, including a reasonable compensation to the said arbitrators for their trouble, should be in the dis- cretion of the said arbitrators." The declaration then averred that A and B, before proceeding with the reference, chose and agreed upon, and by writing under their hands nominated and appointed C to be third arbitrator together with them ; that the three said arbitrators made their award, and found a cer- tain sum to be due from the defendant to the plain- tiff, and further that the plaintiff and defendant should pay a moiety each of the costs of the refer- ence and award, including the compensation to the arbitrators. Breach, non-payment of the sum so found to be due : — Held, that the declaration was bad on general demurrer, for not shewing that a third arbitrator was properly appointed. Bates v. Townley, 19 Law J. Kep. (n.s.) Exch. 396j 1 Exch. Rep. 572. [And see Doe d. IVilliams t. Howell, ante, (a) Rule and Attachment.'] (e) In Equity. Parties to a suit agreed under an order of court to submit all matters in difference to arbitration, under which an award was made. Upon a motion to enforce it, an objection was taken that the Court had no jurisdiction, unless the award was made an order of court : — Held, that the Court had jurisdic- tion to sustain such application, though the award had not been made an order of court. Wood v: Taunton, 18 Law J. Rep. (n.s.) Chanc. 207; 11 Beav. 449. (E) Setting aside Awakds. (o) Grornidn for. [Dohson V. Groves and Regina v. Dobson, 5 Law J. Dig. 36; 6 Q.B. Rep. 637. In re Pleuis, 5 Law J. Dig. 36; 6 Q.B. Rep. 845.] An award made by a Punchayet, settling a dis- puted boundary to land forming an island, claimed by the inhabitants on the respective banks of the river, under circumstances, set aside, as having been made contrary to the provisions of Bombay Regulation VII. of 1827. The decision of the Sub-Collector, appointed by the Government to settle the boundary, annulling the award of the Punchayet, and assigning a boundary, confirmed on appeal. Semble — This Court will not encourage a mere objection of form, that does not affect the substantial merits of the case. The MoJcuddtms of Kunhunwady V. the Enamdar Brahmins of Soorpal, 3 Moore, In. App. 383. The parties to an order of reference mutually agreed to strike out the usual clause giving the arbitrator power to examine the parties. At the hearing the plaintiff's attorney tendered the plain- tiff as a witness, and he was examined by the arbitrator. The defendant's counsel objected to the admission of the plaintiff, but as the arbitrator decided against him, he proceeded to cross-examine the plaintiff, and went into his case. On a motion to set aside the award for irregularity, — Held, that the examining of the plaintiff under thos? circum- stances, was a good ground for setting aside the award; and that the objection was not waived by the defendant going on with the arbitration. Semble— It the defendant had tendered himself as a witness to support his own case, that would have been a waiver. Smith v. Sparrow, 16 Law J. Rep. (n.s.) as. 139 ; 4 Dowl. & L. P.C. 604. The submission in a reference was to two arbi- trators, and a third, to be named by them ; and the parties treated the third arbitrator so named as an umpire throughout the whole proceedings: — Held, that the non-attendance of the third arbitrator at the meetings, and the want of notice to him, formed no ground for setting aside the award. The parties had submitted their accounts to the arbitrators, and a report had been made, and a meeting was fixed to close the accounts. At that meeting, one of the parties tendered in evidence fresh documents which he had discovered relating to the accounts, and the arbitrators, after looking at them, declined to go into them : — Held, that this was not misconduct affecting the validity of the award, but a rejection of evidence within the arbi- trator's authority. In re Marsh, 16 Law J. Rep. (n.s.) Q.B. 330. Where an award is good upon the face of it, the Court will not set it aside, nor send it back to the arbitrator, upon affidavits shewing that the arbi- trator has wrongly decided a point of law. Fuller V. FenvAck, 16 Law J. Rep. (n.s.) C.P. 79; 3 Com. B. Rep. 705. Plaintiff agreed with the defendants, by deed, to execute a portion of a railway for them- at certain prices stipulated therein; and defendants covenanted to give plaintiff possession of certain land for the above purpose, within a specified time. Plaintiff having brought an action oi debt against defendants to recover a sum of money for extra work, rendered necessary, as he alleged, by the defendants' omis- sion to give him possession of the land within the specified time, an order of reference was made for referring to arbitration "the claims made in the action." It was objected, before the arbitrator, that plaintiff could not, in the present form of action, recover in respect of the extra work, his remedy being by an action for damages for a breach of covenant. The arbitrator received the evidence, and awarded a sum to the plaintiff in respect of the extra work : — Held, that as the arbitrator had not been guilty of misconduct, and had acted within his jurisdiction, his mistakeln point of law was no ground for setting aside the award. The Court refused a rule for setting aside the order of reference, on the objection that the order, being made by defendants, who were a corporation, was not under seal, and that their attorney, who entered into it, had not been appointed under seal. Faviellv. Eastern Counties Rail. Co., 17 Law J. Rep. (n.s.) Exch. 223 ; 2 Exch. Rep. 344. The parties to a written submission to reference agreed by parol, that notes of the evidence should be taken in writing by a clerk and signed by the ARBITRATION ; (E) SEMiwa aside Awaeds. 35 arbitrators, and that in case of their disagreeing the umpire should be at liberty to make his award on the notes so taken, without examining the witnesses. The notes were so taken, and the arbitrators dis- agreed. The umpire having refused to examine any witnesses, though requi*ed to do so by one of the parties, and having made his award on reading the notes, the Court refused to set aside the award. /« re Firth, 19 Law J. Rep. (n.s.) Q B. 169; 1 L. M. & P. 63. M built a ship for G and others, and also pur- chased stores for the vessel on his own credit. On reference of all matters in difference between M and G, G took upon himself the payment of the bills, and requested the umpire to fix the liability in respect of them upon him. The umpire directed G to pay to M the balance which he found due to the latter after giving G credit for the amount of the bills J. he then awarded that G should be solely liable in respect of the bills, and should execute a bond to indemnify M against them; and then ordered that after G had paid the balance and the bills the parties should execute mutual releases of all claims and demands whatsoever, and that the form of the releases should be settled by P in ease of dispute. ^The Court refused to set aside the award, holding that the umpire had authority to order G to be liable for and to pay the bills, and to execute the bond of indemnity ; and that although the delega- tion to P of authority to settle the releases was void, it did not afiect the validity of the award, even if it vitiated the whole of the direction as to the giving releases. Goddard v. Mansfield, 19 Law J. Rep. (N.S.) aB. 305 ; 1 L. M. & P. 25. An action of assumpsit in which the pleas were non assumpsit, and payment by persons unknown, was referred by an order of Nisi Prius, which ordered, &c., " the defendant, by his counsel, ad- mitting his liability to the plaintiff in respect of the several matters alleged in the declaration, that a- verdict be entered for the plaintiff, damages' 20,000/,, costs iOs,, but that such verdict shall be subject to the award of the arbitrator named.. At the first meeting defendant's counsel objected to proceeding without amending the order, alleging it to be doubtful whether as worded it enabled the arbitrator to find, on the second issue, for his client. Plaintiflf's counsel contended, that it was sufficient for that purpose ; and the arbitrator expressed the same opinion, and said that he had power to direct a verdict for defendant on that issue; and the reference then proceeded. The award directed a verdict for plaintiff on the first issue, and for defen- dant on the second. No motion was made to set aside the award within the time limited by law. But after the postea had been 'drawn up pursuant to the award, and judgment had been signed by defendant, plaintiff applied to set aside the postea, judgment and subsequent proceedings, on the ground that the arbitrator had exceed edhisautho- rityin directing a verdict on the secondissuefor defen- dant : — The Court refused the rule, on the ground that to grant it would be indirectly to set aside the award which plaintiff by his. own laches had pre- cluded himself from calling on the Court to do directly; and also on the ground, that as plaintiff's counsel at the reference had concurred in. the view that the arbitrator had power over the verdict, and thereby prevented defendant from applying to have the order of reference amended, plaintiff could not now be allowed to take the objection to the exercise of the power by the arbitrator. Gravatt v. Attwood, 19 Law J. Rep. (n.s.) a.B. 471; 1 L.M. & P. 392. An arbitrator has a general discretion as to the mode of conducting the inquiry before him. The Court refused to set aside an award, on the ground that the arbitrator had declined to permit a stranger to be present for the purpose of assisting the defendant's attorney with practical hints for the conduct of the defence. Tillam v. Copp, 5 Com. B, Rep. 211. It is no ground for granting a rule, calling upon a plaintiffto shew cause why an award made in l>is favour should not be set aside, that the arbitrator allowed the plaintiff's counsel to call the plaintiff to prove his own case ; that, after the case had been closed on both sides, he obtained information from each party in the absence of the other; and that after the hearing, and before making his award, he dined with one of the parties and his witnesses. Crossley V. Clay, 5 Com. B. Rep. 581. In assumpsit for goods sold and delivered, money lent, &c., the defendants pleaded non assumpsit and the Statute of Limitations. The cause and all matters in difference were afterwards referred, upon the terms, amongst others, that " the action should be decided according to the pleadings, but that under the reference, so far as it related to matters in difference, the plea of the Statute of Limitations was not to be set up by either party." The arbitrator directed a verdict to be entered for plaintiff for a sum excluding items that were barred by the statute ; and he allowed'those items as matters in difference. The Court refused to dis- turb the award. Slowman v, Wiggins, 6 Com. B. Rep. 276. The Court refused to set aside an award on the ground that the witnesses had been examined with- out being, sworn ; it appearing that the party object- ing had called witnesses in support of his case, and examined them also not upon oath. Allen v. Francis, ■ 4 Dowl. & L. P.C. 607, n. An order nisi to set aside an award may be ob- tained upon an ex parte application. An umpire may under some circumstances join in an inquiry with the arbitrator before the time for his acting has arrived. The surveyor of a railway company who had in that character treated with a landowner and offered a price for land required by the company, ought not to be selected by the company as an arbitrator under the Lands Clauses Consolidation Act, 1815, but the landowner knowing the fact and proceeding with the arbitration (though under protest) was held to have waived the objection. A surveyor to and shareholder in a railway com- pany closely connected with and holding shares in another railway company was in an arbitration be- tween the latter company and a landowner appointed umpire by the arbitrators, and as such made his award : — Held, that whatever objections there might be, in point of delicacy, to the appoint- ment of such an umpire, they furnished no ground for setting aside the award. In re Elliot^ and the South Devon Rail. Co., 2 De Gex & S. 17. 36 ARBITRATION ; (E) Sbttikg aside Awards. Upon a cause coining on for trial at Nisi Prius, a reference was ordered to an arbitrator, — Semhle, that the Court of Chancery could not interfere with the award, upon the ground of mistake on the part of the arbitrator ; and that it was immaterial, for this purpose, whether there was the verdict of a jury or the decision of a referee. Chuck v. Cremer, 17 Law J. Bep. (N.s.) Chanc. 287; 2 Ph. 477. A court of equity set aside an award on the face of which a sum appeared to be improperly dis- allowed, though it was offered to be allowed by the party against whom the application was made. Skipuiorth v. Skipworth, 9 Beav. 135. A and B referred a matter in dispute between them to the arbitration of C. A meeting took place on the 22nd of June for the purpose of carrying out the business of the award, at which A was present a part of the time. On the 23rd, B had an inter- view alone with C on the business of the award, without the personal knowledge or assent of A. C made his award. Bill by A to set aside the award on the ground of the meeting on the 23rd : — Held, that under the circumstances, A must be taken to have acquiesced in the interview on the 23rd, and sustained the award. Whether the award could have been maintained in the absence of the implied acquiescence of A, — quare. Hamilton v. Bankin, 19 Law J. Kep. (n.s.) Chanc. 307. Where owners of land required by a railway company appointed an arbitrator under the Lands Clauses Consolidation Act, but refused to produce the appointment for the purpose of enabling the registrar to draw up an order obtained by the com- pany making the submission a rule of court, the Court refused a motion by the company that the order should be drawn up or that the landowner should produce the appointment. But it after- wards appearing on the affidavits and by a recital in the appointment of the umpire that the arbi- trator had been duly appointed, the Court ordered the submission to be made a rule of court. A railway company and landowners appointed arbitrators, who appointed an umpire. The arbi- trators and umpire met on November 4, and ad- journed to the following day. On that day the company's arbitrator did not attend. The other arbitrator and umpire proceeded in his absence not- withstanding the protest of the company's solicitor, and examined a witness. The company's ;solicitor left the meeting without examining his witnesses. No meeting was held after the Sth, nor had the company any notice to attend on any subsequent day. On the 22nd the landowner's solicitor told the umpire that the arbitrators had not made an award and required him to do so, which he did on the 29th without any evidence on the part of the company having been given : — Held, , 1. That it must be presumed that the umpire had acted on the evidence given on the 5th, and it would not be inferred that the company had no evidence to adduce. 2. That the umpire ought to have given the company an opportunity of prodncing evidence or of addressing him, and that he was bound to take up the proceedings de novo, or from the 4th, and that the award was consequently bad, and should be set aside. The skill or competency of the umpire to decide from personal observation held immaterial. In re Hawky and the North Staffordshire Rail. Co., 2 De Gex & S. 33. (J) Matters of Practice as to. [Hawkyard v. Greenwood or Stocks, 5 Law J. Dig. 37 ; 2 Dowl. & L. P.C. 936.] Where by Judge's order a cause only was re- ferred to arbitration, a motion to set aside the award made after the 4th day of the term following the publication of the award, was held to be too late, and the Court refused to allow affidavits to be filed accounting for the delay. Riccard v. King- don, 15 Law J. Rep. (n.s.) O.B. 269 ; 3 Dowl. & L. P.C. 773. By order of Nisi Prius a verdict was taken for the plaintiff, subject to the award of an arbitrator, to whom all matters in difference in the cause were referred, and who was to state on the face of his award such points of law as either of the parties might require. The arbitrator, on the I3th of November, made his award, and directed that, unless the Court should otherwise order, the ver- dict for the plaintiff should stand on all the issues, but that the damages should be reduced ; and pro- ceeded to direct, that, in certain events, and with reference to certain points of law, stated in his award, the verdict should be entered for plaintiff on the first, and for defendants on the second and third issues. The parties had notice of the award on the 16th of November : — Held, that the defen- dants could not, in Hilary term, move to enter a verdict on the points stated by the arbitrator, but should have moved within four days after notice of the award. Paxton v. Great North of England Rail. Co., 15 Law J. Rep. (n.s.) Q.B. 270; 8 Q.B. Rep. 938 ; 3 Dowl. & L. P.C. 773, n. It is no excuse for not applying within theproper time to set aside an award, that the party had been prevented from obtaining a knowledge of its con- tents by the arbitrator's improperly demanding an extortionate sum for his fees. Moore v. Darley, 1 Com. B. Rep. 445. In a cause which had been referred to arbitration ,by an order of Nisi Prius, the arbitrator made an award in favour of the defendant, who thereupon signed judgment. The plaintiff obtained a rule to set aside the award, notice of which was served upon the defendant The defendant afterwards, and before the argument of the plaintiff's rule, obtained a Judge's order to stay all further proceedings until the plaintiff should have given security for costs : — ■ Held, that the Court could not entertain the appli- cation for setting aside the award whilst this order remained in force. Rodham v. Rodham, 1 Exch. Rep. 824. Semhle — That a motion to set aside a judgment signed on an award for defects apparent on the face of it, may be made after the time has elapsed for setting aside the award itself. Wilcox v. Wilcox, 19 Law J. Rep. (n.s.) Exch. 27; 4 Exch. Rep. 500. On a motion to set aside an award, the Court will not look at the notes of the arbitrator. Doe d. Haxby v. Preston, 3 Dowl. & L. P.C. 768. The Court will not set aside an award on motion unless they are clear that it is bad. And where a cause was referred by Judge's order left ARBITRATION ; (F) Costs. 37 before trial, which gave no express power to direct a verdict to be entered, and the arbitrator awarded that a verdict should be entered for the plaintiff with damages and costs, the Court refused a rnle to shew cause why the award should not be set aside. A rule afterwards obtained to enforce, the award by attachment, was discharged, with costs. Cocli V. Gent, 15 Law J. Rep. (n.s.) Exch. 33 ; 13 Mee. &W. 364; 14Mee. &W. 680! 8 Dowl.&L. P.C. 271. Where an award was made on the 18th of Sep- tember, and a rule nisi to set it aside obtained on the 24th of November, and it appeared that the submission was not, by virtue of the consent clause which it contained, made a rule of court till the 30tb of November, the Court refused to order the rule of court to be dated as of the 24th, and to enlarge the rule nisi under it to be drawn up on reading the rule of court so dated. Ross v. Ross, 16 Law J. Rep. (n.s.) Q.B. 138; s.c. InreRoss, 4 Dowl. & L. P.C. 648. The Court of Chancery is a court of record within the provisions of the stat. 9 & 10 Will. 3. c. IS. for enforcing awards ; and where, by an agree- ment of reference, the submission may be made an order of the Court of Chancery by either of the parties, the original jurisdiction of the Court to interfere with the award is taken away by the stat. 9 & 10 Will. 3. c. 15, whether the submission has or has not been actually made an order of the Com't ; and the award can only be impeached in the manner pointed out by the statute. Heming v. Swinnerlon, 16 Law J. Rep. (n.s.) Chanc. 90 ; 2 Ph. 79. [See In re Elliot, and In re Hawley, ante, (a) Grounds far.^ (F) Costs. (a) In general. An action on the case for diverting a watercourse was, after issues joined on pleas of not guilty, and denying plaintiff's right to and user of the water, referred by a Judge's order to arbitration, by which the costs of the suit were to abide the event of the award, but no power was given to the arbitrator to certify under 3 Se 4 Vict. c. 24. s. 2. The arbi- trator found all the issues for the plaintiff, and assessed the damages on the first issue at 6^. The plaintiff was held to be entitled to fall costs. Grif- fiths -7. Thomas, 15 Law J. Rep. (n.s.) Q.B. 336 ; 4 Dowl. & L. P.C. 109. A special jury cause not having come on for trial at the Middlesex Sittings after Trinity term, the parties agreed that it should he tried in London, that the venue should be changed to London, that a special jury should be summoned there, and that all costs of and occasioned by the arrangement should be costs in the cause and abide the event. The cause, having come on for trial in London, was referred to an arbitrator, who made his awajrd in favour of defendant. He also certified for the costs of the special jury, but not until three months after the publication of his award, and after the expira- tion of his authority under the order of reference : — Held, that the defendant was entitled, not under the arbitrator's certificate, but under the agreement, to the costs of the London special jury. Geeves v. Gorton, 15 Law J. Rep, (n.s.) Exch. 169 ; 15 Mee. & W. 186 ; 3 Dowl. & L. P.C. 481. Where a party claiming compensation under a railway act, agrees to refer his claim to arbitration instead of taking the verdict of a jury under the provisions of the act, and the deed of reference and the award are silent about costs, the party is not entitled, on account of an award in his favour, to receive costs according to the provisions of the act, as if the jury had given a verdict in his favour. Ex parte Reynal, 16 Law J. Rep. (n.s.) Q.B. 304. By articles of agreement- between the plaintiff and the defendant, certain differences between them were referred to arbitration, the costs of the refer- ence and award to be in the discretion of the arbi- trator. The award found a sum due from the defendant to the plaintiff, and directed that the costs of the reference and award, including com- pensation to the arbitrator, should be borne, one moiety thereof by plaintiff, and the other moiety by defendant. The plaintiff took up the award, and paid the whole costs: — Held, that he could not recover a moiety thereof as money paid to the defendant's use. Bates v. Townley, 19 Law J. Rep. (n.s.) Exch. 399; 2 Exch. Rep. 152. An action on an apprentice deed was referred to arbitration by order of Nisi Prius, together with two other actions, in one of which the infant ap- prentice sued by his next friend, the costs of the cause to abide the event, and the costs of the refer- ence and award to be in the discretion of the arbi- trator. The arbitrator awarded that the verdict in the above cause should be entered for the defen- dant, that the two other actions should be no fur- ther prosecuted, and that the infant should pay the costs of the reference and award : — Held, that the award was not bad by reason of its directing an infant to pay costs. Proudfoot v. Boyle or Poile, 3 Dowl. & L. P.C. 524; 15 Mee. & W. 198. (6) 0/ Arbitrators. By a Judge's order, subsequently made a rule of court, a cause and all matters in difference were referred to O, C, and W, or any two of them. C and W duly made their award, and employed G, an attorney, who was not the attorney in the cause, to prepare the samej The award directed, that defendant should pay to plaintiff 5001., with all costs of the cause and of the award. G refused to d0liver the award to plaintiff's attorney, except upon payment of 452.: viz. \6l. 16s. each for the expenses of C and W, and 111. Ss. for his own charges. This sum was paid under protest. Upon taxation of the costs between plaintiff and defendant, which was not attended by C, W, G, or by attorney of defendant in the cause, the Master allowed to G and W 101. 10s. each, and to G 51. 5s. On the following day, at the request of G, he increased the sum allowed to him to 61. 6s. Upon motion to compel C, W and G to refund to plaintiff so much of the fees paid them as exceeded the sums allowed by the Master, — Held, that the- Court had no general authority to make such order; and as neither the arbitrators, nor G, their attorney, had conferred on the Court any special jurisdiction in the case, the Court refused to interfere. Dossett v. Gingell, 10 Law J. Rep. (n.s.) C.P. 183 ; 3 So. N.R. 179. 38 ARBITRATION— ARREST. By order of reference the costs of the award were to be in the discretion of the arbitrator. The award ordered " that the costs of the award shall be paid by the defendant, which said costs I do assess at 39/. 17s. id." Part of this amount was for the arbitrator's remuneration and part was the sum charged by an attorney who had been employed by the arbitrator (a layman) in examining the wit- nesses and in framing an award, which was very special. The defendant had not applied to have the costs of the award taxed, and they had not been taxed. On a motion for an attachment to compel payment, the defendant objected that an arbitrator was not entitled to assess his own costs, that no attachment could issue until the costs had been taxed, and that the arbitrator was not justified in charging the expenses of the attorney : — The Court granted the attachment, holding that an arbitra- tor may, in the first instance, name the amount of his costs in the award ; that his charges are not, as a matter of course, open to taxation, and that if the party affected objects to them he must, at all events, proceed with diligence to procure their taxation ; and that as the arbitrator was a layman it was almost of necessity that an attorney should be employed, and that as no objection to his being employed was made on the part of defendant during the reference, the latter must be taken to have assented to so reasonable a course. Threlfall V. Fanshawe, 19 Law J. Rep. (n.s.) Q.B. 334' ; 1 L. M. & P. 340. (c) Ta,xation of. Where an arbitrator finds the amount of the costs of an award, it is not necessary that they should be taxed by the Master previously to the Court order- ing them to be paid. Dixie v. Alexandre, 1 L. M. & P. 338. (G) Signing, and moving in Arrest of Judgment. Where a verdict is taken at Nisi Prius by con- sent, subject to the certificate of an arbitrator, and the certificate is given in vacation after more than four days from the return day of the distringas juratores, the certificate has relation back to the date of the verdict, and the successful party is entitled to sign judgment immediately, without waiting untU the first four days of the next term have expired. Cromer v. Churt or Cremer v. Chucl;, 15 Law J. Rep. (n.s.) Exch. 263; 15 Mee. & W. 310 J 3 Dowl. & L. P.C. 672. Where a cause was referred by order of Nisi Prius, which directed that neither party should bring or prosecute any action or suit in any court of law or equity against the arbitrator or against each other, and an award was made, — Held, that plaintiff could not move in arrest of judgment. Britt V. PasMeij, 16 Law J. Rep. (n.s.) Exch. 240; 1 Exch. Rep. 64; 5 Dowl. & L. P.C. 97. (A) In general. « (a) On Sunday. (b) Without Warrant. (B) Affidavit and Order under 1 & 2 Vict. c. 110. (C) Privilege from Arrest. (a) Servants of the Crown. (b) Members of Parliament. (c) Barristers, i^d) Party to Suit attending Registrar's Office. (D) Protection from Arrest by Statute. ARREST. [See Attorney, Privileges— Banioiuptct — Costs — ^Execution — Insolvent — Malicious and Vexatious Arrests — Practice, Process — Company, Bye-laws — Sheriff.] (A) In general. (a) On Sunday. Where a prisoner has been arrested on a Sunday, a subsequent detainer by another party, without collusion, is not vitiated by the illegality of the original arrest. In re Ramsden, 15 Lav/ J. Rep. (N.s.)M.C. 113. A party guilty of an indictable offence may be apprehended on a Sunday, whether such oifence involve an actual or only a constructive breach of the peace. Rawlins v. Ellis, 16 Law J. Rep. (n.s.) Exch. 5 ; 16 Mee. & W. 172. (6) Without Warrant. An officer of the city of London police has no authority to arrest a person without a warrant, merely upon suspicion of his having committed a misdemeanour. Bowditch v. Balchin, 19 Law J. Rep. (n.s.) Exch. 337 ; 5 Exch. Rep. 378. . A policeman on duty at a police station is jus- tified in detaining a person brought there in charge and delivered to him by a policeman, although he may have been illegally arrested, as for instance, if he has been arrested without warrant upon suspicion of having been guilty of perjury. Bowditch v. Fosberry, 19 Law J. Rep. (n.s.) Exch. 339. (B) Affidavit and Order under 1 & 2 Vict. c. 110. An affidavit of debt claiming part of an integral sum for interest should shew that it arose from some contract for the payment of interest ; and, therefore an affidavit, stating the debt to be partly "for interest upon and for the forbearance to the said defendant by this deponent, at the said de- fendant's request, of monies due and owing from the said defendant to this deponent," is bad. Neale v. Snoulten, 15 Law J. Rep. (n.s.) C.P. 48 ■ 3 Dowl. & L. P.C. 422; 2 Com. B. Rep. 320. An affidavit to hold to bail is bad, which states that the defendant " before and at the time of the commencement of this action was and still is justly indebted to the deponent in lOOi., for work done, and materials for the same provided, and goods manufactured and made by ^he said deponent for the said defendant, and at his request." Pontifex v. De Maltzoff, 17 Law J. Rep. (n.s.) Exch. 55 ; 1 Exch. Rep. 436. An affidavit to hold to bail stated the defendant to be indebted to the plaintifl^as " indorsee of a bill of exchange," describing it in the ordinary way. The declaration was upon a foreign bill of exchange : ARREST. 39 — Held, no variance. Phillips v. Don, 18 Law J. Rep. (U.S.) a.B. 104 ; 6 Dowl. & L. P.C. 527. An affidavit of debt which states different causes of action, some sufficiently and others insufficiently, is not bad altogether; and the defendant may be held to bail for such cause or causes of action as are sufficiently sworn to in the affidavit. But the causes of action sufficiently stated must be separate, or by necessary inference separable, from the causes of action insufficiently stated in the affi- davit. CunliffeY.Maltass, 18 Law J. Rep. (n.s.)C.P. 233 ; 7 Com. B. Rep. 695 ; 6 Dowl. & L. P.C. 723. An affidavit to hold a defendant to bail stated that he was indebted to plaintiff in 337?. made up of 2672. 16s. debt, and_^69i. 45. costs, recovered against, and paid by plaintiff" in an action brought by the indorsee of a bill of exchange which plaintiff" bad accepted for the accommodation of defendant at his request : — Held, that this was a sufficient statement of a cause of action. Strattom v. Mathews, 18 Law J. Rep. (n.s.) Exch. 5 ; 3 Exch. Rep. 48; 6 Dowl. & L. P.C. 229. Upon appeal against a Judge's order to hold a defendant to bail under 1 & 2 Vict. u. 110. s. 3, affidavits in denial of the plaintiff's cause of action are admissible, but the Court will not interfere unless it be clear that there is no cause of action. Pegler v. Hislop, 17 Law J. Rep. (n.s.) Exch. 53; 1 Exch. Rep. 437 ; 5 Dowl. & L. P.C. 223. (C) Privilege from Arrest. , (o) Servants of the Crown. The Somerset Herald, being one of the Queen's servants in ordinary with fee, bound to attend Her Majesty whenever required, and to be present on great ,state occasions and other ceremonials, is pri- vileged from arrest. Dyer v. Disney, 16 Law J. Rep. (n.s.) Exch. 182; 16 Mee. & W. 312; 4 Dowl. & L. P.C. 698. The ap|iointment of a priest in ordinary to Her Majesty's Chapels Royal continues after the demise of the Crown, and no fresh appointment is necessary; and the fact of a party having performed the duties of such office during the present reign, of liis being in the receipt of the salary affixed thereto, and of his name appearing in the books of the household, are sufficient evidence of his holding the officeito satisfy this Court in discharging him from the custody of the sheriff". Harvey v; Dakins, 18 Law J. Rep. (n.s.) Exch. 156; 3 Exch. Rep. 266; 6 Dowl. & L. P.C. 437. (6) Members of Parliament. Membersof the House of Commons are privileged from arrest on a ca. sa. for forty days before and forty days after the meeting of Parliament ; and the rule is the same in the case of a dissolution as in that of a prorogation of Parliament. Goody v. Duncomie, 17 Law J. Rep. (n.s.) Exch. 76; 1 Exch. Rep. 430 ; 5 Dowl; &. L. P.C. 209. (c) Barristers. A barrister, who had attended the assizes at Chelmsford, where the business had terminated on Friday, was arrested on a capias utlagatum in a civil suit, on the morning of the following Monday, the commission day of Maidstone, before the open- ing of the commission. The arrest took place a few miles from London at the defendant's residence, which was not on the road from Chelmsford to Maidstone. Lord Denman, C.J. and Alderson, B., the Judges on the circuit, ordered the defendant to he discharged as to the capias utlagatum, and all detainers thereon, dnomjmom, 15 Law J. Rep. (N.s.) aB. 268; 2 Car. & K. 197. A barrister of the Oxford circuit had attended court as a barrister at the Abingdon and the Oxford Assizes. The latter assizes concluded on the 25th of July, and the commission day at the next town (Worcester) was the 27th of July. The barrister was taken on a ca. sa. at Oxford on the 26th of July : — Held, that he was entitled to be discharged; as being a barrister on the circuit. Held, also, that a circuit is continuous from its commencement to its termination. Held, also, that the fact that the barrister had no brief at Abingdon or Oxford was immaterial with respect to his discharge. Held j also, that the fact that he was not in the habit of attending the Worcester Assizes, and that he made no affidavit that he intended to do so on the present circuit, was also immaterial to his dis- charge. The Case of the Sheriff of Oxfordshire, 2 Car. & K. 200. (d) Party to Suit attending Registrar's Office. A party to a suit, who is interested in the decree pronounced, is privileged from arrest while attend- ing the registrar's office on passing the minutes of the decree. Newton v. Askew, 18 Law J. Rep. (n.s.) Chanc. 42; 6 Hare, 319. (D) Protection from Arrest bt Siamjte. [See Bankruptcy, Protection from Process.] [Fitzball V. Brooke, 5 Law J. Dig. 40; 6 Q.B. Rep. 873.] The 2 & 3 Vict. c. 41. (Scotch Sequestration Act) empowers the Lord Ordinary to grant to the debtor a warrant of protection or liberationj and, by section 18, it is enacted "that the warrant granting protection or liberation; or a copy thereof, certified by oiie of the bill chamber clerks, shall protect or liberate the debtor' from arrest or imprisonment in Great Britain andlreland and her Majesty's' other dominions, for civil debt contracted previously to the date of sequestration ; but such warrant of protec- tion or liberation shall not be of any eff"ect against the execution of a warrant of arrest or imprison- ment in meditatione fugee," he,-. — Held, thS't a departure from England, for the purpose of return- ing to Scotland, was not a fiiga within this excep- tion, and that the defendant having been arrested by a Judge's order, under 1' & 2 Vict. c. 110. s. 3, made-after such order of protection was granted, was entitled to his discharge. M'Gregor v. Fisken, 17 Law J. Rep. (n.s.) Q.B: 186;' 5 Dowh &iL. P.C. 591. A warrant of protection from arrest, granted by the Lord Ordinary to a bankrupt, under the 13th section of the Scotch Sequestration Act, 2 & 3 Vict. c. 41, is inoperative if the bankrupt is already in custody. In such casethepropercourseistoapply for a warrant of liberation under section 17. of that statute. M'Gregor v. Fiskm, 17 Law J. Rep. (n.s.) 40 ARSON— ASSAULT. Exch. 201 ; 2 Exch. Rep. 226; 5 Dowl. & L. P.C. 722. Where the sum indorsed on the writ of summons in an action of debt is less than 201., the defendant is protected by the 7 & 8 Vict. o. 96. from being taken in execution under a writ of ca. sa. issued after judgment by default, although the debtclaimed in the declaration and stated in the judgment and mandatory part of the writ of ca. sa. exceed 201. A rule nisi in such a case to discharge the defen- dant out of custody, need not appear to have been drawn up upon reading the writ of ca. sa. Walker V. Hewlett, 18 Law J. Rep. (n.s.) a.B. 220 j 6 Dowl. & L. P.C. 732. ARSON. A was indicted on the stat. 1 Vict. o. 89. s. 3. for the capital offence of setting fire to B's dwelling- house, B being therein. A had set fire to an out- house under the same roof as the dwelling-house, and the fire communicated to the dwelling-house and burnt it. At the time that A set fire to the out-hcuse B was in the dwelling-house, but had left before the fire reached the dwelling-house : — Held, that the capital charge could not be sustained, as B was not in the house at the time it was on fire, and that the prisoner could not be convicted of the transportable ofience, under section 3. of that sta- tute, as the indictment did not charge the offence to have been committed with intent to defraud, or in- jure any one. Regina v. Fletcher, 2 Car. & K. 215. ART-UNION. Association for the distribution of works of art by lot legalized if a charter obtained. 9 & 10 Vict. c. 48 ; 24 Law J. Stat. 121. ASSAULT. [See False Imprisonment — Misdemeanoue -Trespass.] (A) What amounts to an Assault. (B) Conviction poe. (o) Upon Indictments for Robbery. (b) Upon Indictments for Manslaughter. (c) Upon Indictments for abusing Children. (A) What amounts to an Assault. Three boys, under fourteen years of age, were indicted for assaulting a girl nine years of age. It was proved that each of the boys had had connexion with her. The jury returned as their verdict that " the prisoners were guilty, the child being an assenting party ; but that from her tender years she did not know what she was about;" — Held, that upon this finding a verdict of acquittal must be entered. Regina v. Read, 18 Law J. Rep. (n.s.) M.C. 88 ; 2 Car. & K. 957 ; 1 Den. C.C. 377. If a surgeon professing to take steps to cure a girl of a complaint has carnal connexion with her, and she is ignorant of the nature of his act, and makes no resistance solely from a bond fide belief that he is, as he represents, treating her medically, with a view to her cure, his conduct in point of law amounts to an assault. Regina v. Case, 19 Law J. Rep. (n.s.) M.C. 174; 1 Den. C.C. 580. A put cantharides into rum and gave it to B to drink. B drank it, not knowing that the cantharides was in the rum, and became ill : — Held, that A was neither indictable for an assault, nor for a misde- meanour at common law. Regina v. Hanson, 2 Car. & K. 912. (B) Conviction fob. (o) Upon Indictment for Robbery. An indictment for robbery charged that A and B together assaulted C and robbed him of his watch. At the trial C did not appear, and there was no evi- dence of the felony; but a witness saw C on the ground on the night in question and several persons round him abusing him, and this witness saw A strike C. The jury convicted A of an assault, but said that they were not satisfied that A had any in- tent to rob" C. The fifteen judges held the convic- tion right, and held that the 11th section of the statute 1 Vict. c. 85, applies wherever the indict- ment charges an assault, and the jury negativing the felony, find guilty of the assault: provided always that the finding be in respect of that very same act ' which the Crown seeks to make felonious ; identity being the question, and not the intention of the pri- soner to commit a felony. Regina v. Birch, 2 Car. & K. 193; 1 Den. C.C. 185. If, on the trial of an indictment for robbery with violence, the robbery be not proved, the prisoner cannot be found guilty of the assault only (under 7 Will. 4. 8s 1 Vict. c. 85. s. 11), unless it appear that such assault was committed in the progress of something which, when completed, would be, and with intent to commit, a felony. Regina v. Green- wood, 2 Car. & K. 339. A, B, & C were indicted for having robbed and beaten D. A knocked D down, and it was imputed that B and C stole his property from his pockets : — Held, that if B and C stole the property, and A did not participate in the robbery, A could not be convicted of an assault, as the assault committed by him was an independent assault, unconnected with the robbery; but that if the jury thought that D was not robbed by any of the prisoners, but had been assaulted by all of them, they might find all guilty of the assault. Regina v. Barnett, 2 Car. 8r K. 594. (J) Upon Indictments for Manslaughter. A prisoner indicted for manslaughter, was proved to have assaulted deceased some time before her death ; but the surgeon who examined deceased after death was of opinion, that her death was owing entirely to natural causes : — Heidi that, in such a case, the jury could not find the prisoner guilty of an assault under 7 Will. 4. & 1 Vict. u. 85. s. 11. Reginav. Connor, 2 Car. & K. 518. (c) Upon Indictments for abusing Children. Semble — That on an indictment for carnally know- ing and abusing a female child under ten years ASSIGNMENT— ASSUMPSIT. 41 which does not charge any assault, the prisoner cannot be convicted of an assault under the 11th section of the stat. 7 Will. 4. & 1 Vict. c. 85. Regina V. Halcroft, 2 Car. & K. 341. [See ante, (A) What amounts to an Assault.] ASSESSED TAXES. [See Eevenue.] ASSIGNMENT. [For the benefit of creditors, see Debtor and Creditoe, Composition Deeds. And see Bank- RiJPTCY — Deed — Fihes and Recoveries — Land- lord AND Tenant — Lease — Mortgage — Par- ties.] (A) Property assignable. (a) Salary. (b) College FelhwsMp. (c) Monies due. (B) Validity of. (C) Notice of Assignment. (A) Property assignable. (a) Salary. An assignment, by a Puisne Judge of the Su- preme Court of Madras, " of the sum equal to the amount of six months' salary," directed by the 6 Geo. 4. c. 85. to he paid to the " legal personal representatives" of such Judge in case he shall die, in and after six months' possession of o£Sce, is a valid assignment, being a vested contingent in- terest in such Judge ; and not being payable during the lifetime of the Judge, is not an assignment of salary, within the 5 & 6 Edw. 6. c. 16, and 46 Geo. 3. c. 126, and, therefore, contrary to public policy. Arbuthnot V. Norton, 5 Moore, P.C.-219 j 3 Moore, In. App. 435. (i) College Fellowship, An assignment by a fellow of King's College, Cambridge, of the profits of his fellowship, by way of mortgage, for securing the repayment of a sum of money advanced to him, and interest thereon, is not contrary to public policy, in respect of the duties incident to the situation or office ; neither is there anything in the nature of the income of the fellowship from which it can be inferred that the emoluments are not assignable in equity. Although the assignment is contrary to the implied intention of the founder of the college, and to the spirit of the statutes regulating the - college, and may be a violation of the duty of the fellow to the college, it is nevertheless not void. In a suit instituted by the assignee against the fellow, the assignor, and the college, the Court di- rected the fines already apportioned to the assignor to be applied in satisfaction of the plaintiff's de- mand, and the necessary accounts to be taken of all sums then or thereafter to be appropriated to the fellow by the College. Feistel v. King's College, Cambridge, 16 Law J. Rep. (n.s.) Chanc. 339 ; 10 Beav. 491. Digest, 1843—1850. (c) Monies due. G and B, engineers, had overdrawn their account with their bankers, but large sums of money were owing to several railway companies for whom P &W acted as solicitors. W, at the request of the en- gineers, wrote to the bank for himself and partner, stating that they would, on receiving the monies due from the railway companies, pay them to the bank, to the credit of the engineers. The manager of the bank wrote to P 8c W, acknowledging the receipt of this letter, as guaranteeing the pay- ment of the monies received by them on account of Messrs. G 8s B ; it also in a postscript stated the •amount of the balance then due, and that on pay- ment thereof this letter would be given up to P & W. Messrs. G 8i B subsequently became bankrupts : — Held, that the transaction did not amount to an agreement for an equitable assignment of the monies due, and that the plaintiff was not entitled to the relief asked. The hill was dismissed, without costs, as against W, and also against P, his partner, though he knew nothing of the facts, but with the costs of serving G 8c B with the subpoena to hear j udgment only, and with costs as against their assignees. Rodick v. Gandell, 19 Law J. Rep. (n.s.) Chanc. 1 13; 12 Beav. 325. (B) Validity op. Quare — Whether an assignment of property by a nun, in pursuance of a vow made on entering the convent, is valid. Fulham v. M'Carthy, 1 H. L. Cas. 703. (C) Notice of Assignment. Under the 9 Geo. 2. c. 5. (Irish Statute), payment by the conusor of a judgment to the conusee, with- out notice of the assignment of the judgment, is payment to the assignee thereof, The registration of the assignment under that statute does not ope- rate as notice to the conusor. The situation of a conusor under this statute resembles that of a mort- gagor, under the (English Statute) 32 Hen. 8. c. 34. Boyle V. Ferrall, 12 CI. & E. 740. ASSIZE. Queen's counsel and others, not of the degree of the coif, enabled to act as Judges of assize. 13 St 14 Vict. c. 25 i 28 Law J. Stat. 33. ASSUMPSIT. [See Contract, Restraint of Trade — Goods SOLD AND DELIVERED — MARRIAGE, Breach of Promise — Money Counts — Parties— Pleading — Reward — Work and Labour.] Consideration to support. (a) In general. (6) Forbearance to sue and Relinquishment of Claim. (c) Future Maintenance of Child. (d) Past Seduction and Cohabitation. (e) Compromise of Assault and Riot. G 42 ASSUMPSIT; CoHSiDEKATioir to support. (o) In general. An agreement having been signed by the plaintiff and A S, the defendant, who was present at the sig- nature, indorsed, at tlie same meeting, upon the agreement the following memorandum : — " I hereby undertake that my daughter A S shall perform all the covenants in the annexed agreement, and hold myself responsible for her": — Held, that the agree- ment and memorandum were all one transaction, and that the latter might be coupled with the former, to shew a sufficient written consideration for the defendant's promise. Coldham v. Showier, 15 Law J. Rep. (n.s.) C.P. 261 ; 3 Com. B. Rep. 312. A declaration stated that the defendant was pos- • sessed of a ship, and the plaintiff was a master mariner, having interest at N, for loading a vessel ; and it having been proposed that the defendant should give the plaintiff the command of the said ship ■for a voyage to the West Indies and back, it was agreed that in consideration of the plaintiff having interest in N for loading a vessel, the defendant would give the plaintiff the command of the said ship, with the understanding that the plaintiff would use all possible exertions for the benefit of the ship and owners ; and that for such services the defen- dant would pay the plaintiff 8/. per month during the command by the plaintiff, and other sums during the voyage, with outward and homeward primage. Allegation of mutual promises. Aver- ment, that the defendant gave the plaintiff the command of the said ship, and that he set out on the voyage, and carried and delivered an outward cargo ; that plaintiff arrived at N, and finding that a homeward cargo could not be obtained without dis- advantage, he proceeded to R, and there took in a homeward cargo, and delivered the same at London, and then resigned the command to the defendant, who accepted the same ; that from the time when the command was given to him till he so resigned it, the plaintiff used all possible exertions for the benefit of the said ship and owners. Breach, non- payment by the defendant of the monies due to the plaintiff. , Plea, that the plaintiff did not use all possible exertions, &c., modo et formi: — Held, on demurrer, that the declaration imported a sufficient consideration ; and that the plaintiff, havipg taken the command of the ship, might maintain the action. Held, also, that the plea traversed only part of the consideration, and was, therefore, insufficient. Mills V. Blackall, 17 Law J. Rep. (n.s.) a.B. 31 ; 1 1 Q.B. Rep. 358. Where a bankrupt before obtaining his certificate promised the plaintiff to repay him, a sum paid on his account with interest,^ — Held, that it was no objection to the promise, that it was made before the granting of the certificate, and that the mere liability to repay was a good consideration. Earle V. Oliver, 2 Exch. Rep. 71. (6) Forbearance to sue and Relinquishment of Claim. In assumpsit, the declaration stated, that the plaintiff having brought an action against the defen- dant, in the Exchequer, for the recovery of a sum of money, and issue being joined in it, in consider- ation that the plaintiff would forbear all proceedings in that action, until the 14th of December, except the taxation of costs, and the obtaining of a Judge's order to sign judgment therein, the defendant pro- mised, on that day, to pay the sum of money and costs. Plea, that the plaintiff never had any cause of action in the action in the Exchequer, wWch he, at the time of its commencement, and at the time of making the promise, well knew : — Held, that, on general demurrer, the plea was good. Qiitsre — Whether, on special demurrer, it would not have been bad for omitting to shew that the defendant was in a situation to have defended the original action, and also as amounting to the general issue. Plea, also, setting forth the Judge's order, which directed that, on payment of the sum and costs on or before the 14th of December, all proceedings should be stayed, and that, in default of payment, the plaintiff should be at liberty to sign judgment, and issue execution for the sum of money and costs, and alleging that the promise to pay was >•, pro- mise deduced from that order, and that the order was afterwards set aside by the Court of Exchequer: Held, on special demurrer, that the plea was bad, as amounting to the general issue. Wade v. Simeon, 15 Law J. Rep. (n.s.) C.P. 114; 3 Dowl. & L. P.C. 587; 2 Com. B. Rep. 548. The declaration stated that the defendant was solicitor to a railway company ; that C G and C S were members of the committee ; that they were indebted to the plaintiffs in l,000i., which the plain- tiffs sought to recover by contributions from the committee ; that the plaintiffs had commenced an action against C G, and intended to commence one against C S for the amount ; that in consideration that the plaintiffs at the request of the defendant, would cease to prosecute .the one action and forbear to commence the other, the defendant promised that if the plaintiffs did not by the 1st of May ensuing realize the amount of their claim by contri- butions from the committee, he would pay them SOI,, in full satisfaction of all the claims of the plaintiffs against C G and C S in connexion with the railway company, &c. : on demurrer, the de- claration was held good, the consideration of for- bearance being sufficient whether there was any well-founded claim or not, and although it was not alleged that the defendant was a member of the company or that the actions related to the affairs of the company. Empson or Tempsmi v. Knowles, 18 Law J. Rep. (n.s.) C.P. 222 ; 7 Com. B. Rep. 651. In an action of assumpsit the declaration stated, that there were accounts between plaintiff and defendant, which were open and unsettled; and that there were disputes concerning such accounts, and mutual claims by each party ; and that it was agreed that they.^ should give up their respective claims upon each other, and thereupon, in con- sideration that plaintiff would relinquish and for- bear to prosecute all claims which he had against defendant, the defendant then promised to pay the plaintiff an annuity of 6J.:^Held,that the declara- tion disclosed a sufficient consideration for the promise. Llewellyn v. Llewellyn, IS Law J. Rep. (n.s.) aB. 4 ; 3 Dowl. & L. P.C. 318. (c) Future Maintenance of Child. The reputed father of an illegitimate child wrote to the mother,—" As I always promised that you ASSUMPSIT— ATTACHMENT. 43 and your child should never want, I will allow you 1007. a year for your life and little Emma's, to be paid quarterly into the bank wherever you live, &c. Of course, if I hear of your behaving ill or bringing up the child improperly, I will stop the allowance to you": — Held, by Wilde, C. J, and Sfaule, J. {dissenfiente Williams, J.,) that the annuity of 1001. was promised in respect of an executory considera- tion, the future bringing up of the child properly, which was sufficient to support an assumpsit ; and that the promisee having executed her part of the contract, the promise to pay was binding on the defendant. Hicks v. Gregory, 19 Law J. Rep. (n.s.) C.P. 81 ; 8 Com. B. Rep. 378. (d) Past Seduction and Cohabitation. The declaration stated that the defendant had seduced, debauched, and cohabitated with the plain- tiiF, and that it was agreed that no further immoral connexion should take place between them, and that the defendant, as a compensation to the plain- tiff, and in consideration of the premises, had agreed to pay her an annuity during her life : — Held, bad on general demurrer. Beaumont v. Reeve, 15 Law J. Rep. (n.s.) Q-B. 141 J 8 aB. Rep. 483. (e) Compromise of Assault and Riot. An agreement, by which, in consideration that the prosecutor of an indictment preferred against certain persons for an assault and riot would not proceed further on the indictment, the defendants promised to pay him a sum of money, is illegal, although the prosecutor forbore to give evidence on the indictment with the knowledge and assent of the Court before which the indictment was pending. In all offences which involve damages to an injured party, and for which he may maintain an action, he may, notwithstanding they are also of a public nature, settle his private damage in any way he may think fit; but a compromise of an assault, coupled with riot, is not legal. Keir v. Leeman, 15 Law J. Rep. (k.s.) O.B. 360 ; 9 QaB. Rep. 371. ATTACHMENT. [Foreign Attachment, see Pleading — Staying Proceedings. — And see Arbitration, Award, Remedies — Attorney and Solicitor — Con- tempt — Costs — Prisoner — Sheriff.] (A) When it lies. (a) For Contempt. (4) On Rule of Court. (c) On Second Application. (B) Service of Rule for. (C) Practice on shewing Cause against. (A) When it lies. [Regina v. Greenaway, Regina v. Caret/, 5 Law J. Dig. 44 ; 7 aB. Rep. 126:] (a) For Contempt. Where a sheriff's officer was, as he alleged, in possession of goods under afufa. out of this court and an officer of the Palace Court levied and took away the goods, under process out of that court, using no violence, this Court refused to grant an attachment against the officer of the Palace Court, there being reason to believe that the posses- sion of the sheriff's officer was a matter in dispute. While V. Chappie, 16 Law J. Rep. (n.s.) C.P. 233; 4 Com. B. Rep. 628. A, the treasurer of a loan society, took securities in his own name ; having ceased to he treasurer, an action was commenced on behalf of the society upon a security so taken, in A's name, and prose- cuted to execution under an indemnity to A, ordered by the Court. A, colluding with the defendant, discharged him from the execution : — The Court granted an attachment for contempt against A. SPGregor v. Barrett', 6 Com. B. Rep. 262. (6) On Rule of Court. Attachment will not lie on a rule of court, unless for disobedience of some express direction. An order was made hy consent, in an action of ejectment, " that the proceedings be stayed, the defendant to pay his own costs of a former ejectment, and the lessor of the plaintiff to pay 5Z., towards the defendant's costs, and to grant a lease of the premises for twenty-one years, at the rent of Is: a year on the same conditions as other parts of the estates of the lessor of the plaintiff in the parish were held." The defendant having declined' to accept a lease and execute a counterpart, the Court refused to grant an attachment against him. Doe d. the Earl of Cardigan v. Byuiater, 7 Com. B. Rep. 794. (c) On Second Application. Where a party having applied for an attachment for non-payment of costs, which was refused on the ground of the improper service of a power of attor- ney, but leave being given to apply again, renewed the application after making a proper -service of the power of attorney, and a fresh dentdnd of costs, which the plaintiff refused to pay; — Held, that the application might be made, the second demand and refusal being a fresh contempt, and amounting to new matter. Dixon v. Oliphant, 15 Law J. Rep. (n.s.) Exch. 106 J 15 Mee. & W. 152 ; 3 Dowl. &L. P.C.485. The rule of practice, that^ an application is not to be renewed which has already been refused under the same circumstances and with the same object, is a rule adopted for preventfng vexation and a waste of the public time, but is not to be considered as aprivilege of a party who is clearly in the wrong; and where the rule for an attachment for non-pay- ment of money awarded was discharged, on the ground that the affidavits did not shew the- per- formance of a condition precedent, the Court madfe a subsequent rule absolute, on affidavits shewing such performance and a demand made since the discharge of the former rule. Masters v. Butler, 18 Law J. Rep. (n.s.) Q.B. 328; s. c. Inre Butler, 13 Q.B. Rep. 341. (B) Service of Rule for. It is not in every case, and under all- circum'- stances, an inflexible rule, that the Court will not make a rule for an attachment absolute without personal service. Ani; semble, where there is no 44 ASSUMPSIT— ATTORNEY AND SOLICITOR. other remedy, and it is manifest the party is pur- posely evading personal service, the Court will mate the rule absolute. In re Wlmlleii, 15 Law J. Rep. (n.s.) Exch. 4; 14 Mee. & W. 731; 3 DowL & L. P.C. 291. (C) PRACTICE ON SHEWING CaUSE AGAINST. The practice that when cause is to he shewn in a different term from that in which the rule nisi has been obtained, office copies of the affidavits on which the rule was moved must be taken by the party intending to shew cause before he can be heard, applies equally to motions for an attachment as to other motions. A rule for an attachment having been obtained on the part of a woman, who described herself in her affidavit as a widow, against her attorney, for not paying her a sum of money, the Court set aside the rulfe on its being shewn that she was a married woman (her second marriage having taken place subsequently to her employment of the attorney), since, although the concealment of her second mar- riage was not made with any fraudulent intention, she had deceived the Court, made a false affidavit, and was no longer in a condition to give a legal discharge for the money. Regina v. Carttar, 19 Law J. Rep. (n.s.) a.B. 422 j 1 L. M. & P. 274, 386. Held, that the attainder was a bar. The Earldom ofSouthesk, 2 H.L. Cas. 908. ATTAINDER. On a claim to a Scotch peerage, there being no patent or charter of creation or enrolment thereof discovered, a copy of an enrolment of a commission under the great seal and King's sign manual, dated in February 1605, directing the commissioners to create James Lord Drummond Earl of Perth, was received and held, in conjunc- tion with subsequent entries in the Parliament records, to be sufficient proof of the creation of the earldom. In the absence of the instrument of creation of a Scotch peerage, the limitations are taken from usage to be to the grantee and his heirs male general. On the death of a peer, leaving his eldest son and heir, who had been attainted, the peerage does not vest in him, nor, on his death, in the nearest heir male, but is forfeited, as much as if he had been a peer at the time of the attainder. A peerage limited to a man and his heirs male is one entire estate, and no substitution of heirs takes place. A peerage limited to a man and his heirs male whomsoever, is forfeitable under the act of 26 Hen. 8. c. 13. Attested copies of French regis- ters of marriages, births and deaths, held to be admissible evidence, upon the testimony of a French advocate that such registers were kept according to French law, and would be received in evidence in the French courts. The Earldom of Perth, 2 H.L. Cas. 865. Scotch peerages, created by patents in I6I6 and 1633 respectively, and limited to the grantee and his heirs male, descended through the line of his eldest son, and became in 1699 vested in the fifth baron and earl, who was attainted of high treason in 1715, and died in 1739, without leaving issue. His collateral heir, descended from a younger sou of the first peer, claimed the dignities in 1848: — ATTORNEY AND SOLICITOR. [See Contract, Construction — Evidence, Pri- vileged Communications — Sheriff, Duties and Liabilities, Escape — ^Work and Labour.] (A) Articles of Clerkship. (a) Return of Premium. (b) j^ffidavit of Execution of. (B) Admission. (C) Certificate. (D) Amendmeni; of the Roll [Change of Name]. (E) Rights, Powers and Privileges. (a) In general, (6) jirrest. (c) Suing and being sued in the Superior Courts. (d) Venue. (e) Plea of Privilege. (F) Duties and Liabilities. (o) In general. (b) On their Undertakings. (c) Attachment. {d) Summary Jurisdiction. (1) By Courts of Laui. (2) By Courts of Equity. (e) Striking off the Roll for Misconduct. (/) Negligence. (G) Retainer. (H) Appointment and Change of Attorney. ( I ) Dealings with Client. (K) Bill of Costs. (a) Delivery of. (b) Heading and Contents of. (c) Taxxition of. (\) In general, (2) What Bills are taxable. (3) Order of Course for, under 6^7 Vict. u. 73. s. 37. (4) Upon Terms. (5) Upon special Circumstances after Verdict, Writ of Inquiry or Expi- ration of a Year, under 6*7 Vict. V. 73. s. 37. (6) Upon special Circumstances after Payment,under6& 7 Vict. u. 73. s. 41. (7) Entering up Judgment, under 6 Sf7 Vict. C.7S.S. 43. (8) Notice of Taxation. (9) Appeal from Judge's Order for Taxa- tion. (10) Costs of Taxation. (d) Remedies for. (1) Against whom, (2) By Action, (3) By Execution, under 1*2 Vict, c, 110.4. 18. (L) Lien for Costs. ATTORNEY AND SOLICITOR. 45 (A) Articles op Clerkship. [/n re Bateman, 5 Law J. Dig. 46 ; 6 Q.B. Rep. 853.] (a) Return of Premium. The Court refused to order an attorney to repay any portion of a premium of 200 guineas received by him with an articled clerk, who died within a month after he was articled. In re Thompson, I Exch. Rep. 864. The plaintiff was articled to an attorney for five years at 200i. The attorney died three years before the term had expired, and the plaintiff filed a bill against his representatives for a return of a propor- tionate part of the premium : — Held, that a debt had been established, and the plaintiff had a right to proceed against the assets of the deceased attor- ney ; the Master to inquire what part of the pre- mium ought to be returned. Hirst v. Tolson, 18 Law J. Rep. (n.s.) Chanc. 308; 16 Sim. 620; affirmed, 19 Law J. Rep. (n.s.) Chanc. 441 j 2 Mac. & G. 134 ; 2 Hall & Tw. 359. (b) ^j^davit of Execution of. An articled clerk "from inadvertence only" neg- lected to file the necessary afBdavit within six months : — Held, not a suiEcient groundfor relieving him from the consequences under 6 & 7 Vict. c. 73. s. 9. In re Benson, 10 Beav. 435. (B) Admission. An indictment will lie against a person who acts as an attorney, without being admitted and inrolled pursuant to 6 & 7 Vict. c. 73. s. 2, although by section 35. disabilities and penalties are imposed on persons so acting. Jtegina v. Buchanan, 15 Law J. Rep. (n.s.) Q.B. 22^7 ; 8 Q.B. Rep. 883. Where notice of an intention to apply for admis- sion as an attorney in Hilary term had been given before Michaelmas term, the Court, under special circumstances, ordered that the clerk should be examined and admitted in Michaelmas term. Ex parte Cunliffe,'ii Law J. Rep. (n.s.) Q.B. 41 ; 3 Dowl. & L. P.C. 348. An attorney who has paid the stamp duty of 60t on being articled, in order to being admitted in the court of a county palatine, must, under 9 Geo. 4. c. 49. s. 4. pay the further stamp duty of 120i. on being admitted in any of the courts at Westminster. And though he has been admitted on payment of an additional GOl., by mistake of the ofiicers of the court or the Stamp Office, and without any fraud 01 mala fides onlais'part, the Court will make an order for striking him off the roll, unless he consents to pay the additional duty of 6QI. In re Myers, 15 Law J. Rep. (n.s.) Q.B. 209 ; 8 Q.B. Rep. 515. Though an attorney has paid the duty of 60?. on his articles of clerkship in Wales, and the duty of 251. on admission as an attorney of the Court of Great Sessions, he cannot be admitted an attorney of the superior courts of Westminster, under stat. II Geo. 4. & 1 Will. 4. c. 70. s. 17, without paying an additional sum of 60/. to make up the full amount of duty payable in England in order to admission as an attorney of such superior courts. In re Humphreys, 19 Law J. Rep. (n.s.) Q.B. 65. The Court allowed an attorney to be enrolled in this court by the name of Thomas James, dropping his surname of Moses, it being sworn that he was under no apprehension of any proceedings being taken against him in that surname. In re James, 19 Law J. Rep. (n.s.) Exch. 272 ; 5 Exch. Rep. 310. ■ The Lord Mayor's Court is an inferior court, within the meaning of the 6 & 7 Vict. u. 73. s. 27, notwithstanding its peculiar customs and jurisdic- tion. Every attorney duly qualified is entitled to be admitted an attorney therein, although there is not and never has been a roll of the attornies of that court — affirmed on error (see below). Mandamus, to admit A B an attorney of the court, alleging it to be an inferior court. , The return, without traversing this allegation in terms, set out at length the peculiar customs and jurisdic- tion of the Court, in order to shew that it was not within the operation of the 27th section of the 6 & 7 Vict. c. 73 : — Held, on special demurrer, that the return was not bad in form, as an argumenta- tive traverse of the allegation in the writ. Regina V. the Mayor, S[c. of London (In re jishurst), 16 Ijaw J. Rep. (n.s.) Q.B. 185 ; 13 Q.B. Rep. 1. Attornies of the superior courts are entitled, by virtue of the statute 6 8c 7 Vict. u. 73. s. 27, to be admitted to inferior courts of law. Where, there- fore, a writ of mandamus directing the presiding officers of the lord mayor's court to admit A B, described it as an " inferior court," without stating it to be a court of law or equity, — rHeld, on error, that such writ was bad, and that the defect was not cured by such court being described in the return to the writ as a court of law. The Mayor, Sfc. of London v. Regina (Jn re Ashurst), 17 Law J. Rep. (n.s.) Q.B. 330; 13 Q.B. Rep. 30. (C) Ceetificatk. The 26 th section of 6 & 7 Vict. c. 73. disables an attorney, who is uncertificated, only from suing for fees, rewards, and disbursements for any busi- ness, matter, or thing done by liim as an attorney or solicitor, in some suit or proceeding in one of tjie courts mentioned in the act, and not for business done which had no reference to such suits or pro- ceedings. Richards v. Suffield, 17 Law J. Rep. (n.s.) Exch. 362 J 2 Exch. Rep. 616 : s.P. Greene V. Reece, 8 Com. B. Rep. 88. An attorney's bill of costs having been referred to taxation, certain items were objected to before the Master, on the ground that the attorney at the time those items were incurred, was uncertificated ; and the Master accordingly disallowed them : — Held, that the Master acted rightly in disallowing the items, and that it was no ground for reviewing the taxation. In reAngell, 6 Dowl. & L. P.C. 144. An attorney in October 1848 took out a certificate for the year ending the 15th of November 1848. The certificate, by mistake of the clerk at the Stamp Oflfice, stated that it was to be in force until the ISth of November 1849, instead of 1848. The attorney paid duty in respect of the year ending in Novem- ber 1848, but paid none for the year 1849 : — Held, that the attorney was not entitled in August 1849 to tax his costs in respect of business done in that year. In re Duke of Brunswick, 19 Law J. Rep. (n.s.) Exch. 112; 4 Exch. Rep. 492. 46 ATTORNEY AND SOLICITOR. The Court will, in urgent cases, dispense with the Reg. Gen. Easter term, 9 Vict which regulates the taking out a certificate as an attorney where more than a year has elapsed from the admission : provided it appear that there has been no neglect in the party applying to give as long notices as were in his power, and that the notices so given aSForded a reasonable time for inquiry into his con- duct, &c., since his admission. Ex parte Webb, 4Dowl. &L. P.C. 641. "Where little more than a twelvemonth had elapsed since the admission of an attorney, the Court under special circumstances allowed him to take out a certificate, without giving the notices required by Reg. Gen. Easter term, 9 Vict. Ex parte Weymouth, 5 Dowl. & L. P.C. 60. The Court refused to allow an attorney to take out his certificate, where it appeared that he had been found guilty on an indictment for a conspiracy to procure a fiat, and had been sentenced to, and had undergone, eighteen months' imprisonment ; although the motion was unopposed, and the fact appeared only on his own affidavit, and he swore he was not guilty of the oSeuce, and it had occurred eighteen years ago, since which time he had been engaged as law clerk in the offices of several attornies. Ex parte Grey, 5 Dowl. & L. P.C. 275. Where an attorney had omitted to take out a cer- tificate for upwards of ten years, and had given the notices required in order to take it out at the end of the term, pursuant to Reg. Gen. Easter term, 9 Vict the Court refused, although special grounds were stated for the application, to allow him, on the first day of the term, to take out his certificate forthwith. Ex parte Barnes, 5 Dowl. & L. P.C. 294. (D) Amendment of the Roll [Change of Name]. An attorney who, without royal licence, or any formal authority for the change, has assumed an- other name from that on the roll, for a specified reason, may have, the roll altered to the assumed name, if it appear to the Court that such name has been taken bond fide and without fraudulent inten- tion. Exparte Daggett, 1 L. M. & P. 1. If an attorney changes his name and wishes to be described by his new name on the roll of attor- nies, the Court, if satisfied respecting the circum- stances of the application, will allow an entry of the change of name to be made on the attornies' roll. Ex parte Moses or James, 19 Law 3, Rep. (n.s.) a.B. 345 i 1 L. M. & P. 4. [See In re James, (B) Admission.] (E) Rights, Powers and Peivileges. (a) In general. The Court will in general set aside a release, executed after action by a plaintiff suing in formd pauperis, which woulrf deprive the attorney ap- pointed by the Court of his costs. Wright v. Bur- roughs, 15 Law J. Rep. (n.s.) C.P. 277; 4 Dowl. & L. P.C. 226; 3 Com. B. Rep. 344. Where a release has been executed by a pauper plaintiff after action brought, and without the know- ledge and consent of the attorney, it is matter en- tirely within the discretion of the Court, whether under the circumstances of the case they will set it aside. Where such a release had been executed in pur- suance of a bond fide arrangement between plaintiflT and defendant the Court refused to set it aside, although its effect was to deprive plaintiif of his costs. Janes v. Bonner, 17 Law J. Rep. (N.S.) Exch. 343 ; 2 Exch. Rep. 230. The attorney in an action has authority to order the sheriff to withdraw from possession under a fi.fa. A return to a writ of testatum fi. fa. stated an order from ELL, the attorney of the plaintiff, to withdraw from possession : — Held, that this could only mean the attorney in the action. Levy or Levi v.Jbbott,19 Law J. Rep. (n.s.) Exch. 62; 4 Exch. Rep. 588. A town agent of a solicitor in the country cannot, on an authority given to the solicitor for a particular purpose, take proceedings on behalf of the client not specially authorized. Malins v. Greenway, 17 Law J. Rep. (n.s.) Chanc. 26; 10 Beav. 584; affirmed 17 Law J. Rep. (n.s.) Chanc. 331. (6) Arrest. An attorney who had been properly admitted in the superior courts, was arrested while attending in his professional capacity in the county court: — Held, that he was entitled to his discharge, upon afSdavits shewing the above facts, and in the ab- sence of any counter statement that he was not entitled to practise in the county court Clutter- buck V. Hulls, 15 Law J. Rep. (n.s.) a.B. 310; 4 Dowl. & L. P.C. 80. (c) Suing and being sued in the Superior Courts. A creditor who sues in a superior court for a debt for which he might have sued in the county court cannot be considered as within the jurisdiction of the county court And the words of sect. 67. of Stat. 9 & 10 Vict. c. 95. being, that privilege shall not exempt " from the jurisdiction" of the county court, and not " from the provisions of the act," — Held, that an attorney is not deprived of his privilege of suing in the superior court for a cause of action under 201. Lewis v. Hance, 17 Law J. Rep. (N.S.) Q.B. 172; 5 Dowl. & L. P.C. 641 ; 11 aB. Rep. 921. An attorney may sue in the superior courts for a debt recoverable in the county court, and his right to costs in respect thereof is not affected by the 67th and 129th sections of 9 & 10 Vict. c. 95. Jones v. Brown, 17 Law J. Rep. (n s.) Exch. 163 ; 5 DowL & L. P.C. 716 ; 2 Exch. Rep. 329. Under the 49th section of the London SmallDebts Act (10 & 11 Vict. c. Ixxi.), the privilege of at- tornies to be sued as defendants in their own court is abolished. Jefferies or Jeffreys v. Beart, 17 Law J. Rep. (N.s.) Q.B. 290 ; 5 Dowl. & L. P.C. 646. [See 12 & 13 Vict c. 101. =. 18, abolishing all privilege of attornies in the county courts.] {d) Venue. In order to entitle an attorney, suing in person, to retain the venue in Middlesex, it is not necessary that he should state in the declaration that he sues as an attorney. Ciiits v. Surridge, 16 Law J. Rep. (N.s.) Q.B. 2 ; 4 Dowl. & L. P.C. 373. ATTORNEY AND SOLICITOR. 47 (e) Plea of Privilege. Where, to plea of privilege by an attorney alleg- ing that defendant was an attorney of the Court of Queen's Bench and not of the Court of Exchequer, plaintiff replied that defendant was an attorney of the Court of Exchequer, and concluded to tlie country,— Held, on special demurrer, that the re- plication was bad for not concluding with a verifi- cation by the record. Graham v. Ingleby, 17 Law J. Rep. (n.s.) Exch. 313 ; 2 Exch. Rep. 442. To a plea of privilege by an attorney as an attor- ney of the Queen's Bench, plaintiff replied, averring that defendant was an attorney of the Court of Ex- chequer, and after the prayer of judgment by in- spection of the record added an entry of continuance by Curia advisari vull, and a day for judgment was given for plaintiff: — Held, that no rejoinder was necessary; and judgment was given for the plaintiflT upon its appearing by the roll that defendant was an attorney of the Court of Exchequer. South Staffordshire Rail. Co. v. Smith, 19 Law J. Rep. (N.s.) Exch. 356 ; 5 Exch. Rep. 472. (F) Duties and Liabilities. (o) In general. Plea iu trespass for false imprisonment, stating the bankruptcy of T and B, and that after a sum- mons under 5 & 6 Vict. c. 122. disobeyed, a warrant was obtained by the defendant from the commis- sioner, to arrest and bring the plaintiff before hira as a person suspected of having part of the bank- rupt's estate in his possession, and capable of giving information, &c., which was duly executed by the messenger, the defendant taking no part in the caption : — Held, that the issuing the warrant was the judicial act of the commissioner, and although turning out to be invalid for defect of tendering expenses, the defendant, the attorney suing out the warrant, was not liable in trespass. Held, also, that the term suspected referred to the parties apply- ing and not to the commissioner. Cooper v. Har- ding, 7 Q-B. Rep. 928. An attorney indorsed a writ of fi. fa, in a case of G o. D : " The defendant resides at W and is an innkeeper." D (the defendant in that suit) resided at W, and conducted the business of A, who was his mojher-in-law, and kept an inn there, and the goods on the premises were 'her property. The sheriff having seized A's goods, at the inn, under the fi. fa., — Held, that there was evidence to go to the jury, that the attorney directed the sheriff to seize the goods, and to make him liable in trespass. Howies V. Senior, 15 Law J. Rep. (N.s.) ft.B. 231; 8 Q.B. Rep. 677. Where at the trial before an under-sheriff an attorney opened the case as an advocate for the plaintiff, cross-examined defendat's witnesses, and addressed the jury in reply, and then tendered him- self, and was admitted as a witness to disprove the defendant's ease, a verdict so obtained for plaintiff was set aside. Stones v. Byron, 16 Law J. Rep. (n.s.) Q.B. 32 ; 4 Dowl. & L. P.C. 393. The attorney of the execution plaintiff is not liable to the sheriff for the fees due on the execution of a writ of ca. sa. Mayhery v. Mansfield, 16 Law J. Rep. (n.s.) Q.B. 102 ; 9 a.B. Rep. 754. An attorney, although he need not be instructed by a plaintiff personally, but may receive instruc- tions from any one interested in the action, is liable to defendant for costs if it turns out that plaintiff is a non-existing person. Hoskins v. Phillips, 16 Law J. Rep. (n.s.) Q.B. 339. An attorney is bound to be at his office by himself or clerk till 9 o'clock in the evening. Grant v. Mackenzie, 16 Law J. Rep. (n.s.) Exch. 255 ; 1 Exch. Rep. 12; 5 Dowl. & L. P.C. 129. A declaration alleging that the defendant, an attorney, wrongfully, and without the consent or retainer of the plaintiff, entered an appearance for him in an action brought by D (a third party) against the plaintiff, and took upon himself to con- duct the action, and such proceedings were there- upon had that D recovered judgment, and issued execution, and the plaintiff was obliged to pay the amount recovered and the costs of the execution, and "by reason of the premises" was injured in his credit and character,— Held ill, after verdict, as not shewing any damage resulting from any act of defendant. Westaway v. Frost, 17 Law J. Rep. (n.s.) Q.B. 286. Where a sheriffs bailiff is eipployedby an attorney to issue a writ of execution against a defendant, the attorney and not the client is liable to the bailiff for his fees. * Maili v. Mann, 17 Law J. Rep. (n.s.) Exch. 336 ; 2 Exch. Rep. 608 ; 6 Dowl. & L. P.C. 42. In an action by a sheriff's officer against the attorney of the plaintiff, for levy add caption fees, evidence of usage that " the sheriff's officer always looks to the attorney arid not to the plaintiff in the action," cannot be admitted. Qutere — Whether a sheriff's officer can maintain an action for levy and caption fees against the attorney of the plaintiff, unless specially employed by him. Seal v. Hudson, 4 Dowl. & L. P.C. 760. An attorney, to whom administration had been granted on behalf of the relict of a deceased, being cited at the instance of the relict residing abroad to exhibit an inventory and account, appeared under protest, alleging that the Court had not jurisdiction to require an account between a principal and agent : — Held, that the attorney was bound to comply with the citation, Bailey v. Bristowe, 2 Robert. 145. (i) On their Undertakings. Where an attorney, for the purpose of settling an action, in which he had not been professionally employed, prepared a promissory note to be signed by defendant, and also himself signed an under- taking to pay the amount due on the note in case of default being made by defendant, the Court, on a summary application, compelled him to perform the undertaking. In re Fairthorne, 1 5 Law J. Rep. (n.s.) a.B. 131 ; 3 Dowl. & L. P.C. 548. It is no answer to a rule, calling upon an attorney to pay money pursuant to his undertaking, that more than two years have elapsed since the under- taking was given. In re Swan, 15 Law J. Rep. (n.s.) G.B. 402 ! s. c. nom, Titterton v. Sheppard, 3 Dowl. & L. P.C. 775. Plaintiff having issued execution on a Judge's order against defendant, defendant's attorney R P L, sent to the plaintiff the following letter: — " Sir, — Yourself W.Gordon. In considerationof your agree- 48 ATTORNEY AND SOLICITOR; (F) Duties and Liabilities. ing to suspend execution upon this judgment, I here- by undertake to make an arrangement with you respecting payment of the debt and costs prior to Mr. Gordon being discharged from prison under his present detainers, or in the event of your not agree- ing to the terms offered by me, to inform you in sufficient time of Mr. Gordon's intended discharge, so that you may not be deprived of your power of lodging a detainer against him in this action. Your reply, approving this arrangement, will oblige. I am, &c., H. F L." The Court discharged a rule obtained to compel the attorney to pay the debt and costs. An attorney, who has acted as such in one of the superior courts, and signed an undertaking in such court, cannot refuse to perform that undertaking, on the ground that he is not an attorney of that court Thompson v. Gordon, 15 Law J. Rep. (n.s.) Exch. 344 i IS Mee. & W. 610 ; 4 DowL & L. P.C. 49. Where the attorney of a mortgagor who was desirous of selling the property, had induced the attorney of the mortgagee to give up the title deeds, &c., on his undertaking to pay Mm the costs of preparing the abstract of titles, &c. ; the Court granted a rule ordering him to pay the amount pursuant to his undertaking. In re Gee, 2 Dowl. & L. P.C. 997. The defendant had obtained a Judge's order in the following terms : " It is ordered that the plaintiff do forthwith give security for costs to the satisfac- tion of the Master ; no stay of proceedings in the mean time ; the attorney for the plaintiff hereby undertaking to find such security": — Held, that the attorney was not bound to find security for costs, unless further proceedings were taken by the plain- tiiE Hill V. Fletcher, 19 Law J. Rep. (n.s.) Exch. 320. A petition was presented by a husband and wife, which related to her separate property ; an objec- tion was taken to its being heard on the ground that there was no security for costs : the solicitor of the petitioners instructed counsel to undertake to amend the petition, if required by the Court, by making it the petition of the wife by her next friend. The petition was accordingly beard, and an order made, but the petitioners were ordered to pay the costs. The petitioners and the solicitor afterwards declined to amend the petition, though ordered by the Court so to do ; and upon an application that they might do so in four days, or that the solicitor might perform his undertaking,— Held, that the undertaking of the solicitor could only be considered as the undertaking of the client, and that no order could be made against the solicitor personally, but he was refused his costs. In re Williams, 19 Law J. Rep. (n.s.) Chanc. 422 ; 12 Beav. 510. On the application of four of the directors of a railway company, an order for the taxation of the bill of parliamentary agents was made, under -which the directors submitted to pay what should be found due to them. The bills were taxed at 22il. U. M., but before the certificate of the taxing Master was obtained, a petition was presented and an order was mede for winding up the company. Upon an ap- plication for an injunction to restrain the parlia- mentary agents from issuing any process against the directors, — Held, that their submitting to pay was a personal undertaking; and the injunction was refused, but without costs. In re SudUnv, ex parte Dover and Deal Rail. Co., 19 Law J. Rep. (N.S.) Chanc. 524 ; 12 Beav. 527. (c) Attachment. A rule of court calling on C, an attorney, to deliver a bill of costs to Messrs. B & D was served only by a clerk of B & D, who made a demand of the bill ; but it did not appear that the clerk had any authority to make the demand : — Held, that the demand was not sufficient as a ground for an attachment Ex parte Briggs in re C or in re Cattlin, 18 Law J. Rep. (n.s.) C.P. 184 ; 7 Com. B. Rep. 136. An attorney of the Welsh Court of Great Sessions, whose name had been placed on the shilling roll in the superior courts under the 1 Will. 4. c. 70. s. 16, but who had not been admitted under section 17, is guilty of a contempt in acting as attorney in the conduct of a suit commenced against a person residing out of the limits of Wales, and may be proceeded against under 6 & 7 Vict c. 73. s. 36, although the proceedings were conducted in his agent's name. In re Humphreys, 19 Law J. Rep. (N.S.) as. 65. (rf) Summary Jurisdiction. (1) By Courts of Law. A, who was the London agent of S & J, attornies in the country, by their directions issued a fi. fa. and warrant to levy on the goods of a debtor in Wilts, at the suit of one of their clients, referring the officer to S & J for instructions. The officer not being able to meet with S & J paid the amount of the levy to the under-sheriff, who without any instructions from S & J remitted the money to A in London, whose name was indorsed on the war- rant A refused to pay the money over to the client, claiming to apply it in reduction of the general balance due from S & J for agency business : — ^^ Held, that on these facts there was no privity of contract to support an action by the client against A for money had and received to his use. But it appearing that the money had been paid in the first instance to the town agent under a mistake, and retained by him against the express directions of S & J, the Court made absolute a rule obtained by the client to compel the town agent to refund the money. Rabbins v. Fennell, 17 Law J. Rep. (n.s.) a.B. 77; 11 aB. Rep. 24?. The Court will exercise its summary authority over an attorney only with reference to his conduct in a cause. In re Anonymous, 19 Law J. Rep. (n.s.) Exch. 219. The Court will not in the exercise of its summary jurisdiction, prevent an attorney, defendant in an action at the suit of his client, suing as adminis- tratrix, from pleading a plea not directly to the merits, such as the plea of the Statute of Limita- tions ; even though the accrual of the statute may have been owing to his neglect in not advising plaintiff to take out the letters of administration earlier. In re Tristan, 1 L. M. & P. 74. [And see (6) On their Undertakings; and (e) Strilting off the Roll for Misconduct.'] ATTORNEY AND SOLICITOR ; (F) Duties and Liabilities. 49 (2) By Courts of Equity. An application (not in a cause) to compel a solicitor to deliver up papers is not within the 12th Order of August 1841, but must follow the old practice. In re Taylor, 10 Beav. 221. Motion by an executor and trustee to restrain a solicitor from acting for plaintiffs in a suit, charg- ing the executor with breaches of trust, was refused, though solicitor had been employed many years in the testator's affairs by the executor who had made many confidential communications to him relating thereto, and had never discharged him from being his solicitor. Parralt v. Parratt, 17 Law J. Kep. (N.s.) Chanc. 346 ; 2 De Gex & S. 258. Upon the compromise of a suit, an agreement was entered into between the respective solicitors of the plaintiff and defendants, from which certain benefits were to be derived by the defendants, and the defendants' solicitor undertook to pay to the plaintiff's solicitor the amount of his bill of costs, and to indemnify the plaintiff against the costs of other defendants. It was not stated by either party whether the other parts of the agreement had or had not been performed. Upon motion in the cause and in the matter of the defendants' solicitor, he was ordered to pay the bill of costs of the plaintiff's solicitor within two days. But upon appeal to the Lord Chancellor, the order was discharged. Gilbert V. Cooper, 17 Law J. Rep. (n.s.) Chanc. 265 j 15 Sim. 343. B, a solicitor in, the country, being employed by A and C to carry in and prosecute their claims as creditors under a decree of the Court made in the year 1841, employed K as his London agent for that purpose. Neither B nor K was the solicitor of A or C except in that transaction. In 1846 B died ; and K, in 1847, without any authority from A or C, and without having previously obtained any order of the Court for that purpose, carried in a state of facts and charge before the Master, com- plaining of an arrangement and compromise that had been entered into between the plaintiffs and defendants. K afterwards abandoned' that state of facts and charge, and took into the Master's office another state of facts and charge precisely the same as the former, except that it was on behalf of the executor of B. The Master disallowed the last state of facts and charge on production of an affi- davit of service of the jprtant taken out by the plaintiff on K. On -tfie petition of the plainr tiffs and one of the defendants in the cause, K was ordered to pay the costs incurred by' the petitioners in and about the proceedings in the Master's office, having relation to the two states of fact^ and charge, and the costs of the petition. Malins v. Greenway, 17 Law J. Bep. (n.s.) Chanc. 26; 10 Beav. 584; affirmed 17 Law J. Rep. (n.s.) Chanc. 331. A solicitor acted for clients under a special agreement as to costs which was doubtful : — Held, that the Court had no jurisdiction to determine the construction and effect of the agreement on petition. In re Beak, 11 Beav. 600. (e) Striking off the Roll for Misconduct, The Court made absolute a rule to strike off the roll an attorney convicted upon an indictment charging a conspiracy to defraud, though the rule Digest, 1845—1850. nisi was drawn up upon reading the record of the conviction only, and the judgment had been re- versed on the ground of the insufificiency of the indictment, prior to the rule being made absolute ; the acts of misconduct imputed to him in the in- dictment, though disclosing no legal offence, ren- dering him in the discretion of the Court an unfit person to practise as an attorney. In ri King, 15 Law J. Rep. (n.s.) Q.B. 2 ; 8 a.B. Rep. 129. A rule to strike an attorney off the roll for mis- conduct having been applied for on production of a similar rule granted by the Common Pleas against the same party, the Court refused it, there being no evidence of the identity of the parties. A rule of this kind ought not to be moved for on the last day of term, but in sufficient time to enable the party to shew cause against it within the term. Anonymous, 17 Law J. Rep. (n.s.) Exch. 20 ; 1 Exch. Rep. 453. A rule to strike an attorney off the roll on the ground that he has been convicted of a misdemean- our in the Court of Queen's Bench, and struck off the roll of that court, is a rule nisi only in the first instance, which, in the Court of Exchequer, makes itself absolute unless cause is shewn, hi re Wright, 17 Law J. Rep. (n.s.) Exch. 128; 1 Exch. Rep. 658 ; 5 Dowl. & L. P.C. 394. On a bill filed by parties interested under a will, against the sole acting trustee and executor and against his solicitor, under whose advice the testa- tor's property hadbeen improperly sold and applied, principally to the solicitor's use, praying that the stock might be replaced, the Court at the hearing, after directing inquiries, ordered that the solicitor should shew cause why, having regard to his answer and the evidence in the causes, his name should not be struck off the roll of solicitors. Goodwin v. Gosnell, 2 Coll. C.C. 457. (f) Negligence. Where declaration stated that plaintiff retained defendants as attomies in and about ascertaining the title of G R to certain lands and tenements, and to take due and proper care that " the same" should be a sufficient security for the repayment of a sum of 6001., — Held, that the words " the same" had reference to the title of G R, and were not to be construed as charging defendants upon a con- tract to inquire into the value of the lands, and was, therefore, supported by evidence of a retainer to investigate the title as a security for the repay- ment of the 600/. Hayne v. Rhodes, 15 Law J. Rep. (n.s.) as. 137 ; 8 Q.B. Rep. 342. An attorney undertook to conduct a cause, charg- ing his client only money out of pocket. The client advanced money to the attorney during the progress of the cause, which was properly expended in car- rying it on. By ' subsequent negligence in the attorney the cause failed, — Held, first, that the attorney was not entitled to recover money out of pocket paid by him subsequently to the negligence of which he had been guilty ; and, secondly, that the client was not entitled to set off the money ad- vanced and expended previous to such negligence. Lewis v. Samuel, 15 Law J. Rep. (n.s.) Q.B. 218; 8 Q.B. Rep. 685. Where in an action against 'an attorney for H 50 ATTORNEY AND SOLICITOR. negligence, the declaration alleged that the defen- dant " did not duly file the writs with the proper officer, according to the practice of the court, whereby the plaintifPs demand was barred by the Statuteof Limitations ;" and it was proved at the trial that after the writs were brought to the office it is the practice of the officer to file them, hut in certain instances in this case the writs were not filed within one month after their expiration, — Held, that the Judge properly directed the jury that the filing might have the sense of bringing to the office, and in that sense was included under the word " returning," and was, therefore, a part of the attorney's duty. Held, secondly, that the question of negligence in not complying with the statute was a question of fact for the jury. Thirdly, that there was no ground for arresting the judgment, as the declaration after verdict must be taken as shewing a duty the breach of which was actionable — (affirmed on this point, 10 Q.B. Rep. 83). Hunterv. Caldwell, 16 Law J. Ilep.(N.s.) as. 274; 10 aB. Rep. 69. Held, also, in the court of error, on objection that the declaration shewed no retainer for the pur- pose of keeping the action alive, and consequently no duty to do so, that there were, in the allega- tions above stated, a duty sufficiently shewn, and a breach well assigned. Hunter v. Caldwell, 10 a.B. Rep. 69. In assumpsit against an attorney for neglecting to instruct counsel to appear for plaintiff in an action brought by the latter against a third party, defendant pleaded that he did not neglect to in- struct counsel to appear. Issue thereon. It ap- peared, that when the action was called on for trial, counsel for plaintiff rose with a brief, called his attorney who was not present, and the witnesses who did not answer, and then withdrew the record : — Held, that plaintiff was entitled to succeed, the meaning of the issue being that counsel had not been properly instructed to appear, HawJcins v. Harwood, 19 Law J. Rep. (n.s.) Exch. 33 ; 4 Exch. Rep. 503. (G) Retainek. A corporation cannot mate a valid appointment of an attorney to conduct suits or manage the affairs of the corporation, except under their common seal. And such attorney, if such appointment has not been under theircommon seal, cannot recover for busi- ness done, although the council of the borough had passed a resolution, directing that the business should be done by him, and was cognizant of its progress. A, being the salaried town clerk of the borough of P, sued the mayor and corporation of the borough for work, &c., as solicitor, in respect of charges contained in different bills ; of these bills — No. 1 was for expenses incurred in opposing a bill introduced into parliament, for setting aside the municipal election in that borough in 1836. No. 2 for opposing a rule for a mandamus, com- manding him to allow certain burgesses to inspect the voting papers. No. 3 for costs incurred in the matter of the municipal charities of the borough, and was for the extra costs in a Chancery suit, the taxed costs as between party and party having been paid under the order of the Court of Chancery. No. 4 and No. 8 were for costs in a Chancery suit, relative to the compensation granted by the corporation to a previous town clerk ; this suit was still pending. . No. 5 was for defending an action brought against the mayor for an instalment due on a bond given to secure the same compensation. No. 6 and No. 9 were for business done at the sessions. No. 7 and No. 10 were for general business as town clerk. The plaintiff had received no authority under the seal of the corporation with respect to any part of the business done, but was instructed, by reso- lutions passed by the town council, to take the necessary steps in reference to the actions and suits above mentioned, and payments had been at various times made to him on account. The cause having been referred to arbitration, and the arbitrator having found that there was no sufficient evidence of a retainer as to No. l,and that the above facts did not furnish sufficient evi- dence of retairler as to Nos. 2, 3, 4, 5, and 8, and that there was due to the plaintiff a certain sum in respect of Nos. 6, 7, 9, and 10, which he awarded to be paid to him, — Held, that the finding of the arbitrator was correct. The plaintiff, in May 1839, received from the defendants the sum of 350^., on account of bills Nos. 2, 3, 4, 5, 6, 7. Of this sum, he appropriated 14U. lis. lOd., the amount of bill No. 2, in pay- ment and satisfaction of that bill, and the further sum of S2l. Is. \d., in payment and satisfaction of the bill No. 3 : — Held, that the plaintiff's claim in respect of those hills being a just and equitable claim, he might lawfully so appropriate the sums in question. Arnold v. the Mayor, SfC. of Poole, 12 Law J. Rep. (n.s.) C.P. 97 ; 5 Sc. N.R. 741 ; 2 Dowl. P.C. (n.s.) 574. The declaration was in debt on a decree of the Supreme Court of N. The plea alleged that the decree was in respect of an amended bill, and that before filing thereof the defendant was out of the jurisdiction of the said Court, and so continued, and was never served with a copy of the said bill, nor ha,d notice of any process calling on him to answer the said bill, and that the proceedings were taken in his absence and ex parte. Replication, that at the commencement of the suit the defendant was within the jurisdiction of the said Court, and was duly served with process in respect of the original bill in the said suit, and appeared and appointed H E attorney for him in the suit, and H E accordingly became and was the attorney of the defendant, and authorized to conduct his defence in the suit, and that while he was such attorney, and so authorized, he had notice of the amended bill. The rejoinder traversed that H E had notice of the amended bill, modo etformd, on which issue was joined : — Held, that the defendant by this traverse admitted that H E had such an authority as would render -the replication good, viz., that he was authorized to act as attorney as well in respect of the amended as of the original bill. Held, also, that such authority given by the de- fendant about to leave the jurisdiction would support ATTORNEY AND SOLICITOR. 51 the decree. Simms v. Henderson and Henderson v. Henderson, 17 Law J. Rep. (N.s.) a.B. 209 j 11 Q-B. Rep. 101/5. Justices, in Qaarter • Sessions, having confirmed an order of removal, made from the parish of C to the parish of L, upon a preliminary objection, » rule nisi vfas afterwards ohtained by L, in 1844, for a mandamus to the Justices to enter continuances and hear the appeal. A copy of the rule was served upon two of the defendants, R D and R T, who, at that time, and at the commencement of the suit, were the churchwardens of C. RT -afterwards signed a retainer to the plaintiff, to act as attorney for the parish of C, but subsequently counter- manded it. RD did not interfere. Before the rule was argued, J D and W E, the other defen- dants, were elected overseers, and R D and R_,T churchwardens. Before the argument on the r,ule (which was discharged) the plaintiff's clerk saw J D repe^edly about the rule, and was asked by him how the matter was going on ; he also saw, the other defendant "W E repeatedly about it, but he was not so active. The plaintiff's bill, of costs having been delivered to one of the defendants, they all expressed readiness to pay, but said there was a grudge in the parish : — Held, that the defendants were not liable. Marsh v. Davies, 17 Law J. Rep. (N.s.) Exch. 94 ; 1 Exch. Rep. 668. Where actions brought against several defendants are consolidated by rule of court, and by consent, to abide the event of one of them wl^jch is proceeded with, the consolidation rule and subsequent proceed- ings operate as a joint retainer by defendants of the attorney in the action so proceeded with, and they are.jointly liable for the subsequent costs of such action. Anderson v. Boynton, 19 Law J. Rep. (n.s.) Q.B. 42 ; 13 a.B. Rep. a08. (H) j^PPOINTMENTAMD CHANGE OF ATTOENEy. Where a party has conducted a cause in person, it is not necessary, in order to enable him to take a step in the cause by attorney, that he should, obtain an order for the purpose, or that he should give the other side previous notice of the appointment of the attorney. Taking the step by attorney is in itself a sufficient notice to the opposite party of the appointment. Janes v. JS&g,, 5 Dowl. & L. P.C. 412. , The objection that an interlocutory proceeding has been taken by an attorney not on the record, is of a strict nature, and it is incumbent on the party making it to establish it distinctly. Therefore, where the attorney of plaintiff had died: since the last proceeding, in a cause nine years before, and a term's notice of proceeding was , given by , the attornies for defendant, who were not the attornies for him upon the record, an affidavit by plaintiff and his present attorney, that they had .not, nor had either of them, been served with any order to change the attorney, nor had any notice that any other person had been appointed, was held insuffi- cient. Lord V. Wardle, 15 Law J. Rep. (n.s.) C.P. 259 ; 3 Com. B. Rep. 295. Upon an application to change the attorney, where the client is unacquainted with the English language, the affidavits must clearly shew that; the purport and object of the motion are known. to, and sanctioned by, the client. It is no objection to such an application that it is made after final judgment. Davies dem., Lowndes ten., 3 Com. B. Rep. 808. In a declaration against a public officer of an insurance and- loan company, the second" count stated that it was agreed between the company and the plaintiff that from the 1st of January then next the plaintiff, as the attorney of the said company, should receive asalary of 100/. per annum, in lieu of rendering an annual bill of costs for general business, &o.! and in consideration that the plaintiff had promised to fulfil the agreement on his part, the company promised to fulfil the same on their part, and to retain and employ the plaintiff as such- attorney. Breach, that the company refused to employ the plahitiffas such attorney, and' wrongfully dismissed him, and thence refused to employ him. or to pay him the salary : — Held, by the Court of Exchequer Chamber, reversing the judgment of the Court of Common Pleas^ that such count was good^ upon motion in arrest of judgment,, and that the agree- ment therein set, forth was one which created the relation of attorney and client, and amounted to a promise, on the part of the defendants, to continue that relation at least for one year. Elderton v. Emmens, 17 Law J. Rep. (n.s.) C.P. 307; 6 Com. B. Rep. 160. ,(I) Dealinss WITH Client. ,.,,.,, Principles on which the Court, acts in sustaining securities given by a client to his solicitor for bills .of costs and monies • advanced.' ; Hiles v. Moore, 17 Law J. Rep. (n.s.) Chanc. 385.- A person in embarrassed circumstances enters into a composition with his creditors, one of whom is (his solicitor. The, solicitor i prepares and (with the debtor and other creditors) executes.the compo- sition deed, by which the debtor is to pay 1,500/. by instalments, and to insure his ■ life for that amount, and in default of such payment and insur- ance the deed is to hcsvoid, There is no evidence that the solicitor ' ever explainedi^ to him the nature of the obligations imposed by the deed, or that the covenants were to be strictly performed, or that he (the solicitor) was bound by it j but thereiis evidence of A private understanding between the solicitor and client, that the solicitor shall, notwith- standing the deed, be paid jnfull. The debtor .fails to insure his life for the whole 1,500/. His soli- citor cannot as between himself and his client in- sist upon ithisifailure, as ground for avoiding the deed. fTa/fe v. flyde, 2 Coll. C.C. 368., : ■ ,i (K) Bill, or CpsTS. . ,,, [See Bankbuptoy, Audit '6f Accounts — Costs, Taxation of.] '" (a) Delivery of. An attorney.cannot maintain an action for a bill for conveyancing. done before the 6r& 7 Vict. c. 73. (and until then not liable to, taxation), unless he has, after the passing of that statute, delivered -.a bill as required by section 37,iiii!idrwaited a month after such, delivery. ,.r,ii,. • ,QM«re-»-Whether in the case oft a, bill taxable before the statute, a delivery before , the statute would not be sufficient., .,,;,. -i. Assumpsit for work as an attorney, and on an account stated. Plea, to the whole declaratioiij thBt 52 ATTORNEY AND SOLICITOR ; (K) Bill of Costs. the account was stated in respect of work as an attorney, and that no signed bill was delivered as required by the statute : — Held, a good answer to the count on the account stated. Brooks v. Bockett, 16 Law J. Rep. (n.s.) a.B. 178 ; 9 aB. Rep. S47. In an action by an attorney, for his bill of costs, against a provisional committee-man of a railway company, it appeared that plaintiff had sent his hill to the attorney of the company at his house ; that it was afterwards laid before- a meeting of the provisional committee at which the defendant was present, and that it was subsequently laid before another meeting by tbesecretary of the company: — Held, that this was a sufficient delivery of the hill within the 6 & 7 Vict c. 73. s. 37. Eggingtm v. Cumherledge, 16 Law J. Rep. (s.s.) Exch. 283; 1 Exch. Rep. 271. In an action against one of the members of a provisional committee for work done as an attorney, defendant pleaded that no signed bill had been delivered. It was proved that a signed bill had been delivered to another member of the same committee at his place of business, and that defen- dant was appointed a committee-man after part of the work had been done : — Held, not such a delivery within 6 & 7 Vict. c. 73. as to render defendant liable in this action. The bill should he delivered either at the office of the company, or at least to some person who can reasonably be considered to represent the committee. Edwards v. Lawless, 17 Law J. Rep. (n.s.) C.P. 293; 6 Com. B. Rep. 329 ; 6Dowl. &L. P.C. 105. Plaintiff, an attorney, proved the delivery of his bill to defendant, accompanied by the following letter to him : — " As Mrs. J H has left your house, I beg to hand you my account, which I hope will be found satisfactory." Mrs. J H was a relation of the defendant, and the business done had reference to procuring a separation between her and her hus- band : — Held, not a sufficient delivery to the party to be charged, within 6 & 7 Vict. t. 73. ;,. 37. But where defendant was one of the managing committee of a railway company, and plaintiff, an attorney, having applied to the managing commit- tee for payment of his bill, was by them referred to the solicitor of the company, to whom, after some correspondence, he sent his bill headed " North- ampton, Lincoln and Hull Railway, to R D (the plaintiff) debtor," — Held, a sufficient delivery of bill within the statute. Gridley v. Austen, Daubney V. PMpps, 18 Law J. Rep. (n.s.) a.B. 337. A railway company was formed in August 1845, and defendant became a member of the provisional committee in October. The company took offices at No. 43, M St, and put up a plate with their name on it. On 5th of January 1846 the deposits not having been paid, the project was abandoned. Defendant was not shewn to have been at the offices after that date. In September 1846 plaintiff, who had been employed as an attorney by the committee, delivered a signed bill charging the committee, at the offices in M St, where the brass plate still re- mained: — Held, by Wilde, C.J. and Williams, J. that there was no evidence for the jury that the plaintiff's bill had been "left for the defendant at his office of business," under the 6 & 7 Vict. c. 73. s. 37 ; and by CoUman, J. and Maule, J. that there was sufficient evidence. Blandg v. De Burgh, 18 Law J. Rep. (n.s.) C.P. 2 ; 6 Com. B. Rep. 623. In an action on an attorney's bill, where the issue was that no signed bill had been delivered to defendant, a delivery of the bill at the dwelling- house of defendant to his servant is evidence of a delivery to the defendant. Macgregor v. Keily, 18 Law J. Rep. (n.s.) Exch. 391 ; 3 Exch. Rep. 794. The defendant under a plea of set-off put in an account rendered to him by plaintiff by which he charged himself with items due to defendant On the other side of the account were items due to plaintiff for costs as an attorney, but for which no signed bill was proved to have been delivered, and which left a balance due to plaintiff: — Held, that plaintiff was entitled to avail himself of the amount of the bill of costs, as the non-delivery of a signed bill did not extinguish the debt, but only prevented an action being brought to recover it Harrison v. Turner, 16 Law J. Rep. (n.s.) Q.B. 295; 10 a.B. Rep. 482. A solicitor on payment of his costs undertook, but failed, to deliver his bill. On a petition more than twelve months afterwards the Court under its general jurisdiction ordered the delivery, with costs. In re Foljambe, 9 Beav. 402. The provisional committees of two projected rail- way companies agreed that the two companies should be amalgamated. The parties who had acted as the solicitors of one of the companies, and had taken an active part in its formation, opposed the amalgamation, and refused to allow the committee of the amalgamated company to use the plans, &c., which were then in the possession of the solicitors, and were required immediately for parliamentary purposes, but upon receiving a cheque for a gross sum, which was to be in full of all demands, they gave up all the plans, &c. and undertook to send in a bill of costs. Upon the petition of a party who had purchased some scrip in the company, and who was one of the committee, but not one of the parties who signed the subscribers' agreement or the cheque, the Lord Chancellor (differing from the Court below) made an order that the' solicitors should deliver their bill of costs for the purpose of taxation, without requiring any suit to be instituted. Ex parte Bass in re Stephens, 17 Law J. Rep. (n.s.) Chanc. 219. If a solicitor disobeys the order of course to deliver his bill within fourteen days, the next proceeding is to order him to deliver it within four days, or stand committed. In re Baxter, 1 1 Beav. 37. An ex parte order for the delivery of a bill of costs discharged, with costs ; the allegation of the professional employment being denied by the solici- tor. In re Eldridge, 12 Beav. 387. A solicitor was ordered to deliver his bill of costs for taxation. Upon a notice to commit for non- delivery, he swore he had no documents or memo- randa from which he could make out his bill of costs. The Court made no order on the notice. InreKer, 12 Beav. 390. (6) Heading and Contents of. An attorney's bill, under the statute 2 Geo. 2. c. 23, should disclose the title of the suit or other proceedings, as well as the name of the court in which the greatest part of the business was done. ATTORNEY AND SOLICITOR; (K) Bim of Costs. 63 It is not, however, necessary that the bill should be headed in the suit or cause, or in the court ; it is sufficient if the items enable a person of ordinary understanding to collect the name of the suit, and the court in which the proceedings charged for took place. Martindale V. Falkner, ] 5 Law J. Rep. (N.s.) C.P. 91; 3Dowl. & L. P.O. 600; 2 Com. B. Rep. 706. An attorney's bill must give substantial informa- tion as to the court in which the business was transacted. Engleheart v. Moore, IS Law J. Rep. (N.s.)Exch.312; 15 Mee. & W. 548 ; 4Dowl.&L. P.C. 60. In an action for recovery of fees, &o., for business done by an attorney and solicitor, it appeared that the bill of costs delivered under the provisions of the 6 & 7 Vict. c. 73. s. 37, contained charges for business done in a Chancery suit, headed Churchill ats. Marks, and also charges relating to a suit between the defendant and one E, which from the nature of the items must have been in one of the superior courts of law ; but in which it did not at all appear. It was, however, proved that for such items as the bill comprised the charges were the same in all the superior courts of law : — Held, that there was no delivery of a sufficient bill of such fees, &c. under the above statute ; and the plain- tiff was nonsuited. The bill should have stated in what court the common law business was done. Ivimey V. Marks, 17 Law J. Rep. (n.s.) Exch. 165; 4 Dowl. & L. P.C. 709 ; 16 Mee. & W. 843. A solicitor's bill of costs, directed to E Gannon, headed " Yourself v. Round," but indorsed " Han- cock V. Round," contained various items referring to the purchase of property under a decree of the Court of Chancery, in a cause of "Hancock v. Round." Some of the items referred to proceedings in Chancery, and no proceedings in any other court were alluded to: — Held, that by reasonable intend- ment, the name of the cause and the court in which the business had been done sufficiently appeared in the bill, and that it was sufficient under the 6 & 7 Vict. c. 73. s. 37. Sargent V. Gannon, 18 Law J. Rep. (N.S.) C.P. 220 ; 7 Com. B. Rep. 742; 6 Dowl. &L. P.C. 691. Where an attorney's bill gives the court in which the business was transacted, and the nature of such business appears from the various items, which re- late to proceedings in particular causes, such bill is sufficient within 6 & 7 Vict. u. 73. ». 37, though it does not specify by name the causes in which the business was so transacted. Anderson v. Boynton, 19 Law J. Rep. (n.s.) a.B. 42; 13 Q.B. Rep. 308. An attorney's signed bill of costs delivered pur- suant to 6 & 7 Vict. c. 73. s. 37, comprised items of nine actions in the Exchequer, two actions in the Common Pleas, and the residue of the items, which were of small amount, appeared to be for business done in one of the superior courts of com- mon law, but no court was specified: — Held, that the bill sufficiently complied with the statute, as it gave sufficient information to enable the client to get it taxed by the proper officer. Keene v. Ward, 19 Law J. Rep. (n.s.) Q.B. 46; 7 Dowl. & L. P.C. 333. In a solicitor's bill, thefirstitemsreferred to taking instructions for a petition in the Court of Review. Another part of the bill referred to attending on the petitioner's solicitor ; — Held, that as it appeared the second petition must be a different one from the first, and the court in which the second petition was presented could not be collected from the bill, it was insufficient under 6 & 7 Vict. c. 73. s. 37. Dimes v. Wright, 19 Law J. Rep. (n.s.) C.P. 137 ; 8 Com. B. Rep. 831 ; 7 Dowl. & L. P.C. 292. (c) Taxation of. (1) In general. Parties contributing to a highway rate are not entitled, to apply for taxation of an attorney's bill, for conducting an indictment,_and other business, pursuant to the direction of the surveyor of the highways, such ratepayers not being parties "liable to pay" the bill within the meaning of 6 & 7 Vict, c. 73. s. 38. Semble — Thatsection 37. gives a common jurisdic- tion to all the common law courts to order taxation of such bill. In re Barber, 15 Law J. Rep. (n.s.) Exch. 9 ; 14 Mee. & "W. 720 ; 3 Dowl. & L. P.C. 244. The decision in Robins v. Mills, 1 Beav. 227, is inapplicable when the merits of the cause must enter into discussion. Webb v. Grace, 12 Beav. 489. Where neither a case of pressure is proved against a solicitor, nor improper items of charge shewn by a third party applying for an order to tax the bill, the application, will be refused with costs. In re Evans, 15 Law J. Rep. (n.s.) Chanc. 115. On a taxation in equity, a question arose as to the liability of a client to pay the costs of a conso- lidated action at law. Leave was given to the soli- citor to. bring his action. In re Anderson, 10 Beav. 399. Where on taxation (not in a cause) a sum is found due from solicitor to client, proceedings to compel payment must be under the old practice, and not underthellth Order of August 1841. In re Lovell, 9 Beav. 332. A solicitor having in his bill of costs knowingly fixed the rate of his charges for business cannot afterwards on taxation increase it, but on a special application leave may be given to carry in an addi- tional bill for specified items of undercharge and omission arising from errors and mistake. In re Walters, 9 Beav. 299. Order for taxation obtained by an insolvent debtor of a bill of costs incurred prior to his insolvency, discharged, with costs. In re Halsall, 1 1 Beav. 163. The provisions of the 37th section of 6 & 7 Vict. c. 73, as to the signature of bills of costs, are intended for the protection of the client only, and therefore a bill which has been delivered, though not signed by the solicitor, or inclosed in a letter signed by Tiim referring to it, may be referred by theCourt for taxation. A client obtained an order of course to tax a solicitor's bill of costs which had been delivered to him, and therein the solicitor was directed to deliver up all papers, &c. belonging to the client on payment of the amount to be found due. The solicitor had other papers, which related to business transacted for a deceased person, who was now represented by the petitioner, and in respect of which he claimed to have a lien for other costs ; but the Court, under the circumstances adduced, declined to discharge the order for irregularity. In 54 ATTORNEY AND SOLICITOR; (K) Bill of Costs, (c) Taxation of . re Pender, 16 Law J. Rep. (n.s.) Chanc. 25; 2 Ph. 69. [In re GaUskell, 5 Law J. Dig. 53; 1 Ph. 577.] (2) What bills are taxable. The 37lh section of 6 & 7 Vict. c. 73. is retro- spective in its operation, and applies to all bills for business done before the statute, whether previously taxable or not. Brooks v. Bocltett, 16 Law J. Rep. (N.s.) as. 178 ; 9 as. Rep. 847, Defendant, a London attorney, employed plain- tiff, also a London attorney, to go to Cambridge and defend a party indicted for bribery. In ISll and 1842 plaintiff sent to defendant his bill of costs, and having in February 1847 re-delivered copies of the bills, duly signed, in March commenced an action against the defendant for the work done : — Held, that the bills were taxable under the 6 & 7 Vict. c. 73. s. 37. In re Billing, Billing v. Coppock, 16 Law J. Rep. (n.s.) Exch. 265; 1 Exch. Rep. 14; 5 Dowl. & L. P.O. 126. An attorney's bill may be referred for taxation under 6 & 7 Vict. c. 73. s. 37. though not signed by him, or inclosed in a letter signed by him and re- ferring to it Young V. Walker, 16 Mee. & W. 446. An agency hill is taxable, under the provisions of the 6 & 7 Vict. i;. 73. s. 37. Smilli v. Dimes, 19 Law J. Rep. (n.s.) Exch. 60; 4 Exch. Rep. 32; 7 Dowl. & L. P.C. 78. (3) Order of Course for, under 6^7 Vict. V. 73. <,. 37. Previously to a solicitor proceeding to solicit an act of parliament on behalf of the plaintiffs, a deed was executed by them, by which it was agreed that the solicitor should be paid at the rate of three guineas per day during his employment. The solicitor having brought his action against the plaintiffs to recover the amount of his bill, the latter obtained the common order directing the taxation of the bill, omitting all mention of or re- ference to the special agreement: — Held, that that was the correct course, and that it was unnecessary to obtain a special order or notice. The statute 6 & 7 Vict. c. 73. has a retrospective operation, not only on bills for business which was taxable before that act, but also on bills for business which was, by that act, first made taxable. Whether the validity of a special agreement, which applies to the whole of a bill of costs, can be decided on petition, or whether the filing of a bill is necessary — queere. In re Eyre, 17 Law J. Rep, (n.s.) Chanc. 62; 10 Beav. 569; affinned, 17 Law J. Rep. (n.s.) Chanc. 277; 2 Ph. 367. After an agreement by which a solicitor was to take a sum in full of all demands, an order obtained for taxation is irregular. In re Mackrill, 11 Beav. 42. An order of course to tax directed that on pay- ment, all papers of the client should be delivered up. The solicitor claimed a specific lien beyond the costs: — Held, no ground for discharging the order, but that the solicitor would be protected when application was made to the Court for delivery of the papers. In re Teague, 11 Beav. 318. Mortgagee's solicitor retained the amount of his lien out of the produce of the sale of the mortgaged estate, and charged it as an account delivered to the mortgagor: — Held, that an order for taxation within twelve months might he obtained of course, and a petitioner who had presented a special peti- tion was ordered to pay the costs. In re Bignold, 9 Beav. 269. A B, a solicitor, agreed to act for C D, another solicitor, in his personal business, on the terms of principal and agent. C D neglected to take out his certificate during part of the time : — Held, that the agreement was not invalid, and an order of course to tax was sustained. In re Smith, 11 Beav. 456. An order to tax obtained by a third party liable to pay on an allegation that he had employed the solicitor, discharged. In re Gabriel, 10 Beav. 45. The order on a solicitor for payment to his client of a sum found due on taxation, requires personal service, hut where it appeared that he was absenting himself to avoid service, an order for substituted service was made. Inre Lloyd, 10 Beav. 451. On a motion to discharge an order of course to tax or to give security for costs, the Court ordered the latter only : — Held, that the client could not afterwards by mere notice abandon the orders and file a bill for the same matter : such proceedings having been taken by the client, they were stayed until he had paid the costs consequent on the order of course and the application. Foley v. Smith, in re Smith, 12 Beav. 154. (4) Upon Terms. The Attornies and Solicitors Act, 6 & 7 Vict, u. 73, s. 37, enacts that an attorney's bill may be referred to taxation, " with such directions and subject to such conditions as the Court or Judge making such reference shall think proper." Quaere — ^Whether an attorney's bill will he referred to taxation, without prejudice to the client's liability to pay the amount that may be found to be due, or to his right to dispute the retainer. In re Reece, 18 Law J. Rep. (n.s.) Exch. 137. Where a Judge at chambers, in the exercise of his discretion, in referring an attorney's bill for taxation, under the 6 & 7 Vict c. 73. s. 37, reserves to the client liberty to question the retainer, and re- strains the attorney from bringing an action upon the bill pending the reference, the Court will not interfere without strong ground for so doing. In re Pyne, 5 Com. B. Rep. 407. (5) Upon special Circumstances after Verdict, Writ of Inquiry w Expiration of a Year, under 6 4-7 Vict. c. 73. s. 37. A solicitor had been employed by three persons. A, B and C, carrying on business together, and had also transacted business for A, one of the three, sepa- rately. He afterwards sued the three at law for the amount of his bill of costs, in respect of the business transacted by him for the three, as well as for the one of them only ; and he appeared in the action for A as his solicitor, and entered up judgment in the action against him. On the petition of B and C, seeking the taxation of the solicitor's hill of costs, the Court, under the circumstances, ordered the taxation of the bill, notwithstanding the judg- ment; being of opinion that the question of retainer was always for the Master's consideration on the taxation of bills of costs, and that the fact of A not ATTORNEY AND SOLICITOR; (K) Bill of Costs, (c) Taxation of. 55 joining in the petition was no objection to the order referring the bill being made by the Court. In re Hare, 16 Law J. Rep. (n.s.) Chano. 163; 10 Beav. 187. The clients of a town solicitor, on the delivery of his bill of costs, objected that it was not complete, inasmuch as it did not contain items in respect of business done by a country solicitor whom the clients designated as the town solicitor's agent, but whom the town solicitor claimed a right to treat as employed directly by the clients. More than a year after the delivery of the bill, the clients presented a petition to have it taxed : — Held, that the dispute as to the completeness of the bill was a special circumstance rendering it fit to direct a taxation after the lapse of a year. In re Bagshawe, 2 De Gex & S. 205. (6) Upon special Circumstances after Payment, under 6^7 Vict. c. 73. s. il. Payment of a bill is, primd facie, an admission of its correctness ; and, after payment, special circum- stances must be shewn to entitle a party to an order for taxation of the bill. The special circumstances usually relied on are, first, when pressure has been exercised by the solicitor, and immediate payment required, where delay in completing the business would be inconvenient to the party payings and, secondly, error or overcharge in the bill. Errors or overcharges may be such as of themselves amount to evidence of fraud, in which case only very slight circumstances of pressure are necessary, if necessary at all. A petition, seeking taxation of a bill of costs, after payment, must point out and particularize items of overcharge. A client may pay his solicitor a bill of costs, without ever having seen or had delivered to him any bill i but such a course would be bad conduct in the solicitor, and imprudent in the client. In re Harding, 16 Law J. Rep. (n.s.) Chanc. 288; 10 Beav. 250. Taxation after payment ordered on proof of pres- sure and on shewing grounds for thinking that the bill would be considerably reduced. In re Sladden, 10 Beav. 488. The fact that on the transfer of a mortgage^ a mere draft of the hill of costs of the mortgagee's solicitor is for the first time produced and paid, is not without pressure or fraud a "special circum- stance," to authorize taxation after payment. The taxation of a bill at the instance of a third party "liable to pay" is regulated by the relations existing between the solicitor and his client, and not between the solicitor and the third party. In re Fyson, 9 Beav. 117. See Dunt-v. Dunt, Ibid. 146. The special circumstances under which a bill maybe taxed are such as existed at the time of payment, or appear on the face of the bill itself. Where payment is extorted or there are improper charges even of small amount ; or where the charges are so gross as to evince fraud and oppression, taxation will be directed after payment. The delivery of a promissory note held under the circumstances to be payment of a bill Of costs. In re Currie, 9 Beav. 602. A mere protest against a bill of costs, and the impropriety of the items contained therein- at the time of payment, will not entitle the party making the payment to an order to tax the bill. ' • A mortgagor, seeking to tax the bill of costs of the mortgagee's solicitor relative to the mortgage trans- actions, will oiily he allowed to tax the bill in the same manner, and on the same principle, as the mortgagee would he allowed to tax it; and where the bill of costs of the mortgagee's solicitor was for- warded to the solicitor of the mortgagor upwards m a fortnight before the payment of it by 'the mort- gagor, and payment being insisted on was made by the mortgagor's solicitor before the delivery up of deedsby the mortgagee's solicitor, the Court refused an order for taxation, notwithstanding the mort- gagor's solicitor, at the time of payment of the bill, stated his general objection to the items contained in the bill, as being excessive and improper, and also made the payment under protest. In re Harrison, 16 Law J. Rep. (n.s.) Chanc. 170 ; 10 Beav. 57. A paid hill will not be referred for taxation except under special circumstances, and a mere payment under protest will. not take a case out of the general rule. Imre Neaie, 10 Beav. 181. Petition to tax a bill. of costs, paid withoutpres- sure nine days after its delivery, dismissed, '. with costs. In re Drew, 10 Beav. 368. Taxation under special circumstances, more than twelve months after payment of a bill of costs^ re- fused. Queere — Whether giving a promissory note and signing a memorandum of settlement amounts to payment. In re Harper, 10 Beav. 284. A cestui que trust agreed; that her trustee, if he acted as solicitor in a suit, should receive full costs. A bill was delivered, and soon after the solicitor ceased to act. Afterwards and under other pro^ fessional advice the bill was paid with some deduc- tion. An application to tax withintwelve months was refused. In re JVyche, 11 Beav. 209. i Proof of overcharge alone is insufiicient to obtain taxation of a paid bill ; but it is a necessaxy ingredient. In re Siirke, 11 Beav. 304:; i /; Taxation refused where payment had been made under protest and no sufficient evidence given of undue pressure. In re Welcjiman, 11 Beav. 3 J 9.'; Application by residuarj' legatee, more than twelve months after paymeat, for taxation of a solicitor's hill against the executor refusedj.notwith- standing some agreement between the legatee and solicitor, and that payment had afterwards- been made behind the back of the legatee. Order for taxation discharged, with costs, where the petition misrepresented the facts. In re Bees, 12 Beav. 256. ■ <■- - ■ A meeting was appointed to settle important matters on August 23rd, and the costs were to be paid by H B. The bill of costs was delivered the evening before, and payment was then insisted on, though the bill was objected, to. .>. Upon evidence of overcharge, taxation was. orderedafter paynient. ■ - Two suits attached" to the Vice Chancellor's Court were compromised. In one there was an order to dismiss on the payment of costs^ landthe other was stayed only. 'The costs of both were paid under pressure, and there were overcharges: — Held, that the Master of the Rolls had jurisdiction to order taxation,. In re Elmslie, 12 Beav. 538. 56 ATTORNEY AND SOLICITOR; (K) Bill of Costs. (7 ) Entering up Judgment, under 6^7 Vict. c.TS.s. 43. An attorney's bill of costs was, by Judge's order, on the application of the client, and by consent, referred to taxation. , The order contained no under- taking by the client to pay, nor any direction to him to pay what should be found due on taxation, and was made without prejudice to the client dis- puting the retainer. By agreement between the parties, the question of retainer was submitted to the Master, who decided that it was made out to his satisfaction, and made his allocatur in the usual form, "Allowed, R:" — Held, that the order, and the allocatur in pursuance thereof, authorized the Court to order judgment to be entered up, under the 6 & 7 Vict. u. 73. s. 43. for the amount, as " certified to be due and directed to be paid." In re or Ex parte Lawless, 17 Law J. Rep. (n.s.) C.P.222; 5 Dowl. & L. P.C. 793 ; 6 Com. B. Rep. 123. (8) Notice of Taxation. Wherein a notice of taxation the date is insensible, it will take eiFect from the day of delivery. Grant V. Mackenzie, 16 Law J. Rep. (n.s.) Exch. 255 ; 1 Exch. Rep. 12 ; 5 Dowl. & L. P.C. 129. (9) yippeal from Judge's Order for Taxation. An attorney undertook to conduct a suit for plaintiff upon the following undertaking : — " Should the damages and costs not be recoverable in this action, under the circumstances, I shallcharge you costs out of pocket only." The plaintiff obtained a verdict, with damages 6002., and entered up a judg- ment for that sum, together with 911. is. 6d. for costs. The defendant having afterwards petitioned the Insolvent Court, a dividend of 2721. 3s. i^d., being more than the amount of the attorney's bill, was declared 90 be due to the plaintiff. The Master, in taxing the bill, allowed the attorney costs out of pocket only, but referred the matter to a Judge at chambers. The Judge directed the taxation to be as for costs out of pocket, and, on a subsequent application to him to direct a review of the taxation, dismissed the summons: — Held, first, that the second application to the Judge was not in the nature of an appeal to him, which precluded the attorney from applying to the Court ; secondly, that the costs ought not to be taxed as costs out of pocket only. In re Stretion, 15 Law J. Rep. (n.s.) Exch. 16 J 14 Mee. & W. 806 ; 3 Dowl. & L. P.C. 278. (10) Costs of Taxation. [Doe d. Potts V. Jinders, 5 Law J. Dig. 59 ; 2 Dowl. & L. P.C. 986.] On petition to confirm the Master's report, after an order of reference to tax the respondent's bill of costs (more than one-sixth of the amount of the bill having been struck off), and for reference back to tax the costs of taxation, the costs of and incidental to the original petition and the petition for reference back to the Master were ordered to be paid by the respondent, after deducting therefrom the costs of an action brought by the respondent previously to the date of the order directing the taxation of the jespondent's bill of costs. On petition to confirm the Master's report, after reference to tax a bill of costs, it is too late to object that the petition to tax ought not to have been a special one. In re Hair, 17 Law J. Rep. (N.s.) Chanc. 247; 11 Beav. 96. After action brought by a solicitor on his bill, an order was made in equity for taxation. The solicitor was found to be overpaid, but the action at law was in such a state by the mispleading of his client, that if it had proceeded a balance would have been found due to the solicitor. On an application for an order on the solicitor td refund and pay the costs of the taxation, the Court made such order, but gave no costs of the action or of the application. In re Smith, 11 Beav. 468. Upon taxation, a solicitor put in an insufficient examination. He was ordered, on motion, to pay the costs occasioned thereby and of the four-day order and of the application. In re Bainbrigge, 11 Beav. 620. (d) Remedies for, (1) Against whom. In an action by A and B, who were attornies, against surveyors of highways of a parish, for busi- ness done in procuring an order of magistrates to divert highways in the parish, and on an appeal against that order, it appeared that A and B, in their bill, charged for drawing a resolution of a parish meeting held before the order was applied for, which resolution stated that the order was to be applied for " at the instance and at the expense of the B and G Railway Co.": — Held, that A and B must be considered to have undertaken the business on those terms, unless there was an express em- ployment of them by the defendants, and on their credit, of which, there ought to be direct proof. Spurrier v. Allen, 2 Car. & K. 210. A member of a committee, formed for the purpose of promoting an improvement bill in parliament, is not liable to the solicitor of the committee, for work done by him for the committee as such solicitor, before he became a member of the committee. Bremner v. Chamberlayne, 2 Car. & K. 560. If the attorney of a lessor, who is not attorney for the lessee, prepare the lease, the lessor is the person liable to pay the attorney for it, and the lessor can recover over against the lessee; and this is so whe- ther the lessee takes up the lease or refuses to do so. Baker v. Meryweather, 2 Car. & K. 737. (2) By Action. Plaintiff sued defendant on a bill of costs, in which there were certain items amounting to 31. 3s. 6d., for business done in endeavouring to procure money to pay off a mortgage. The first of these items was in October 1837, and the last on the 20th of January 1838; and it appeared on the face of the bill that applications were made and negotiations entered into with more than one person, with a view to raise the money ; and that on the failure of any of these, the defendant was applied to for further orders. The action was com- menced on the 12th of January 1844 : — Held, that such business was not done in pursuance of a con- tinuous employment of the plaintiff by the defen- dant, so as to take the earlier items out of the Statute of Limitations. The defendant, in 1844, paid a bill of costs for business done by the plaintiff in bringing actions of ATTORNEY AND SOLICITOR; (K) Bim or Costs. 57 ejectments at tlie suit of B for land, which the defendant had mortgaged to B, and which bill was made out to Br Afterwards the bill was taxed, and on taxation a sum of 10/. was under the Judge's order and allocatur ordered to be refunded to the defendant : — Held, that the sum of 101. could not be set off against the plaintiff's demand in the present action. PhilKps v. Broadley, 16 Law J. Rep. (N.s.) a.B. 72 ; 9 a.B. Rep. 744. A» attorney admitted in one of the superior courts may (since 6 & 7 Vict. c. 73.) maintain an action for his- costs in proceedings carried on in another court in which he is not admitted in the name of attornies of the latter. Hulls v. Lea, 10 Q.B. Rep. 940. The 37th section of 6 & 7 Vict. o. 73. applies to bills for business done before as well as after the passing of the statute. A plea which refers to the cause of action as fees, &c. " claimed and demanded" in the declaration, sufficiently confesses a cause of action. Seadding V. Eyks, 15 Law J. Rep. (n.s.) Q.B. 364 j 9 aB. Rep. 858. Assumpsit, first count for work, labour, care, diligence and attendance of plaintiff as attorney ; second count for money paid. The plea commenced as a plea to the whole declaration, and stated that the action was for recovery of certain fees, charges, and disbursements, and for certain business done by plaintiff as an attorney, as in the £rst count in that behalf mentioned, and then denied a delivery to defendant of a signed bill, in the terms of 6 & 7 Vict c. 73. s. 37. Demurrer and joinder : — Held, that the plea was pleaded to the whole declaration, and that the disbursements applied to the count for money paid. Held also, that it is sufficient in such plea to negative the delivery of a signed bill in the terms of the statute. Tate v, Hitchins, 18 Law J. Rep. (N.S.) C.P. 256! 7 Com. B. Rep. 875. (3) By Execution under 1^2 fict. c. 110. o. 18. A Judge's order, under 6 & 7 Vict. c. 73. s. 43, ordering judgment to be entered up for the amount found by the Master's allocatur to be due on an attorney's bill of costs, has the same force as a rule of court for the payment of money under the 1 & 2 Vict. c. 110. s. 18. No action, tiierefore, need be brought on such order, and if brought the costs of the writ, declaration, and appearance will not be allowed. Griffiths v. Hughes, 16 Law J. Rep. (n.s.) Exch. 176 ! 16 Mee. & W. 809 ; 4 Dowl. & L. P.O. 719. (L) Lien fok Costs. The Court will not order an attorney to deliver up papers on which he has a lien for balance of a bill, although an offer is made to pay the amount into court, subject to the verdict of a jury. The Hen of an attorney remains although the claim is barred by the Statute of Limitations. In re Broomhead, 16 Law J. Rep. (n.s.) O.B. 355 j 5 Dowl. & L. P.C. 52. An attorney who has done professional work for a partner in a firm on his private account, and also for the firm, has no lien upon a private deed of the partner in respect of the debt due to him from the Digest, 1845— 1850. firm. Turner V. Deane, 18 Law J. Rep. (n.s.) Exch. 343 ; 3 Exch. Rep. 836. The lien of an attorney attaches upon money received by way of compromise j though the verdict and judgment he against his client. Upon an ap- plication to give effect to such lien, the affidavit should shew the amount claimed by the attorney'. Davies dem., Lowndes ten., 3 Com. B. Rep. 823. P, the solicitor for the plaintiff in a Cause, agreed with the plaintiff not to sue him per- sonally for the costs, hut to rely on the fund sought to be recovered. P was also mortgagee of three-fourths of the fund. P having been arrested and lying in prison, an order was made upon a petition presented by the plaintiff, that P should deliver up the papers in the cause to the plaintiffs new solicitor, the new solicitor giving an undertaking to hold them, subject to the lien of P, and the new solicitor and the plaintiff under- taking to abide by any order of the Court respecting it. Scott V. Penning, 15 Law J. Rep. (n.s. ) Chanc. 88. A solicitor has not a general lien on a fund, and it extends only to costs in the cause and costs imme- diately connected with costs in the cause. ^ Lucas V. Peacoch, 9 Beav. 177. A solicitor's lien for costs extends to articles deli- vered to him for the purpose of being exhibited to witnesses on the trial of an action. Friswell v. King, 15 Sim. 191. A solicitor, without notice of an incumbrance either legal or equitable prior to his possession of the title deeds of the property affected by ity has no right of lien on the deeds as against the incum- brancer. Where a solicitor, under such circumstances, is also mortgagee of the property, with priority over another incumbrancer, the right of lien does not extend beyond his claim as mortgagee. An existing right of lien will not be destroyed by the entering of a solicitor into partnership. The costs of an incumbrancer unsuccessfully oontpsting with the solicitors of the mortgagor their right of lien on title deeds relating to the mort- gaged property are to be added to the mortgaged debt. The mortgagee of two distinct estates, each of which is subject to a prior mortgage to different mortgagees, is entitled as against the mortgagor to a decree for the redemption or foreclosure of either or both of the mortgaged estates. Observations on the withdrawal by the plaintiff of a gratuitous offer in his bill. Reference for an inquiry as to substantial repairs and lasting improvements will not be ordered at the hearing on further directions, merely on the statement of counsel for an incumbrancer, that ' such repairs, &c. have been made ; unless all parties interested consent, a petition is necessary. Pelly V. Wathen, 18 Law J. Rep. (n.s.) Chanc. 281 ; 7 Hare, 351. The lien of solicitors of a company on the papers of the company is not affected by the Joint-Stock Companies Winding-up Act. In re Oxford and Worcester Extension and Chester Junction Rail. Co. ex parte Potter, 18 Law J. Rep. (n.s.) Chanc. 247 ; 1 De Gex & S. 728. The lien of a solicitor cannot be allowed to pre- vent the completion of an order which has been I ■ 58 AUCTION— AUTREFOIS CONVICT. passed by him as solicitor in the cause previous to his being discharged ; and he was directed to pro- duce the order for entry on payment of 20s. costs. Clifford V. Turrill, 2 De Gex Sz S, 1. A suit was compromised between the plaintiff and the defendant by payment by the latter to the former of a certain sum. The defendant had notice of the lien of the plaintiff's solicitors for the costs of the suit. Ordered, on the petition of the soli- tors, that the plaintiff and the defendant, or one of them, should pay the solicitors their taxed costs of the suit and of the petition, not exceeding in the whole the sura paid by the defendant to the plaintiff on the compromise. White v. Pearce, 18 Law J. Rep. (n.s.) Chanc. 462 ; 7 Hare, 276. AUCTION. [See Contract — Goods sold and deliveked -Sale — Vendok and Purchasek.] (A) Sale. (a) When void IPuffingJ, (6) CoTiditiotis of [_Re~sale'\. (B) AuTHOEITT AND BiGHT OF AUCTIONEER. (a) Revocation of Authority, (6) Right to sue. (A) Sale. (a) When void IPuffing']. A sale by auction announced to be " without reserve," is void if the vendor employs a puffer to bid on his behalf, without giving notice of the fact ; and the purchaser may recover back his deposit from the auctioneer. Thornett v. Haines, 15 Law J. Rep. (N.s.) Exch. 230 ; 15 Mee. & W. 367. An estate was put up for auction in lots. The particulars of the sale did not state, either that the sale was to he without reserve, or that the vendors intended to employ a person to bid on their behalf. A bought one of the lots at 690i. The vendors had given instructions privately to a person to bid for the lots up to certain sums, in order that the lots should not be sold under those prices; but not to bid beyond the sums fixed. This person bid 650/. for the lot, and then stopped. The bid- dings were by the conditions of sale to be not less than 5/. There was no allegation that A was in any way misled by what the bidder had done. In a suit for specific performance by the vendors against A, — Held, that A had not, under these cir- cumstances, a valid defence to the suit. In this case. A, by his answer, had stated that the auctioneer had said in the auction-room " that the sale was to be without reserve." By the evidence of the person employed to bid, it appeared that the auctioneer had said, " that the sale was to be a bon& fide one, and if there were any puffers in the room he should hate himself," — Held, that this additional circumstance did not afford A a valid defence to the suit. Woodward v. Miller, 15 Law J. Rep. (h.s.) Chanc. 6 ; 2 Coll. C.C. 279. (6) Conditions of [Be-safe]. Where goods are sold by auction, subject to a condition, that, if the purchase- money be not paid on the following day, they may be re-sold, and the loss recovered from the bidder making de- fault, and the right of re-sale is accordingly ex- ercised, the deficiency cannot be recovered in an action for goods bargained and sold, as the effect of the reservation of the power of re-sale is to make the original sale conditional, and not abso- lute. Lamond v. Devalle or Davall, 16 Law J. Rep. (n.s.) as. 136 ; 9 aB. Rep. 1030. (B) Authority and Right of Auctioneer. (a) Revocation of Authority. An authority given to an auctioneer to sell may be revoked by the vendor at any time before the sale, and such revocation is valid against parties dealing without knowledge of it ; therefore in a suit by a purchaser to enforce specific performance of a contract entered into by the auctioneer by mis- take or inadvertence for the sale of property as to the part of which, a right of way over the land sold, his authority had been revoked, it is competent to the defendant to insist on sucli revocation, and parol evidence is admissible in support of that defence. Manser v. Back, 6 Hare, 443. (ft) Right to sue. An auctioneer put in possession of fixtures for the purpose of selling them, the purchaser being bound to. detach them from the freehold and remove them, is not entitled to maintain trespass de bonis asportatis, for the wrongful removal of them. Davis V. Banks, 18 Law J. Rep. (n.s.) Exch. 213 ; 3 Exch. Rep. 435. [See Brittain v. Lloyd, Money Paid.] AUDITA QUERELA. An audild quereld can only be granted upon affidavit and motion In open court. Where a writ had issued without such motion and aflSdavit, and the plaintiff in the action sub- sequently became a bankrupt, he was permitted to move to set aside the writ and proceedings without shewing any assent on the part of the official assignee. Dearie v. Ker, 18 Law J. Rep. (n.s.) Exch. 448 ; 4 Exch. Rep. 82. A proceeding by auditd quereld is an " action or suit," within 4 & 5 Anne, c. 16. b. 4, and a defen- dant may plead several pleas thereto. Giles v. Hutt, 17 Law J. Rep. (n.s.) Exch. 121 ; 1 Exch. Rep. 701 ; 5 Dowl. & L. P.C. 387. The venire facias and summons to appear in an auditd quereld must be personally served, it being original process. Quare — Whether the venire facias is not notice to all the world. Williams v. Roberts, 19 Law J. Rep. (n.s.) Exch. 269 ; 1 L. M. & P. 381. A writ of venire facias and supersedeas to the sheriff, after writ of auditd quereld obtained, is absolute in the first instance. Giles v. Hutt, 16 Law J. Rep. (n.s.) Exch. 258 ; 1 Exch. Rep. 59 : 5 Dowl. & L. P.C. 115. AUTREFOIS CONVICT. [See Indictment, Pleading.] BAIL. 59 BAIL. [For Affidavit and Order to hold to Bail, see Arrest, Affidavit and Order. And see Wkit of Ekrok — Foreign Attachment — Pkisoneb, Dis- charge of.] (A) Bail-bond. (o) Cancelling. (4) Action on by Sheriff ''s Assignees, (B) J^trSTIFYING. (C) Adding [afieb Recognizance com- pleted]. (D) Discharge of. (E) Taking Money deposited in lieu of, out of Court. (F) In criminal Cases. (a) Upon Removal of Conviction by Certi- orari. (b) Liability for Costs of Prosecutor. (A) Bail-bond. (o) Cancelling, Where upon a Judge's order and writ of capias the defendant gave bail to the sheriff, and on appeal against the order it appeared that the defendant had no intention of leaving England for two months, but that the plaintiff would not be able to get judg- ment in that time, the Court, considering the arrest premature, cancelled the bail-bond; but directed the order and capias to stand. Pegler v. Hislop, 1 7 Law J. Rep. (n.s.) Exch. 53 ; 1 Exch. Rep. iSJ. (6) Action on by Sheriff's Assignees, In an action by the assignee of a bail-bond, the declaration stated that one H had been arrested under a capias, issued by virtue of a special order made by a Judge ; and that defendant had entered into the bail-bond, with a condition, reciting that the said H had been arrested by virtue of a capias issued out of the Court of Queen's Bench against the said H in an action of debt at the suit of plain- tiff; and that the said bond had been duly assigned to plaintiff by the sheriff according to ,the statute. On demurrer to the declaration, it was held, that defendant was estopped by his execution of the bail- bond from objecting that H was not arrested in an action at the suit of plaintiff. Semble — That where in an action on a bail-bond it is alleged, that a Judge has made an order for a capias under 1 & 2 Vict. o. 110, it will be pre- sumed that all facts necessary to give him jurisdic- tion existed, and were proved before him. The writ of summons was stated in the declara- tion to have issued on the same day as that on which the bail-bond was assigned to the plaintiff : — Held, that the declaration was good, as it did not necessarily appear that plaintiff's title accrued after action brought. Barnes v. Keane, 19 Law J. Rep. (n.s.) as. 309 ; 15 Q-B. Rep. 75. (B) Justifying. Shares in a railway company in actual operation are property in respect of which bail may justify. Pierpoint V. Brewer, IS Law J. Rep. (n.s.) Exch. SI ; 15 Mee. & W. 201 ; 3 Dowl. & L. P.C. 487. (C) Adding [after Recognizance com- pleted]. Where bail have become incompetent after recognizance completed, a party cannot be called upon to find fresh bail either in civil or criminal proceedings. An application of this nature ought to be made at chambers. Regina v. Shirley, 1 2 Law J. Rep. (n.s.) Q.B. 346. (D) Discharge of. [Phillips V. Don, 5 Law Dig. 39 ; 6 Dowl. & L. P.C. 527.] Where an indictment had been removed by cer- tiorari, and defendant being convicted had become Jiable to costs, the Court refused to discharge the recognizances of the bail to the certiorari until the costs were paid, although the recognizances made no mention of costs ; but they stayed the proceed- ings on the recognizances with respect to the defen- dant propter paupertatem, Regina v. Thornton, 19 Law J. Rep. (n.s.) M.C. 113 ; 4 Exch. Rep. 820 ; 1 L. M. & P. 192. (E) Taking Money deposited in lieu of, out of Court. A defendant arrested by a Judge's order deposited a sum of money in lieu of bail, and then applied to the Court for a return of the deposit. The Court thought that, but for the matters disclosed on the affidavits on shewing cause, the defendant would have been entitled to a return ; but the affidavits having raised a question whether the defendant had not since his arrest broken up his establishment and gone abroad, on which point the defendant had had no opportunity of being heard, the Court referred that question to the Master, before deciding on the return of the deposit. - Graham v. Sandrinelli and Talbot V. Bulkeley, 16 Law J. Rep. (n.s.) Exch. 67 ; 16 Mee. & W. 191, 193 ; 4 Dowl. & L. P.C. 317. The Court will not order the sum paid into court in lieu of special bail to be paid out to defendant on perfecting special bail, unless that is done before issue joined; stat. 1 & 2 Vict. c. 110, making no alteration in the practice in this respect. Welshman V. Sturgess,lSLa.w J. Rep. (n.s.) Q.B. 168; 13 Q.B. Rep. 556 ; 6 Dowl. & L. P.C. 739. (F) In criminal Cases. (a) Upon Removal of Conviction by Certiorari. Where a certiorari has issued to bring up a convic- tion, under which a party is in prison, the Court will admit him to bail until the case is determined by the Court. Regina v. Lord, or Ex parte Lord 16 Law J. Rep. (n.s.) M.C. 15 ; 4 Dowl. & L. P.C. 405. (6) Liability for Costs of Prosecutor. The defendant had removed an indictment by certiorari, and had entered into the usual recog- nizances with two sureties. After a verdict of guilty at the assizes, he obtained a rule for a new trial, on payment of costs. Without paying the costs, he gave notice of trial for the next assizes to the pro- secutor, who obtained a Judge's order, by which, if the costs were paid by a certain day, the notice of 60 BAIL— BANKER AND BANKING COMPANY. trial, was to stand good, but otherwise to be set aside. The defendant did not pay the costs, did not try the indictment, and died within a few weeks. The prosecutor obtained a side-bar rule to tax his costs to be paid by the defendant or his bail : — Held, that the bail were not liable to pay the pro- secutor's costs, because they are only liable when the principal has been convicted, and that after the granting the rule for a new trial it could not be said that there had been a conviction within the true meaning of the recognizance ; and that neither the defendant's default in paying the costs, nor the Judge's order setting aside the notice of trial, did away with the rule for a new trial or restored the original verdict. Held, also, that whether liable or not, the bail ought not to have been mentioned in the side-bar rule for the taxation of costs, Regina v. Bowen, 19 LawJ.Rep. (n.s.) Q.B.63j 7Dow1. SiL. P.C.312. BAILMENT. [See Caemer — Detinue — Hackney Cajiriage -Innkeeper-^Lakceny.] BANK OF ENGLAND. [See Evidence — Stock Exchange.] BANKER AND BANKING COMPANY. [For Banker's Cheques, see Bills oe Ex- change AND Pkomissoby Notes. And see Con- tract — Forgery — Jtjdgment — Partners.] (A) Rights and Liabilities. (a) Payment of Bills. (S) Nature of Contract on Deposit. (e) Bond for faithful Service of Clerk. (d) Extent in chief. (e) Payment into Bank. (/) Transfer or Set-off of Account. (B) Lien of Bankers. (C) Public Officer [Actions and Suits]. (D) Scire Facias to charge Members of Company. (a) Concurrent Writs. (b) Declaration and Pleas. (c) Retired Members. (rf) Executors. (e ) Suppression of Facts. (/) Waiver of Irregularity. (g) Husband of female Shareholder. (A) Rights and Liabilities. (a) Payment of Bills. The defendants, bankers, holding in their hands 20/. on account of the plaintiff, paid a bill of exchange, accepted by the plaintiff, payable at their banking house, for ill, when it became due and was presented to them by the holder. No orders to pay the acceptance had been given by the plaintiff, nor had he countermanded the authority contained in the acceptance : — Held, that the defendants had authority to apply the funds of the plaintiff in their hands in payment of the acceptance. Qurere — Whether the defendants could recover from the plaintiff the difference between the amount of the bill and the monies in their hands. The fact of the defendants, after payment of the bill, having endeavoured to get back the money, and having treated the payment as made by mis- take, and subsequently honouring a cheque drawn by the plaintiff, cannot alter or destroy the pre- existing authority. Kymer v. Laurie, 18 Law J. Rep. (N.s.) Q.B. 218. Where a bill of exchange is accepted, payable at a banker's, having on it at time of acceptance, the forged indorsement of the payee, the bankers are responsible to the acceptor if they pay the party wrongfully claiming under such forged indorsement. It is the practice of the Pelican In.surance office to pay the loss on a country policy by means of a bill of exchange, drawn by the local agent on the London office, payable to the persons entitled to the money, or their order, pursuant to a "leave to draw" sent to such agent. A, who was insured in the office, died in the cquntry, and his death being certified to the office, a leave to draw was sent in the ordinary course to the local agent, who drew a bill of exchange for the amount of the policy, payable to A's executors or order, and handed it to W, their solicitor. W forged the sig- nature of the executor to the bill and paid it to his bankers in the country, by whom it was forwarded to Messrs. J L, & Co., in London. Messrs. J L, & Co. presented the bill at the office of tlie Pelican Company for acceptance, and it was accepted by them, having such forged indorsements on it, and made payable at the bank of the defendants, their bankers, by whom it was subsequently paid and the amount debited to the company. The forgery of the signature of the payees being afterwards discovered, the insurance office was obliged to pay the amount of the hill to them : — Held, in an action by the in- surance office against the defendants for wrongfully paying the bill, that the defendants were liable, as there was nothing to exempt them from the ordinary responsibility of bankers to ascertain that payment is made by them to the person entitled. Tucker v. Robarts, 18 Law J. Rep. (n.s.) Q.B. 169. (6) Nature of Contract on Deposit, Money deposited by a customer in a banker's hands is money lent, with the superadded obligation that it is to be repaid when called for by cheque; and if it remain in his hands for six years without any payment by him of the principal or allowance of interest, the Statute of Limitations is a bar to its recovery. Pott v. Cleg, 16 Law J. Rep. (N.s.) Exch. 210 ; 16 Mee. & W. 321. (c) Bond for faithful Service of Clerk. C entered into the service of bankers as their clerk at B, and gave a bond with sureties for the faithful discharge of his duties, and they covenanted thereby to make good all losses which might accrue to the bankers through the negligence, &o. of C. D, a customer of the bank, lived twelve miles from B, and requested the bankers to send over a person to receive his rents on a certain day. C was accord- ingly sent over, received the cash from D, and BANKER AND BANKING COMPANY. 61 lost it on his way borne. In an action of covenant against the sureties for the amount of the money lost by C, the jury found that it was not the custom for bankers at B to send over and receive money •from their customers in the country : — Held, that the money was received by C in the course of his employment as banker's clerk j that the receipt of the money by C was a receipt by the bankers j and that they were entitled to recover. Melville v. Doidge, 18 Law J. Rep. (n.s.) C.P. 1 j 6 Com. B. Rep. ISO. ((Q Extent in chief. An extent in chief may issue against a banker for the recovery of interest allowed by him on the half-yearly balance of a tax collector's account in which his own and the Crown monies are blended together. Regina v. Adams, 2 Exch. Rep. 299 : s.p. Rex V. Ward, Ibid. 301, n. Also to recover the amount of a banker's promis- sory note in the hands of a tax-collector, and re- ceived by him in payment of taxes. Regina v. Adams, 2 Exch. Rep. 299. (e) Payment into Bank. Payment into a London banker's, who were agents to a country bank, held a payment into the latter bank, and that the former were not liable for such payment in consequence of the failure of the country bank the day afterwards. Williams v. Deacon, (in error), 4 Exch. Rep. 397. (/) Transfer or Set-off of Account. A and B, traders, had a joint account at their bankers, and A had also a separate account at the same bank. The bankers suspended payment ; at that time the joint account of A and B was indebted to the bankers, but the bankers were indebted to A upon his separate ac- count. A and B, in pursuance of an arrange- ment between themselves, gave a notice to the bankers, desiring them to transfer the money standing to the separate account of A to the joint account of A and B. The bankers omitted to comply with this order, and afterwards became bankrupts, and their assignees brought an action against A and B for the balance due to the bankers upon their joint account. A and B filed a bill to restrain the proceedings at law : — Held, that the bankers, after a suspension of payment, could not transfer or set off one account against another ; that they had no lien upon the separate balance in their hands for the money due to them upon the joint account ; and that A and B had no right to be relieved from the proceedings at law ; and the bill was dismissed, with costs. Watts v. Christie, 18 Law J. Rep. (n.s.) Chanc. 173; s.c. 11 Beav. 546. (B) Lien of Bankers. The general lien of bankers is part of the law merchant, and is to be judicially noticed, like the negotiability of bills nf exchange. A banker's lien does not arise on securities de- posited with him for a special purpose, as where Exchequer bills are placed in his hands to get in- terest on them, and to get them exchanged for new bills. Such a special purpose is inconsistent with the existence of a general lien. Where a person who is in reality the agent of another, deposits Exchequer bill? with his own hankers, without informing them whose property the bills are, the bankers may be held entitled to consider the bills as the depositor's property, and to hold them as security for any money due to them from him, if the mode of deposit, or the circumstances attending it, give them a lien on the bills as against him. A was the London agent of B, a Portuguese merchant, aiid in that character purchased Exche- quer bills for him, received interest on them, and at proper intervals got them exchanged for others. He acted in the same manner for several other foreign customers. A kept an account with C, as his hanker, and at C's banking-house had several tin boxes, in which he deposited these Exchequer bills, and of which he kept the keys. On the 1st of December 1836, A took ciut of a tin box several Exchequer bills, which he delivered to C, requesting C to get the interest due on them, and to get the Exchequer bills exchanged for others. C did so. Before A came to take back the Exchequer bills acceptances of his beyond the amount of his cash credit account, were presented at C's bank and paid. A afterwards became bankrupt : — Held, that C had not a lien on the Exchequer hills in his hands for the balance due to him on A's account. The original judgment of the Common Pleas, 1 Man. & G. 908, affirmed: and that in the Exche- quer Chamber, 6 Man. Si G. 630, reversed. Bran- dao V. Bamett, 12 CI. & F. 787 ; 3 Com. B. Rep. 519. By the deed of settlement of a joint-stock bank, it was provided, " that the directors should have a lien on the shares and stock of every shareholder for all debts due to the company, and that such lien should at all times be the paramount lien on the shares and stock of such shareholder ; and the directors were empowered to cancel and declare forfeited the shares, or to sell and dispose of them, or otherwise deal with the same to obtain payment of the said debts" : — Held, that the company had a lien against a shareholder who had overdrawn his account, not only' on the shares, but also on the dividends arising from them. Hague v. Dandeson, 17 Law J. Rep. (n.s.) Exch. 269 ; 2 Exch. Rep. 741. [See (/) Transfer or Set-irff of Account.1 (C) Public Opficer [Actions and Suits]. In an action by the public officer of a banking company the plaintiff was described as one of the public registered officers, for the time being, of and for certain persons, &c. ; and the declaration stated that the defendant had been summoned to answer the plaintiff as such public officer as aforesaid : — Held, on special demurrer, that this was a sufficient statement of the plaintiff having been public officer at the commencement of the action. The statute 7 Geo. 4. c. 46. was recited in the declaration as an " Act made and passed in the seventh year of the reign of her present Majesty &c., for, amongst other things, the better regulating co-partnerships of bankers in England:" — Held, that the act was sufficiently recited. Esdaile v. Maclean, 16 Law J. Rep. (n.s.) Exch. 71 ; 15 Mee. & W. 277. In an action of indebitatus assumpsit against the 62 BANKER AND BANKING COMPANY. public officer of a joint-stock banking company, the defendant pleaded, setting out the deed of the company, and stating the necessary averments as to the due making of calls upon certain original shares held by the plaintiff, and that the plaintiff was indebted to the company upon and by virtue of the premises, in the amount of the calls, and sought to set off that amount. The plaintiff replied that he was not nor is indebted to the company modo et formd : — Held bad, upon special demurrer. The replication was also held bad, where the plea sought to set off in like manner the amount of calls due upon shares that the plaintiff had pur- chased. Held, also, that the pleas were good. Milvain v. Mather, 19 Law J. Rep. (n.s.) Exch. 227; 5 Exch. Eep. 55 ; 1 L. M. & P. 220. A deed of co-partnership of a banking company, carrying on business under 7 & 8 Geo. 4. c. 46, by which the shareholders covenant with the parties of the first part (inter alia) to pay calls duly made, does not enable such parties to sue upon the cove- nant, but the action must be brought in the name of one of the public officers of the company, pur- suant to the 9th section of tiiat statute, the words in that section " shall and may'* being obligatory and not merely permissive. Chapman v. Milvain, 19 Law J. Rep. (n.s.) Exch. 228 ; 5 Exch. Rep. 61; 1 L. M. & P. 209. A bill was filed against A as the registered public officer of the Yorkshire Banking Company. A by his answer stated that he had ceased to be such public officer, and that B then was the public officer of the company : — Held, that under the terms of 7 Geo. 4. c. 46. s. 9, it was not necessary to file a supplemental bill, or to obtain any order for the purpose of bringing the new public officer before the Court. Under the circumstances of the case, the Court ordered the production of documents adbnitted by A to be in the possession of the company ; the notice of motion being served on A, and the new public officer of the company. Butchart v. Dresser, 16 Law J. Rep. (n.s.) Chanc. 198. (D) SciKE Facias to chakge Members of Company. (a) Concurrent Writs. It is no answer to an action on a scire facias, to have execution against a member for the time being of a banking co-partnership, under 7 Geo. 4. c. 46. o. 13, that the plaintiff had previously issued another sci. fa., and had obtained an award of exe- cution against another member for the time being of the same co-partnership. Burmesler v. Crompton, 18 Law J. Rep. (n;S.) Exch. 142; 3 Exch. Rep. 397; 6 Dowl. & L. P.C. 430. It is no answer to a declaration in sci. fa. against a member of a banking company, founded upon a judgment against the public officer of such com- pany, that another writ is pending on the same judgment against another member of the company. Nunn V. Lomer, 18 Law J. Rep. (n.s.) Exch. 247 ; 3 Exch. Rep. 471. (A) Declaration and Plea. Qucere — Whether a declaration in sci. fa. on a judgment recovered against the public officer of a banking co-partnership is bad, which alleges that the defendant at the time of judgment recovered was and from thence hitherto hath been and still is a member of the said co-partnership. Semble — Thatawritin that form would be quashed on application to a Judge at chambers. Esdaile v. Trustwell, 16 Law J. Rep. (h.s.) Exch. 316 ; 1 Exch. Rep. 371; 5 Dowl. & L. P.C. 219. The Court quashed a writ of scire facias on a judgment recovered against the public officer of a banking co-partnership, which alleged that A B, " at the time of the commencement of the said action in which," &c., " and at the time of the recovery and giving of the said judgment was, and from thence continually has been and still is, a member of the said co-partnership," &c. Bank of Scotland v. Fenwick, 1 7 Law J. Rep. (n.s.) Exch. 92; l.Exch. Rep. 792; 5 Dowl. & L. P.C. 377.- Where a declaration in scire facias upon a judg- ment against a public officer of a banking company under 7 Geo. 4. c. 46. referred in onp part to the "statute," and in another ^ to the "statutes," — Held, on special demurrer, that it was good, as the reference to the statutes was mere sur- plusage. Held, also, that the defendant was sufficiently described as " now a member of the said co-partner- ship." Nunn.Y. Lomer or Claxton, 18 Law J. Rep. (n.s.) Exch. 342 ; 3 Exch. Rep. 712 ; 6 Dowl. & L. P.C. 637. A declaration in scire facias stated that the plain- tiff, by the judginent of the Court of, 8zc. recovered against B, one of the public officers of certain per- sons united in co-partnership, &c. for the purpose of carrying on the business of bankers in England, according to the 7 Geo. 4. c. 46, a debt of 3,000?., and damages 23/. 3s. Qd., whereof B, as such public officer, was convicted, as on inspecting the said rolls of our Exchequer appears. Plea, that S was pos- sessed of a share in the funds of the co-partnership and was a member thereof; that he appointed the defendants his executors, and that by the ways and means and manner aforesaid, and not otherwise, they became executors of the will of S, and entitled to the share of S and members of the co-partner- ship by reason of their share and interest as such executors, and not otherwise, and that they have fully administered all the goods of S. — Verification : — Held, first, on special demurrer, that the plea was bad, as amounting to an argumentative denial of membership. Secondly, that the declaration was good, and that it was not a valid objection on general demurrer that it omitted to state that the co-partnership was actually carrying on the business of bankers. Ness v. Bertram, 18 Law J. Rep. (n.s.) Exch. 476 ; 4 Exch. Rep. 195. (c) Retired Members. In order to issue a sci. fa. against retired share- holders in it joint- stock banking company, under 7 Geo. 4. c. 46. s. 13, it is sufficient if reasonable and bond fide attempts have been made to obtain satisfaction from the existing shareholders ; and it is not essential that executions should have been issued against every existing shareholder, if it appear probable that such executions would have been ineffectual. BANKER AND BANKING COMPANY; (D) Scire Facias. 63 Judgment was signed against the public officer of a banking company in an action brought on con- tracts entered into at various dates between August 1845 and January 1846. The name of B appeared as a shareholder in a return made the 24th of March 1845 and in all subsequent returns up to September 1845, when it was omitted. It was stated that this last return was informal, and that it was believed B was still a shareholder. No return of B's retire- ment was ever made :— Held, to be primd facie evi- dence that B was a shareholder when the contracts were entered into. The fact that B was not then a shareholder may be pleaded to the sd. fa. • It is no answer to the application that there has been a fraudulent transfer of shares from a person who might have been proceeded against, but to which the plaintiff is not shewn to have been a party. The plaintiff is not compelled to proceed against an insolvent shareholder, who is entitled in equity to reimbursement from other solvent persons. If Sisci.fa, issues against a person who was a shareholder when p^rt only of the contracts reco- vered upon were entered into, the Court will limit the execution against him to the amount for which he is liable. Judgment having been signed in an action of debt against the public officer liy default for the nominal debt in the declaration, the Court will grant leave to issue a sci. fa. on that judgment against former shareholders upon an undertaking not to levy for more than is really due. Harvey v. Scott, 17 Law J.Kep. (n.s ) a.B. 9 ; 11 Q.B. Rep. 92. Where execution has issued against one or more of a banking co-partnership, established under 7 Geo, 4. c. 46, and no satisfaction has 'been ob- tained, and the Court sees grounds for believing that plaintiff has used due diligence to obtain satisfaction from the existing members of the com- pany, it will allow a scire facias to issue against forpoer members ; and it is not necessary that exe- cution should have £rst issued against all the existing members, (Wilde, C.J. dubitante). The Court will grant e scire facias against parties upon primd facie evidence of their having been members at the time of the contract, there being no affidavit upon their part in contradiction. Semble — That where judgment has been obtained against a public officer of a bank, sued under the above statute, the partnership effects of the bank may be seized in execution. i It is not a sufficient ground for shortening the time within which parties have to shew cause, that otherwise the three years mentioned in the above statute as the limit of a retired partner's liability might elapse. Field v. M'Kenzie, 16 Law J. Rep. (N.s.) C.P. 203 ; 5 Dowl. & L. P.C. 172 ; 4 Com. B. Rep. 705. A creditor of a joint-stock banking company, established under the 7 Geo. 4. c. 46, before ob- taining a scire facias to have execution against a member of the company at the time of the con- tract, is bound to shew that heha6 previously made bond fide efforts to render the execution effectual against all who were members of the company at the time of the execution. Where a member of a joint-stock company had sold his shares before the date of the contract on which the company was sued, and his name had been omitted in the return entered at the Stamp Office, the form of Schedule A in the statute having been used by mistake instead of that of Schedule B — Held, that the question as to his being a share- holder was matter to be tried by scire facias. Also where a /. /a. has issued against the public officer who is also a member of the company, it is a question to he tried whether it issued against him as a member for the time being, or nominally against him as a public officer. Semble — That a scire facias for execution against members at the time of the contract ought to state the prior execution against those who were members at the time of the execution. Bank of England V. Johnson, 18 Law J. Rep. (n.s.) Exch 238 i 3 Exch. Rep. 598. (d) Executors. The deed of settlement of a joint-stock banking company provided that the executor of a deceased shareholder should not be a member of the com- pany in respect of such shares, hut should be at liberty to sell the shares, or at his option to become a member on complying with certain provisions is to giving notice of his desire to become a member, and specifying the shares in respect of which he claimed to be such member, and if he did not elect to become a member, he was not to be entitled to any dividend accruing due after the testator's death : — Held, that defendant, the executor of a deceased shareholder, who had not complied with these pro- visions, did not, by receiving a single dividend iii respect of the testator's shares, accrued due since! his death, render himself liable to be sued in scire facias as a member of the company. Ness v. Arm- strong, 18 Law J. Rep. (n.s.) Exch. 473 ; 4 Exch. Rep. 21. (c) Suppression of, Facts. . It is no ground for setting aside a rule for a sci. fa. granted against former partners of a banking company under 7 Geo. 4. c. 46. s. 13, that plaintiff had a collateral security from the bank, which, by care and management, might have been made pro- ductive, and which he had omitted to mention in the affidavits on which the rule was granted. Field V. M'Kenxie, 17 Law J. Rep. (n.s.) C.P. 98 ; 5 Dowl. & L.P.C. 348 ;, 4 Com. B. Rep. 725. (/) Waiver of Irregi^lqrity. Plaintiff obtained judgment against the public officer of a banking company, and issued a sci: fa. against defendants, under 7 Geo, 4. c. 46. s. 13. The writ described defendants as executrix and administrators of J H B and H J respectively, and it was stated therein that, at the time of recovering the judgment, defendants were and still are members of the co-partnership, and the writ called upon defendants to shew cause why execu- tion should not issue against them to satisfy the said judgment. The declaration alleged that J H B and H J were at the time of the recovering of the said judgment, members of the company, and so remained till their death, which occurred after the judgment; that defendants were their exe- 64 BANKER AND BANKING COMPANY— BANKRUPTCY. cutrix and administrators respectively, and prayed for execution to satisfy the said judgment to be levied of the goods and effects which were of J H B and H J respectively. Defendants obtained time to plead on the usual terms on two several occasions, and on a third application for time it was granted, " without prejudice to any motion to set aside the declaration as inconsistent with the writ" The sci. fa. was issued without leave of the Court, and no notice thereof was given to defendants. On motion to set aside the writ and all subsequent pro- ceedings for irregularity, — Held, that the irregu- larities complained of were of a substantial nature, and therefore obtaining time to plead was not a waiver of them. Per Williams, J., that the irregularities were accompanied with fraud, and, under these circutn- stauces, taking a subsequent step in the cause did not constitute a waiver. Quare — ^Whether under this statute recourse can be had against the estates of deceased members of the copartnership. Ricketts v. Bowhay, 16 Law J. Rep. {N.S.) C.P. 153; 3 Com. B. Rep. 889. {g) Husband of female Shareholder. A married woman purchased out of her separate property, with consent of her husband, the defen- dant, shares in a joint-stock banking company, and was registered as a shareholder. Defendant re- ceived some dividends on these shares, and signed receipts for them as her agent j he also attended some meetings of the company, at which none but shareholders were entitled to be present. A clause in the deed of settlement provided that the husband of any female shareholder should not be a member of the company in respect of such shares, but should be at liberty to sell the shares, or at his option to become a member on complying with certain pro- visions, as to giving notice of his desire to become a member, and specifying the shares in respect of which he claimed to be a member : — Held, that de- fendant who had not complied with these provisions, was not liable to be sued in scire facias as a member of the company for the time being, on a judgment obtained against the public officer, under 7 Geo. 4. c. 46. s. 13. Ness v. Angas, 18 Law J. Rep. (n.s.) Exch. 470 i 3 Exch. Rep. 805; 6 Dowl.St L.P.C. 45. BANKRUPTCY. [Of Railway and other Companies, see Company, Winding-up Acts. And see Intekpleader — Practice, Setting aside Proceedings — Sheriff, Escape — Wareanx of Attorney and Cognovit.] (A) Codrt of Bankruptcy and Commis- sioners. (o) General Jurisdiction of. (6) Court of Review. (B) Persons liable to become bankrupt. (C) Acts of Bankruptcy. (a) By Lwaatics, (6) Proceedings under \ Sf2 Vict. c. 110. s. 8. (c) Refusal to admit Demand on Summons, {d) Compounding with Petitioning Creditor to former Fiat. (e) Procuring own Goods to he taken in Exe- cution. (/) Fraudulent Conveyance, (g) Filing Declaration of Insolvency. (D) Protection from Process. (E) Petitioning Creditor. (F) Adjudication and Advertisement. (G) Transactions not affected by Bank- ruptcy. (o) Under 6 Geo. 4. c. 16. (J) Under 1 Will. 4. c. 7. (c) Under 2 8; 3 Vict. c. 29. (d) Cases of fraudulent Preference. (H) Warrants of Attorney, Cognovits, and Judges' Orders. (I) Mortgages and Lien, and Mutual Credit. (K) Assignees. (a) Official Assignee. (6) Choice of. (c) Rights and Liatilities, (d) Affirmation of Sale by. (e) Allowance of Costs. (J) Actions and Suits. (if) What Property passes to. ' (1) In general. (2) Wife's Property. (3) Order and Disposition and reputed Ownership. (L) Proof of Debt. (o) In general. (6) Bonds. (e) Annuity. (d) Shares. (e) Joint and separate Debts. , (/) Mortgages. (g^ Partners. (A) Sureties. (i) Arrears of Poor-rates, (k) Servants. (J) Broker, (m) Legacy, (n) Costs. (o) Contingent Debts, (p) Amount proveable. (5) Election. (r) Evidence and Practice: (M) Fiat. (o) Date and Issuing. , (i) Changing Venue. (c) Amending. (d) Superseding. (e) Annulling. (1) Causes for. (2) Practice, Petition, and Order for an- (N) Of the Bankrupt. (a) Surrender, (jb) Examination and Committal. (c) Allowance of Costs. (d) Discharge. (0) Audit of Accounts. (P) Dividends. (G) Certificate of Conformity. (R) Arrangement by Deed. (S) Evidence. BANKBUPTCY, 65 (T) Pbactice. (a) In general. (6) Petition, (c) Recounts, (d) Contempt. (e) Affidavit of Debt. (U) SOLICITOK TO THE FlAT. (W) Costs. The laws relating to bankrupts amended and consolidated by 12 ^ 13 Vict. c. 106 ; 27 Law J. Stat. App. viii. (A) Court of Bankruptcy and Commissioners. [See 12 & 13 Vict c. 106. ss. 6—11.] (o) General Jurisdiction of. [See 12 & 13 Vict. c. 106. ss. 12—25.] [Commissioners of the Court of Bankruptcy em- powered to order the release of bankrupts from prison in certain cases by 11 & 12 Vict. c. 86 ; 26 Law J. Stat. App. v.] The plaintiff having obtained judgment against F in an action of assault sued out a ca. sa. whereon P was arrested arid committed to the Gueen's Prison, of which the defendant was the keeper. F afterwards petitioned the Court of Bankruptcy for his discharge under the 5 & 6 Vict. c. 116. and the 7 & 8 Vict c. 96, and having obtained from the commissioner an order for his discharge, he was discharged by the defendant accordingly. In an action brought by the plaintiff against the defendant for an escape, — Held, (aflSrming the judgment of the Court below) that whether the commissioner was right or wrong in discharging F from the judg- ment in an action of tort, yet that he Tiad such jurisdiction in the matter as to protect the defen- dant, who had obeyed the order. Thomas v. Hudson, 17 Law J. Eep. (n.s^) Exch. 365 ; 16 Mee. & W. 885. The jurisdiction of the Court of Bankruptcy as to the appointment of new trustees in the place of persons having been made bankrupt, andthe transfer of the trust funds, has been removed to the Court of Chancery by the Bankrupt Law Consolidation Act. Ex parte Walker re Debaufre, 19 Law J. Rep. (n.s.) Bankr. 3. Where a trader sold an estate, and conveyed it as tenant in fee simple with the usual covenant for further assurance, and became bankrupt, and it was afterwards considered that he was tenant in tail only, it was ordered that the commissioner should be at liberty to execute a deed of confirma- tion to the purchaser. Ex parte Fripp re Phelps, 1 De Gex, 293. A person, who was formerly a Commissioner of Bankrupts, and entitled to an annuity, by way of compensation, under the 5 & 6 Vict. c. 122. s. 58, took the benefit of the Insolvent Debtors Act. A petition presented by his assignee to one of the Vice Chancellors in Bankruptcy, praying for a direction to the Accountant General in Bankruptcy to pay the annuity to the assignee, was dismissed. Ex parte Spooner re Payne, 17 Law J. Rep. fN.s.) Bankr. 11; 1 De Gex, 575. The Commissioner may exercise a discretion as to the truth of the affidavit of the form A b. in the Digest, 1845—1850. Schedule to the Bankrupt Law Consolidation Acti referred to in the 212th section, without the matter being brought before him adversely by a creditor. Ex parte Edmonds re Edmonds, 19 Law J. Rep. (n.s.) Bankr. 4. [See (K) Assignees — (/) Actions and Suits — (O) Audit of Accounts.] (6) Court of Review. The Court of Review abolished and its jurisdic- tion in insolvency transferred to the county courts by 10 & U Vict c. 102 ; 25 Law J. Stat 274. One of the Vice Chancellors made a court of appeal in Bankruptcy by 12 & 13 Vict. c. 106. ss. 12, 13. Where bankrupts are entitled in possession to the income of some of the trust funds of which one of the bankrupts was trustee : — Semble, that the Court of Review cannot appoint a new trustee without assignees joining as petitioners. Ex parte Cousen re Cousen, 1 De Gex, 451. (B) Persons liable to become bankrupt. [Enumerated 12 & 13 Vict. c. 106. s. 65.] A person who keeps a lodging-house and supplies the lodgers with food and wine is a trader within the meaning of the bankrupt laws. King v. Sim- monds, 1 H.L. Cas. 754. The plaintiff, a barrister, bought land-in two several places, and commenced building a number of houses thereon, which he sold as opportunities occurred. He had also built and sold another house in a different place, and had on -one occasion ac- cepted a bill describing him as a builder. The jury found that these were isolated transactions : — Held, that he was not liable to be made a bankrupt as a builder. Quiere — Whether if he had made it a regular practice to employ his capital to build and sell houses in this way, he would have been a builder within the bankrupt laws. Stuart v. Sloper, 18 Law J. Rep. (n.s.) Exch. 321 ; 3 Exch. Rep. 700. A party, by profession a barrister, took a lease of three pieces of building ground,,and at his own expense erected thereon upwards of two hundred houses, which he let as opportunity offered. Upon a trial at law, the jury found that he did not buy and sell building materials for profit, was not a builder, in the sense of being ready to build a house for any one who would give him an order, and meant to confine himself to the above-mentioned specula- tions, and did not intend generally to embark in other building speculations, — Held, (on a petition to annul a fiat issued against him as a builder) that he was not a builder within the meaning of the bankrupt laws. Ex parte Stewart re Stewart, 18 Law J. Rep. (n.s.) Bankr. 14. A had a farm of about 100 acres, cultivated by him in such a manner that no live stock was re- quired to be kept by him on it. A had for some years four cows, which were kept by him solely for the purpose of making a profit by their milk and calves. All the milk produced was from time to time sold, and none of it was used for A's family: — Held, that A was not a " cowkeeper" within the meaning of the 5 St 6 Vict c. 122. s. 10. Ex parte Bering re Cramp, 16 Law J. Rep. (n.s.) Bankr. 3 i 1 De Gex, 398. K 66 BANKRUPTCY; (C) Acts or Bankruptct. (C) Acts of Bankruptcy. [Provisions as to 12 & 13 Vict. c. 106. ss. 67—88.] (a) By Lunatics. Semble — A lunatic cannot commit an act of bankruptcy by omitting to pay or give security. Ex parte Stamp re Spence, 1 De Gex, 345. (6) Proceedings under 1^2 Fict. c. 110. s. 8. [See 12 & 13 Vict. c. 106. ss. 69-75.] Semble— The 1 & 2 Vict. c. 110. s. 8 is not re- pealed by 5 & 6 Vict. c. 122. Er parte Goodall re Goodall, 1 De Gex, 580. In an action against the original debtor, on a bond given under statute 1 & 2 Vict. c. 110. s. 8, — Held, that a plea alleging that no writ of capias ad satis- faciendum had issued in the original action was a good plea. Held, also, that where the declaration alleged that the defendant did not render himself according to the terms of a Judge's order, a plea averring that such order had been obtained ex parte by the plaintiff was bad, and that the proper course for the defendant, if it had been irregularly obtained, was to apply to set it aside. Held also, that where the declaration alleged that a Judge's order had been made for the render within a given time, which time had been extended till the fifth day of term by a subsequent Judge's order, and that a rule nisi had been obtained within that period, calling on the plaintiif to shew cause on a subsequent day why the defendant and his bail should not have further time to render, and that in the mean time proceed- ings against the defendant and his bail should be stayed, a plea alleging that upon that rule nisi a rule absolute was made on the 22nd day of term, directing a render within a given period, and that a subsequent render was made within that time, was a good plea. Held also, that such a bond was not a bond within 6 Geo. 4. c. 16. ss. 52 and 56, and that the plaintiff's claim was not barred by the bankruptcy of the defendant and his certificate after the commencement of, but before judgment obtained in, the original action. Held also, that a plea stating that an action had already been brought by the plaintiff for recovery of the sum mentioned in the bond at the time the bond was given, was no plea to an action on a judgment obtained in another action subsequently commenced. Hinton v. /Icra- man, 15 Law J. Rep. (n.s.) C.P. 52; 3 Dowl. & L. P.O. 426 ; 2 Com. B. Rep. 367. (c) Refusal to admit Demand on Summons. [12 & 13 Vict. i;. 106. ss. 78—86.] B being indebted to R in the sum of 149/. 4s., proceedings were taken against him by R, under the statute 5 & 6 Vict. c. 122. B thereupon signed an admission that he was indebted to R in 149Z. : — Held, there being no intention on the part of B to dispute the 4s., which was omitted by mistake, that this was an admission of the whole debt, and not of part only, within the 1 5th section of the statute. Within fourteen days of the admission, B and R came to an agreement that B should give R a Judge's order for the amount due, and also deposit with him six bills of exchange as security : — Held, that this was a compounding of the debt to the satisfaction of the creditor, eo as to prevent any act of bankruptcy, under the provisions of the statute, although the Judge's order was not in fact given, nor the bills of exchange deposited in pur- suance of the agreement, until more than fourteen days after the filing of the admission. Pennell v. Rhodes, 15 Law J. Rep. (n.s.) Q.B. 352; 9 Q.B. Rep. 114. A creditor served a debtor with particulars of demand, under the 5 & 6 Vict. c. 122. s. 11, stating that the debt arose from returned bills. The creditor then made an affidavit, stating that the debt had been incurred for goods sold and delivered. The debtor was summoned to appear before the com- missioner, in pursuance of the act, but did not ap- pear, and did not satisfy the creditor within four- teen days. A fiat issued against the debtor on the act of bankruptcy, alleged to have been committed by him under the above circumstances. On a petition to annul the fiat, — Held, first, that the creditor had not complied with the forms required by the act ; aud, secondly, that the debtor's non- appearance before the commissioner did not amount to a waiver by him of the irregularity. Ex parte Greenstock re Greenstoclc, 15 Law J. Rep. (n.s.) Bankr..5 ; 1 De Gex, 230. (d) Compounding with Petitioning Creditor to former Fiat. [See 12 & 13 Vict c. 106. s. 71.] Defendants, being creditors of B, on the 3rd of December 1840 filed an affidavit, and gave notice under 1 8i 2 Vict. c. 110. B did not pay or com- pound within the twenty- one days; and on the 31st of December a fiat issued on the petition of the plaintiffs; and, on the 30th of January 1841, that fiat was annulled on the petition of the defendants, who, on the following day, issued a second fiat. They did not proceed on that fiat, and on the 9th of September 1842, the second fiat was annulled, and a third fiat issued on the petition of the plaintiffs, who were chosen assignees under it. Defendants, on the 17th of February 1841, while the second fiat was in force, received a sum of money in payment of their debt, being more in the pound than the other creditors : — Held, first, that as this payment constituted an act of bankruptcy, under 6 Geo. 4. c. 16. s. 8, the fiat of the 9th of September 1842, which though it issued more than a year after such payment, issued before the 5 & 6 Vict. t. 122. came into operation, was well supported by such pay- ment. Secondly, that the plaintiffs were entitled to sue as assignees, in the absence of any special ap- pointment by the commissioner of a person to sue. Semble — 'That the affidavit of the 3rd of December 1840, would not, alone or coupled with the first fiat, support the third fiat. Ellis v. Russell, 16 Law J. Rep. (N.s.) Q-B. 428 ; 10 a.B. Rep. 952. (e) Procuring own Goods to be taken in Execution. [See 12 & 13 Vict. c. 106. s. 67.] A trader's procuring his goods to be taken in execution has no effect as an act of bankruptcy, under the 4 Geo. 4. c. 16. s. 3, until the goods be actually taken. There is no relation back from the time of the actual taking of the goods in execution, to any antecedent period, so as to make any of the pro- ceedings on which the execution is founded an act BANKRUPTCY ; (C) Acts op Bankruptcy. 67 of bankruptcy. Belcher v. Gummow, 16 Law J. Rep. (N.S.) as. 155; 9 Q-B. Rep. 873. If execution be taken out in the name of two parties, jointly interested, as co-plaintiffs, and one knows of an act of bankruptcy already committed by the defendant, his knowledge is primd facie the knowledge of both j and the execution is not pro- tected by Stat. 2 & 3 Vict c. 29. s. 1 j even though the execution be in fact sued out by one party only, of whose knowledge there is no evidence. Per Coleridge J. — 'Quiere, whether the knowledge of one co-plalntiif would not affect the other, even if it were proved that he in fact was ignorant of the prior act of bankruptcy. Under stat. 6 Geo. 4. c. 16. ». 3. (and see stat. 12 & 13 Vict. c. 106. s. 67.) a party procuring bills of exchange, his property, to be taken in execution with intent to defeat creditors, after the passing of stat. 1 & 2 Vict. c. 110, committed an act of bank- ruptcy, though, at the time when the act of Geo. 4. passed, bills of exchange were not liable to betaken in execution. Edwards v. Cooper, 11 G.B. Rep. 33. (/) Fraudulent Coniieyance. [12&13 Vict. c. 106. =. 67.] By a composition deed between A and B and scheduled creditors of A, reciting that B agreed to join in securing the payment of a composition by A on having the assignment therein contained made to him, it was witnessed that A and B covenanted to pay the creditors the composition ; that in consi- deration of this covenant, A assigned all his stock In trade, &c. to B, to hold as B's own goods and chattels ; that the creditors covenanted on receiving the composition to release A. At the same time, lease- hold trade premises were assigned by A to B, with the privity of the creditors. All the assigned pro- perty was then in the possession of certain mort- gagees of the leasehold premises and machinery, who afterwards gave up possession to B, on his guaranteeing payment of the mortgage money. Immediately after the execution of the deed, B gave the creditors bis promissory notes for the compo- sition. B remained in possession until he became bankrupt, and after his bankruptcy a fiat was sued out against A by a creditor who knew of the deed, but had not executed it. He was a friend of A, and indifferent to the payment of his debt, but per- mitted his name to be used by the creditors who had signed the deed: — Held, first, that the compo- sition deed was an act of bankruptcy and not a sale for value. Secondly, that the assigned property was not in the reputed ownership of B. Thirdly, that, under the circumstances, B's assignees might recover the property. Se Marshall, 1 De Gex, 273. (g) Filing Declaration of Insolvency. [12 & 13 Vict. c. 106. s. 70.] Under 5 & 6 Vict. c. 122. s. 22, the filing of a declaration of insolvency is of itself a complete act of bankruptcy, without being followed by an adver- tisement of the same in the Gazette under the 6 Geo. 4. c. 16. s. 6. Therefore, where a trader gave execution credi- tors notice that he had filed a declaration of insol- vency, and thereby committed an act of bankruptcy, this was held a sufficient notice of a prior act of bankruptcy to deprive the creditors of the protec- tion of the 2 & 3 Vict. c. 29. A trader having been arrested on a ca. sa. at the suit of the defendants, who, as well as the sheriff's officer, had received a notice of a prior act of bank- ruptcy, paid over » portion of his assets to the officer in order to procure his discharge, and the officer paid over the amount to the defendants : — Held, that the bankrupt's assignees were entitled to recover back from the defendants the amount so paid, in an action for money had and received. Follett V. Hoppe, 17 Law J. Rep. (n.s.) C.P. 76 j 5 Com. B. Rep. 226. (D) Protection from Process. An order for temporary and limited protection from arrest of a petitioning debtor, made under 7 & 8 Vict. c. 70. s. 7, by a Commissioner of the Court of Bankruptcy, on examination of the petition, cannot be renewed or extended beyond the time originally limited by it. Maxeman v. Davies, 15 Law J. Rep. (n.s.) Q-B. Ill; 3 Dowl. & L. P.C. - 145. Wliere a defendant was brought up in custody of a gaoler, for the purpose of being charged in exe- cution, and it appeared that a Commissioner of Bankrupts had, on the preceding day, granted an interim order for his protectioii, the Court refused to allow him to be charged in execution. Sloman V. Williams, 4 Dowl. & L. P.C. 49. The protection given by the 12 & 13 Vict. c. 106. B. 216. only protects the debtor from arrest at the suit of persons being creditors at the date of his petition, and having had the notices required by section 215. Therefore, where the acceptor of a bill of exchange obtained an order of protection under the act, while the bill was running, and the notices were given to the drawer, supposed to be the holder, an indorsee prior to the petition was held not to be affected by the order of protection. Semble — That it would have made no difference if he had become the indorsee after the petition ; but quare, as to the effect of express notice at the time of the indorsement, that the indorser had received the notices pursuant to the act. Levy v. Home, 19 Law J. Rep. (n.s.) Exch. 260 ; 5 Exch. Rep. 257. . On the 12th of November 1849, the defendant presented a petition to the Bankruptcy Court for protection for his person and property under the 12 8j 13 Vict. c. 106. s. 211, and obtained a protection. On the 28th of November an action against him was tried, in which the present plaintiff recovered 29i. damages, the costs of which were, on the 12th of December, taxed at 611. 14s. 3d:. On the 7th of December, the defendant filed an account of his debts, in which he described the plaintiff's debt thus : — "Southgate William, clerk, &o., of &c., has got judgment for debt estimated at 22^., and 50/." On the 20th of December the defendant made a proposal, which was accepted, to certain of his creditors to pay them 7s. 6d. in the pound " with a satisfactory guarantie." On the 31st of January all the creditors who had proved debts to the amount of 101. and upwards agreed to the terms above proposed, provided the amount of such composition were guaranteed by two parties named, 68 BANKRUPTCY ; (G) Transactions not affected bt Bankkuptot. This agreement was sanctioned by the Court of Bankruptcy: — Held, that the debt of 22i. was cor- rectly described in the account ; that the verdict obtained being therein treated as a judgment was immaterial ; and that the defendant, who had been arrested during the continuance of his protection, was entitled to his discharge both from the debt and costs, the latter being an accessory only to the principal debt. Held, also, that whatever difficulty the form of guarantie might create as to enforcing it, the pro- tection was valid under the 21 Ith section. South- gate V. Saunders, 19 Law J. Rep. (n.s.) Exch. 331; 5 Exch. Rep. 565. A person, in pursuance of the 1 & 2 Vict. c. 110. s. 8, gave a bond with two sureties. An action was brought on the bond, and judgment recovered on the 30th of November. On the 3rd of December a fiat in bankruptcy issued against the obligor, and he was adjudged a bankrupt. On the 6th of Decem- ber he surrendered to the fiat, and obtained protec- tion under the 5 & 6 Vict. c. 122. s. 23. Afterwards, on the same day, he surrendered himself in dis- charge of the bond, and was committed to prison. An application was made by him to a Judge for his discharge, and refused. A similar application made to the Court of Bankruptcy was also refused. Ex parte Oldaker re Oldaker, 17 Law J. Rep. (n.s.) Bankr. 3. [See post, (Q) Certificate of Conformity.] (E) Petitioning Ceeditok. Public ofiicer of a corporation permitted to make the docket affidavit, where the corporation is the petitioning creditor. Ex parte Collins re Rickett, 1 De Gex, 381. A bankrupt is a competent witness to prove the petitioning creditor's debt since 6 & 7 Vict. c. 85; the ground of his exclusion before that statute having been that of "interest." Groom v. Watson, 19 Law J. Rep. (n.b.) C.P. 364; 8 Com. B. Rep. 217. (F) Adjudication and Advektisement. [See 12 & 13 Vict. c. 106. s. 101.] The adjudication in a bankruptcy was made on the 18th of October. The days appointed for the surrender were the 15th and the 29th of November; and an advertisement, intended to be inserted in the London Gazette, was prepared accordingly. By an accident the advertisement was not inserted until the 3rd of November. The commissioner was de- clared to he at liberty to insert a new advertisement in the Gazette, with fresh days of surrender, without prejudice, however, to the question of its validity. Re Stringer, 18 Law J. Rep. (H.s.) Bankr. I. (G) Transactions not affected by Bank- ruptcy. (a) Under 6 Geo. 4. u. 16. A deed of assignment amounting to an act of bankruptcy, under the 3rd section of the 6 Geo. 4. c. 16, is not void as against the future creditors of the assignor. Oswald v. Thompson, 17 Law J. Rep. (n.s.) Exch. 234; 2 Exch. Rep. 215. Plaintiff being surety for the bankrupt, paid the amount after the fiat : — Held, the bankrupt having obtained his certificate, that the plaintiff's debt was barred by sections 52 and 121 of 6 Geo, 4. c. 16. Earle v. Oliver, 2 Exch. Rep. 71. R D gave D a warrant of attorney to confess judgment, upon which judgment was entered np. A fi. fa. issued on the 24th of August, and the sheriflT seized on the 26th. On the 9th of Septem- ber the sheriff sold the goods (a quantity of iron) in lots, at so much per ton, and received a deposit in money on each lot. The iron was not separated into parcels at the time of sale. On the 11th of September a fiat in bankruptcy issued against R D. On the 19th of September and following days the iron was weighed out and delivered to the several purchasers, and the sheriff paid over the price to D the execution creditor. In an action by the assignees of R D against D, — Held, that the sale was only inchoate at the date of the fiat in bankruptcy, and therefore the money was the money of the assignees. After the seizure, and before the sale was com- pleted, the goods in the hands of the sheriff were a security for the creditor, and therefore the execution was not protected by 6 Geo. 4. c. 16. s. 108. JVard V. Dalton, 18 Law J. Rep. (n.s.) C.P. 236 ; 7 Com. B. Rep. 643. (i) Under 1 Will. 4. v. 7. A defendant sued adversely consented to a Judge's order to pay debt and costs forthwith, upon which judgment was entered up, and a writ otfi.fa. issued on the 9th of February, under which the sheriff seized the goods, 8zo. at two o'clock of the same day. At three o'clock on the same 9th of February, a declaration of defendant's insolvency was filed, pursuant to 6 Geo. 4. u. 16. s. 6. A fiat issued on the 10th of February, and notice was given on the same day to the sheriff. Defendant was adjudged a bankrupt, and assignees were appointed on the 25th of February. In an action by the assignees against the creditor (pursuant to the order of a Judge) to try whether the execution was valid against the title of the assignees, — Held, that the judgment was a judgment by nil dicit, and the execution protected by 1 Will. 4. c. 7. s. 7. Bell v. Bidgood, 19 Law J. Rep. (n.s.) C.P. 15 ; 8 Com.B. Rep. 763. (c) Under 2^ S Vict. c. 29. [See 12 & 13 Vict. u. 106. ss. 133, 134.] Notice of a prior act of bankruptcy given to a clerk of an attorney, who had issued a writ of execution, at the office and in the absence of his master, such clerk not being shewn to 'have had personally the conduct of the , suit in which execution issued, will not operate to defeat the exe- cution under the proviso in the 2 & 3 Vict. c. 29. s. 1, until communicated by the clerk to his master. Pike V. Stephens, 17 Law J. Rep. (n.s.) Q.B. 282 ; 12 as. Rep. 465. A trader, being indebted to the defendants, on the 1st of July filed a declaration of insolvency, pursuant to 5 & 6 Vict. c. 122. s. 22, and, on the following day, gave notice thereof to the defendants; at a subsequent period of the same day the defen- dants levied an execution on the trader's goods. A fiat of bankruptcy issued on the day following : — Held, that the act of bankruptcy dated from the time of filing the declaration of insolvency, and that the defendants, having had notice thereof, were not BANKRUPTCY ; (G) TRANSACTIONS not affected by Bankettptot. 69 entitled to the pioceeds of the execution within the meaning of the 2 & 3 Vict. c. 29. s. 1. Green v. Laurie, 17 Law J. Rep. (n.s.) Exoh. 61 ; 1 Exch. Rep. 335. Certain goods were deposited with a trader, upon terms that he should retain possession of them for a year upon payment of a sum of money, and enabling the owner to resume possession if money not paid, which he did, and sold them before the issuing of the fiat : — Held, that this was a trans- action protected by the 2 & 3 Vict. c. 29. s. 1. Young V. Hope, 2 Exch. Rep. 105. Pending a negotiation to settle an action by Judge's order, the clerk of the attorney for thq debtor said to the clerk of the attorney for the creditor, that the debtor had committed an act of bankruptcy, and that notice would be given if the creditors pressed. Upon the trial of an issue between the assignees of the debtor, who became bankrupt, and the creditor, the Judge ruled that this was a sufScient notice to the creditor within 2 & 3~VicL a. 29: — Held, a, misdirection; no evi- dence having been given that the notice was com- municated to the creditor's attorney by the clerk. Quiere — As to the effect of a notice to the manag- ing clerk of the attorney in the action. Pennell v, Stephens, 18 Law J. Rep. (n.s.) C.P. 291 ; 7 Com. B. Rep. 987. (d) Cases of fraudulent Preference. In an action by assignees of bankrupts to recover back from defendant, who was a creditor of the bankrupts, the amount of a debt paid him by the bankrupts which the assignees alleged to have been paid by way of fraudulent preference, the Judge directed the jury, first, that if the bankrupts were induced to make the payment by the pressure of defendant, the verdict should be for the defen- dant; secondly, that if they were not influenced by the pressure, but acted voluntarily and with a view to give a preference to defendant in the event of a bankruptcy, the verdict should be for the plaintiffs ; and thirdly, that if the payment was made under the influence of the pressure of the defendant, and also with a desire to give a preference to the defen- dant in the event of a bankruptcy, the verdict should be for the defendant : — Held, that the direc- tion was right. Brown v. Kempton, 19 Law J. Rep. (N.s.) C.P. 169. The defendant's w;fe having, before her marriage, become, as surety, joint and several maker with F, of a promissory note, afterwards, at the suggestion of her husband, applied to F for money to enable him to take up the note. F being then insolvent, voluntarily paid the amount of the note to the defen- dant in contemplation of bankruptcy and by way of fraudulent preference. The defendant afterwards paid the money to an indorsee of the note : — Held, that the assignees of F,. who afterwards became bankrupt, were entitled to recover the money from the defendant as money had and received to their use. Groom v. Watts, 19 Law J. Rep. (n.s.) Exch. 154; 4 Exch. Rep. 727. A trader being indebted to his bankers gave them a receipt for 1,0002., purporting to be in full for the purchase of the furniture, &o. and effects in his house, but no possession was given till a year after- wards, when the trader's solicitor applied to the bankers for a loan of 10,0001, stating that a creditor of the trader's would obtain judgment on which he could issue execution, but that if the creditor re- fused to give the trader time he would protect him- self and his other creditors. The day after, in consequence of this communication the bankers took possession, and on the same day the trader filed a declaration of insolvency and sued out a fiat against himself: — Held, not to be a fraudulent preference. Queere — ^As to the efiect of a joint possession of the servants of the bankrupt and of the owner of goods as to reputed ownership. Semhle — An examination of a party before the Commissioner may be received to discredit an affi- davit of the same witness made on a petition. Ex parte Marjoribanks re Rainer, 1 De Gex, 466. (H) "Wabbants op Attokney, Coonovits, AND Judges' Okdeks. [See 12 & 13 Vict. c. 106. ss. 136, 137.] Effect of not Filing. The 12 & 13 Vict. c. 106. s. 137, which enacts that a judgment and execution upon a Judge's order given by a trader not being duly filed within twenty-one days is to be void to all intents and pur- poses whatever, does not avoid such judgment and execution as against the trader himself, but only as against his assignees if he becomes bankrupt. Bryan V. Child, 19LawJ.Rep. (n.s.) Exch. 264; 5Exch. ' Rep. 368. (I) Mortgages and Lien, and mutual Credit, A, being possessed of twenty tons of oil, deposited in a railway company's warehouse, and being in- debted to B, on the 3rd of June gave B an authority to take the oil, and sell it, and place the produce to A's account. On the 5th of June (a Saturday) A gave B an order on the railway company to deliver the oil to B. B, on presenting the order, on Monday morning, found that the oil had, the same morning, been removed to A's manufactory. On the 11th of June Abecame bankrupt: — Held, that B had a lien on the twenty tons of oil. Ex parte Bell re Tunstall, 17 Law J. Rep. (n.s.) Bankr. 9; 1 De Gex, 577. A, by a memorandum in writing, stated that he had placed in the possession of B seven leases of seven pieces of ground, messuages and premises, numbered respectively (mentioning the numbers) ; and undertook to execute proper mortgages of the same to B, to secure a sura advanced by B to A. A became bankrupt. B presented the usual equitable mortgagee's petition: — Held, that B was entitled to the " tenant's fixtures" which were in the houses agreed to be mortgaged. Ex parte Couiell re Inwood, 17 Law J. Rep. (n.s.) Bankr. 16. An accountant has, as against the assignees, a lien on books intrusted to him for examination and arrangement by a bankrupt before the bank- ruptcy — semble. Ex parte Southall re Hill, 17 Law J. Rep. (n.s.) Bankr. 21. The plaintifis and defendants being, by agree- ment between them, jointly entitled to the benefits of a charter-party, the plaintiffs assigned their interest in it, by indorsement, to D, their creditor, at the same time giving the defendants notice of 70 BANKRUPTCY; (K) Assisnbes. such assignment, and afterwarcls became bankrupts. The assignees of the charter-party having sued upon it in the names of the plaintiffs, the defendants pleaded the bankruptcy of the plaintiffs, by which the right to their choses in action vested in their assignees. Replication, setting forth the assign- ment by the plaintiffs of their interest in the charter- party to D, and notice to the defendants of that assignment given by them before the bankruptcy of the plaintiffs, and that the plaintiffs sued on account of D. Rejoinder (after terms to rejoin gratis and issuably had been imposed), setting up the previous agreement between the plaintiffs and defendants, that they should share the benefits of the charter-party, by way of a mutual credit between the parties, on which an account should be stated, and one demand set against the other, under 6 Geo. i. c. 16. a. 50 : Held, not issuable, and bad in sub- stance, for at the time of the bankruptcy no mutual credit existed between the plaintiffs and defendants. Boyd v. Mangks, 16 Mee. & W. 337. (K) Assignees. (a) Official Assignee. An official assignee of a bankrupt or insolvent, who has been made a plaintiff in an action without his authority, is entitled to an indemnity from costs. Laws v. Bott, 16 Law J. Rep. (N.s.) Exch. 279 j 16Mee.&W. 300. The official assignee represents the creditors sufiiciently to enable the Court to suspend the advertisement by consent before the choice of creditors' assignees, although the bankruptcy is not disputed. Exparte Potts re Potts, 1 De Gex, 326. In the case of a defaulting official assignee the Court ordered that no sum should be paid in respect of monies due to him in any bankruptcy, until he had made good all the amounts due from him in other bankruptcies. Ex parte Graham re Gray, 1 De Gex, 328. It is the duty of the official assignee to examine the lists of creditors prepared by the solicitors to the fiat, before he signs them ; and he is liable for the consequences of the omission of any creditors from the lists. Ex parte Hall re Carey, 16 Law J. Rep. (N.S.) Baukr. 10 ; 1 De Gex, 555. A mortgaged estate belonging to a bankrupt was bought at a sale by auction by the mortgagee, who had obtained liberty to bid for 5001. An applica- tion to open the biddings at an advance of T501., on the grounds that the title was much embarrassed at the time of sale, and that the commissioner had stated that the biddings might be opened, was granted. Ex parte Lee re HiggoTison, 18 Law J. Rep. (n.s.) Bankr. 6. (6) Clioice of. A fiat issued against a bankrupt on his own peti- tion. At the meeting of creditors for the choice of assignees, A tendered a proof of a debt, which was adjourned by the commissioner. The choice of assignees was then proceeded with. The solicitor who had been concerned for the bankrupt repre- sented all the other creditors at this meeting. A was afterwards admitted to prove for the whole of his debt. On the petition of A, the choice of assignees was ordered to be set aside. Ex parte Morse re Layt, 16 Law J. Rep. (n.s.) Bankr. 9 ; 1 De Gex, 478. (c) Rights and Liabilities. B, being indebted to the defendant in 500?., delivered to him a bill of exchange for 600^., which defendant agreed to discount on the terms of retaining lOOi. and the ordinary discount, and pay- ing over the difference to B. Defendant kept the bill, and paid no part of the difference to B, who became bankrupt shortly afterwards, when his assignees brought an action upon the contract against the defendant. The Judge directed the jury that the assignee stood in the same situation as the bankrupt, if solvent, would have stood in, and were entitled to recover the amount of the bill, minus the 1001. and the discount : — Held, that this was no misdirection ; and the jury, having found for the plaintiffs, damages i95l., allowing 51. per cent, discount, the Court refused to disturb the verdict. Alder v. Keighley, 15 Law J. Rep. (N.s.) Exch. 100; 15 Mee. & W. 117. A fiat in bankruptcy having issued against D, the petitioning creditor came before the commis- sioner, but being unable to prove his debt, other creditors were permitted to prosecute the flat under the 5 & 6 Vict. c. 122. s. 4. That section enacts, that if the fiat shall not be opened by the petitioning creditor within three days after it shall have been transmitted, the Court may at any time within four- teen days next following, open it on the application of any other creditor to the requisite amount, and may adjudicate thereon upon proof of the debt of such creditor, and of the "other requisites" to support such fiat. The prosecuting creditors accord- ingly proved their debt, the trading, and the act of bankruptcj', and D was declared a bankrupt, and the plaintifii appointed his assignees : — Held, on an issue raised as to the title of the plaintiffs as as- signees, first, that the words of the statute "opening the fiat" included all the proceedings previous to adjudication, and therefore that the fiat had not been opened by the petitioning creditor. Secondly, that the petitioning creditor's debt was not one of the "other requisites" to support the fiat, and therefore was unnecessary to he proved before the commis- sioner. Thirdly, that an order of the Lord Chancel- lor, under the 6 Geo. 4, c. 16. s. 18, for substituting a new petitioning creditor's debt was unnecessary,- and therefore that the title of the plaintiffs as as- signees was proved. Kynaston v. Davis, 15 Law J. Rep. (n.s.) Exch. 336 ; 15 Mee. & W. 705. On the 4th of March the sheriff of London entered upon the premises of B under a writ of fi.fa. in his hands, at the suit of defendant, an execution creditor. When the sheriff entered all the goods of B were in possession of an officer of the Lord Mayor's Court, who had taken them in e.-cecution, at the suit of one L, and the goods were also under a distress put in by the landlord for rent. On the 9th of March a fiat issued against B. On the 6th of April the land- lord sold all the goods, and paid himself and L, and paid the surplus into court to abide the ev^nt of an issue directed to be tried between the assignees of B and defendant ; — Held, that the assignees could not impeach the title of the defendant, by setting up the claims of the landlord, or of L. Held, also, if the assignees had intended to deny BANKRUPTCY ; (K) Assignees. 71 that there was « "seizure" within the meaning of the 108th section of the 6 Geo. 4. c. 16, they should have done so before the Judge directed an issue. Belcher v. Patten, 18 Law J. Rep. (n.s.) C.P. 69 ; 6 Com. B.Rep. 608. Where an assignee bought in without an order, he was ordered to ;make good the loss occasioned by a re-sale. Ex parte Cover re Humphrues, 1 De Gex, 319. (d) Affirmation of Sale by. After an act of bankruptcy, committed by A, the plaintiifs, who were subsequently appointed as- signees, directed A's shop to be kept open as usual. Defendants, with notice of act of bankruptcy, purchased goods at the shop, which were delivered to them on the 28th of February, and plaintiffs were appointed assignees on the 24th of March. Appli- cations were made on the 9th and 23rd of April to defendants, by the direction of plaintiffs, as as- signees, for payment for the goods supplied on the 28th of February, and a formal demand of them was made and refused on the llth of May : — Held, that the above facts furnish no evidence of an affir- mation by the assignees of a contract of sale, and that defendants were liable in trover. Valpyv. San- ders, 17 Law J. Rep. (n.s.) C.P. 249 ; 5 Com. B. Rep. 886. (c) Allowance of Costs. Trustees under an assignment for the benefit of creditors employed an agent to proceed to America to recover part of the property. Afterwards the debtors became bankrupt, and three of the trustees were appointed assignees : — Held, that the assignees should be allowed the expense of employing the agent. . Expenses will be allowed if there was a fair probability of their benefiting the estate. It is not necessary to shew they have actually done so. Ex parte Shaw re Rohbins, 1 De Gex, 242. A petitioner, in the matter of a petition for the sale of some property which had been mortgaged to him by the bankrupt, employed the solicitor who acted for the creditors' assignees. The official as- signee appeared at the hearing of the petition by separate counsel : — Held, that the official assignee was, under the circumstances, entitled to the costs of such separate appearance. Ex parte Bromage re Janes, 16 Law J. Rep. (n.s.) Bankr. 13 ; 1 De Gex, 375. Where creditors' assignee omitted to pay over to the official assignee the balance in his ^ands, and the commissioner had directed the payment, Wtth 20/. per cent, on the amount, — Held, that applica- tion should be made to the commissioner to en- force his order, and creditors were not allowed the extra costs occasioned by applying to the Court of Review. The 6 Geo. 4. c. 16. s. 104, directing payment of 20i. per cent, by assignees retaining part of the estate in their hands, means 20/. per cent, per an- num. Semble — that the offer of a cheque on a banker at a town where the estate has no banker, is not a proper tender by a creditors' assignee to the official assignee. Ex parte Cunliffe re Archer, 1 De Gex, 408. (/ ) Actions and Suits. A declaration in trespass stated a breaking and entering, damaging the doors, hinges, and locks; spoiling the grass and fruit-trees; and exposing the plaintifPs goods to sale on his premises; by means of which, &c. the plaintiff was not only disturbed in the possession of his house, but prevented from carrying on his business, and deprived of the en- joyment of his goods. The defendant pleaded that, before the action brought, the plaintiff became a bankrupt:— Held, on general demurrer, (affirming the judgment of the Court below), that as there were some causes of action included in the declara- tion which would not pass to the assignees, the plea which embraced the whole, and was not ad- dressed to any particular portion of the declaration, was insufficient and bad. Rogers v. Spence, 12 CI. & F. 700. The creditors' and official assignees have, by the 1 & 2 Will. 4. c. 56. s. 25, a joint title to the bank- rupt's estate, so that if one of them die pending a suit in which they are co-plaintiffs, the suit may be continued by the other. Manx. Ricltetts, 15 Law J. Rep. (N.s.) Chanc. 79 ; 1 Ph. 617. Assignees who had brought an action against an annuity creditor of the bankrupt on a cross-demand were, on the petition of the creditor submitting to the jurisdiction of the Court, restrained from pro- ceeding in the action. Semble — that the commissioner has no jurisdic- tion to value the annuity for the purpose of its being set off in the action. Ex parte Law re Ken- nedy, 1 De Gex, 378. (g) What Property passes to. (1) In general. A entered into au agreement with B and C to serve them for seven years, at fixed wages, at three guineas weekly, " the party making default to pay to the other the sum of 500/. by way or in nature of specific damages." A was dismissed ; he became bankrupt, and after the bankruptcy brought an action of assumpsit on the agreement to which the defendants pleaded his bankruptcy : — Held, that this plea was an answer to the action, for that the right of action in respect of this breach of the agreement passed to the assignees. Beckham v. Drake, 2 H.L. Cas. 579. Trespass for breaking and entering the plaintiff's dwelling-house, and making a great noise and distur- bance therein,'and damaging the doors, &c., and seiz- ing certain goods of theplaintiff, and exposing them to sale on the premises without his leave, whereby the plaintiff and his family were greatly disturbed and annoyed in the peaceable possession of the dwelling- house, and the plaintiff was prevented carrying on his lawful business. Plea, in bar of the further maintenance of the action, that the plaintiff became bankrupt after action brought, and that an official assignee had been appointed, who accepted the appointment, whereby and by virtue and by force of the statutes, the said causes of action became vested in the said official assignee. On demurrer to that plea, judgment was given for the plaintiff; and on writ of error, it was held, affirming the judgment of the Court of Exchequer, that the primary personal injury to the bankrupt being the principal and 72 BANKRUPTCY; (K) AssiaNBEs. essential cause of action, it still remained in the bankrupt and did not pass to the assignee ; there- fore, that the plea was bad. Rogers v. Spence, 15 Law J. Rep. (n.s.) Exch. 49 ; 13 Mee. & W. 571. In November 1847, A, a trader, by deed, assigned all his effects to trustees for the benefit of his credi- tors. In January 1 848, A filed a declaration of in- solvency under the 7 & 8 Vict. c. 96, upon which a fiat issued. This fiat, however, was not prosecuted by A. In February, on the application of B, a cre- ditor of A, whose debt would have been sufficient for a petitioning creditor's debt, and was prior in date to the deed of November, the commissioner made the adjudication in the bankruptcy, and assignees were appointed : — Held, that the money realized by the trustees under the trust deed ought to be administered in the bankruptcy. £x parte Jackson re Ferens, 17 Law J. Rep. (n.s.) Bankr. 19. [And see ante, Re Marshall (C) — (/) ; Follett v. Hoppe, ante (C)— (g).] (2) Wife''s Property. Household furniture, linen, and plate belonging to B were assigned by him by deed, in contemplation of his marriage, to plaintiffs in trust after the marriage to stand possessed thereof during the joint lives of B, the settlor, and his intended wife, for her sole and separate use, independently of A. The marriage took place, and B afterwards became bankrupt. The settled furniture, &o. was then in the house in which he resided with his wife : — Held, that it was not, at the time of his bankruptcy, " in his order and disposition, with consent of the true owners," so as to pass the property in it, under 6 Geo. 4. o. 16. s. 72, to the defendants, his assignees ; and the fact of the furniture, &c. not having been the wife's before the marriage was immaterial. Simmons v. Edwards, 16 Mee. & "W. 838. (3) Order and Disposition and reputed Ownership, [See 12 & 13 Vict. c. 106. s. 125.] B on the 1st of July fraudulently bought from the plaintiffs a quantity of goods, without an inten- tion of paying for them. After the sale and delivery he became a bankrupt, and a flat issued against him on the 8th of July. The defendants, who were his assignees, thereupon took possession of the goods, as being in the order and disposition of the bankrupt with the consent of the true owner, within the 72nd section of the Bankrupt Act, 6 Geo. 4. c. 16, whereupon the plaintiffs brought an action of trover for the goods : — Held, that as at the time of the bankruptcy, the bankrupt was not the apparent but the real owner of the goods, the section did not apply, and the plaintiffs were entitled to recover. QuiCTC— "Whether the case wouldhave fallen within the 72nd section if the plaintiffs had discovered the fraud Img before the act of bankruptcy, and had omitted, for an unreasonable time, to rescind the contract. Load v. Green, 15 Law J. Rep. (n.s.) Exch. 113; 15 Mee. & W. 216. A employed the local agent of an insurance office as his attorney, to effect a policy on the life of B in such office, and to get it assigned by B to A as security for a debt ; B having become bankrupt, — Held, that the circumstance of the company's authorizing their agent to receive notices of assign- ment for them, though no notice was, in fact, given to the head office of the company in this instance operated to prevent the policy from being within the order and disposition of the bankrupt ; and that the case was not altered by the notice being received by the agent in his character of attorney for A. Gale V. Lewis, 16 Law J. Rep. (n.s.) Q.B. 119; 9 aB. Rep. 730. In 1843, H, residing in Australia, being indebted to B in 771/. Ss. id., B on the 8th of January 1844 assigned the debt to W, and on the 22nd of January joined W in a letter to H apprising him of the assignment, and requiring him to pay the debt to W. This letter was posted by W to H, in Austra- lia, in the ordinary way in which letters to that country are posted, and could not have reached Australia before the 1 0th of February had it been posted on the 8th of January. On the 10th of February a fiat in bankruptcy issued against B. On the 29th of January 1844 a bill for 501. was remitted by H in Australia, who had no notice of the bankruptcy, to the bankrupt, and by him handed over to W. The assignees of the bankrupt having brought an action against W to recover the amount of the bill, — Held, that W having done all in his power to prevent the debt from remaining in the possession of the bankrupt it could not be said to be, by the consent of the true owner, in the order or disposition of the bankrupt at the time of his bankruptcy, and that the assignees were not entitled to recover. Belcher v. Bellamy, 17 Law J. Rep. (n.s.) Exch. 219 ; 2 Exch. Rep. 303. A being indebted to B, and pressed by him for payment, gives him a promissory note made by C, payable to A, (without the words "or order") and indorsed by A. B takes the note, but in consequence of its not being negotiable, returns it to A, in order that A may. give him a negotiable security instead of it J and C does, at A's request, accept negotiable bills of exchange, drawn by A upon him, instead of the note, and at the same time that this is done, A desires C to hand the bills to B ; and on the same day, A absconds to France, thereby committing an act of bankruptcy : — Held, that it not appearing, on this state of facts, that C had any notice of the transaction that had passed between A and B, or that the bills were given in substitution of the note, or that he had assented to B's title in any way, A's assignees were entitled to them. Belcher v. Camp- bell, 15 Law J. Rep. (n.s.) G.B. 11 ; 8 Q.B. Rep. 1. Books in possession of a bookseller, to be sold by him on commission and mixed with his general stock, do not pass to his assignees under his com- mission, as goods in his possession, order and dis- position as reputed owner within the 6 Geo. 4. c. 16. Whitfield V. Brand, 16 Law J. Rep. (n.s.) Exch. 103; 16 Mee. &W. 282. By a deed of trust, W, a horse contractor and jobber, assigned, until such time as all his then debts should be paid off, all his stock in trade, &c. to certain trustees for the benefit of his creditors, to hold upon certain trusts, inter alia, that so long as W should observe the orders of the trustees he was to be allowed to carry on business, subject to the orders of the trustees ; that if he refused to comply with those orders, the trustees might im- mediately determine such permission; that the trustees should have power to sell any portion of the stock they pleased j that all monies received BANKRUPTCY; (L) Pkoof or Debt. 73 in the business were to be paid to the account of the trustees, and all monies paid by their cheques ; and that W was to receive a weekly salary for carrying on the business. The creditors also agreed .to advance a large sum of money for the purposes of the business. This sura was advanced, and the business was carried on for some time under the terms of the deed, but W having refused to comply with certain orders of the trustees, the trustees, on the 22nd of July 1847, determined the permission to W to carry on the business, and W thereupon admitted in writing that the trustees had his leave to assume possession of the stock in trade, &c. Several of the horses used in the business were at that time let out on hire to various persons, and the trustees on that day served notice upon each of those persons that the horses in their possession belonged to them as trustees. On the 24'th of July W committed an act of bankruptcy. Upon an interpleader issue to try the title to these horses as between the trustees and the assignees, — Held, upon these facts, first, that by the deed no partner- ship was created between W and the trustees. Secondly," that by allowing W to carry on the business in his own name the trustees were not estopped from relying upon their own title to the property under the deed as against the assignees. Thirdly, that the horses were not at the time of the bankruptcy in the possession, order, or dispo- sition of the bankrupt within the meaning of 6 Geo. 4. c. 16. s. 72. Price v. Groom, 17 Law J. Rep. (N.s.)Exch. 346; 2 Exch. Rep. 542. London sub-mortgagees of shipments at Ceylon and Hong Kong sent thither directed to the parlies in possession notices of their security by the next direct mail, there being another earlier mail by a different route by which the notices might possibly have sooner reached their destination. Before, how- ever, this could have taken place by either mode of transmission, the sub-mortgagees became bankrupt: — Held, that the notice was sufficient to take the goods out of their reputed ownership. A man may give a valid security on merchandise at sea belonging to him, although at that time he is ignorant of the particulars of which it consists. Ex parte Kelsall re Beattie, 1 De Gex, 352. A worsted-dyer, by deed, mortgaged fixtures used by him in his business, which were in a house oc- cupied by him as tenant, and which he had a right to remove, to B. He continued to be in possession of the fixtures after the mortgage, and was in pos- session of them at the time of his bankruptcy. A petition by B to have the benefit of his security was dismissed, with costs, upon B's declining to file a bill in equity to have the question tried in a suit. Ex parte Sykes re Clarke, 18 Law J. Rep. (n.s.) Bankr. 16. [See ante, (C) Acts of Bankruptcy, (/) Frau- dulent Conveyance — (G) Transactions, (d) Cases of Fraudulent Preference — (M) Fiat, (d) Superseding.^ (L) Proof of Debt. [See 12 & 13 Vict. c. 106. s. 164.] (a) In general, A entered into a charter-party with the owners of a vessel stated to be of the burthen of 310 tons, by Digest, 1845—1850. which it was provided that she should proceed to Ichaboe, and there take in a full cargo of guano and return to Liverpool, and that A should pay for freight il. 10*. for every ton delivered; and that he would provide and put on board a full cargo at his own expense; and the parties mutually bound themselves in the penalty of l,800i for due per- formance of the contract. A having failed to supply a cargo, and an action having been brought on the charter-party for this breach, before interlocutory judgment by default was signed, a fiat in bankruptcy issued against him, under which, before the execu- tion of the writ of inquiry, he obtained his certificate, subject to six months' suspension. Upon the execu- tion of that writ, the damages were assessed on this, among other claims, at l,644t 3s. 9rf., and A was arrested on a ca. sa. : — Held, upon motion for his discharge, that this was not a proveable debt under the fiat,' and that he ivas not entitled to be dis- charged, Woolley V. Smith, 16 Law J. Rep. (n.s.) C.P. 81 ; 4 Dowl. & L. P.C. 469 ; 3 Com. B. Rep. 610. A, the owner of a ship at sea, agreed to sell her to B for 4,000i. when she should arrive within the United Kingdom, and should have discharged her cargo and been repaired. B was then to give promissory notes in payment, and, in case of default on his part, A was to be at liberty to resell the ship, and B was to make good any loss arising from the sale. Before the arrival of the ship, B became bank- rupt, and his assignees refused to purchase the ship when she arrived. She was then sold by A for less than 4,000/., and he afterwards applied to prove against B's estate for the deficiency : — Held, (re- versing the decision of the Court below), that the agreement to purchase was contingent, and that no debt was created, and that A was, therefore, not entitled to prove against B's estate. Re Gales, ex parte Jotiassohn, 15 Law J. Rep. (n.s.) Bankr. 9. A was indebted to B in 20,000t An interview took place between B and C, a son of -A, in respect of the debt. A bond was subsequently drawn out and executed by A and C, whereby they became jointly and severally bound to pay B 10,000^ by instalments of 1,000?. a-year, with interest on such instalments as should be in arrear. The terms of the agreement under which the bond was executed, were not put into writing. It was stated by B that the agreement, made at the above-mentioned inter- view was, that the old debt should not he cancelled until the bond was satisfied ; but it was stated by C that the agreement was that the old debt should he at once cancelled on the execution of the bond. A became bankrupt. A proof for the old debt, ten. dered by B, was rejected on the ground that the old debt was extinguished by the bond. Ex parte Her- naman re Ewens, 17 Law J. Rep. (n.s.) Bankr. 17. (6) Bands. A gave a voluntary bond to B in 1812 for 3,000i. and interest, with an agreement that, on regular payment of interest, the principal was not to be called in until five years after the death of A, B bequeathed this bond to her three children, and died in 1840. In 1841 an arrangement was made be- tween A and the children , under which the old bond was cancelled, and a new bond was given to each of the children, for 1,0002. and interest, with like L 74 BANKRUPTCY ; (L) Pboop of Debt. agreement to that on tie old bond as to the calling in of the principal. In 1847 A, who carried on business as a banker, was made a bankrupt. In 1841, when the bond was giyen, the debts of A considerably exceeded his assets, and this state con- tinued until the bankruptcy ; but there was no sug- gestion of any fraud, mala fides, contrivance to defeat creditors, or of the contemplated bankruptcy of A, on the part either of the obligor or obligees : — Held, that, under these circumstances, the new bonds ought to be admitted to proof. Ex parte Hoolcins re Gundry, 18 Law J. Rep.(N.s.) Bankr. 11. (c) Annuity, [See 12 & 13 Vict c. 106. s. 175.] The bankrupt, before bankruptcy, covenanted by indenture that in the event of marriage between W and M, he would, during the lives of them and their issue, pay to trustees such sum yearly as should, either alone, until any estate should vest in them or their issue under a previous indenture, or to- gether with the annual value of such estate when vested, amount to 1501. The marriage took place, and one child (still alive) was born before the bank- ruptcy ; no estate vested under the previous inden- ture ; the fiat issued on the 24'th of October 1842 : — Held, that the trustees were not entitled to prove against the separate estate for instalments of the annuity accrued since the 2oth of March 1843, up to which time all arrears had been paid in full. In re Foster, 19 Law J. Rep. (n.s.) C.P. 274. (d) Shares. A, a shareholder in a joint-stock- banking com- pany directed to be wound up under the Joint- Stock Companies Winding-up Act, 1848, had a call made on him in respect of his shares, and was shortly after made a bankrupt: — Held, that the official manager had a right to prove for the amount against the estate of A. Ex parte Brown re Fenwick, 19 Law J. Rep. (n.s.) Bankr. 4. A, having applied for shares in a railway com- pany, received, on the 30th of September 1845, a letter of allotment, whereby he was informed that ten shares had been allotted to him, and that a de- posit of 51. 5s. a share was to be paid on a certain day, and that the banker's receipt would have to be exchanged for scrip certificates, on the parliamen- tary contract and subscribers' agreement being signed, and that those instruments must be signed within a month from the transmission of the letter of allotment. A paid the deposit on the 9th of Octo- ber, but never signed the parliamentary contract or subscribers' agreement, alleging, but not proving, that he had been prevented by the servants of the company. He also stated certain acts of miscon- duct on the part of the directors in the management of the aifairs of the company. . A fiat in bankruptcy issued against the company in October 1846 : — ■ Held, that A had no right of proof in the bankruptcy in respect of the deposit paid by him. Ex parte Clarke re Tring, Reading, S[c. Rail. Co., 17 Law J. Rep. (n.s.) Bankr. 13. (e) Joint and Separate Debts. Where a partner gives a separate security for a jointdebtand becomes bankrupt, the other partners remaining solvent, the creditor may have under the separate fiat the usual order for sale, but can only have liberty to prove for the deficiency against the joint estate. Ex parte Leicestershire Banking Co. re Wilders, 1 De Gex, 292. A wine-merchant carrying on business under the firm of J R & Co., announced by a circular that he had taken his nephew into partnership. The business was thenceforth carried on under tiie style of J R sen. Si Co., but as between the uncle and nephew the latter received a salary only, and did not participate in the capital, profits or losses of the concern. On both becoming bankrupt, — Held, that a creditor who supplied goods to the firm might prove against the separate estate of the uncle. Part of the stock in tradfe consisted of wines in the docks, which the uncle on announcing the part- nership directed the dock company to deliver to the order of the new firm ; — Held, that these wines were in the reputed ownership of the two, and ought to be administered as joint estate. Other wines were in the hands of a lien creditor of the uncle, and after the announcement of the partnership some of these were withdrawn and re- placed by others in the name of the new firm : — Held, that the possession of the creditor did not prevent section 72. applying, and that these wines should, subject to the lien, be administered as joint estate. Where a large number of creditors had a right of election to prove against a joint or separate estate, and the estates were not so ascertained as to enable the creditors to elect, a temporary order was made that flo larger dividend should be declared of the one than of the other estate. Ex parte Arbouin re Reay, 1 De Gex, 359. (/) Mortgages. A lessee annexed tenant's fixtures and then de- posited his lease by way of mortgage, with a memo- randum, not noticing the fixtures: — Held, on his becoming bankrupt, that the security extended to the fixtures. Ex parte Tagart re Mackie, 1 De Gex, 531. (g) Partners. A note was issued by a bank in this form: — " I promise to pay the bearer, on demand, 51, for A, B, C, and D.— Signed Aj" A, B, C, and D. being the partners in the bank : — Held, that the holder of the note had not a right of separate action against A, and that, on the bankruptcy of the firm, he had not a right of proof against the separate estate of A. On the hearing of an appeal, upon a special case from the Court of Review, the Lord Chancellor may direct a case to be sent for the opinion of a court of law. Ex parte Buckley re Clarke, 15 Law J. Rep. (n.s.) Bankr. 3. B, a trader, being indebted to A, entered into partnership with C. After the formation of the partnership, a parol agreement was entered into between A, B, and C, that the debt due from B to A should be converted into a debt to be due from B and C as partners, to A. Some time after this agreement B and C were made bankrupts :— Held, that A had a right of proof against the joint estate of B and C, in respect of the debt. Ex parte Lane BANKRUPTCY ; (L) Peoop op Debt. 75 re tendon, 16 Law J. Rep. (n.s.) Bankr. 4 ; 1 De Gex, 300. Three partners of a firm of six carried on a. distinct trade in partnership, and indorsed a pro- missory note made by the six, which was discounted by a person who believed at the time from general reputation that the three were partners in the greater firm, hut that the firms were distinct : — Held, not a case for double proof. Ex parte liinlin re Acra- man, 1 De Gex, 550. (h) Sureties. [12 & 13 Vict. c. 106. s. 173.] The plaintiff, the defendant and another party were co-sureties for one A, by a joint and several promis- sory note payable on demand. The defendant after- wards became a bankrupt, at which time the plaintiff had not paid his share of the debt, but subsequently he had paid more than his proportion: — Held, in an action for contribution, that the bankruptcy of the defendant was no answer, as the case was not within the 52nd section of 6 Geo. 4. c. 16, the plaintiff not being a "person liable for" the bank- rupt's debt within the meaning of that section. Wallis V. Swmburne, 17 Law J. Rep. (n.s.) Exch. 169 ; 1 Exch. Rep. 203. («) Arrears of Poor-rates. Arrears of poor-rates due from a bankrupt before his bankruptcy are proveable under the fiat j and the certificate is a bar to levying the amount under 43 Eliz. c. 2, by distress and sale of his subsequently acquired goods. In re Wetlierell, 19 Law J. Rep. (n.s.) M.C. 115. [See as to assessed taxes, 12 & 13 Vict, u, 106. s. 166]. (i) Servants. [See 12 & 13 Vict. c. 106. ss. 168, 169.] In June 1844, A entered the service of B as book- keeper and cashier, and continued as such until December 1848, without coming to any agreement as to the amount of his salary. It was stated by A that in December 1848 it was agreed between him and B that the salary should be at the rate of 250/. a year, from June 1844, and that the reason that such arrangement was not made before was that B was engaged in making experiments in a certain manufacture, from which he hoped to derive a con- siderable fortune, out of which A expected to be paid. B became bankrupt in February 1849: — Held, that A was a clerk and not a partner, and was entitled to prove for his salary. Ex parte Hickin re Ellins, 19 Law J. Rep. (n.s.) Bankr. 8. (J) Broker. A purchase by brokers in pursuance of the order of a customer, of shares in a projected railway com- pany, provisionally registered, held not illegal, but a sufficient ground for admitting a proof tendered by the brokers occasioned by the non-completion of the purchase by the customer. Ex parte Barton re Charles, 1 De Gex, 316. i (m) Legacy. A testator, by his will, gave all his property to his wife for her life, and after her decease to bis children. The testator declared that it should be lawful for his wife to retain in her .hands, and to use and employ any sum not exceeding 6,000/,, in carrying on his trade. The testator died in June 1832, and his will was proved by her wife and his son. In August 1832 the testator's widow and his son began to carry on the testator's business in partner- ship together, and continued to carry it on until their bankruptcy. All the monies received in re- spect of the testator's estate, and in respect of the ' business carried on from the testator's death, until the bankruptcy, were paid into the bank to the joint account of the widow and son ; and all the monies paid in respect of the business were paid out of this mixed fund. The net monies received in re- spect of the testator's estate exceeded the sum of 6,000/.: — Held, that the legatees, under the tes- tator's will, had no right of proof against the joint estate of the widow and son, for the 6,000/. ; hut that their right of proof was restricted to such part of the testator's assets employed in the busir ness as exceeded the 6,000/. Ex parte Btilterfield re Buiterfield, 17 Law J. Rep. (n.s.) Bankr. 10 j 1 De Gex, 570. A testator devised the rents of real estate, and bequeathed the interest of a legacy to B for life, with remainders 6ver. At the date of the will, and at the time of the death of the testator, his personal estate, out of which the legacy was to come, was in the hands of B, who became bankrupt. The amount of the legacy was proved in the bankruptcy, and a dividend paid in respect of it was invested in stock : — Held, that the dividends of this stock ought to accumulate during the life of the bankrupt towards nuaking good the legacy in favour of the persons entitled in remainder, but that the rents of the real estate were not liable to such equity, and belonged to the assignees of the bankrupt. Ex parte Barff re Cousen, 17 Law 3. Rep. (n.s.) Bankr. 22. (n) Costs. [See 12 & 13 Vict. c. 106. s. 181.] Where a bill of exchange was dishonoured by the acceptor and actions were brought by the holder against the drawer as well as the acceptor, and the former became bankrupt after judgment signed, and a reference to the Master to compute, and afterwards the acceptor paid the amount due upon the bil],-^Held, that the holder could prove for the costs. Ex parte Cocks re Barwise, 1 De Gex, 446. ' , ,, (o) Contingent Debts, [See 12 8i 13 Vict. >;. 106. ss. 177, 178.] A, in May 1847, in consideration of 1/. per cent., guaranteed to B the payment of a bill, payable eight months after the 18th of May, drawn by B on, and accepted by a firm which became bankrupt ini October. A also became a banlcrupt in October, and had not obtained his certificate, and no divi- dend had been declared. A proof by B against the estate of A, in respect of the guarantie, was allowed. Ex parte Brook re Willis, 17,Law J. Rep. (n.s.) Bankr. 8. A lent B 750/., and B and C as his surety, by a bond, dated the 16th of June 1847, became bound to pay the premiunjs of a policy of assurance which had been deposited with A, and also to pay A 750/., by three instalments, on the 16th of June in three 76 BANKRUPTCY ; (L) Proof of Debt ; (M) Fiat. successive years, with interest; and there was also a condition that if B or C should become bankrupt, they should, at the option of A, gire additional security, or pay the principal and interest then due. B, and D his partner, then by a separate deed cove- nanted to indemnify C in respect of the bond. On the 26th of October 1847 B and D became bank- rupt. On the 17th of January 1848 C paid the principal and interest, and tendered a proof against the bankrupts' estate : — Held, that the proof was not admissible. Ex parte Meyer re Meyer, 18 Law J. Rep. (N.s.) Bankr. 4. A claim under a guarantie for a sum certain when due is proveable as a debt, and before it is due it is proveable as a debt due on a contingency under 6 Geo. 4. c. 16. s. 56. A bought wool from B, payable by the buyer's acceptance at eight months, and one-half of the sum was secured by the guarantie of C. Before the bill became due a fiat in bankruptcy issued against C, and a few days afterwards one against A, and no dividend was declared under either fiat. The bill was dishonoured when due ; — Held, that the claim upon the guarantie was proveable as a debt against the estate of C. In re Willis, 19 Law J. Rep. (n.s.) Exch. 30 ; 4 Exch. Rep. 530. (p) Amount proveable. -Merchants at Liverpool, being owners of a ship, subject to a mortgage to a party who had never taken possession, consigned the ship to M, in America, with directions to send to them a quan- tity of cotton by that vessel. M accordingly sent a quantity of cotton in the vessel and defrayed sundry expenses, which were required for her. Before she arrived at Liverpool the merchants had become bankrupt, and M's agents there took possession of the goods on his behalf, claiming a right of stoppage in transitu. They afterwards sold the goods, and gave credit to M for the pro- ceeds. An action of trover was afterwards brought by the assignees of the bankrupts, who recovered the value of the goods : — Held, that M was entitled to prove against the bankrupts' estate for the whole amount of the value of the goods, and of his dis- bursements in respect of the ship. Re Humberston, 15 Law J. Rep. (n.s.) Bankr. 10; 1 De Gex, 262. (q) Election. [See 12 & 13 Vict. c. 106. s. 182.] A creditor, who had proved his debt and joined other creditors in opposing the granting the bank- rupt his certificate, restrained from suing the bank- rupt for the debt in a small debts court. Ex parte Flower re Flower, 16 Law J. Rep. (n.s.) Bankr. 9 ; 1 De Gex, 503. (r) Evidence and Practice, Where all parties acted under an impression that a security was for the whole of a debt, and twenty- one years had elapsed since it was given, but no evidence could be produced of any contract except one for a security to a limited amount, which was exceeded by the amount received upon the security, — Held, that the creditor ought not to be called on to refund. Ex parte Follett re Cuthbert, 1 De Gex, 212. Dividend stayed to give opportunity of proving to creditors who had delayed proving for eleven years, no dividend having been declared for up- wards of ten years after the fiat issued. Ex parte Sturton re Pulvertoft, 1 De Gex, 341. Opening dividend at instance of one creditor lets in others to prove. Ex parte JBoumer re Pulvertoft^ 1 De Gex, 343. Mother of creditor of weak intellect permitted on her application ex parte to prove on his behalf. Ex parte Oxtoby re Oxtoby, 1 De Gex, 453. (M) Fiat. [By 12 & 13 Vict. c. 106. s. 89, all proceedings to obtain adjudication are to be by petition without fiatj (a) Date and Issuing, A country fiat in bankruptcy was sealed by the Lord Chancellor at ten minutes before twelve, a.m. and remained in the custody of the Secretary of Bankrupts, for the purpose of being transmitted, until between four and five, P.M. when it was posted by a clerk in the office. A sale of the bankrupt's goods under an execution upon a judgment by war- rant of attorney was completed at a quarter before four the same day : — Held, that it was a protected transaction within 2 & 3 Vict. c. 29, having been completed " before the date and issuing of the fiat." Freeman v. Whilaker, 19 Law J. Rep. (n.s.) Exch. 351 ; 4 Exch. Rep. 834. The Bankruptcy Law Amendment Act, 5 & 6 Vict. c. 122. a. 4, enacted, that fiats in bankruptcy should be issued and transmitted by the Lord Chan- cellor's Secretary of Bankrupts, in such manner as the Lord Chancellor should by any order direct, to the- Court to which such order should be directed. The Chancellor by an order directed that every fiat directed to any district court of bankruptcy should be sent through the General Post OflSce to the de- puty registrar of such court. A fiat in bankruptcy was signed by the Chancellor on the 7th of .Tune at 10 o'clock, was brought to the office of the Secretary of Bankrupts at 5 minutes past 12, and at 4 o'clock on that day was posted by the secretary in a letter to the registrar of the District Court of Bankruptcy at Exeter, by whom it was received on the following day: — Held, that the fiat was to be considered as "issued" when it was put into the post. Hernaman v. Coryton, 19 Law J. Rep. (n.s.) Exch. 353 ; 5 Exch. Rep. 453. (b) Changing Venue. A bankrupt's usual place of business for two years before the bankruptcy had been at Hounslow, but he had taken for his family a house at D near Bristol, where he had resided for some months pre- vious to his bankruptcy and contracted debts. A Bristol fiat describing him as of D, and naming him Clarke instead of Clark, was transferred to the Lon- don Court, to which a fiat with a correct description had been issued, and the proofs were ordered to be transferred, the Bristol fiat being impounded. Ex parte Burbidge re Clark, 1 De Gex, 256. The fact that the majority of the creditors and a large proportion of the debtors to an estate reside within the jurisdiction of a district court within which the trading took place and out of which the bankrupt removed shortly before his bankruptcy, BANKRUPTCY ; (M) Fiat. 77 with the view of having a friendly fiat issued against him in a court where his conduct could not he easily investigated, that other bankruptcies connected with the one in question were in prosecution in the district court, and that many of the creditors were unable to afford the expense of a journey to London, — Held, insufficient ground for transferring the fiat from London to the district court, on a petition of . the creditors presented two months after the choice of assignees and opposed hy the assignees and the bankrupt. It is not correct for the assignees to employ as their solicitor the partner of one of themselves who is a solicitor. Ex parte Dowries re Garbett, 1 De Gex, 390. The place of business of a bankrupt was in a town situate partly in one county and partly in another, hut was actually in the county belonging to the more remote district court: — Held, that the fiat ought not to be transferred on this account to the nearer court. Ex parte Baylies re Gibbs, 1 De Gex, 440. Three persons carried on business at L, in Car- marthenshire, two of the partners residing there, and managing the business, and the third, a dor- mant partner, residing in London. All the part- nership property was at L. A fiat was sued out by the son of the dormant partner against the firm, and the fiat was transmitted to the Court of Bank- ruptcy in London. On the petition of some of the creditors of the bankrupt firm, the fiat was removed to Bristol. Re Grylls, 17 Law J. Rep. (h.s.) Bankr. 7. (c) Amending^ Where one of the bankrupts died before the adjudication under a joint fiat, the fiat was ordered to be amended by omitting his name. Ex parte Hall re Blackburn, 1 De Gex, 332. An application to amend a fiat after it had been opened, by the alteration of the Christian name of the bankrupt, was refused. Re Chambers^ 18 Law J. Rep. (n.s.) Bankr. 17. {d) Superseding, A procedendo ordered to issue where a commis- sion had been superseded three years previously by consent of the creditors, on the ground that the bankrupt had not disclosed the fact of his being entitled to shares in a waterworks company, his defence being that the shares were subject to a mortgage for more than their value, but which turned out to be invalid for want of notice to the company. Shares in such a company held subject to the law of reputed ownership, the company's act declaring them to be personal property. Ex parte LoMirence re Bowring, 1 De Gex, 269. (e) Annulling, (1) Causes for. A applied to the commissioner for protection from process under the 5 & 6 Vict. c. 116. ». 1 ; on which occasion B successfully opposed A, on the ground that A was a trader. A afterwards caused a fiat to be issued against him on his own petition. B presented a petition that the fiat might be an- nulled on the ground that A was not a trader : — Held, that, even assuming the fiat to be invalid, on the ground that A was not a trader, B could not be heard to impeach the fiat on that ground. Ex parte Mitchell re Harris, 15 Law J. Rep. (n.s.) Bankr. 8; 1 De Gex, 257. Bankrupt's own fiat annulled with his consent and that of assignees, to enable a creditor's fiat to be sued out, under which, transactions between the bankrupt and others might be impeached. Form of order as to costs. Ex parte touch re Dutchman, 1 De Gex, 463. A fiat issued against a person on his own appli- cation. He had before his bankruptcy executed certain deeds which it was proposed to impeach in the bankruptcy. An application by him and a creditor of his whose debt was prior to the date of the deeds, that the fiat should be annulled with costs to be paid out of the bankrupt's estate, the creditor undertaking to issue a new fiat, was granted. Ex parte Thomas re Thomas, 17 Law J. Rep. (n.s.) Bankr. 21. A fiat issued by a bankrupt against himself may be legally and equitably valid, though he may have been party to acts of fraudulent preference. It is not sufficient ground for annulling such a fiat that it was issued mainly to protect the bank- rupt against proceedings at law or without a. pre- dominant wish to benefit his creditors. Where at the time of a fraudulent preference the bankrupt was a trader, and there remains a debt which was then owing and which would support a , creditor's fiat — semble, that such fraudulent prefer- ence may be impeached under the bankrupt's own fiat. Such a fraudulent preference does not of itself constitute a sufficient ground for annulling such a fiat, against the bankrupt's consent, at the instance of a creditor who proposes to sue out a new fiat, especially if there be any doubt as to the com- petency of such creditor to sue out a fresh fiat. Ex parte Norton re Robinson, 1 De Gex, 504. The 5 & 6 Vict. o. 122. s. 8, providing that no fiat shall be invalid by reason of the act of bank- ruptcy being concerted does not enable a creditor to sue out a fiat founded on a trust deed executed with his concurrence, and such a fiat may be annulled at the instance of another creditor. Ex parte Payne re Taverner, 1 De Gex, 534. A fiat in bankruptcy issued against a trader who had carried on business in the City, the alleged act of bankruptcy being a denial to creditors, evidenced by a statement that inquiry had been made for him at his place of business, and that the housekeeper had denied all knowledge of him. In support of a petition to annul the fiat on the ground of no act of bankruptcy, it was stated that he had carried on business in partnership, but had ceased to carry on business in July 1848 ; that the fiat issued in Jan- uary 1849 i that an entry had been made in the diary kept at the place of business that letters for him were to be forwarded to a district post-office in London ; that he lived near that place and might have been found by inquiries at that post-office. The respondents not requiring further investigation, the fiat was ordered to be annulled. Ex parte Addison re Hooper, 18 Law J. Rep..(N.s.) Bankr. 13. On a petition presented by the bankrupt, with the consent of his creditors, to the Lord Chancellor seeking to annul the fiat issued against him pre- 78 BANKRUPTCY ; (M) Fiat ; (N) Op the Bankeupt. viously to the passing of the Bankrupt Law Con- solidation Act, theLordChancellor granted the order to annul the fiat, hut on the express grounds of there being proceedings pending. In re Harwood, 1 Hall & Tw. 572. (2) Practice, Petition, and Order for Annulling. On a petition to annul a fiat with consent of creditors, the commissioner declined to certify the consent without payment of the oflSce fees of 101. and 201. Assignees had been chosen, hut it was stated that there were likely to he no assets. The Court requested the commissioner to certify his opinion whether there were any available assets. Ex parte Davis re Davis, 1 De Gex, 267. Where a bankrupt sued out a fiat against himself and only one creditor proved, and assignees were chosen, but there were no assets, and the office fees of \0l. and iOl. had not been paid, the Court refused to dispense with the usual certificate of the com- missioner on an application to annul with the con- sent of the creditor. Ex parte NichoUs re NichoUs, 1 De Gex, 331. Where a country solicitor, admitted as a solicitor of the Court of Review, had by mistake taken an affidavit of debt (as a Master Extraordinary in Chancery) to serve as a foundation for an act of bankruptcy, and appeared upon a petition to annul the fiat, and submitted to the jurisdiction of the Court, he was ordered to pay the costs of annulling the fiat. Ex parte JBenbow re Benbow, 1 De Gex, 44.3. A fiat issued against A on the ] 9th of September. On the 9th of October there was a choice of assignees. The 14th of December was the day appointed for granting the bankrupt his certificate. On the 12th of December notice was given by the petitioner of an intention to present a petition to annul the fiat, on the ground that A was not a trader; and on the 14th of December a petition was presented ; — Held, that the petitioner was not precluded from being heard, on the ground of delay. Ex parte Dering re Cramp, 16 Law J. Rep. (n.s.) Bankr. 3 j 1 De Gex, 39.8. By a deed of settlement of a company, twelve persons were appointed to be the committee of management ; and it was declared that the majority of the members of the committee of management for the time being present as members of such committee, consisting of not less than five persons, should have power to bind the company. A meeting of the committee was summoned, at which three members only attended. At this meeting a resolu- tion was passed that the company was unable to meet its engagements ; and a declaration and min- ute were filed as required by the 7 & 8 Vict. c. Ill; and a fiat issued against the company. On a petition presented by two other members of the committee, that the fiat should be annulled, — Held, first, that the petition could not be heard without serving some other members of the committee who dissented from the views taken by the petitioners; and, (on a further hearing of the petition) secondly, that the resolution passed in this case was not a resolution "duly passed," within the meaning of the act 7 & 8 Vict. c. Ill, and that the fiat ought to be annulled. Ex parte Morrison re London and Birming- ham Extension and Northampton, DavSniry, ^c. Rait. Co., 16 Law J. Rep. (n.s.) Bankr. 11 ; 1 De Gex, 539. (N) Of the Bankbupt, (a) Surrender. The felony ' of not surrendering at a district court to a fiat in bankruptcy, under the stat. 5 & 6 Vict. c. 122. s. 32, is committed at the place where the district court is situate ; and an indictment for this offence cannot be sustained in a different county, in which the person was a trader, or in which he committed an act of bankruptcy. The stat. 38 Geo. 3. t. 52. s. 2, which relates to the trial of offences in an adjoining county, only applies to cities and towns corporate which are counties of themselves, and not to towns corporate which are not counties of themselves. Regina v. Milner, 2 Car. & K. 310. On an indictment for not appearing and surren- dering to the district court of bankruptcy in M, over which there were two judges, F and S, prac- tically presiding over two courts, and hearing the fiats allotted in rotation, the bankrupt's summons being signed by F, requiring him to appear before him at the said district court of bankruptcy in M ; the bankrupt never appeared before F or S, or at any other place: — Held, that the conviction for not surrendering at the proper court was proper ; that the fiat having in fact issued, the summons need not inform the party that the fiat had been referred to the M district court, nor that the party had been duly adjudged a bankrupt. Regina v. Dealtry, 2 Car. & K. 521 ; 1 Den. C.C. 287. Form of order for director of a company which has become bankrupt under 7 & 8 Vict. c. Ill, to surrender after the time limited. Ex parte Barber re Tring, Sic Rail. Co., 1 De Gex, 381. The Court refused to interfere with the discretion of the commissioner as to not allowing liberty to the bankrupt to surrender. Ex parte Gordon re Gordon, 19 Law J. Rep. (n.s.) Bankr. 12. In January 1848 a fiat issued against A. In- November A presented a petition, stating that in September 1847 he had left Englandin consequence of family disagreements, and in the full belief that he had left enough to pay all his creditors in full, and that he had lately returned to this country, and praying for liberty to surrender. The assignees appeared on this petition, and, no objection having been made, it was ordered that the bankrupt should be at liberty to surrender, and that his costs should be paid out of his estate. The bankrupt afterwards made a statement to the commissioner to the effect that he had left England from pecuniary embar- rassments, taking away a good deal of his property with him. A petition by the assignees that the above-mentioned order should be discharged, was dismissed, with costs. Ex parte Pennellre Turner, 18 Law J. Rep. (n.s.) Bankr. 7. (6) Examination and Committal. A bankrupt was examined before one of the London commissioners, and, not having satisfac- torily answered the questions put to him, was com- mitted to the custody of a messenger of the court. Tlie bankrupt was afterwards brought before a sub- division court, by which court, after another exami- nation, he was committed to Newgate. After his BANKRUPTCY ; (N) Op the Bankeupt. 79 committal the bankrupt was brought up before Mr. Commissioner S, in whose jurisdiction the flat was, and after some questions put and answers given, was re-committed to Newgate on the old warrant : — Held, that the banlsrupt was entitled to his discharge, on the ground that a record ought to have been made of his last examination before Mr. Commissioner S. The warrant of committal by the sub- division Court directed the keeper of the prison to keep the bankrupt "until such time as he shall submit him- self to us, or to any of the Commissioners of the Court of Bankruptcy, and answer make to the questions put to him by us." — Whether the warrant was not, on this account, legal — qutere. Re Martin, 16 Law J. Rep. (n.s.) Bankr. 6 ; 1 De Gex, 485. A warrant of commitment of a bankrupt for not giving satisfactory answers to a commissioner of a district court of bankruptcy at L, for which two commissioners were appointed, in which it was stated "that a fiat was duly directed to the Court at L, and that the banlorupt did surrender himself to one M J "W, a -commissioner of the said court, authorized to proceed in the said fiat," sufficiently shews jurisdiction, without any allegation that the fiat was allotted to M J W, or that the other com- missioner was absent. The warrant set out all the questions and answers, and concluded "which answers of the said (bank- rupt) are not, nor are any of them, satisfactory to me, the said commissioner" : — Held, sufficiently specific. Ex parte Ward, 15 Law J. Rep. (n.s.) Q.B. 233 ! 3 Dowl. & L. P.C. 756. The Court will not take judicial notice of the general rules and orders made by the Commis- sioners of Bankruptcy, for the regulation of the practice of courts' under 5 & 6 Vict. c. 122. s. 70. By statute 8 & 9 Vict c. 48, it is not only un- necessary, but illegal, to examine a bankrupt upon oath. In re Ramsden, 15 Law J. Rep. (n.s.) Q.B. 234 J 3 Dowl. & L. P.C. 748. On a rule in the nature of a habeas corpus to dis- charge a bankrupt from gaol, it appeared that he had been committed by a commissioner of bank- ruptcy, under a warrant which stated, that the bankrupt had made and signed the declaration sub- stituted for an oath by 8 & 9 Vict. c. 48, and then set out at length the questions put to him in examination, and the answers given, and stated that the answers were unsatisfactory, and required his detainer till he should submit to make answer to the satisfaction of the commissioner. The bankrupt was after his committal brought up again before the com- missioner, and again committed by another warrant, which was indorsed on the first warrant, and which stated that his former examinations having been read over to him, he had made no further statement ; and that the answers, whereof copies were within set out, were unsatisfactory. This second warrant did not state that the bankrupt had again made and signed the declaration required by 8 & 9 Vict. c. 48, and was Issued on a day after the rule had been moved for: — Held, first, that the second warrant could be looked at by the Court, and that the rule must be decided as if a Jpabeas corpus had actually issued, and the warrants were set out on a re- turn. Secondly, that the allegation in the second war- rant, that the answers referred to were unsatisfac- tory, was sufficient. Thirdly, that it was not necessary that the bank- rupt should make and sign a fresh declaration when brought up to be examined previous to the making of the second warrant. In re Bull, 15 Law J. Rep. (n.s.) Q.B. 235 ; 3 Dowl. & L. P.C. 763. By statute 3 Geo. 4. c. 23. s. 2, it is enacted "that after examination and adjudication by any two Justices, all subsequent proceedings to enforce obedience may be by either of the same, or any other Justice of the county in like manner as if done by the same Justices who heard and adjudged the complaint:" — Held, that a warrant which recited that a party was summoned before two Justices to shew cause why he should not pay rates, without alleging that they were the same Justices by whom the warrant was issued, must also shew that such first-named Justices adjudicated in the complaint. In re Ramsden, 15 Law J. Rep. (n.s.) M.C. 113 ; 3 Dowl. & L. P.C. 748. A bankrupt, on being examined before a single commissioner, was committed to the custody of the messenger, to be brought before a sub-division court. The fiat was allotted to Commissioner S. The bankrupt was brought before the sub-division court, but another commissioner sat for Commissioner S, who was unwell. The sub-division court, not being satisfied with the bankrupt's answers, committed him to Newgate. He was subsequently brought up before Commissioner S, and made a statement in reference to his answers before the sub-division court, but the commissioner remanded him to Newga.te on the former warrant. The bankrupt obtained a habeas corpus, and the return set out the warrant of commitment, containing the examination before the sub-division court. A motion was made for the discharge of the bankrupt, on the ground that the warrant in the return did not set out the first or the last examination before a single commis- sioner, nor the manner in which the sub-division court was constituted, and did not allege that the Court had been duly summoned : — Held, that the return need only set out the examination on which the sub-division court committed the bankrupt to Newgate. Held, also, that affidavits may be received on behalf of the bankrupt to shew facts not appearing on the face of the return., In re Martin, 1 6 Law J, Rep. (n.s.) a.B. 286 ; 4 Dowl. & L.' P.C. 768. Where a bankrupt has been committed under the 6 Geo. 4. c. 16. s. 36, for not answering questions to the satisfaction of the commissioner, the Court will not discharge him out of custody, unless the story contained in his answers is sufficient to satisfy a reasonable person of its truth. The bankrupt Act, 6 Geo. 4. c. 16. s. 36, author- izes the Commissioners of Bankrupts, where a bankrupt does not answer fully to their satisfaction, to imprison him "until he shall full answer make to their satisfaction to such questions as shall be put to him." The warrant of commitment set out the examination of the bankrupt, the whole of which related to a sum of money which was not forthcom- ing, and which the bankrupt stated had been stolen by thieves, who had broken into his house. The 80 BANKRUPTCY; (N) Op the Bankbupt. warrant then proceeded, " which answers of, &c. are not nor are any of them satisfactory ;" and it then directed the bankrupt to be imprisoned until he should full answer make to the satisfaction of a commissioner " to the questions so put to him by me as aforesaid." The warrant was directed " To the messenger of the said court, and to his assistants, and to the governor or keeper of Her Majesty's gaol of the castle of York, in the county of York:" — Held, first, that the warrant was good. Queers — Whether it would have been bad had it ordered the bankrupt to be committed until he should satisfac- torily "answer such questions as shall be put to him." Secondly, that the bankrupt was committed on account of answers which, taken as a whole, were unsatisfactory. Thirdly, that the warrant of com- mitment was not bad by reason of its not containing the name of the messenger. In re Lwrd, or Rx parte Lord, 16 Law J. Rep. (n.s.) Exch. 118 ; 16 Mee. & W. 462. (c) Allowance of Costs, [See 12 & 13 Vict. v;. 106. ss. 194.— 197.] Bankrupt allowed his expenses arising from changing the venue of the fiat after adjudication. Ex parte Cheesiorough re Feamley, 1 De Gex, 333. A petition was presented by cestuis que trust, for liberty to prove against the estate of a bankrupt de- faulting trustee, whom they had put into prison for contempt, for not obeying an order for the payment of the money, made by the Court of Chancery in a suit instituted against him in respect of the breach of trust The bankrupt appeared on the petition, and applied to be discharged from custody. The Court, under these circumstances, allowed the bankrupt 40s. for his costs of appearing on the petition. Ex parte Ri/lands re Crowdson, 18 Law J, Rep. (n.s.) Bankr. 9. (d) Discharge. On an application to discharge a bankrupt, who had obtained his certificate, from execution for a debt proveable under the commission, — Held, that the Judge at chambers might receive affidavits to shew the certificate void, under 5 & 6 Vict. c. 122. s. 38. The Court has no original jurisdiction in such matter. Clark v. Smith, 3 Com. B. Rep. 982. The Court has no jurisdiction to order the dis- charge of a bankrupt out of custody under 5 & 6 Vict. c. 122. s. 42, such jurisdiction being given by a statute to a "Judgeof the Court." Wearing v. Smith, 16 Law J. Bep. (n.s.) aB. 1 ; 9 aB. Rep. 1024. Under the 23rd section of 5 & 6 Vict. c. 122, which provides that " if such bankrupt shall be arrested, &c., he shall, on producing his summons, &c., be immediately discharged," the words " such bankrupt" are not restricted exclusively to persons who really are bankrupts de jure, but comprise all persons against whom a fiat has issued and who have been thereupon by the proper Court adjudged to be bankrupt. Norton v. Walker, 18 Law J. Rep. (U.S.) Exch. 234 ; 3 Exch. Rep. 480. See ante, (D) Protection from Process ; (L) Proof of Debt, (a) In general; and post, (G) Cer- tificate of Conformity.] (O) Audit of Accounts. [See 12 & 13 Vict. c. 106. ss. 185, 186.] Where the solicitor to the fiat received and paid all monies on account of the estate, and at the audit the accounts were verified by his affi- davit as to their accuracy, and by the affidavit of the assignees that they had neither received nor paid anything except what had been so received and paid by the solicitor, but there was nothing to shew that either of the assignees had, as to informa- tion or belief, verified the accounts : — Held, that the accounts ought to be opened and retaken, although three years had passed since the audit. The solicitor had retained and been allowed at the audit his bill of costs as taxed by the commis-. sioner: — Held, not such a payment as precluded re-taxation. Whether a commissioner has jurisdiction to open accounts passed and audited by commissioners under the said jurisdiction — qucfre. Examinations before the commissioner cannot be read in evidence on a petition. Ex parte Rees re Scowcrqft, 1 De Gex, 205. Where there has been no audit of the assignees' accounts and large sums had been received by them, it was held that the official assignee acted properly in calling for an audit, though twenty-five years had elapsed since any step had been taken, and no creditor made any complaint. But it appearing that the official assignee might without difficulty and at small expense have satisfied himself that the circumstances did not require him to prosecute a claim against the creditors' assignee, he was not held entitled to his full costs as against the latter, there being no estate. Ex parte Shaw re Rohbins, 1 De Gex, 242. (P) Dividends. [See 12 & 13 Vict. ,;. 106. ss. 187—189.] A was made a bankrupt in 1810, and in 1812 dividends were declared, amounting altogether to 20s. in the pound on the debts proved against his estate, and a release of the surplus of his estate was made to him. The dividends payable to credi- torswere carried to an accountkept by the assignees, called "the separate account," out of which the creditors were paid. In 1849 a sum of money, con- sisting of unclaimed dividends and interest allowed on them by the bankers with whom the account was left, was paid over to the official assignee : — Held, that this fund belonged altogether to the creditors who had not been paid. Ex parte Wood- ford re Wilcocks, 19 Law J. Rep. (n.s.) Bankr. 8. (Q) Certificate of Confokmity. [See 12 & 13 Vict. c. 106. ss. 198—207.] A bankrupt having obtained his certificate under 5 & 6 Vict. c. 122. s. 39, was taken in execution upon a judgment, signed before the confirmation of such certificate; application being made to a Judge at chambers, to discharge him on the pro- duction of the certificate under sect. 42, — Held, that it was competent to the Judge to go into an inquiry whether the certificate was not void under section 38. Wearing v. Smith, 16 Law J. Rep. (n.s.) aB. 173 i 9 Q.B. Rep. 1024. BANKRUPTCY; (T) Pbactice. 81 The drawer of a bill of exchange, who had paid tlie amount to an indorsee after a fiat in bankruptcy issued against the acceptor, may sue the latter upon the bill, before he has obtained his certificate, notwithstanding the indorsee has proved under the fiat. Walker v. Pilheam, 4 Com. B. Rep. 229. A security given to a creditor in consideration of his withdrawing his opposition at the final exami- nation of a bankrupt is not void within the 12 & 13 Vict. c. 106. s. 202. Taylor v. Wilson, 19 Law J. Rep. (n.s.) Exch. 241 ; 5 Exch. Rep. 251. According to the proper construction, of the 198th section of the Bankrupt Law Consolidation Act, it is not necessary that the assignees should give notice to the registrar of their intention to op- pose the granting of the certificate to the bankrupt. Ex parte Wells re Wells, 19 Law J. Rep. (n.s.) Bankr. 5. The granting the certificate mentioned in the 225th section of the Bankrupt Law Consolidation Act is a judicial and not merely a ministerial act ; and the Court which has the power of giving such certificate, ought to allow any creditor, who has received notice to attend, to put any relevant ques- tions to the debtor or the inspectors. Ex parte Lawrence re WMnnery, 19 Law J. Rep. (h.s.) Bankr. 6. [See ante, (D) Protection from Process.] (R) Arkangement by Deed. [See 12 & 13 Vict. c. 106. ». 224.] Statutes are not to have a retrospective operation, so as to deprive parties of vested rights, unless they contain express words to that edect. The provisions of sections 224. and 225. of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, by which a deed of arrangement signed by six-sevenths in number and value of a trader's creditors, is binding on the other creditors on the expiration of three months after notice, are not to be construed retrospectively, so as to deprive a cre- ditor of his right to an action commenced by bim before the act came into operation. Marsh v. Hig- gins, 19 Law J. Rep. (n.s.) C.P. 297 ; 1 L. M. & P. 253. In a plea alleging that the defendant entered into a deed of arrangement with his creditors under the 224th and 225th sections of the Bankrupt Law Consolidation Act, (12 & 13 Vict. c. 106.) it is not necessary to set out the names of the six- sevenths of the creditors by whom the deed was executed, or the amount of their debts, or the trusts contained in the deed. The plea alleging two inconsistent days as the date of the execution of the deed, the Court looked to other parts of the plea to ascertain which was to be adopted and which rejected. The execution of a deed of arrangement, under the 224th section of the act, by a trader unable to meet his engagements with his creditors, is a suspension of payment under the 224th section. A plea alleged that the defendant was and Would be unable to pay his creditors in full, and that he executed a deed of arrangement, and then spoke of the " said suspension of payment," none having been distinctly avepred :^^Held, that, on general demurrer, it appeared sufBciently that there had been a suspension. Digest, 1845—1850. Queere — Whether the allegation would have been sufiicient on special demurrer. A plea of this sort may be pleaded against the further maintenance. Phillips v. Surridge, 19 Law J. Rep. (n.s.) C.P. 337 ; 1 L. M. & P. 458. (S) Evidence [Competency op Witnesses J. A statement by a bankrupt in his balance sheet, of a debt due by him is not evidence as against his assignees of the debt being due. An accountant employed by the assignees of the bankrupt sent to the defendant an unsigned state- ment of the account between the bankrupt and the defendant's testator, in which he stated a balance in favour of the testator : — Held, that this was not a sufficient acknowledgment of a debt to take the case out of the Statute of Limitations as against the assignees. Pott v. Qfeg, 16 Law J. Rep. (N.s.) Exch. 210 ; 16 Mee. & W. 321. In an action by a bankrupt against his assignees to try the validity of the fiat issued against him, creditors of the bankrupt, whether they have or have not proved their debts, are rendered competent witnesses for the defendants by 6 & 7 Vict. c. 85, and are not excluded by the proviso, as being per- sons on whose "immediate and individual behalf" the action is defended. Colombine v. Penhall, 19 Law J. Rep. (n.s.) aB. 302; 13 a.B. Rep. 128. Where, in an action by the assignees, the bank- rupt was not called as a witness, but a witness was examined as to certain statements of the bankrupt with respect to his affairs, — Held, that the evidence was admissible. Where a creditor under the fiat was produced as a witness, — Held, that his evidence was inadmis- sible. Belcher v. Brake, 2 Car. & K. 658. Since Lord Denman's Act (6 & 7 Vict. c. 85), the petitioning creditor is a good witness to support the fiat. Johnson v. Graham, 2 Car. & K. 808. Where certain parts only of a book containing proceedings in bankruptcy are put in by one party, the opposite counsel have no right to refer to other parts of it. Whitfield v. Aland, 2 Car. & K. 1015. [See Ex parte Marjoribanks, ante, (G) — (d).] (T) Practice. (a) In general. Affidavit of debt filed under 1 & 2 Vict. c. 110. s. 8. ordered to be taken off the file with the creditor's consent. Anonymous, 1 De Gex, 334. A trust deed which could not have been im- peached under a fiat sued out by any creditor held incapable of being impeached under the bankrupt's own fiat. Ex parte Philpott re Miskin, 1 De Gex, 346. A creditor who before the fiat has taken a bank- rupt in execution cannot be heard on the merits of his petition to stay the certificate unless he dis- charges the bankrupt. Quare — Whether a creditor who detains a bank- rupt in execution till he is discharged by his certi- ficate is competent, if the fiat is annulled, to issue a new one. Quiere — Whether on the first fiat being annulled the creditor can again take the debtor in execution or whether the debt is satisfied. -Ex parte Norton re Robinson, 1 De Gex, 504. Where a stock legacy bequeathed to a bankrupt had been transferred into the names of the official M 82 BANKRUPTCY; (T) PBACTici3. and creditors' assignees, and the former survived the latter and left the country and became bankrupt, — Held, that the Court might on the petition of the new official assignee served upon the bank and the assignees of the former official assignee, direct the funds to he transferred to the accountant in bankruptcy, and that a petition under Sir E. Sugden's Act was unnecessary. Ex parte Pennell re Suste- nance, 1 De Gex, 566. A petition and the affidavits in support of it were filed under an incorrect title. The petition was amended. The affidavits were ordered to be taken off the file, amended as to the title, and then re- sworn. Ex parte Barton re Harvey, 18 Law J. Rep. (n.s.) Bankr. 17. In the case of a fiat issued previously to the statute 12 & 13 Vict. c. 106, and in which the pro- ceedings had not been completed, the Lord Chan- cellor ordered the petitioning creditor's affidavit and the petition for the fiat to be produced for the pur- pose of being enrolled and sealed with a view to their production on the trial of an action, in which the validity of the fiat was to be decided. In re Bishop, 2 Hall & Tw. 220. (&) Petition, Form of order on petition of equitable sub- mortgagee. Ex parte Powell re Faughan, 1 De Gex, 405. Upon a petition to appoint new trustees, the Court of Review will not decide any question as to who are the cestuis que trust. In case of doubt all who may by possibility he held to fill that character must he parties. Ex parte Congreve re Oliver, 1 De Gex, 267. Petition by bankrupt to annul the fiat heard although he had not surrendered, the time for doing so having expired between the presentation of the petition and the hearing. Ex parte Hodson re Hodson, I De Gex, 374. Where the bankrupt left England on account of his embarrassments and consequently did not hear of the fiat until after the time for surrendering had expired, he was not allowed his costs on petitioning for leave to surrender. Ex parte Perry re Perry, 1 De Gex, 377. Where the creditor of a bankrupt after attending to prove, and' being prevented from doing so by the other business in court, became insolvent, and the title of his assignee was not complete in time to enable the assignee to prove, — Held, that he must nevertheless pay the costs of his petition to stay the dividends and of the requisite sitting to receive his proof, and retain them out of the insolvent's estate. Ex parte Hughes re Osborne, 1 De Gex, 387. (c) Accounts. A fiat issued against the bankrupt in 1832, A, who was a solicitor, was appointed sole assignee, and acted as such, and as solicitor to the fiat until 1848, and was paid his costs as solicitor. The bankrupt presented a petition, praying that the accounts of A might he reviewed, with reference to the disallowance of all the costs, except the sums paid by him out-of pocket. A stated that he had in 1832 applied to the other creditors, but had re- ceived no assistance from them, and that, under the circumstances — as no other creditor would come forward, and the aflJiirs of the bankrupt were in a state of great complication, and as there was no fund then out of which a solicitor could be paid — he had accepted the office of assignee, with the approbation of the Commissioners, and had also acted as solicitor. It appeared that the estate of the bankrupt had, under the management of A, produced nearly 20s. in the pound : — Held, that, on the ground of public policy, the accounts of A ought to be reviewed, with reference to the union of the characters of assignee and solicitor. Be Newton, 18 Law J. Rep. (n.s.) Bankr. 1. (d) Contempt. When a bankrupt after being committed had been twice brought up to be examined and had been recommitted, the Court declined to order him to be brought up again at the expense of the estate. Ex parte Rothery re Bothery, 1 De Gex, 565. (c) Affidavit of Debt. By 5 & 6 Vict. e. 122. s. 67, all affidavits to be made or used in matters of bankruptcy, or under or by virtue of any statute relating to bankrupts, or of this act, may be sworn before certain specified per- sons, including the registrar of the Court of Bank- ruptcy:— An affidavit of debt filed in the Court of Bankruptcy under 1 & 2 Vict. c. 1 10. s. 8. is an affi- davit made " by virtue of a statute relating to bank- rupts," and is made in a matter of bankruptcy within the 5 & 6 Vict. c. 122. s. 67, though at the time it was made no bankruptcy existed and might possibly never exist ; and such an affidavit is properly sworn before the registrar of the Court of Bankruptcy. Begina v. Dunn, 16 Law J. Rep. (n.s.) Q.B. 382 j 12 aB. Rep. 1026. Plaintiff filed an affidavit of debt in bankruptcy against the defendant for the sum of lOil. 18s. 5d., under the 5 & 6 Vict. c. 122. A summons there- upon issued against the defendant, but was dis- missed on his making an affidavit that he believed he had a good defence to the demand. On the trial of the cause, the defendant proved a set-off to the amount of 291. 5s., and the plaintiff had a verdict for 741 A certificate for speedy execution having been granted, judgment was signed and execution issued on the 7th of August. On the 21st of No- vember following, the defendant obtained a rule under the 19th section of the above act, to enter a suggestion on the record, for the purpose of obtain- ing costs in the action, on the ground that the plaintiff had not any reasonable or probable cause for making an affidavit of debt to the amount of lOil. 18s. 5d. QiKKre— -Whether, under the above circumstances, the plaintiff had reasonable or probable cause for making an affidavit to the amount in question. But, held, that the motion had been made too late ; that, in cases of speedy execution granted, the de- fendant ought to apply within the first four days of the next term, and in other cases before judgment has been signed and execution issued. Smith v. Temperley, 16 Law J. Rep. (n.s.) Exch. 105: 16 Mee. & W. 273 ; 4 Dowl. & L. P.C. 510. Plaintiff filed an affidavit in bankruptcy, under 5 & 6 Vict. c. 122. s. 11, against defendant, for 99/. 19s. 7d. In the account previously delivered, as provided by that section, 10/. 15j. was given credit BANKRUPTCY— BARON AND FEME. 83 for as a set^oif, but the balance was made by mistake to appear 992. \9s. Id., instead of 89i. 19s. Id. At the trial plaintiff recovered 86Z. : — Held, that de- fendant was not entitled to have his costs allowed, pursuant to the 19th section. Quare — ^Whether a creditor is justified under the above statute in making an affidavit for the whole amount of his demand, without noticing any set-off which he knows to exist on the other side. Willding v. Temperley, 17 Law J. Rep. (n.s.) Q.B. 18*; 11 aB. Rep. 987. {V) Solicitor to the Fiat. Leave given to the solicitor to the fiat, under particular circumstances, to take, at a sum offered by him, a part of the bankrupt's property. Ex parte Watts re Sedgwick, 15 Law J. Rep. (n.s.) Bankr. 13 ; 1 De Gex, 265. A, a solicitor, was the petitioning creditor in a bankruptcy, and acted as solicitor in the matter : — Held, that he was entitled to the payment of his bill in full, and not merely to the costs out of pocket. Ex parte Chamberlayne re West, 19 Law J. Rep. (sr.s.) Bankr. IQ. CW) Costs. A solicitor, employed byabankrupt, againstwhom a fiat had issued on his own petition, entitled to costs out of the bankrupt's estate up to the time of the choice of assignees. Ex parte Fidgeon re Parsons, 15 Law J. Rep. (n.s.) Bankr. 19 ; 1 De Gex, 342. A mortgagee of a bankrupt's estate presenting a petition for liberty to bid is not entitled to the costs of the petition. Ex parte Smith re Field, 18 Law J. Rep. (n.s.) Bankr. 17. Shares were deposited by A with B, a banker, to secure the purchase-money of the vshares, but no written memorandum was given. A became bank- rupt. B presented » petition for the sale of the shares and liberty to prove for the difference, sup- ported by an affidavit that it was not the custom in the course of business to require a written memo- randum under such circumstances : — Held, that B was entitled to costs, as in the case of a mortgage with a written memorandum. Ex parte Moss re Davies, 18 Law J. Rep. (n.s.) Bankr. 17. Qutere — ^Whether the bill of costs of the solicitor of the petitioiiing creditor is payable without re- serving sufficient to pay the office fees of 101. and 201. payahle*Sn the event of assignees being chosen, no creditor having proved, and the bankrupt having obtained his certificate. Ex parte Hehery re Caven- dish, 1 De Gex, 442. Under the bankrupt's own fiat, there being no probability of any choice of creditors' assignees, and the office fees of iOl. aild 20/. having been paid to the Accountant General, — Held, that they might be applied in payment of the bill of costs of the bankrupt's solicitor. Ex parte Buchanan re Birley, 1 De Gex, 344. Where a bankrupt sued out a fiat against himself, which was annulled and no creditors' assignees had been chosen, the office fees of 102. and 101. paid by him into the bank were ordered to be returned. Ex parte Reynolds re Reynolds, 1 De Gex, 370. Bill of solicitor of bankrupt suing out a fiat against himself under which no assignees were chosen, ordered to be paid out of the fund in the hands of the Accountant General, without making ahy reserve for the office fees of 10?.^ and 202. The Accountant General ought not to be served with the petition for payment. Ex parte Jertmod re Dockery,! De Gex, 373. BARON AND FEME. [Conveyance by Married Woman, under 3 & 4 Will. 4. c. 74, see Fines and Recoveries. And see Alien — Costs — Divorce — Marriage — Murder — Po,wer — Receiving Stolen Goods.], (A) Husband. (a) Bights of, in Property of Wife, (5) liability of, on Contracts and Acts of Wife. (B) Wife. (a) Property, and Settlement thereof,, (6) Consent. (c) Rights of. id) Liability to Execution, and Right to. dis- charge. (C) Separate Estate. (a) Power over and Disposition of. (4) Liability in respect of. (D) Separation of Husband and Wife. (E) Cohabitation as Man and Wifh. (P) Suits. (G) Pleading and Evidence, (A) Husband. (a) Rights of, in Property of Wife. [Follettv. Tyrer, 5 Law J. Dig. 126 j 14 Sim. 1 25.J An issue, whether a husband conveyed to plaintiff the reversion, of which he and his wife were seised in right of the wife, to hold to the plaintiff during the coverture, is proved by an indenture purportiflg to be made by husband and wife, but executed by him only, by which he professed to convey an estate during their joint lives. Robertson v. Norris, 17 Law J. R^. (N.s.) Q.B. 201 ; 11 Q.B. Rep. 916, A wife, living separately from her husband by agreement, received from him a weekly allowance for her support, out of which she saved 1002., which she placed in the funds, and two days before her death sold it out, and gave it to the defendant: — Held, that the husband was entitled to recover it back. Messenger v. Clark, 19 Law J. Rep. (n.s.) Exch. 306 ; 5 Exch. Rep. 388. Reduction of stock into possession by transfer to trustees of marriage articles, entered into by wife while an infant. Cunningham v. AntTobus, 16 Sjm, 436. By a post-nuptial settlement, reciting that a sum of stock originally standing in the name of the wife had been transferred into those of the trustees, and that it had been agreed that a promissory note for 5002., given to the wife by her brother, should be cancelled and that he should give his bond to the trustees for the amount, it was witnessed, that the trustees should stand possessed of these funds, in trust to pay the interest, &c. to the husband for life, then to the wife for life, and on the death of the survivor to transfer the funds to the children of the marriage, and in case there should be no chil- 84 BARON AND FEME; (A) Husbamd. dren, then to such persons as the wife should by deed or will notwithstanding her coverture appoint, and in default of such appointment, to the husband, his executors, &c. There were no children of the marriage. The wife survived the husband : — Held, that in the event of the death of the wife withput making a valid appointment, the fund would belong to the husband's personal representative, as having been reduced into the husband's possession by the settlement. Bumham v. Bennett, 2 Coll. C.C. 254. A woman a few days before her marriage, and without the knowledge of her intended husband, transferred a sum of stock to trustees upon a parol trust, as alleged by the trustees, for her separate use for life and after her death for the benefit of her children. The fact of this transfer became known to the husband some time after the marriage. The dividends were received by the wife from the date of the marriage until her death, which took place seven- teen years after. After her death the husband filed a bill, praying a transfer of the stock, and contain- ing a statement that the dividends were duly paid to the wife during the coverture: — Held, under the circumstances, that the husband was precluded from asserting his claim to the stock as having been transferred in fraud of his marital right. Loader v. Clarke, 2 Mac. & G. 882. A married woman entitled to her separate use to the dividends of certain stock standing in the names of trustees of whom her husband was one, permitted these dividends for a number of years to be paid to the husband's bankers to his separate account: it appeared also by the evidence that he made use of these funds as his own property: — Held, that a course of dealing was proved as existing between the husband and the wife, which shewed that the money was paid to the husband as husband, and not as trustee : and that this being done with the acqui- escence of the wife, disentitled her from claiming any part of the money as against the estate of the husband. Catm v. Rideout, 1 Mac. & G. 599j 2 Hall & Tw. 33. In March, W was engaged to be mairied to Miss J. In July, Miss J settled her property on herself and her relations, no benefit being given to W. In August they were married. Three years afterwards W filed a bill to upset the settlement, on the ground of its having been a fraud on his marital rights. Evidence was given on the part of the defendant that W had, before the marriage, reason to believe that a settlement was intended, and had been made: — Held, that the plaintiff was not entitled to any relief. Wrigley v. Swainson, and Swainson v. Wrig- ley, 18 Law J. Uep. (n.s.) Chanc. 396. Testator gave several annuities to four un- married nieces, a married niece, and a nephew, with a proviso for cesser on alienation ; the testator declaring his intention to be that the annuities should be received as some provision towards the maintenance of the annuitants during their lives, and that the annuity of the marrie'd niece should be for her sole and separate use, — Held, that the an- nuity of an unmarried niece was not limited so as to exclude the marital right of ahusbandwith whom she subsequently married. Gilchrist v. Cator, I De Gex & S. 188. [See CoFYHOLD, Surrender, Admittance.] (6) Liability of, on Contracts and Acts of Wife. The first count stated that O S made his bill directed to Mrs. W, and indorsed to the defendant, who indorsed to the plaintiff. Plea, that O S, the maker, was the plaintiff. Replication, that there was no consideration for the indorsement by the plaintiff to the defendant, but that the plaintiff in- dorsed to the defendant in order that the defendant might indorse to the plaintiff as a security for money due from Mrs. W to the plaintiff: — Held, that the replication was not a departure. The second count stated that C W drew her hill on the defendant, who accepted it, and that C W indorsed it to the plaintiff. Plea, that C W before and at the time of the indorsement was and still is the wife of E W, and had no authority from him to indorse: — Held, that the plea was had; inasmuch as a person is not entitled to dispute the power of another to indorse an instrument when he asserts by the instrument that the other has such power. And this although, as the property in the bill would pass by the indorsement of the husband, the de- fendant might possibly have to pay the amount twice. Smith, v. Marsack, 18 Law J. Rep. (n.s.) C.P. 65; 6 Com. B. Rep. 486. To a declaration alleging that the defendant made his promissory note payable to the order of S, who indorsed to the plaintiff, there was a plea denying the indorsement by S. It was proved that the wife of S bad authority from her husband to indorse bills and notes ; that she told her daughter to indorse the name of S on the note, which was done in the mother's presence, who afterwards handed the note to the plaintiff: — Held, that the extent of the authority given to the wife of S was a question of fact to be determined by the jury; and that there was evidence for the jury of an authority to indorse by the hand of another. Lord v. Hall, 19 Law J. Rep. (n.s.) C.P. 47 ; 8 Com. B. Rep. 627. If husband and wife he living separate and apart, and the husband makes the wife a separate allow- ance of a sufiBcient sum for her maintenance, which is regularly paid, this is sufficient to repel the infer- ence of agency, and he is not liable for any debt she may contract; and it is not necessary that there should be any deed of separation ; but the allow- ance must be such as the jury shall think sufficient, reference being had to the station of the parties and the income of the husband. Holder v. Cope, 2 Car. & K. 437. If husband and wife be living apart, and the husband makes the wife a sufficient allowance for her support, he is not liable in an action by a trades- man for goods supplied to her, and it is immaterial whether the tradesman knew of such allowance or not If a wife living apart from her husband orders goods to be addressed and sent to a third person, and they be sent to the house of such third person, that not being the place of abode of the wife, the husband is not liable to pay for those goods. Reeve v. the Marquis of Conyngham, 2 Car. & K. 444. Where a sum of money was advanced to a wife who was living with her husband, and, after her decease, the husband promised to repay the sum " when convenient to him," but stated he had not been privy to the loan, — Held, that there was evi- BARON AND FEME; (B) Wife. 85 dence to go to the jury that the wife had borrowed the money with the sanction of the husband, or that she professed so to do, and that he had ratified her act. IFest v. Wheeler, 2 Car. & K. 714. An estate was given to a lady for life, with a direction not to commit waste. The lady married, and acts of waste were committed by her husband. Upon her death, a bill was filed for an account of waste and dilapidations: — Held, upon demurrer, that the wife's estate having, by her marriage, be- come vested in her husband, her husband was alone responsible for the waste, and the legal personal representatives of the wife were not necessary parties to the suit. Kingham v. Lee, 16 Law J. Bep. (N.s.) Chanc. 49 ; 15 Sim. 396. A bill filed by a patty who had lent money to the itife of the defendant, while the defendant was abroad, for the purchase of necessaries for her maintenance and support, set forth various letters to prove that the husband had authorized his wife to borrow the money, and had authorized his agent, to whom he had given a power of attorney to sell his estates, to satisfy his wife's debts out of the proceeds of such sale. The bill sought to establish a lien upon the husband's assets in this country: — Held, that as a mere creditor of the husband the plaintiff had no equity against his assets, and that no lien was established by the letters and power of attorney. May v. Slcey, IS Law J. Rep. (n.s.) Chanc. 306 ; 16 Sim. 588. (B) Wife. (a) Property and Settlement thereof. A wife's equity to a settlement applies as well to the income as the principal of her choses in action ; and income which accrued due during the husband's lifetime, but was not reduced by him into possession, will pass to the wife by survivorship. Wilkinson v. Ckarlesworth, 16 Law J. Bep. (n.s.) Chanc. 387 ,■ 10 Beav. 324. A freehold estate stood limited to trustees for a term of years, on trust to secure a jointure, and subject to the term, to the use of a married woman. In a suit, by her against her husband, — Held, that she was entitled to an equity of settlement in respect of the estate. Newenhamy. Pemhertcm, 17 Law J. Rep. (n.s.) Chanc. 99; 1 De Gex & S. 644. A married woman entitled to a legacy appeared by counsel at the hearing of a cause, and claimed her equity to a settlement out of the fund. The legacy was directed to be carried to the separate account of the husband and wife. The husband was a bankrupt, and his assignees sold his interest in the legacy. The solicitors for the purchaser and for the wife agreed to refer the claim of the wife to their counsel, and the counsel determined that she was entitled to a settlement of the moiety, subject to costs. Before any further steps were taken, the wife died leaving children, — Held, that the husband and those claiming under him, were, by the steps which they had taken, bound to allow a settlement of part of the fund on the wife and children j and that on the death of the wife, the children were entitled to the portion which would have been settled. Lloyd v. Mason, 5 Hare, 149. . A husband and wife assigned a reversionary interest in trust funds belonging to the wife, as a security for money. The husband subsequently deserted his wife, and they both survived the tenant for life. Upon a petition by the wife, — Held, that she was entitled to a settlement, and that as between herself and her husband's assignee, her having committed adultery was immaterial, and did not derive her of that right Greedy v. Lavender, 19 Law J. Rep. (n.s.) Chanc. 494; 13 Beav. 62. Gift to a lady, and after her death to all her children living at her death, the shares to be vested at twenty-one. The lady, being sixty-three and desirous of giving up her interest, and her children, all of whom had attained twenty-one, petitioned for payment to the children. One of the children was a feme covert. The Court would make no order. Brandon v. Woodtharpe, 10 Beav. 463. When money belonging to a married woman is asked for out of court, it must be shewn that there is no settlement, or what the settlement is. Britten V. Britten, 9 Beav." 143. A sum of 2,0002. stock had become vested in trustees in trust for A, for his life ; and after his decease, in trust for his wife for her life, and after the decease of the survivor upon trust for their only child. The husband and child executed a surrender of their estates to the wife, and those three parties joined in a petition that the trust fund might be transferred to the son, and praying a transfer ac- cordingly, or that such other order might be made as the nature of the case required. The Court dismissed the petition. Whittle v. Henning, 17 Law .T. Bep. (n.s.) Chanc. 151; 11 Beav. 222; affirmed 18 Law J. Rep. (n.s.) Chanc. 51. On the 14th of March 1844, in contemplation of a marriage intended shortly to be solemnized, a sum of money secured on mortgage, the property of the intended wife, was assigned to trustees, in trust for the intended wife, her executors, adminis- trators and assigns, until the said intended marriage should have been solemnized ; and immediately after the marriage, in trust, for the separate use of the intended wife during the joint lives of herself and the intended husband, without power of antici- pation ; and after the death of either, upon trust, for the survivor for life, with remainder to the children of the marriage ; and in default of children, for the survivor of the intended husband and wife absolutely. Previously to the marriage, the intended husband and wife, by a deed-poll, dated the 27 th of March 1844, reciting that the marriage between the parties was intended to be shortly afterwards solemnized, revoked the trust of the indenture of settlement, and declared that the trustees of that indenture should hold the settled fund in trust for the lady absolutely. On a bill filed by the husband claiming the settled fund absolutely jure mariti, against the trustees and the wife, it was held, although there was no proof of undue influence having been used by the intended husband, that the trusts of the settlement were not affected by the deed of revocation. Semble — Where the intended husband has con- sulted and dealt with the late guardian of the intended wife in the light of her next friend, and a settlement has been executed of the intended wife's property, to which the late guardian was a party, as the transferror of the intended wife's property to trustees, it is not competent for the intended husband immediately afterwards and before the marriage is 86 BARON AND FEME; (B) Wife. solemnized, to deal with the lady alone with refer- ence to the settled property and the revocation of the trusts of the indenture of settlement executed in contemplation of marriage to he shortly after- wards solemnized between the parties. Page v. Horne, 17 Law J. Rep. (n.s.) Chanc. 200; 11 Beav. 227. By an ante-nuptial settlement lands of the wife were released to uses during the joint lives of hus- band and wife and the life of the survivor, on certain trusts, with a limitation to the use of the wife in fee in an event which happened. After the death of the husband, who survived the wife, the releasee to uses with a tenant in possession under a lease from the husband made a feoffment and levied a tine to the use of himself in fee, — Held, that a court of equity might entertain a suit by the heir-at-law of the wife against the releasee to uses, to recover pos- session of the land and title-deeds. Semtle — that' the releasee to uses after the deter- mination of his own legal estate had no rightful title to the custody of the title-deeds ; and would not be considered as holding them as trustee for the reversioner; but Semble — that the fine was fraudulent, and that whether void at law on that ground or not, its validity should be decided by a court of law. Reece v. Trye, 1 De Gex & S. 273. Where the Master reports that there is no settle- ment of a fund in court to which a married ^oman is entitled, it is the general rule that application should be made for payment to the husband by petition presented after the decree on further direc- tions has been made, in order that it may be in evidence before the Court by affidavit, that at the date of the decree on further directions there was no settlement of the fund in court ; yet when the suit is small (under 200Z.) and all parties to the suit consent, the Court will dispense with a petition and order payment to the husband in the decree on fur- ther directions. Hedges v. Clarice, 1 De Gex & S. 354. [See Legacy, "What Interest vests.] (&) Consent. A married woman being entitled to a reversionary interest in a fund, and having had the prior life- interest therein assigned to her, the Court ordered the fund to be transferred to the husband, the wife appearing in court and consenting. Hall v. Hugo- nin, 16 Law J. Rep. (n.s.) Chanc. 14 ; 14 Sim. 595. On the marriage of an infant person a settlement was made of a fund in court, to which she was en- titled. On her attaining twenty-one a petition was presented for payment to the trustees : — Held, that her consent in court or by commission was neces- sary. Day v. Day, 1 1 Beav. 35. (c) Rights of. A trustee who held in his hands the sum of 600Z., in trust for the separate use of a married woman, was applied to by the husband and wife for the payment of it After some correspondence on the subject, the trustee paid the money to the husband : — Held, that he received it as trustee for his wife, and was indebted to her in that sum at his death. A testator by his will left various benefits to his wife, to whom he was indebted in the sum of 600/. She received all the benefits given her by the wiU, and executed a general release to her husband's executor. No notice of the debt was taken in the release : — Held, that the wife was not prevented by the release from claiming the 600J. from her hus- band's estate. A testator was at his death indebted to his wife in the sura of 600/., which had been settled for her separate use, and by his will he gave her the sum of 2,800/. : — Held, that the legacy was not a satis- faction of the debt. Rome v. Rowe, 17 Law J. Rep, (n.s.) Chanc. 357 ; 2 De Gex & S. 294. By articles of separation, dated in June 1834, the defendant agreed that he would, on or before the 1st of February 1835, effectually, by a charge on freehold estates, or by investment of an adequate sum of money, or by the best means which might be then in his power, secure to the plaintiff, his wife, an annuity of 1,000/. In December 1834, a deed of arrangement was executed between the defendant and his son, by which certain family estates were conveyed to trustees to raise money for the payment of various incumbrances, afterwards to such uses aa the defendant and his son should appoint, and in default of appointment to the defendant for-life, and then to his son absolutely, with a power for the defendant to jointure his then present or any future wife to the extent of 1,000/. per annum : — Held, that the plaintiff was entitled to have her jointure raised out of the estates, as against the defendant and his son. Mornington v. Mornington, 18 Law J. Rep. (n.s.) Chanc. 442; 17 Sim. 59. A testator bequeathed 10,000/. to husband and wife, to be put in their joint names, and that of his executor, the husband and wife to enjoy the interest during their joint lives, or the life of the survivor. The fund was paid into court to the credit of the cause, — "the husband and wife, their stock ac- count." There were dividends unreceived at the death of the husband : — Held, that they belonged to the wife by survivorship. Laprimaitdaye v. Teissier, 19 Law J. Rep. (n.s.) Chanc, 16 ; 12 Beav. 206. (;. 61, every part of a county de- tached from the main body of such county is to be considered for all purposes as forming part of that county of which it is considered a part for election purposes, under 2 & 3 Will. 4. c. 64. . In fact, no part of Glasbury was "iscflated" or "detached," unless 470 acres of land therein, which were sepa- rated from Brecknockshire by the river Wye, could be so considered : — Held, that notwithstanding the misapprehension in the schedule as to the fact of Glasbury parish being isolated and locally situated in Brecknockshire or Radnorshire, the 470 acres of' the parish of Glasbury, though not strictly speaking either " isolated " or "detached" ftom the main body of the county of Radnor, must upon the facts found be taken to be the part of the parish described in the schedule, and that it therefore became, under the Boundary Act, a part of the county of Brecon, and (under 7 & 8 Vict. c. 61.) for all purposes, including liability to repair a bridge. Where boundary line between two counties ne- cessarily runs along some part of a public river, the middle of the river is the boundary, there being nothing in the Boundary Act, 2 & 3 Will. 4. c. 64, to prevent the general rule in such cases applying. Regina v. the Inhabitants of Brecknockshire, 19 Law J. Rep. (n.s.) M.C. 203. (6) Bridge erected for private Purposes. The word " riding " in the Statute of Bridges (22 Hen. 8. c. 5. s. 3.) is not confined to districts called by that name, but includes any division of a county which corresponds in its definition to a riding. By 6 & 7 WiU. 4. c. 87. the Isle of Ely has a separate commission and clerk of the peace and a separate county rate and custos rotulorum from the county of Cambridge, and by 7 Will. 4. & 1 Vict, c, 53. s. 7, it is enacted that, in statutes theretofore passed or thereafter to be passed respecting counties, ridings or divisions, the Isle of Ely should be deemed and taken to be a division of a county. Held, that the Isle of Ely is included in the Statute of Bridges, and therefore its inhabitants are primd facie liable at common law to repair the BRIDGE— CANAL COMPANY. 113 bridges situate witliin it ; and may be indicted in the same form as ordinary counties. The general rule as to bridges built prior to 43 Geo. 3. c. 59. is, that if a private person erects a bridge, and it becomes useful to the county in gene- ral, the county shall repair it. But where an act rendering a bridge necessary, though authorized to be done, is done primarily for private purposes, and interferes with the public right, and the public user, from which public bene- fit is inferred, is referable only to that act, because made necessary by it, the authority to do the act in question is conditional only on the party maintain- ing the public right in the same state as before it was interfered with. Plea to indictment for non-repair not double by reason of its alleging that drain and bridge were vested in corporation. Regina v. the Inliahitants of the IsU of Ely, 19 Law J. Rep. (n.s.) M.C. 223. (c) Bridge not traiisferred from County to Borough. By statute 2 & 3 Will. 4. c. 64, a certain part of the parish of F, in the county of Wilts, was included within the city of New Sarum, which is not a county of itself, but which, after the passing of the 5 & 6 Will. 4. c. 76, had a separate court of quarter sessions : — Held, that after the passing of the last-mentioned statute the city of New Sarum was not liable to the repair of a public bridge, locally situate within the part of the parish of F so included within the city. Regina v. the Inhabitants of New Sarum, 15 Law J. Rep. (n.s.) M.C. 15 ; 7 Q.B. Rep. 941. (B) Presentment fok Non-repair. By 13 Geo. 3. c. 78. s. 24. power is given to a single Justice to present any highway or bridge out of repair. The 43 Geo. 3. c. 59. enacts that all matters and things in 1 3 Geo. 3. c. 78. contained relating to highways shall be extended to county bridges as fully as if they were repeated and re- enacted therein. Statute 5 & 6 Will. 4. t. 50. expressly repeals 13 Geo. 3. o. 78, leaving un- touched the 43 Geo. 3. c. 59, and by section 99. abolished all presentments for non-repair of high- ways. By the interpretation clause (section 5) " highway " is not to include county bridges : — Held, that the power conferred by 43 Geo. 3. c. 59. on a single Justice of presenting a county bridge is not repealed by the 5 & 6 Will. 4. i;. SO. Regina v. the Justices of Breconshire, 18 Law J. Rep. (n.s.) M.C. 123. for work and labour. Milford v. Hughes, 16 Law J. Rep. (n.s.) Exch. 40 i 16 Mee. & W. 174. BROKER. [See Company — Practice, Adding Pleas — Principal and Agent — Production and In- spection OF Documents — Stock Exchange.] A party who does work for another in and about the procuring and hiring of persons to be employed by that other, in surveying a line of railway, is not a broker, within the stat. 6 Ann. c. 16, which re- quires persons acting as brokers within the. City of London to be admitted by the mayor and aldermen ; and per Rolfe, B., the employment of a broker relates to goods and money, and not to personal contracts Digest, 1845—1850. BUILDING. [See Friendly and Benefit Societies — Metropolis.] BURGLARY. On the trial of an indictment for a burglary, it appeared that adjoining the prosecutor's dwelling- house was a kiln, one end of which was supported by the end wall of the dwelling-house ; and that adjoining to the kiln was a dairy, one end of which was supported by the end wall of the kiln. There was no internal communication from the dwelling- house to the dairy, and the roofs of the dwelling- house, kiln, and dairy were of different heights : — Held, that^the dairy was not a part of the dwelling- house, and that a burglary could not be committed by breaking into it. Regina v. Higgs, 2 Car. & K. 322. BURIAL FEES. [See Clergy.] CANAL COMPANY. [As to what is a judicial act by Commissioners, see Certiorari. And see Carrier.] Construction of Act as to Tolls. A canal company was empowered, by act of par- liament, to take for tonnage upon all coals, &c., and other commodities whatsoever conveyed upon the canal, duties not exceeding 2\d. per ton, on entering or passing out of the canal, and also not exceeding IJd. a mile for every ton of coal, 8{c., except all dung, soil, marl, ashes and other manure (other than lime, which was to pay half tolls), and except stone, &c., and other materials for mending roads, which was to pass toll-free. By another section it was enacted " that no boat should pass through any of the locks, unless such boat should pay a duty equal to what would be paid by a vessel loaded with a burden of thirty tons, or unless it should be returning, after having passed on the canal with a greater burden than thirty tons" : — Held, affirming the judgment of the Court below ( 13 Law J. Rep. (N.s.) Exch. 283 ; 13 Mee. & W. 114), that a boat laden with more than thirty tons of manure, which had entered the canal, and passed along it, without paying toll, was not liable to pay any toll on returning through the lock empty, after discharging her cargo. Grantham Canal Company V. Hall, 15 Law J. Rep. (n.s.) Exch. 63; 14 Mee. & W. 880. Effect of Interested Persons acting as Com- missioners. Upon the general rule of law and the construc- tion of a canal act, proceedings of Commissioners held to be invalid by reason of interest. a 114 CANAL COMPANY— CARRIER. Quiere, as to interest of the owner of land in which colliery situate. Semble, that where a large body of Commissioners are appointed by statute, the accidental intrusion of one interested person will not necessarily vitiate the proceedings. Regina v. the Aberdare Canal Co., 19 Law J. Rep. (n.s.) 0.8.251. Notice of Meeting of Commissioners. By a Canal Act, no meeting of Commissioners was to be held unless previous notice should be given in some newspaper, published or circulated in the county of G at least sixteen days before such meet- ing. Notice of the meeting of the Commissioners, to be held on the 12th of February, was inserted in a newspaper, dated the 27th of January, on which day the notice itself also bore date ; but it was . proved that the newspaper was printed and partly circulated on the 26th of January : — Held, that the notice was insufficient, as not being given "at least sixteen days before such meeting." Regina v. Aberdare Canal Co., 19 Law J. Rep. (n.s.) Q.B. 251. CARRIER. [See Railway.] (A) Duties and Liabilities of Cabkieks. (a) Cases of special Contract. {b) Servants. (c) Loss of Luggage. (d) Gratuitous Bailment. (e) Delivery to. (/) Damages. (B) Careieks to Fokeign Parts. Canal companies enabled to become carriers by 10 & 11 Vict. c. 91; 25 Law J. Stat 266. (A) Duties and Liabilities of Carkieks. (a) Cases of special Contract. In an action on the case, the declaration alleged that the defendants were proprietors of a railway and carriages for the conveyance of passengers, cattle, &c. for hire ; that they received nine horses of the plaintiff to he safely and securely carried in the carriages of the defendants for hire, and that it thereupon became their duty safely and securely to carry and deliver the said horses, and averred the loss of one of the horses by reason of the insufficiency of the carriage. It appeared that the injury to the horse was occasioned by a defect in the horse-box in which it was placed, and which defect had been pointed out to the servants of the defendants. The plaintiff received a ticket from the defendants' clerk, stating the amount paid for the carriage of the horses, and having the fol- lowing memorandum annexed: "This ticket is issued subject to the owner's undertaking all risks of conveyance whatever, as the company will not be responsible for any injury or damage (however caused) occurring to horses or carriages while tra- velling, or in loading or unloading:" — Held, that the terms contained in the ticket formed part of the contract for the carriage of the horses, upon which the defendants' duty arose, and that the allegation that the defendants received the horses "to he safely and securely carried" by them, was disproved. Semble — that notwithstanding the contract, the plaintiff might have charged the defendants with a breach of duty in not providing a sufficient carriage. Shaw V. York and North Midland Rtal. Co., 18 Law J. Rep. (N.S.) Q.B. 181 i ]3 Q.B. Rep. 347. (6) Servants. If a carrier who contracts to deliver goods from A to B enters into a sub-contract with another party to convey those goods over a certain portion of the journey, such sub-contractor and every person employed by him in the performance of the contract, is " a servant in the employ" of the carrier within the meaning of the 8th section of the 11 Geo. 4. & 1 Will. i. c. 68. A delivery ticket issued by a railway company, as common carriers, in respect of goods they had undertaken to carry, described several persons, amongst others J, as porters in their employ. In an action brought by the bailor of the goods for their non-delivery, they having been stolen on their journey by J, — semble, that the company were not estopped from giving evidence that J was not their servant Machin or Machu v. London and South' Western Rail. Co., 17 Law J. Rep. (n.s.) Exch. 271 ; 2 Exch. Rep. 415. (c) Loss of Luggage. The declaration stated that the defendants were common carriers on a railway from Woodgate to the Sonthwark terminus in London ; that C S R, wife of the plaintiff, became a passenger, and was received with a dressing-case, which was part of her luggage, and which was to be safely and securely carried to and delivered at the station at Southwark ; that the defendants did not take due or proper care about the conveyance, but by their negligence and improper conduct the dressing-case was wholly lost. It was proved that Mrs. R came to the Woodgate station of the Brighton Railway, and her dressing-case was put under the seat of the carriage; that on arriving at the Sonthwark termi- nus, Mrs. R was carried to a hackney coach, and the defendants' servants remoevd her luggage from the railway carriage to the hackney coach, and the dressing-case was lost, never having been seen in the hackney coach : — Held, that the evidence was sufficient to support the declaration, there being an allegation of the duty to deliver, and no delivery having taken place. Held, also, that negligence, though alleged, did not require to he proved, tlichards v. London and South Coast Rail. Co., 18 Law J. Rep. (n.s.) C.P. 25] ; 7 Com. B. Rep. 839. To a declaration in case against common carriers for the loss of ^ trunk containing certain articles of jewellery and female apparel, the defendants pleaded as to part of the goods in the declaration mentioned, to wit, the said articles of jewellery, one of the said dresses, &c. &c., that at the time of the delivery to them they were contained in the trunk in the declaration mentioned ; that they were so delivered to the defendants after the passing of the statute 11 Geo. 4. & 1 Will. 4. c. 68. (the Carriers' Act) ; that the said goods consisted of CARRIER— CASE. 115 articles and property of the descriptions following, 07' of some or one of such descriptions, tliat is to say, gold or silver in a manufactured or unmanufactured state, &c. (enumerating the several articles men- tioned in the 1st section of the act), and that their value exceeded lOZ. ; that at the time of the receipt of the goods by them, the defendants had duly affixed the notice required by section 2. of the act ; and that the plaintiff gave them no notice of the nature or value of the goods, nor did she pay or tender the increased rate of charge demandable under the act : — Held, tliat the plea was bad for not alleging with certainty that the articles in question were articles of some or one of the descriptions mentioned in the act. Smith v. London, Brighton, and South Coast Rail. Co., 7 Com. B. Rep. 782. {d) Gratuitous Bailment. Defendant, a carrier and wharfinger, received into his warehouse certain goods of the plaintiff, on the terras that they should he conveyed by defen- dant's barges to London, when the plaintiff should direct, at the usual freight, and that, in the mean time, they should be kept hy defendant without charge for warehousing: — Held, in an action for not keeping the goods safely, that defendant was not a gratuitous bailee. White v. Humphery, 11 Q.B. Rep. 43. (e) Delivery to. If, in an action against a carrier for the loss bf a parcel, the defendant plead that it was not delivered to him to be carried, it is sufficient for the plaintiff to shew that it was delivered to a person and at a house where parcels were in the habit of being left for this carrier, and it is immaterial whether this person was paid any money or not ; and in such an action the person who so left the parcel may be asked, on cross-examination, what direction was on the parcel. Burrell v. North, 2 Car. & K. 680. (/) Damages. The plaintiff sent goods to the London warehouse of the defendants, who were carriers, to be forwarded to Bedford. The goods, which ought to have reached Bedford in time for Saturday's market, did not arrive there until Monday. The plaintiff's clerk, who had been sent to Bedford on the Saturday to receive and sell the goods, waited there until the Monday, when he removed them to St. Keots, in order to sell them : — Held, that it was a question for the jury, whether the expenses of the clerk's stay at Bedford were a reasonable consequence of the defendants' breach of contract, and that the Judge was not bound as a matter of law to direct the jury that the defendants were not liable for such expenses, unless they had notice that it would be the consequence of a delay in the delivery of the goods. Black v. Baxendale, 17 Law J. Rep. (n.s.) Exch. 50; 1 Exch. Rep. 410. "Where a parcel containing several small ones was sent through the railway company to the plaintiff's agent at B, and one of them, directed to C D, was lost, — Held, not necessary to shew, in an action against the company, that they had not delivered it to C D, and that the amount of damages was the value of the parcel, as the plaintiff would be liable for that amount. Crouch v. the London and North-Western Rfiil. Co., 2 Car. & K. 789. (B) Caeriers to Foreign Parts. A declaration in case stated that the defendants were common carriers of passengers for hire from Southampton to Gibraltar, which was stated to he a place beyond the seas. The defendants pleaded that they were not common carriers as in the declaration alleged : — Held, that this plea put in issue only the fict of their being common carriers, undertaking to carry for any one who chose to employ them, and not their liability as common carriers according to the custom of England, Benett v. Peninsular and Oriental Steam Boat Co., 18 Law J. Rep. (n.s.) C.P. 85 ; 6 Com. B. Rep. 775. CASE. [See Action— Carrier — Distress — Hack- ney Carriage — Justice of the Peace — Mas- ter AND Servant — Mine — ■ Negligence — Nuisance — Seduction — Way.] Fraudulent Imitation of Trade Mark. A declaration in case stated that the plaintiffs, manufacturers of cutler}', were accustomed to mark their knives with certain marks denoting their manufacture, and that the defendants, intending to injure the plaintiffs, did fraudulently impose similar marks on knives made by the defendants, to induce the public to believe that the knives made by the defendants were manufactured by the plaintiffs, &c. : — Held, that it was properly left to the jury to consider, whether there was such a resemblance between the defendants' marks and those used by the plaintiffs, as was calculated to deceive the public ; and whether the defendants used the marks with an intention to deceive. No person has a right to sell his own goods as and for goods manufactured by another person. Rodgers v. Nowill, 17 Law J. Rep. (n.s.) C.P. 52 ; 5 Com. B. Rep. 109. Obligation on Owner of House to repair as regards his Neighbour. A declaration in case stated, that a certain mes- suage was in the occupation of T S as tenant to the plaintiff, the reversion belonging to the plaintiff; and that the defendant was owner and proprietor of another messuage, and by reason thereof as such owner and proprietor of such messuage ought to have repaired and kept repaired in a substantial manner the said messuage secondly mentioned. Breach, non-repair by the defendant. Plea, that the said messuages were contiguous and abutting on each other, and were divided by a party wall, whereof the plaintiff was seised of an undivided moiety ; that the wall was in a ruinous state, and being parcel of the messuage in the declaration secondly mentioned, had fallen on the first-mentioned messuage. Re- plication, traversing that the wall was a party wall, and that the plaintiif was seised thereof: — Held, first, that the replication was good. Secondly, that the declaration was bad, there being no obligation towards a neighbour on the owner of a house, merely 116 CASE— CERTIORARI ; (A) When it lies. as owner, to repair or keep it in repair in a sub- stantial manner, the whole of his obligation being to prevent it from becoming a nuisance. The terrti "owner," as well as that of "proprie- tor," of premises may mean one who has the whole legal interest in the premises, so that no one else has any estate in possession or reversion, or it may mean one who has a subsisting estate at the time of the wrong complained of, or one who is the owner of the whole or of some interest as distin- guishable from that of tenant in possession. Chauntler v. Robinson, 19 Law J. Rep. (N.s.) Exch. 170; 4 Exch. Rep. 163. CEMETERY. Provisions usually inserted in cemetery acts con- solidated by 10 8s 11 Vict. c. 65 ; 25 Law J. Stat. 208. CASTE. Suit by certain Comaties of the Vaisyas, or third caste of the Hindoos, against the Mantri-maha-nad (secret assembly, for avenging encroachments upon rules or rights of caste), to establish their right to have performed for them and their tribe, certain religious ceremonies, call soobJia and asoobha (aus- picious and inauspicious), by Brahmins, in the language of the Fedas, in the enjoyment of which they had been disturbed by the Brahmins refusing to perform such ceremonies. In the answer to the plaint, the defendants denied the right of the Comaties, and set forth certain acts, whereby they had forfeited their right to have the ceremonies per- formed for them, by the Brahmins. The Zilla Court, taking that part of the defendants' answer which set forth the acts by which the forfeiture of the rights in question was occasioned, framed it into a statement of facts and law, for the opinion of the Pundit of the Court; and upon his opinion, declared the plaintiffs' tribe entitled to have the ceremonies performed for them by Brahmins. Upon appeal, the provincial court remitted the suit to the Zilla Court, to take evidence, and upon such evidence, and the opinions of the Pundits, which the provin- cial court took upon the same statement as the Zilla, . they affirmed the decree. The Sudder Dewanny Adawlet, upon the whole case, reversed these deci- sions: — Held, by the Judicial Committee of the Privy Council, reversing the decisions of the three Courts, that the whole proceedings were irregular and contrary to the express provisions of the Madras Regulation XV. of 1816, sect x. cl. S and 4, which required the Judge to record the points necessary to he established, before the evidence could be taken ; the opinion of the PundiVs being also taken upon an assumed statement of facts, not admitted or re- corded. But in consideration of the circumstances, such revisal was without prejudice to bringing a fresh suit. Namboory Setapaty v. Kavoo-Colanoo Pullia, 3 Moore, In. App. .359. CATTLE. Provisions for preventing the introduction and spreading of contagious or infectious disorders among cattle. 11 & 12 Vict. cc. 105. and 107 ; 26 Law J. Stat. App. xvi,, xvii. CENTRAL CRIMINAL COURT. [See Indictment, Venue.] Provisions as to preferring and removing indict- ments. 9 & 10 Vict. c. 24; 24 Law J. Stat. 70. CERTIORARI. [See Conviction — Poob — Revenue — Tithe.] (A) "When it lies. (o) Although restrained by Statute. ( b) Judicial Acts and Orders. (c) Order of Removal unappealed against. (d) Indictment for keeping disorderly House. (e) Certificate of Admission to Lunatic Asylum. (/) Resolution of Vestry. (B) Notice of. (C) Mattees OF Practice. (o) Within what Time to issue, lb) Ex parte Application, (c) Rule absolute in first instance, {d) Motion in open Court, (e) What Points may be gone into. (f) Motion to quash. (g) Other Matters. (D) Costs to Prosecutor and Party grieved. (A) When it lies. [Regina v. Lancaster and Preston Junction Rail. Co. 5 Law J. Dig. 161 j 6 Q.B. Rep. 759.] (a) Although restrained by Statute. Though the Excise Act, 7 & 8 Geo. 4. c. S3. takes away a certiorari from the Queen's Bench, it may still issue where a conviction has been obtained by fraud. Regina v. Gillyard, 17 Law J. Rep. (N.s.) M.C. 153; 12 Q.B. Rep. 527. - The 10th section of the statute 25 Geo. 2. c. 36. taking away the writ of certiorari for the removal of indictments against any person for keeping a bawdy- house, gaming-house, or other disorderly house, does not apply where the indictment has once been removed, at the instance of the prosecutor, into the Central Criminal Court, under the 4 & 5 Will. 4. c. 36. — Held, therefore, that after an indictment for keeping a disorderly house had been so removed from the Middlesex Sessions, a second writ of certiorari toi the removal of the same indictment from the Cen- tral Criminal Court into the Court of Queen's Bench, might be granted at the instance of the party indicted. Regina v. Brier, 19 Law J. Rep. (N.s.) M.C. 121. It is no ground for a certiorari to remove several convictions before Justices under the Factory Act, 7 & 8 Vict. c. 15. s. 41. (the certiorari being ex- pressly taken away), that the summons to appear and answer the charges was served only the day CERTIORARI ; (C) Mameks of Practice. 117 tefore the hearing, and that the Justices made the convictions upon no other appearance than that of an attorney who professed to represent the parties charged, without requiring proof of the service of the summons, and upon the evidence offered in sup- port of one of the charges only. Ex parte Hopwood, 19 Law J. Rep. (n.s.) M.C. 197 ; 15 Q.B. Rep. 121. (b) Judicial Acts and Orders, The Court of Quarter Sessions made an order, Octoher 1844, that no officer of the court should thereafter take any fee from any defehdant in mis- demeanour : — Held, a judicial order properly re- movable by certiorari. Regina v. Coles, 15 Law J. Rep. (n.s.) M.C. 10 ; 8 Q.B. Rep. 75. B, an owner of lands adjoining a canal, made a request to the committee of the company for their consent to erect a bridge over the canal, and after twenty-one days' refusal, applied to Commissioners under the act for their consent and approbation, who, after hearing evidence and arguments on both sides, gave theirconsentand approbation, and entered a minute of the proceedings in their books : — Held, that this was such a judicial act as could be removed by certiorari. Regina V. Aherdare Canal Co., 19 Law J. Rep. (n.s.) Q.B. 251. (c) Order of Removal unappealed against. An order of removal, against which there has been no appeal to the Quarter Sessions, may be brought up by certiorari for defects appearing on the face of it. Regina v. Blathwayt, 15 Law J. Rep. (n.s.) M.C. 48 ; 3 Dowl. & L. P.C. 542. (rf) Indictment for keeping disorderly House. No indictment for keeping a disorderly house can be removed by certiorari, whether the indict- ment be at the prosecution of the constable, under the statute 25 Geo. 2. c. 36, or at the instance of a private individual. Regina v. Sanders, IS Law J. Rep. (N.s.) M.C. 158 ; 9 Q.B. Rep. 235. {e) Certificate of Admission to Lunatic Asylum. A certificate for the admission of a lunatic into an asylum, signed by a clergyman and overseer, under 8 & 9 Vict. li. 100. s. 48, is not removable by cer- tiorari. The objection that such a certificate is not properly the subject of a certiorari, may be taken on shewing cause against a rule to quash the certificate after it has been removed. Regina v. hihabitanfs of Hatfield Peverel, 18 Law J. Rep. (N.s.) M.C. 225. (/) Resolution of Vestry. A certiorari will not lie to bring up a resolution of vestry for the appointment of paid constables under the 5 & 6 Vict. c. 109. s. 18. Nor the copy of such resolution forwarded to the Justices in petty sessions, on which they made the appointment. But it will lie to bring up the appointment itself made by the Justices in petty sessions, where the proceed- ings in vestry have not been conducted in confor- mity to the 58 Geo. 3. c. 69, amended by the 59 Geo. 3. c. 85, a poll having been demanded and refused, and the resolution having been carried by a shew of hands. A certiorari being granted for that purpose, it is competent to the parties moving to shew upon affidavit that the irregularity in the pro- ceedings of the vestry was of such a nature as to take away the jurisdiction of the Justices. In re the Constables of Hipperholme-cumSrighouse , 5 Dowl. & L. P.C. 79. (B) Notice of. A notice given to Justices of an intention "to move for a certiorari in six days from the giving of the notice, or as soon after as counsel can be heard, is suiBcient. Regina v. Rose, 15 Law J. Rep. (N.sj M.C. 6; 3 Dowl. & L. P.C. 359. (C) Matters o3P Pkactice. (a) Within what Time to issue. The Court refused to grant a certiorari to bring up an orderof Sessions, made, subject to a case, more than six months after the making of the order, where application had been made at chambers within the time, but had failed in consequence of non-attend- ance of a Judge there until after the six months had expired. In re the Parishes of Llanbehlig and Llan- dyfrtjdog, 15 Law J. Rep. (n.s.) M.C. 92. (J) Ex parte Application. A writ of certiorari to remove a plaint from the county court may issue, under the9 & 10 Vict.c. 95. s. 20, upon an ex parte application, if the Judge, in the exercise of his discretion, thinks it proper to grant leave without notice to the other party. Sy- mondsv. Dimsdale, 17 Law J. Rep. (n.s.) Exch. 247 ; 2 Exch. Rep. 533. (c) Rule absolute in first instance. Where the preliminary steps have been duly taken, a rule under stat. 8 & 9 Vict. c. 118. s. 44, for a certiorari to remove an award of an Assistant Inclosure Commissioner will be absolute in the first instance. Ex parte Kelsey orKelcey, 19 Law J. Rep. (N.s.) Q.B. 145 i 1 L. M. & P. 55. (rf) Motion in open Court. Where the Sessions have granted a case for the opinion pf the Court, the Court will not, on the argument on such case, entertain any question not raised by the Sessions for their decision. If it be intended to object to the order of Sessions as had on the face thereof, upon any grounds not raised by the special case, the certiorari must be moved for in open court, and such additional grounds of objection stated. Regina v. Inhabitants of Heyop, 15 Law J. Rep. (n.s.) M.C. 70; 8 a.B. Rep. 547. (e) What Points may be gone into. Where a case has been sent from the Sessions, the Court will not, upon the certiorari, go into any objections arising on the face of the order itself, not raised by the case. Regina v. Inhabitants of Hartpury, 16 Law J. Rep. (n.s.) M.C. 105; 8 Q.B. Rep. 566. [And see ante, (d).] (/) Motion to quash. When a whole term has elapsed after a case, granted by an order of Quarter Sessions, has been brought up by certiorari, it is too late to quash the certiorari, on the ground that although the affidavits on which the certiorari was obtained alleged service of notice on two Justices present at the time of the 118 CERTIORARI— CHANCERY. making of the order, one of those Justices was, in fact, not then present Regina v. Inhabitants of Basingstoke, 19 Law J. Rep. (n.s.) M.C. 28; 6 DowL & L. P.C. 303. (c) Other Matters. The proper practice upon the return of a certiorari to remove a conviction is, that the case should he put into the Crown paper. Regina V. Lord or Ex parte Lord, 16 Law J. Rep. (n.s.) M.C. 15 ; 4 Dowl. & L. P.C. 405. Where, hy act of parliament, the original juris- diction as to the merits of a case is given to magis- trates, from whose decision no appeal as to the merits is given to the Court of Queen's Bench, that Court, when the decision of the magistrates is com- plained of, and their proceedings hrought up hy writ of certiorari to he quashed, has only power to see whether the case was one in which the magistrates had jurisdiction, and whether their proceedings are regular upon the face of them. That Court will not receive affidavits, for the purpose of impeaching the decision upon the facts, of which the magistrates are the sole judges; as, if they have jurisdiction over the case, their jurisdic- tion cannot he aifected hy, or made to depend upon, the truth or falsehood of the facts, or the sufficiency or insufficiency of the evidence hrought to support the case. In a proceeding, therefore, hefore magistrates, under the 59 Geo. 3. t. 12. s. 24, against the defen- dant, for not giving up possession of a parish house, after a proper demand, where they had made an order in pursuance of the statute, which was hrought up hy certiorari to he quashed, the Court refused to receive affidavits as to the facts proved before the magistrates, and others attacking the credit of the witnesses; and as it appeared that the case was one in which the magistrates had jurisdiction, and that their proceedings were good in form, the rule was discharged. Regina v. Bolton, 10 Law J. Rep. (n.s.) M.C. 49; 1 as. Rep. 66. (D) Costs to Pbosecutob, and Party ghieved. Where a side-har rule has been obtained for costs to prosecutors and parties grieved, under the statute 6 & 6 Will. & M. c. 1 1. s. 2, the Court will not discharge the side-bar rule on affidavits, which shew that sums of money have been raised hy sub- scription towards defraying the expenses of the prosecution ; or on the ground that all the prose- cutors do not appear to have been aggrieved ; or on the ground of its appearing that the certiorari was obtained at the instance of one of the defendants alone. Regina v. Bobson, 15 Law J, Rep. (n.s.) a.B. 97; 9 Q.B. Rep. 302, n. AVhere an indictment has been removed hy certiorari under 5 Will. & M. c. II, if the party grieved or injured be in point of fact the prosecutor, he will he entitled to costs under that statute, although not hound over to prosecute, and although another person, not a party grieved or injured, was bound over to prosecute, and was at the trial in pursuance of his recognizance. Regina v. Bishop, 18 Law J. Rep. (n.s.) M.C. 63; 6 Dowl. & L. P.C. 499. CHAMPERTY. [See Contract, Rescission of.] CHANCERY. Certain offices in the Petty Bag and the practice on the common law side of the Court of Chancery and the inrolment office regulated by the 11 & 12 Vict. c. 94; 26 Law J. Stat. App. ix. Orders in pursuance of that act, made De- cember 29, 1848; 18 Law J. Rep. (n.s.) Chanc. 503. The 11 & 12 Vict. c. 94. amended by 12 & 13 Vict. c. 119; 27 Law J. Stat. 250. An Act to diminish the delay and expense of the proceedings in the Court of Chancery, 13 & 14 Vict, c. 35; 28 Law J. Stat. 52. The Attorney General (after the passing of the statute 5 Vict. c. 5.) filed an information in Chan- cery against the mayorandcommonalty of London, alleging that the Crown was seised of the bed and soil of the river Thames; that the defendants were conservators thereof, and in breach of their duty as such conservators had granted to divers persons (also made defendants) licences to embank parts of the river, and had received fines for such licences, and that such embankments were nuisances; and the information prayed that the rights of the parties might he ascertained, that the licences might be declared void, and that injunctions might issue to prevent the completion of the embankments. The defendants denied that the embankments were nuisances, and demurred to the rest of the bill for want of equity. Held, affirming an order of the Master of the Rolls, that, upon these pleadings, the information was maintainable. If a bill or information discloses, upon the facts stated in any part of it, ground for a decree in equity, it is maintainable. Per the Lord Chancellor, pp. 464, 6, 7. A bill, which raises a legal question, may he so framed as not to he open to demurrer on that account, bnt, on the real nature of the question appearing at the hearing, the court of equity will refuse to inter- fere. Per the Lord Chancellor, p. 468. As the Crown would not be liable to costs in this case, the judgment of the Court below was affirmed, without costs. Quare — Whether, when an act of parliament transfers jurisdiction from one Court to another, or grants an extension of the jurisdiction of an existing Court, it is necessary, in order to make the act binding on the Crown, that the Crown should be named therein. The Corporation of London v. the Attorney General, 1 H. L. Cas. 440. A Scotchman, by a testamentary instrument in the Scotch form, gave all his personal estate to trustees in trust to pay legacies and annuities, and the income of the surplus to A for life, and on A's death to invest the capital in the purchase of lands in Scotland. The trustees named in the will having disclaimed, the Court of Session appointed new trustees, who, as well as A and several of the lega- tees and annuitants, were resident in Scotland. A administered to the testator's estate in England; and filed a bill in Chancery against the trustees for CHANCERY— CHARGE. 119 the usual accounts of the testator's estate possessed by them, and to have the residue ascertained and secured. The trustees filed a cross-bill for an account of the testator's estate in England possessed by A, and to have the residue ascertained and paid over to them upon the trusts of the will. The Court refused to relinquish its jurisdiction over the fund in A's hands, and directed it to be paid into court, and to he invested in consols, and the dividends to be paid to A for life. Preston v. Melvilk, 15 Sim. 85. CHAPEL. [See Church — Rate.] CHARGE. [See JU&DMENT.] A held shares as trustee and executed a declara- tion of trust, but gave no notice at the office of the company. He afterwards mortgaged the shares for his private debt, and gave notice to the company, who entered the mortgage in their books : — Held, that the mortgagee had priority over the cestui que trust. Notice to one proprietor is not for this purpose notice to the company. Martin v. Sedgwiclc, 9 Beav. 333. A, who was entitled to a residuary fund in the hands of his father's army agents, charged it, first to the agents and afterwards to M without notice. The agents voluntarily paid the whole fund into court in an administration suit. M obtained the first stop-order thereon : — Held, that M had priority over the agents. Swayne v. Swayne, 1 1 Beav. 463. The owner of a vessel, then on a voyage, mort- gaged it and the cargo to A, subject to two prior mortgages thereof; and the third mortgagee forth- with gave notice of his mortgage to the two prior incumbrancers. The master of the vessel after- wards at Sydney transhipped the cargo and con- signed it to London to consignees, who honoured his bill on having a lien on the consignment. The mortgagor induced B to advance 1,000Z. on a mort- gage of the cargo so consigned without notice of any charge thereon, except the lien of the con- signee. B gave notice of his mortgage to the consignee. A as soon as he knew of the consign- ment (but after B's notice) gave notice to the con- signee of the mortgage to him ; and after such notice the consignee after satisfying his lien paid over the balance of the proceeds to B : — Held, that A, having done all he could towards possession, was entitled to priority over B, Feltham v. Clark, 1 De Gex & S. 307. CHARITY. [See Churchwardens and Overseers — Costs — Heir-at-Law.] (A) Construction of Instrument ckeatino IT. (B) Devise and Bequest to. (a) Validity of, (i) What passes ty. (C) Administration. (a) Scheme, (b) Trustees. (1) Controul over in general, (2) Appointment of new Trustees, (c) Estates, (D) Jurisdiction over. (o) Of the Court of Chancery • (1) /« general, (2) On Petition. (3) By Information, (6) Of the Visitor. (c) Of Supreme Court at Madras, (d) Of Commissioners for Ireland, (E) Information BY THE Attorney General. (F) Pleadino and Practice. (G) Costs. (A) Construction of Instrument creating it. In the year 1584 an act was passed, the objects of which were of a public nature, viz. to supply the ships in the harbour and the inhabitants of Ply- mouth with water, &c. An hospital, founded in the year 1617, was endowed with certain lands, emanating from the corporation of Plymouth, and a very close connexion was otherwise established between the two bodies. In 1653, in consideration of a sum of l,400i., part of a larger sum due from the corporation to the hospital, an estate in fee simple was granted by the corporation to the hos- pital of one-fourth part of certain mills, together with one-fourth of the leal or water-course {constructed under the act), running, coming, and going to all the said mills : — Held, that the corporation had no right to apply to the use of the mills situate on the leat any water brought by it other than that which re- mained after the public purposes had been satisfied, and that one-fourth only of the surplus water of the leat passed by the grant of 1653. Held, also, notwithstanding probable adequacy of consideration paid, that a deed, dated in the year 1805, by which that interest of the hospital in the mills, leat, &c. was conveyed to the corporation by the hospital, was invalid, the hospital having been always treated and considered as dependent on the corporation. Attorney General v. Plymouth (Mayor, SfC.), 15 Law J. Rep. (n.s.) Chanc. 109; 9 Beav. 67. A party being desirous of establishing some schools, entered into an agreement with a corpor- ation, who accepted a conveyance of certain lands and fee-farm rents, and covenanted therewith to keep up the charity, whether the income arising from the property so conveyed should or should not be sufficient to pay all the expenses of the charity: — Held, notwithstanding, that under the circum- stances, the corporation were not entitled to the surplus of the income, but that the charity ought to be extended. Attorney General v. Merchant Ven- turers' Company of Bristol, 17 Law J. Rep. (n.s.) Chanc. 137. By a charter of Phil. & Mary (1553) reciting that eighteen presbyters, fifteen clerks and twelve poor men had been lately maintained at B out of the issues' of certain guilds since dissolved and seized to the Crown, it was witnessed that, con- 120 CHARITY ; (B) Devise and Bequest to. sidering a provision for divine worship and the maintenance of the poor, and the education of youth belonged to the regal office, and at the humble petition of the mayor and burgesses, and in con- sideration of the charges which they sustained in and about the reparation of the bridge and port, and that they might be better able to sustain these charges, the King and Queen granted certain lands to the corporation to the intent that they should find and maintain a grammar school in B, and a schoolmaster, two priests to celebrate divine ser- vice in the parish church, and four poor persons to pray for the souls of the King and Queen and their ancestors, with a direction to apply all the rents and profits " ad sustentationem psedagogi et suppae- dagogi scholae praedictae, ac capellanos et pauperes praedictos et alia necessaria, prsdictum burgum scholam capellanos et pauperes prsedictos, et susten- tationem et manutentionem corundum tantum modo tangentia et concernentia:" — Held, that the trusts were for religious purposes, education, and the relief of the poor exclusively. Effect of usage in the construction of charters. Attorney General v. Boston, 1 De Gex & S. 519. A chapel or meeting-house in England was vested in trustees, upon trust, for a congregation of Protestant Presbyterian dissenters, proved to be in as strict connexion with the Established Church of Scotland as practicable : — Held, that this was not a trust for dissenters generally, and that no person was eligible to, or entitled to hold, the ofiiee of minister of the chapel whose opinions and acts constituted a disqualification for the ministry of the Established Church of Scotland ; and that the con- gregation were entitled to a declaration as prayed, that their minister must be a minister of that church, although the foundation deeds contained no decla- ration to that effect. It being proved that the officiating minister of the chapel had adhered to the Free Church of Scot- land, and had become disqualified for the ministry of the Established Church of Scotland, he and those of the trustees, defendants, who concurred and co- operated with him in opposing the relators and plaintiffs, were ordered to pay the costs of the suit, and the adverse defendants to be removed from the office of trustees. Attorney General v. Murdoch, 1 9 Law J. Rep. (n.s.) Chanc. 3 ; 7 Hare, 445. Testator, by his will, dated in 1624, gave certain funds to the corporation of R, upon trust for the poor of the town of R, with a proviso that in case of neglect to perform the trusts or of misemploy- ment of the fimds, the same should be paid or transferred to the corporation of L, for the" benefit of Christ's Hospital In 1639, on an information by the Attorney General against the corporations of R and L, a decree was made for the application of the funds, varying the trusts declared by the will, with a declaration that if the corporation of R should misapply the funds contrary to the decree, the same should be made over to the corporation of L for the benefit of Christ's HospitaL The corpo- ration of R misapplied the funds for a series of years ; on bill by the corporation of L against the corporation of R and the Attorney General for a transfer of the fund, held, affirming the decree below, that the limitation over took effect. Held, also, that such a limitation over is not within the rules of law against perpetuities, being a substitution merely of one charity trust for another. Held, also, that as the property had continued in possession of the corporation of R, who, after the acts of forfeiture, became trustees for Christ's Hos- pital, there was no adverse possession, and the Statute of Limitations did not apply. Semble — A party who, on the original hearing, does not oppose the decree, will not generally be allowed to re-open the discussion by an appeal or rehearing. Chrisfs Hospital v. Grainger, 19 Law J. Rep. (n.s.) Chanc. 33 ; 1 Mac. & G. 460 ; 1 HaU & Tw. 533. On an information filed, praying that the pre- sident and scholars of a college might be decreed to provide for the master and usher of a school rooms and commons equal to the fellows of the college, and a declaration that they were entitled to partici- pate in the increased revenues of the college, and an order that the president and scholars should erect convenient buildings for a grammar school on the original site thereof, it was held, on the true construction of the statutes made by the founder, under a royal licence, that there was no trust imposed on the college in favour of the school which could be executed by this Court ; that the master and usher of the school were only college officers appointed to discharge certain duties as- signed them by the statutes in consideration of certain fixed stipends, and as such subject to the jurisdiction of the visitor of the college for the time being, and that they were not entitled to par- ticipate in the increased revenues of the college. Attorney General v. Magdalen College, Oxford, 16 Law J. Rep. (n.s.) Chanc. 391 ; 10 Beav. 402. [See (C) Administration, (a) Scheme.^ (B) Devise and Bequest to. [See CoNVEKSioN and Re-conversion.] (a) Validity of. A testator devised his real estate to trustees, upon trust to sell and to invest the money to arise there-' from upon trust for his wife for life, and after her death, then as to one-third to certain charitable uses :— Held, that the devise to the trustees was valid during the wife's life, notwithstanding the subsequent devise to charitable uses. Yoang v. Grove, 16 Law J. Rep. (n.s.) C.P. 216 ; 4 Com. B. Rep. 668. A bequest for the assistance of Unitarian con- gregations held valid and the trust directed to he carried into execution. Shrewsbury v. Hornby, 5 Hare, 406. A testator gave the money to arise from the con- version of all the residue of his personal estate to the Queen's Chancellor of the Exchequer for the time being, "to be by him appropriated to the benefit and advantage of my beloved country Great Britain."— Held, that this was a good charitable bequest. Nightingales. Goulburn, 16 Law J. Rep. (n.s.) Chanc. 270 ; 5 Hare, 484 : affirmed 17 Law J. Rep. (n.s.) Chanc. 296. Bequest to the governors of a society instituted for the " increase and encouragement of good ser- vants," &c. &c. No such institution could be found: — Held, that the gift was charitable, and CHARITY; (C) Administration. 121 did not fail. Loscomie v. fVintringham, 13 Beav. 87. The wiil of a testatrix directed her executors to pay 1001. a year to her bankers, for the sole use and benefit of any of the ministers and meijibers of the churches then forming upon the apostolical doctrines brought forward originally by the late Edward Irving, who miglit be persecuted, aggrieved, or in poverty for preaching or upholding those doc- trines ; or half the sum might be appropriated for the benefit of the church founded by the late Edward Irving in Newman Street: — Held, that the above was a valid charitable bequest to the class ascer- Jiained by the Master. Attorney General v. Lawes, 19 Law J. Rep. (n.s.) Chane. 300 ; 8 Hare, 32. (6) Wliat passes by, . A testator directed payment of his debts, and then ^flequeathed certain sums of money to his executors in trust, for the benefit of certain poor persons. The testator at his death was possessed, amongst other things, of divers shares in certain gas-light, dock, and railway companies, which, by deeds or acts of parliament, were agreed or declared to be personal estate. The pure personal estate of the testator being insufficient to fully satisfy all the legacies given by his will, — Held, that the shares in the several companies were applicable to the payment of the charity legacies. Sparling v. Par- ker, 16 Law J. Rep. (n.s.) Chanc. 57 ; 9 Beav. 4.50. The parish of W H was formerly divided into three divisions, called S, P, and C ; and charitable gifts had been made to the parish of W H for these divisions separately. A district parish was formed out of the S division, and another district parish was made up of the P division :• — Held, that under the two acts, the gifts given for the S division might be apportioned between the district parish forming part of the S division, and the remaining part of the S division, and that the gifts given for the P division might be given to the new district parish made up of the P division. In re West Ham Charities, 17 Law J. Rep. (n.s.) Chanc. 441; 2 De Gex & S. 218. A testatrix gave all her property, consisting of leaseholds and personalty, to her brother, who died nine days after her, and by his will bequeathed the whole of his property to charities : — Held, that as it was the duty of the representatives of the testatrix to sell the leaseholds for payment of debts, &c., the brother, who had made no election, took the lease- holds as personalty, and the charities were, there- fore, entitled to them under his will. Shadbolt v. Thornton, 18 Law J. Rep. (n.s.) Chanc. 392; 17 Sim. 49. A testator directed his executors to purchase a piece of land called " the Mount," and to build thereon a mausoleum for the interment of himself and certain members of his family. The residue of his estate the testa tor bequeathed to the Government of Bengal for charitable purposes. On a reference being directed, the Master found that the owner of " the Mount" had refused to sell the property: — Held, that as the first direction had not been carried into execution, the subsequent charitable bequest took effect in the same manner as if the first clause had not been introduced into the will, and that the whole of the residue belonged to the Government Digest, 184.5—1850. of Bengal. Milford v. Reynolds, 17 Law J. Rep. (n.s.) Chanc. 238 ; 16 Sim. 105. (C) Administration. (a) Scheme. [See Ecclesiastical Commissionees.] A testator, born in Scotland, and educated at Glasgow College, by his will, dated in 1677, when he was resident in England, where he died in 1679, gave the residue of his estate to tru.stees for the maintenance and education, at the University of Oxford, of scholars born and educated in Scotland, who should have spent a certain time as students at Glasgow College ; and he declared it to be his will that every such scholar should, upon his admission at Oxford, execute a bond conditioned for payment of 5001. to the college if he should not enter into holy orders, and if he should accept any spiritual promotion, benefice, or other preferment in England or Wales, it being the testator's will that every such scholar should return to Scotland, there to be pre- ferred and advanced as his capacity should deserve, but in no case to come back into England, nor to go into any other place, but only into Scotland, for his preferment. Glasgow College was Presbyterian while the tes- tator was a student there; but Episcopalian at the dates of his will and of his death; soon after which, Presbyterianism became by law the established form of church government in Scotland, and has so con- tinued, the Protestant Episcopal Church being always tolerated, and recently recognized by law, but not endowed. In 1693, a decree was made establishing this charity, and thereby it was declared that Baliol College should receive the testator's exhibitioners, according to the condition of his will ; and direc- tions were given as to the number of students, and their stipends, &c., but no scheme was directed. This decree was adopted by Lord Hardwicke in 1744, andadecreewas thenmade directing a scheme for the administration of the charity, cypres, it being impossible to carry the testator's intentions strictly into effect. The scheme was confirmed by a decree of Lord Henley, in 1759, with certain variations as to increasing the number of exhibitioners, and their stipends. Under these decrees students had been admitted for many years at Baliol College from Glasgow College, without regard to their destination for holy orders or their return to Scotland. Upon an information, filed in 1 845, at the relation of members of the Protestant Episcopal Church in Scotland, a decree was made directing the Master to inquire whether the scheme sanctioned by the former decrees, and according to which the charity had been administered, could be varied so as to make it more effectually conducive to the supply of the Protestant Episcopal Church in Scotland with competent clergymen, being natives of Scotland, andeducatedatGlasgow andOxford; andin making such inquiry, the Master was to have regard to the said will, and to the circumstance that at its date the established Church of Scotland was Episcopal, and is now Presbyterian: — Held, that the proposed in- quiry contemplated a new scheme, inconsistent with that under which the charity had been adminis- tered for more than a century, as near to the testator's R 122 CHARITY; (C) Abministhation. intentions as was practicable, and that the proposed alteration of it was not warranted by any alteration in the state of the law and Church in Scotland. Glasgow College v. the Jttorney General, 1 H. L. Cas. 800., reversing 2 Coll. C.C. 665. Peter Blundell, by his will, dated in June 1599, directed his executors to lay out 2,400/. in building a school at Tiverton ; that in the said school should not be taught above 150 scholars at any one time, and these to be of children born, or for the most part before their age of six years brought up, in the town of Tiverton, and if the said number be not filled up, that the want should be supplied with the children of foreigners, to be admitted with the assent of such ten householders as for tlie time being should be most in the subsidy books of the Queen, and no boy should continue in the school above the age of eighteen, or be admitted under the age of six years, and none under a grammar scholar. The testator then gave directions as to the payment of a school- master and usher, and desired that they would hold themselves satisfied and content with the recompense he had provided for their travail, without seeking or exacting any more, either of parents or children, his meaning being that it should be for ever a free school, and not a school of exaction. The testator gave other sums for the establishment of scholar- ships at the universities. Upon an information filed against the trustees of this charity for a scheme for the general regulation and management of the funds, and for an alteration in the system of education, — it v/as referred to the Master to inquire into and state the annual income of the charity ; and it was declared that the school- masters ought not to receive payments for the scholars or take boarders ; that none but boys edu- cated as free scholars were eligible to the scholar- ships and exhibitions; and that the testator, by the term ** foreigners" meant any children not born or brought up in the parish. The Master was to in- quire what salaries ought, under such circumstances, to be paid to the schoolmasters, and if their number ought to be increased ; and whether it would be desirable to apply part of the funds in providing instruction in matters of science and literature, and in modern languages, and to declare what new qualification should be prescribed for the ten house- htilders in lieu of subsidy books as directed by the will. Jttorney General v. Devon (Earl), J6 Law J. Rep. (N.S.)Chanc. 34; 15 Sim. 193. The statutes of Manchester Free Grammar School declared that the master and usher (who had sti- pends) should teach freely and indifferently every scholar coming to the school, without money or reward taken therefore; that no scholar of what county or shire soever should be refused ; that no scholar should bring meat or drink into nor should any one lodge in the school ; that vacancies in the trusteeship should be supplied by honest gen- tlemen and honest persons within the parish of Manchester ; and that the trustees should have full power to augment, increase, expound, and reform the provisions of the statutes only concerning the schoolmaster, usher, and scholars. The master and usher had for several years taken boarders who had participated in the benefits of the charity ; and the trustees had been generally noblemen and gen- tlemen residing not in Manchester, but in Lan- cashire, and the adjoining counties: — Held, that the master and usher should not be allowed to take boarders, and that the trustees should be appointed from honest persons residing in the parish of Man- chester, including those who occupied or carried on business in manufactories in the parish, and had dwelling-houses within six miles of the school- house. Attorney General v. Stamford, 16 Sim. 453. The exhibitions of a free grammar school con- fined to the poor boys on the foundation, and the boarders allowed to be taken by the head master excluded from participating in them. Solicitor General v. Bath, Attorney General v. Blair, 18 Law J. Rep. (U.S.) Chanc. 275. In 1832 a Presbyterian church and school in England were settled upon trust "for the worship and service of God, according to the rites and usages of the Established Church of Scotland," the ser- vices " to be conducted by a minister belonging to and in full communion with the same church." A minister eligible in these respects, and licensed by the presbytery of Edinburgh, was appointed and continued minister. In 1843 the Free Church seceded from the Established Church of Scotland upon points of discipline, but not of doctrine. The appointed minister adhered to the Free Church, He was cited 'before the Presbytery of Edinburgh, but declined to attend, and was by it declared no longer a licentiate or minister of the Church of Scotland. Shortly afterwards the General Assembly of the Church of Scotland in due form declared that all adherents of the Free Church ceased to be members of the Church of Scotland : — Held, that according to the provisions of the deed the minister was no longer qualified to fill the office, and a de- cree was made for his removal, and directions given for the future administration of the charity. Attorney General v. Munro, 2 De Gex & S. 122. A schoolmaster retained all the rents of a charity estate after making small fixed payments to alms- people. At the hearing, the Court held that he was not entitled to do so, and made a decree refer- ring it to the Master to inquire of what the charity estate and property consisted, and to settle a proper scheme for the management of the estates and pro- perty, and for the application of the future rents and profits of the school. No account was directed againstthe schoolmaster: — Held, that "future rents" meant all subsequent to the decree, and the school- master having died before the scheme had been settled, the Court, on a supplemental information, directed an account against his personal representa- tives of the rents received subsequent to the decree. Attorney General v. Tufnell, 12 Beav. 35. A testatrix gave 1,000/. consols to trustees, upon trust to apply the dividends to the providing each poor inmate of the D Union Workhouse above sixty years with a pint of porter. By the Poor Law Amendment Act, the introduction of fermented liquors into a workhouse was forbidden. The trustees submitted to act as the Court should direct. An order was made that the dividends should be paid to the vicar of the parish of D, to be applied by him pursuant to the provisions of the will, so far as the same might be consistent with the Poor Law Amendment Act. Attorney General v. Vint, 19 Law J. Kep. (n.s.) Chanc. 150. A charity was established in the reign of CHARITY; (D) Jhrisbiction oveb. 123 Hen. 8. for two chaplains and twelve poor. In 1572, Queen Elizabeth, by letters patent, gave power to A, B and C to make ordinances for the regulation and management of the charity. In 1574, A, B and C made ordinances giving to the master the whole management of the charity pro- perty, and authorizing him to let on fines, and to appropriate the fines to his own use. In 1576, an act of parliament confirmed the charter of 1572 and the ordinances made or to be made by A, B and C. By letting on fines the property, wliich was worth 7,000?. a-year, produced on an average only 1,200?. ; nearly half of which consisted of fines, and was received by the Master : — Held, that this ordinance was not authorized by the charter or con- firmed by the act of parliament; and that even if it were, the mode of proceeding being prejudicial to the objects of the charity, the Court would direct a new mode of management to he adopted, attorney General v. Wyggeston Hospital, 12 Beav. 113. (S) Trustees. (1) Controul over in general. Though a trustee for a public charity is not called on for twenty years by the body to whom he is accountable to account, yet it is his duty to tender his accounts without requisition ; and if he do not, he is liable to the costs of an information filed to compel an account, even though in the result the charity prove to be indebted to such trustee. Attorney General v. Gibbs, 1 De Gex & S. 1 56. A testator gave the rents of real estate to trustees, in trust, to pay the same to such sufScient, able, and orthodox minister as should he from time to time settled in the cure of S, by and with theconsent and approbation of the trustees j and declared that, if any such should be placed there without the consent or approbation of the trustees, they should apply the rents in another way. On the occasion of a vacancy in the cure, the patron announced to the trustees his intention of nominating C to the cure. In reply to this, the trustees stated their wish that a residence should be built in the parish for the incumbent, and that arrangements should be made for charging the rents with it Some negotiations were entered into respecting this matter, but the scheme failed. The trustees having declined to make any payment to C, an informa- tion was filed against them at the relation of C for payment of the rents to C, or for a new scheme. The information was dismissed. Attorney General V. Mosley, 17 Law J. Rep. (n.s.) Chanc. 446 ; 2 De Gex & S. 398. Certain copyhold lands having been devised to trustees for the benefit of a charity, and the copy- holds having been enfranchised, the Court directed the trustees to convey the legal estate to the com- pany. Attorney General v. Clothworkers* Co., 17 Law J. Rep. (N.s.) Chanc. 456. (2) Appointment of new Trustees. Under what circumstances the Court will make an order for filling up vacancies in charity trustees under the Municipal Corporations Act. In re Shrewsbury Charities, 1 Mac. & G. 84. The Court will not make an order for filling up the vacancies in charity trustees by the appointment of particular individuals without a reference to the Master. Where an unnecessary party had been served with a petition solely in consequence of a claim set up by him, he was left to bear his own costs. In re Shrewsbury School, 1 Mac. & G. 85 ; 1 Hall & Tw. 204. The Court will ritjt fill up vacancies in charity trustees under the Municipal Corporations Act, unless the existing number is practically insuffi- cient. In re Worcester Charities, 2 Ph. 284. (c). Estates. In 1699, a lease of charity land was granted for 999 years at a rent very little more than had for some time been received for it. The lessee cove- nanted to build upon the land. That lease was in 1849 set aside as to a part of the land comprised in it, on an information filled against the assignee of that part-only, and he was held not to be entitled to any allowance in respect of the building which had been erected upon the land. Attorney General V. Pilgrim, 2 Hall&Tw. 186. Lease of charity lands for 999 years, subject to a fixed rent of 10?., and a covenant to lay out 300/. in building, set aside after 150 years, and an allow- ance for the building refused. An alienation of charity property may be valid, but the onus of proof lies on the alienee. Attorney General v. Pilgrim, 12 Beav. 57. In letting charity lands the Court will look only to the benefit of the charity, and will accept the offer of a stranger to become tenant over that of an old tenant, if the excess of the rent ofiered by the stranger exceeds the compensation to which the old tenant is equitably entitled on being turned out ; and a reference will be directed to ascertain whether any and what compensation should be paid to the outgoing tenant for his outlay of capital on the lands. Attorney General v. Gains, 10 Beav. 63. (D) JUmSDICTION OVER. (a) of the Court of Chancery. (1) In general. A large fund was raised by small contributions for the purpose of purchasing land as a site for a Presbyterian church and school. "With a part of these monies, one of the subscribers, in December 1848, purchased a piece of freehold land for that purpose, and took the conveyance to such uses as he should appoint. In May 1839, he appointed it to the use of trustees upon trust for the establishment of a church and school accordingly. There was doubt whether as to either of these deeds the pro- visions of the Mortmain Act had been coniplied with. In a suit by information and bill, instituted by some of the trustees of the deed of May 1839, against the remaining trustees, and the minister of the church and a mortgagee (also one of the original subscribers to the fund) complaining that the minister of the church had ceased to he qualified according to the trusts of the deed, and seeking to enforce the performance of those trusts:— Held, first, that if the deeds were invalid for non-compli- ance with the Mortmain Acts, the trusts could not be enforced in equity. 124 CHARITY ; (D) Jurisdiction ovek. Secondly, that the plaintiffs declining to try the validity at law, the equities existing between the parties did not enable the Court to interfere. Thirdly, that the suit was defective for want of parties on the ground that the original subscribers were not distinctly represented. Attorney General V. Gardner, 2 De Gex & S. 102. (2) On Petition. Where an act of parliament has provided for the application of the surplus funds of a charity, but the mode of application thereby pointed out has become inexpedient or useless, the Court has juris- diction upon the petition of the trustees under Sir S. Romilly's Act, to direct an inquiry before the Alaster as to the expediency of applying for another act of parliament to authorize an applica- tion of the surplus in a different mode. In re Shrewshurtj Grammar School, 19 Law J. Rep. (n.s.) Chanc. 287 ; 1 Mac. & G. 324 ; 1 Hall & Tw. 401. l^Jttorney General v. Bristol, 5 Law J. Dig. 171 ; 14 Sim. 648.] (-3) By Information. An information was filed in the year 1821, against the trustees of a grammar school founded in the reign of Edw. 6, praying that a new scheme might he approved of for the management of the school. Pending these proceedings, the trustees, in the year 1838, themselves made new regula- tions for the school, to which the usher, who was appointed previously to the filing of the infor- mation, was ordered to conform. The usher refused to be bound by such new regulations, and was con- sequently dismissed, and now presented a petition, under Sir S. Romilly's Act, alleging that the trus- tees of the school had no power to alter the rules, and praying that he might be reinstated : — Held, that the Court had no power, except under an in- formation, to decide whether the trustees had power to alter the regulations of the school. Peti- tion dismissed, with costs. Attorvey General v. East Retford Grammar School, 17 Law J. Rep. (n.s.) Chanc. 450. (i) Oftlie Visitor. If on the true construction of the statutes of a college, the college are trustees for the maintenance of a free grammar school for the public, the Court having authority to enforce the execution of the trust, any breach of trust will be redressed by it in the exercise of its ordinary jurisdiction ; but if the master and usher of the school are only officers appointed to perform certain duties of the college, and the duty of appointing them is not otherwise annexed to the mere property of the college than by the necessity of paying certain fixed stipends, and not in the nature of a trust the execution of which is within the jurisdiction of the Court to enforce, but the observance of which is to be enforced by the visitor of the college, the breach of duty, whatever it may be, must be redressed by the authority of the visitor, and not in this court. Attorney General v. Magdalen College, Oxford, 16 Law J. Rep. (n.s.) Chanc. 391 ; 10 Beav. 402. An almshouse, called Brown's Hospital, was founded at Stamford by letters patent, in the reign of Ric. 3, and statutes and ordinances for its regulation were made by the founder. These statutes and ordinances were revised in the reign of Jao. 1, when it was directed by letters patent that the Bishop of Lincoln for the time being should from time to time examine and inquire into the ancient statutes, laws, and ordi- nances of the charity, and should abolish such as were repugnant to the laws of the kingdom, and should make such other good and salutary laws and ordinances, as well concerning the divine services as concerning the government and direction of the warden, confrater, and poor to he supported in the hospital, as should appear to the said bishop good, useful, fit, and salutary, so long as they should not be inconsistent with the laws of the realm or the statutes of the founder: — Held, upon an informa- tion filed to effect an alteration in the management of the charity, that the Bishop of Lincoln was not entitled to general visitatorial powers, and could exercise no controul over the revenues of the hospital, which were subject to the jurisdiction of this Court. Attorney General "V. Brown's Hospital, 19 Law J. Rep. (n.s.) Chanc. 73; 17 Sim. 137. {c) Of Supreme Court at Madras. The Supreme Court at Madras (established by the Madras Charter of 1800) has an equitable juris- diction, similar to, and corresponding with, the equitable jurisdiction exercised by the Court of Chancery in England, over charities. By the 53 Geo. 3. c. 155. s. Ill, the Advocate- General is entitled to appear and represent the Crown in informations for the administration of charitable funds. Attorney General v. Brodie, 6 Moore, P.C. 12 ; 4 Moore, In. App. 190. (rf) Of Commissioners for Ireland. By the Act 7 & 8 Vict. c. 97, the power of the Commissioners of Charitable Donations and Be- quests for Ireland to sue for the recovery of such donations and bequests, is expressly limited to cases where they are withheld, concealed or mis- applied ; and the same, when recovered by the Commissioners, are to be, bj' themselves, applied to charitable uses, according to the donor's intention. And although they obtain the sanction of the Attorney General to their suit, as required by the said act, they must maintain it according to the power of suing thereby given to them, and are not entitled to the general jurisdiction which the Court exercises in suits instituted by the Attorney General. A decree, therefore, made at the suit of the Com- missioners, first, removing a testamentary trustee of a charity, on the grounds of his bankruptcy and residence abroad, but without proof of any impro- per withholding, or concealment, or misapplication of the trust property ; and, secondly, directing the appointment of another trustee in his place, is wholly wrong. ■ ' Semble — that neither baniljruptcy, nor occasional residence abroad, disqualifies a testamentary trus- tee, to whom the testator has, unconditionally, confided a large personal discretion in the adminis- tration of the trusts, together with power to appoint a receiver of the rents of the trust estates. Where the fact of bankruptcy is not put in issue CHARITY; (F) PwsADiNQ and Peaotice. 125 by the Mil, evidence of it is not admissible at the hearing of the cause. If a bill alleges fraud, which is not proved, and also alleges other matters, which, being proved, are grounds for a decree^ the proper course is to dis- miss so much of the bill as is not proved, and to give so much relief, under the circumstances, as the plaintiff may be entitled to. Archbold v. Commissioners of Charitable Donations and Bequests for Ireland, 2 H.L. Cas. 410. (E) Information bt the Aitobney General. Under a will, dated 1624, real and personal pro- perty was vested in the corporation of R upon trust, for the poor of the town, and if they neglected to perform the trusts or misemployed the property for one year, the will gave it to the corporation of London in trust for Christ's Hospital. In 1639 a decree was made on information in the Exchequer against both corporations, directing the corporation of R to apply the income for the benefit of the poor of the town, but in a manner different from that prescribed by the will, and that on neglect to do so or misemployment of the property for one year, they should convey it to the corporation of London in trust for Christ's Hospital. The corporation of R neglected to perform the directions of the decree for several years. In 1837 certain trustees of the property were appointed under the Municipal Cor- porations Act. The decree of 1639 held to be bind- ing, and the legal estate in the property to be still in the corporation of R, and they were ordered to convey it according to the decree. Christ's HoS' pital V. Grainger, 16 Sim. 83. An information was filed by the Attorney Gene- ral in 1710 to recover certain lands, formerly chantry lands, which had been granted by King Edw. 6. for the benefit of the Morpeth School, against the defendants, who represented the Thorn- ton family, to whom a lease of the lands for 500 years had been granted in 1685. A commission was issued to ascertain the identity of the lands. The commissioners reported that they were unable to ascertain which were the chantry lands. No final decree was made in consequence of a compro- mise having been entered into between the parties, by which it was agreed that 1001. per annum should be paid -to the charity, and that an act of parlia- ment should be obtained to carry the compromise into effect, but that if the act should not be obtained within two years, then that the agreement should not be binding. No such act was ever passed, but the owners of property continued to pay the 1 001. per annum up to the present time, being a period of 130 years. Another information was filed in 1833, to have the benefit of the proceedings com- menced in 1710, and prayed that the lease for 500 years might be set aside, and that the chantry lands might be ascertained : — Held, that the stipulation as to obtaining an act of parliament not having been performed, the parties were in the same situation as at first, and the relators were entitled to the benefit of the proceedings under the original infor- mation J and that an inquiry ought to take place to ascertain what portion of the lands would be of equal value to those granted by King Edw. 6. Attorney General v, Trevelyan, 16 Law J. Rep. (n.s.) Chanc. 521. (F) Pleaping and Pbacticb. Charity trustees allowed to file a bill against the Attorney General to have the accounts of the cha- rity taken, and to be personally discharged from liability in respect thereof, on their submitting to such account as the Attorney General would be en- titled to ask against them in an information filed by him J and in the same suit, if the Attorney General desires it, the Court will direct a reference for a scheme. Governors of Christ's Hospital V. the Attorney General, 5 Hare, 257. Applications under the 8 & 9 Vict. c. 70. s. 22. for the apportionment of charitable gifts given to a parish between a district parish formed outofitand the remainder of the parish, ought to he headed both in the matter of the 8 & 9 Vict. u. 70. and in the matter of the 52 Geo. 3. u. 101. In such applications it is not necessary to allege or prove any abuses in the past or existing manage- ment of the charities. In re West Ham Charities, 17 Law J. Rep. (n.s.) Chanc. 441 j 2 De Gex & S. 218. After some disputes between a corporation and trustees of charity estates, a compromise was agreed on and confirmed by act of parliament, under which the corporation were to sell certain estates, and out of the proceeds pay to the trustees a gross sum of money by a fixed day. The money was not paid by the time appointed; but there being no case of wilful default made against the corporation, it was held that they were not liable to pay interest on the gross sum. Attorney General v. the Corporation of Ludlow, 1 Hall & Tw. 216. Monies were subscribed to purchase land and erecting thereon a Presbyterian church and school. Lands were purchased with portions of the fund, and conveyed to three releasees in fee, by deeds not perfected according to the requisites of the Mort- main Act, nor disclosing any charitable trust. The releasees, by a subsequent deed, conveyed the lands upon trust to be re-conveyed to them and others ; and by a fourth deed, all the lands were assured to the use of the first releasees and others, upon trust, for maintaining a place of worship and schools in connexion with the Established Church of Scotland, for the purposes of which they were held and used by the trustees. The last of these deeds only was perfected under the Mortmain Act. On an infor- mation and bill filed by some of the trustees and some of the eestuis que trust under the fourth deed to enforce performance of the trusts, — Held, first, that whether the three former deeds were or were not void, some of the parties to the fourth deed being at the time of its execution in possession of the lands dedicated by that deed to charitable purposes, and the possession having been subsequently held ac- cording to that deed, none of the parties could be heard to dispute its validity. Secondly,_that the liability of the lands to be recovered by title para- mount to that of the grantor was no objection to the suit. Doubts being in 1844 entertained whether any one of the four deeds of 1832 were valid, some of the trustees claimed the land under a title para- mount, treating the deeds as invalid, and brought a friendly action of ejectment against the minister in possession, in which the question was fairly 126 CHARITY— CHURCH. argued, and recovered judgment in such action, and tlie same trustees and the minister set up the title under the ejectment of 1844 as an adverse title in the suit to enforce the trusts of the deeds of 1 832. The Court ordered them on this ground to pay the costs of the suit to the hearing. Some of the parties to the suit were original sub- scribers to the fund, but they were parties in other characters j no subscriber^olely represented, or was made party to represent, the original subscribers as a class: — Held, that the suit was not defective for want of parties. Attorney General v. Munro, 2 De Gex & S. 122. (G) Costs. A charity scheme was directed. The relator without the sanction of the Master incurred ex- pense in obtaining information. The Court refused to allow the ordinary costs, but as it had proved useful to the charity allowed the money out of pocket bond fide expended. Attorney General v. Ironmongers* Co., 10 I5eav. 194. The Master was directed to charge defendants with the rents of a charity property from the tiling of the information come to their hands. He charged them with rents accrued before, but paid after that period. This report was confirmed. On petition by the defendants to be relieved from payment, the Court declined to interfere except on a re-hearing, as there was no plain mistake in the mode of taking the accounts. Attorney General v. the Drapers' Co., 10 Beav. 558. A trustee for a charity, against whom an infor- mation was properly filed, made a case by his answer, from which it must have been manifest that the trustee was not a debtor to the charity, and that the result of taking the accounts would not be of advantage to the charity. A decree was, neverthe- less, sought and obtained, directing the accounts to be taken : — Held, that no costs subsequent to the hearing ought to be given on either side. Attorney General v. Gibbs, 1 De Gex & S. 156. Exceptions to the Master's report taken by the Attorney General, proceeding ex ojficio, having been allowed, the costs of like exceptions taken by trus- tees of the charity were allowed out of the charity estate, with the consent of the Attorney General. The decree having reserved subsequent costs, the Court has power to give the defendants the extra costs of exceptions to the report which had been abandoned by the Attorney General. Attorney General v. IVard, 17 Law J. Rep. (n.s.) Chanc. 485 ; 1 1 Beav. 203. Whether the trustees of charity lands are entitled as of right to be heard in support of the Attorney General appearing for the charity — quare. An information on behalf of a charity against a corporation claimed certain lands long since con- founded by the latter with its own property, and of which it had granted building leases. The claims of the charity only partially succeeded, and no fraud was imputable to the corporation. The in- formation also prayed for a scheme in respect of the charity. The Court, to avoid the expense and diificulty of apportioning and setting off the costs, gave none to the corporation, and ordered those of the other defendants and of the relators to be paid out of the charity funds. Solicitor General v. ilie Corporation of Bath, Attorney General v. Blair, 18 Law J. Rep. (n.s.) Chanc. 275. CHARTER. [See Municipal Corpobation.] CHELSEA HOSPITAL AND PENSIONERS. Poundage on pensions abolished by 10 Vict. c. 4 j 25 Law J. Stat. 4. Acts rendering effective the service of Chelsea and Greenwich out-pensioners amended by 10 & 11 Vict. u. 54; 25 Law J. Stat. 194. CHESTER. Doubts as to the election of members of parlia- ment removed by 9 & 10 Vict. u. 44 j 24 Law J. Stat. 120. CHURCH. [See Clergy— Prerogative — Sequestration -Tithe.] (A) Cathedral Church [Jurisdiction of Visitor, and Appeal to Visitor against Ouster]. (B) District Church. [See(D)Commendam.] (C) Parochial Chapelry. (D) COMMENDAM. (E) Sexjon [Right to appoint]. (F) Churchyard. [See (I) Church Building Act.] (G) Leases [Confirmation op]. (H) Dilapidations. (I) Church Building Act. The holding of vestry and other meetings in churches prevented, and the appointment of vestry clerks provided for by 13 & 14 Vict. c. 57; 28 Law J. Stat. 110. (A) . Cathedral Church [Jurisdiction of Visitor, and Appeal to Visitor against Ouster]. To a mandamus to restore J H to the freehold office of chorister, lay clerk or singing-man of the Cathedral Church of Chester, conferring a right to vote for members of parliament, to which he had been duly appointed by the dean and chapter of such cathedral cliurch, and from which he had been unjustly and without reasonable cause removed by the said dean and chapter, there was a return stating the foundation of the cathedral church, and some of the rules, ordinances and statutes for the govern- ment of the same, providing;, amongst other things, for the expulsion of any of the lay clerks skilled in singing, at the discretion of the dean and chapter, and appointing the Bishop of Chester for the time being visitor of the cathedral church, to watch and take special care tliat the statutes and ordinances were inviolably preserved, and to visit the church, CHURCH. 127 and upon every one of the articles contained in the statutes, and upon every other article whatever that concerns the state, advantage and honour of the church, to interrogate the dean and all other minis- ters of the church concerning any misdemeanours or crimes whatsoever, and to punish or correct the same, and to execute everything necessary for the extirpation of vice, and judged lawfully to helong to the office of visitor : — Held, upon demurrer to the return, that the Bishop of Chester, as ordi- nary and special visitor, had exclusive jurisdiction to inquire into and determine the legality of the removal; and that an appeal to the hishop for that purpose was the only mode hy which the party removed could properly proceed. Held, also, that the omission to state in the return the particular offence on account of which the removal had taken place, was no good ground of objection to the return. Regina v. Dean and Chapter of Chester, 19 Law J. Rep. (n.s.) Q.B. 485 i IS aB. Rep. 513. (B) District Church. [See (D) Commendam.] (C) Parochial Chapelry. A parochial chapelry must have been coeval with the parish, that is, immemorial, but, in the absence of evidence to the contrary, its existence may be inferred from modern usage; like other ancient rights and exemptions. "Chapelry" in the 1 & 2 Will. 4. c. 38. s. 14. means a parochial chapelry strictly so called, not merely a district recently treated as a parochial chapelry. Upon a trial, in which the question at issue was whether St. H was a parochial chapelry, the state- ment of a witness of what he had heard from a prior incumbent of St. H as to the chapelry of St. H is admissible, as the rights of such a chapel are of a public nature. Held, also, that a return made by the incumbents of St. H and of the mother church of Prescot, and another clergyman, in answer to queries sent to them by the bishop of the diocese, for the information of the Governors of Queen Anne's Bounty, when an augmentation took place, was admissible, as being in the nature of an inquisition in a public matter. Held, also, that a case stated hy a former incum- bent of St. H for the opinion of a proctor, was ad- missible against his successor. Facts upon which the Court, acting as a jury, held that the claim to be a parochial chapelry was not established. Carr V. Mostyn, 19 Law J. Rep. (N.s.) Exch. 249j 5 Exch.Rep. 69. (D) Commendam. The first count of a declaration stated that the plaintiff was rector of parish A, and as such rector entitled to certain fees for churchings and registra- tion of baptisms. That an order in council was made erecting a district chapel within the said parish, which directed that two-thirds of the fees arising from the soleiijnization of marriages, church- ings, baptisms and burials in the said chapel should during the incumbency of the plaintiff belong and be paid to the plaintiff, and the residue to the minister of the said district chapel. That the de- fendant was appointed minister of the said district chapel, and by reason thereof became the proper person to solemnize marriages, &c. in the said chapel, and to receive the fees accruing in respect thereof; that it thereby became the duty of the defendant to receive such fees and to pay to the plaintiff as such rector two- thirds thereof; that in consideration of the premises, and that the plaintiff at the request of the defendant had permitted the defendant to receive the said fees, the defendant promised to receive all fees and pay over two,-thirds to the plaintiff. Averment, that marriages, &c; had been solemnized within the said chapel by the defendant, and that fees became due in respect thereof which the defendant could and might have received. Breach, that the defendant wrongfully neglected to receive such fees, &c. and had not paid two-thirds thereof to the plaintiff. The second count was for money had and received. The defen- dant pleaded non assumpsit ; that the plaintiff was not the rector of the parish A, and also that he had accepted another living of W, whereby the benefice of A became void. The evidence was that the plaintiff was duly instituted and inducted to the rectory of A in 1810, and had ever since acted as such, no other person having been presented thereto by the patron. . The living of A was not rated in the king's hooks, and was created by an act which expressly prohibited it from being held in com- mendam. In 1820 the plaintiff accepted the living of W. The district chapel mentioned in the decla- ration was duly erected within the parish A, and the order in council stated in the declaration was made on the 20th of June 1843. In 1842 the defendant was duly appointed minister of the dis- trict chapel. At the time of the making the order in council there were certain accustomed fees pay- able in parish A, in respect of marriages, church- ings, baptisms, &c. The defendant had received the fees for marriages, but had never received any fees in respect of baptisms or churchings : — Held, first, that no duty was imposed on the defendant to receive the fees for churchings and baptisms for the purpose of paying two-thirds over to the plain- tiff, and that the first count was not proved. Secondly, that the title of the plaintiff to the rectory of A was not absolutely avoided hy his acceptance of W, and that he was therefore entitled under the second count to recover two-thirds of the fees for marriages actually received by the defen- dant. Semble — per Pattesm, J. that the first count would be bad on demurrer, for not shewing any considera- tion moving from the plaintiff.' King v. Alston, 18 Law J. Rep. (N.s.) aB. 59; 12 Q.B. Rep. 971. (E) Sexton. Right to appoint . The inhabitants of a parish in vestry assembled have not at common law the right of appointing to the office of sextou. The presumption is that the incumbent has the power of appointing when the offices of parish clerk and sexton are united. But when they are separate, and the sexton's duty is to take care of the things in the church and to keep it in order, and also to dig the graves, — semble, that the right of appointing the sexton belongs to the minister and churchwardens together. Cansfield v. 128 CHURCH— CHURCHWARDENS AND OVERSEERS. Blenkimop, 18 Law J. Rep. (N.s.) Exch. 861; 4 Exch. Rep. 231. (F) Churchyaed. [See (1) Church Building Act] (G) Leases. Confirmation of by Patron Paramownt. The perpetual curate of a curacy, augmented hy the Governors of Queen Anne's Bounty, made a lease for years of mines, &c., which was confirmed by the ordinary and immediate patron, but was not confirmed by the patron paramount. The successor of the perpetual curate accepted the rent reserved for five years, and inspected the mines under the powers contained in the lease; — Held, that the lease was void at common law for want of confir- mation by the patron paramount, and, therefore, was not set up by the acceptance ef rent by the lessor's successor in the curacy.- Doe d. Brammall V. Cvllinge, 18 Law J. Rep. (n.s.) C.P. 305; 7 Com. B. Rep. 939. (H) Dilapidations. A perpetual curate (not removable at the will of the donor or patron) possessed of a house and lands in right of his curacy, is bound to keep the same in repair. Therefore an action for dilapida- tions is maintainable by the new incumbent against his predecessor in the curacy for leaving such house or lands out of repair. Mason v. Lambert, 17 Law J. Rep. (N.s.) Q.B. 366 ; 12 Q.B. Rep. 795. The executors of a deceased rector are not liable in an action on the case for dilapidations, by reason of such rector's Ijaving pulled down a barn belong- ing and adjoining to the rectory, and erected another at the distance of a mile and a half on a more con- venient site, and on rectory land, without obtaining a faculty or licence from the bishop for that purpose. Nor are they liable for dilapidations in respect of buildings which are not parcel of the freehold. Where gravel pits had been opened on rectory land, and gravel taken therefrom by the surveyors of the highways for the purpose of their repair, without sloping down the ground, as required by the statute 13 Geo. 3. c. 78. s. 31,— Held, that neither the taking such gravel by the surveyors and omitting to slope down, nor the neglecting to compel the surveyor to slope down, could be con- sidered waste on the part of the rector. Held, also, that under a plea of no waste to a count in the nature of waste charging the removal of the gravel and the neglect to slope down, the defendants (the executors) might shew that the acts done- were the acts of the surveyor of the high- ways. But held, that the defendants were liable in re- spect of so much of the gravel as was dug out and sold generally by the rector himself, such digging and sale being equivalent to an opening of gravel pits. Huntley v. Russell, 18 Law J. Rep. (n.s.) Q.B. 239. In an action for dilapidations the declaration al- leged that the rector " was rector of the parish church of T, in the county aforesaid, and was seised in right of the said rectory of certain buildings thereto belonging, and of certain glebe lands, lying and being, to wit, in the parish aforesaid." It ap- peared that the rectory comprised the parish of C, in which the greater part of the glebe lands were situate : — Held, that the plaintiff was entitled to recover only in respect of dilapidations to premises in the parish of T. Warren v. Lugger, 18 Law J. Rep. (N.s.) Exch. 256; 3 Exch. Rep. 579. An action is maintainable by the executors of a deceased incumbent against the executors of his predecessor, for dilapidations which occurred during the incumbency of the predecessor. Bunbury v. Hewson, 18 Law J. Rep. (N.s.) Exch. 258; 3 Exch. Rep. 558. (I) Church Building Act. Under the 59 Geo. 3. u. 134. s. 39. the Church Building Commissioners are empowered to stop up paths and entrances in churchyards, with the con- sent of two Justices, and on notice being given in the manner and form prescribed by 55 Geo. 3. c. 68 : — Held, that the notice required must he given before the making of the order by the Commissioners. Regiua v. Arkurrighl, 18 Law J. Jlep. (n.s.) Q.B. 26 ; 12 aB. Rep. 960. CHURCHWARDENS AND OVERSEERS. [See Poor, Audit, and Order of Removal — Rate, Poor Rate.] (A) Election and Appointment of. (B) Duties and Liabilities. (C) Vesting of Property in. (A) Election and Appointment of. In the parish of S, in London, there was a select vestry, consisting of the parson and those persons who iiad served the office of churchwarden, or paid a fine for not doing so ; and by this body the church- wardens were elected. From the earliest records of the parish, commencing in 1648, it appeared that a fresh churchwarden was annually elected to serve the office of junior churchwarden, and the junior churchwarden for the preceding year became the senior churchwarden for that year. This custom had been acted upon from the year 1648 up to the great fire of London, when two persons acted as junior and senior churchwardens during five years ; the custom was then renewed and acted upon up to the year 1734, and during the interval from that year to 1775 there were no records ; from the latter year to 1824 the same course was pursued, with four exceptions. Upon a case, on which it was agreed that the Court should have the power of drawing inferences in the same manner as a jury, — Held, that there was a custom that a parishioner, not a member of the select vestry, should be elected every year to serve the office of junior churchwar- den, who in the next ensuing year should succeed to the office of senior churchwarden, and at tlie expiration of that year should become a member of the select vestry, by which means its members would be supplied ; and that the election of G, a member of the select vestry, who had served pre- viously the offices of junior and senior churchwar- den, to serve the office of junior churchwarden in CHURCHWARDENS AND OVERSEERS— CLERGY. 129 1844 was void. Gibis v. Flight, 16 Law J. Rep. (n.s.) M.C. 73 ; 3 Com. B. Rep. 581. la ejectment by churchwardens and overseers, proof that the lessors of the plaintiff have acted in that capacity is sufficient, without proof of their appointment. Doe d. Bomley v. Barnes, 15 Law J. Rep. (n.s.) Q-B. 293; 8 Q.B. Rep. 1037. The Court will not grant a mandamus to over- seers to produce their appointment for the inspec- tion of a rated inhabitant j the defect suggested in such appointment being properly the subject of an appeal to the Sessions. Regina v. Harrison, 16 Law J. Rep. (n.s.) M.C. 33 ; 9 a.B. Rep. 794. The mayor of a borough has the sole power of appointing the overseers under stat. 43 Eliz. u. 2. s. 8. and stat. 5 & 6 Vict. c. 76. s. 6. Regina v. Preston, 18 Law J. Rep. (n.s.) M.C. 10 ; 12 Q.B. Rep. 891. (B) Duties and Liabilities oe. An overseer is, since the statute 3 & 4 Vict. c. 26, compellable as well as competent to give evidence in proceedings before Justices touching the relief or removal of the poor. Regina v. Vickery, 17 I«w J. Rep. (N.s.) M.C. 129; 12 Q.B. Rep. 478. The 1st and 2nd sections of 11 & 12 Vict. c. 91. do not transfer the personal liability of overseers for debts contracted for legal proceedings for parish business to their successors in office. Chambres v. Jones, 19 Law J. Rep. (n.s.) Exch. 239; 5 Exch. Rep. 229. (C) Vesting of Pkoperty in. Certain trust property, including T Farm, was, in 1831, conveyed to new trustees, upon trust, to apply the rents for and towards the repair of the ' parish church of P, and for the benefit of the poor of the said parish, in such manner as the same have heretofore been usually applied, and according to the intention of the several charitable persons who devised the same. Among other property , convey ed in the same deed, were some cottages, described as four cottages in C Lane, wherein poor families are permitted to live rent-free : — Held, that the legal estate in all these lands vested in the parish officers, under statute 59 Geo. 3. c. 12. s. 17, although there were trustees in existence ; and that it was impera- tive that an action for the use and occupation of T Farm should be brought by the parish officers. [See next case.] Held, also, that the description of the cottages in C Lane, did" not imply that they were held on any special trust Rumball v. Munt, 15 Law J. Rep. (n.s.) Q.B. 180 J 8 Q.B. Rep. 382. Lands were conveyed in 1749 to A and B, their heirs, &c., upon trust to permit and suffer the churchwardens and overseers of D to receive the rents and profits to and for the use and benefit of the poor of the parish of D, with power.to appoint new trustees and to grant leases for twenty- one years ; and the power of the trustees was extended and their title confirmed by local acts; by the operation of which and by conveyances under the powers of the original deed of trust, the legal estate was vested in known existing trustees : — Held, first, that the nature of the trust was not special, so as to prevent the operation of the statute 59 Geo. 3. 0. 12. s. 17; secondly, that the words of the 17th Digest, 1845—1850. section of that act were imperative, and not merely enabling, in cases to which it was applicable. But held, lastly, that in cases in which there were known living trustees, section 17 did not contain words sufficiently strong to divest the legal estate from such trustees, and that property so circumstanced could not be considered as " belonging to the parish" within the meaning of the statute {over- ruMng Rumball v. Munt, 15 Law J. Rep. (n.s.) Q.B. 180 i 8 Q.B. Rep. 382). Churchwardens and Over- seers of St. Nicholas, Deptford, v. Sketchley, 17 Law J. Rep. (n.s.) MiC. 17 ; 8 Q.B. Rep. 394. CLERGY. [SeeCHUBCH — Insolvent — Libel — Marriage -Mortuary — SEauEsiKATioN — Tithe.] (A) Bishop [Confirmation of by Arch- bishop]. (B) Institution [Refusal on account of unsound Doctrine]. (C) Benefice [Avoidance of], (D) Non-residence. (E) Stipendiary Curate. (F) Discipline. (G) Fees. (H) Appeal in spiritual Causes. The law relating to holding benefices in plura- lity amended by 13 Si 14 Vict. u. 98 ; 28 Law J. Stat. 292. (A) Bishop [Confirmation of by Archbishop]. Under the 25 Hen. 8. c 20. s. 5, after an election of a bishop by the dean and chapter of a cathedral church by virtue of a conge d'elire and letters mis- sive, the person so elected is to be reputed and taken by the name of the lord elected of the see, and the king is thereupon to issue letters patent to the archbishop commanding him to confirm the said election, and to invest and consecrate him, and if he fail to do so for twenty days he is to incur the penalties of a pramunire: — Held, by Lord Denman, C.J. and Erie, J., that the archbishop acting merely ministerially is bound to confirm the bishop elect, and that he has no authority to hear any opposition advanced against the person so elected ; per Pat- teson, J. and Coleridge, J., that confirmation is a judicial act, which the archbishop is to conduct according to the principles of the canon law, and that parties opposing are entitled to appear in his court, and to enter their objections. Held, also, per Patteson, J. and Coleridge, J., that the opposers not having been allowed to appear and be heard, there was a declining of jurisdiction by the archbishop, for which a mandamus would lie. Regina V. Archbishop of Canterbury, in re Hampden, 1 7 Law J. Rep. (N.s.) Q.B. 252; 11 Q.B. Rep. 483. (B) Institution [Refusal on account of tJNSouND Doctrine]. In a proceeding by duplex querela by a clerk, presented to a benefice, againsthisdiocesanforrefus- ing him institution, it was alleged, in return to a monition with intimation by the bishop, calling upon him to shew a reasonable and lawful cause why the S 130 CLERGY. clerk should not be instituted, that the presentee was of unsound doctrine respecting the efficacy of the sacrament of baptism, inasmuch as he held in his examination that spiritual regeneration is not con- ferred in that sacrament — that infants are not made therein members of Christ and children of God, contrary to the teaching of the Church of England in her Articles and Liturgy : — Held, that baptismal regeneration is the doctrine of the Church of Eng- land, and that infants immediately at baptism receive spiritual regeneration, and that the bishop had shewn sufficient cause why he should not in- stitute the presentee. — [Since overruled in Privy Council]. The space of twenty-eight days specified in the 95th canon, for a bishop to inquire into " the suffi- ciency and qualities of every minister after he hath been presented unto him to be instituted into any benefice," is jiot an absolute limitation rendering an examination after that period void. A bishop is entitled to a reasonable time for such examination. The canon is directory ; there are no prohibitory words to confine a bishop to the space of twenty- eight days. Gorham v. the Bishop of Exeter, 2 Robert. 1. (C) Benefice [Avoidance of]. A clerk in holy orders being in possession of a perpetual curacy with cure of souls, augmented by the governors of Queen Anne's Bounty, and having, without dispensation, been instituted and inducted into another benefice with cure of souls : — Held, to have forfeited the former, which was on sentence declared void. Burner v. Mavor, 1 Robert. 614. [See Chubch, Commendam.] (D) NoN- Residence. "Where a beneficed clerk had been imprisoned under sentence of the Court of Queen's Bench, and the bishop of the diocese had, after monition, ordered him, under the 1 & 2 Vict. c. 106. s. 54, to reside on bis benefice, and, on non-compliance with the order, had sequestered the benefice, which had remained under sequestrationforoneyear, — The Court refused a prohibition to restrain thebishop from giving notice, under section 58, to the patron that the benefice was void. In re Bartlett, 18 Law J. Rep. (n.s.) Q.B. 11; 12 aB. Rep. 488. Under the 54th section of the statute 1 & 2 Vict. c. 106, which gives power to the bishop of the diocese to issue a monition in certain cases, re- quiring a beneficed clergyman to reside upon his benefice, it is for the bishop to determine both as to the fact of non-residence and also as to the suffi- ciency of the excuse for non-residence set up in the return to the monition. If the bishop come to a wrong decision upon the matter, the remedy is by appeal to the archbishop, and not by an application for a writ of prohibition. Where such clergyman is in prison, under sen- tence of a Court for the publication of a libel, that is no " legal cause of exemption" within the mean- ing of the words in the 54th section. When a benefice has continued for one whole year under sequestration issued under the 54th sec- tion for disobedience of the order requiringresidence, the benefice becomes void without any further step being taken by the bishop ; the subsequent pro- vision in the 54th section, as to giving notice, being only for the purpose of giving the bishop a right to present by lapse. In re Bartlett, 18 Law J. Rep. (N.s.) Exch. 25 i 3 Exch. Rep. 28. A suit was instituted by the nominee of the bishop duly authorized, in the Consistory Court, to recover from a clergyman one-third of the profits of his benefice on account of his non-residence thereon, being the penalty imposed by the statute 1 & 2 Vict c. 106. s. 32. The proceedings were regularly taken in pursuance of that statute. The decree of the Consistory Court pronounced that the defendant was rector of the rectory and parish church of W, being lawfully instituted and inducted thereto; and that by non- residence he had forfeited one-third part of the annual value of the benefice of W, and condemned him in the payment of such third part. Sic. with costs, the amount of such third part of the annual value of his said benefice and of such costs to be ascertained in the usual manner by the registrar of the court. The sentence was confirmed, on appeal, in the Arches Court and in the Privy Council. On a subsequent motion for a prohibition to the Consistory Court against proceeding further in the suit, — Held, in accordance with the decision of the Arches Court (1 Robert. 367) and the Privy Council (5 Moore, P.C. 305), upon the same points which had been raised in the appeal before them, — first, that this was not a criminal proceeding within the 3 & 4 Vict. c. 86. s. 23, and therefore, that it was unnecessary that the conditions precedent for a criminal proceeding according to that statute should have been fulfilled ; secondly, that it suffi- ciently appeared that the defendant held a benefice with a cure of souls ; thirdly, that the sentence was not illegal for directing the amount of the third part of the annual value of the benefice to be ascer- tained by the registrar. Rackham v. Bluck, 16 Law J. Rep. (n.s.) Q.B. 82; 9 Q.B. Rep. 691. (E) Stipendiary Curate. The power of a bishop to appoint a stipendiary curate under the 1 & 2 Vict. c. 166. b. 75, is only when an incumbent under the circumstances there mentioned is absent for a period exceeding three months altogether, or to be accounted at several times in the course of any one year ; and by section 120 the year is to be reckoned from the 1st of January to the 31st of December. Sharpe v. Bluck, 10 Q.B. Rep. 280. (F) Discipline. Before the passing of the statute 3 & 4 Vict. c. 86, ' An act for better enforcing Church Discipline,' an archbishop or bishop had no power at his visitation to proceed to sentence of deprivation against a clergyman of his diocese for simony, " personally and without process in court." Such a power therefore is not reserved by section 25 of the above act, which is not to affect any authority over his clergy, which an archbishop or bishop may exercise (at the time of its passing) according to law, per- sonally and without process in court. Where, at a visitation, the Court received evidence upon charges of simony, against a clergyman, de- cided that the charges were proved, and passed sentence of deprivation against him, and interdicted CLERGY. 131 him from exercising any of the functions belonging to his office of dean, on pain of sentence of the greater excommunication, — this Court granted a writ of prohibition, after the sentence of deprivation had been passed. Regina v. Archbishop of YorJc, 10 Law J. Rep. (n.s.) Q.B. 306; 2 G. & D. 202. The statute 52 Geo. 3. c. 155. does not take away the jurisdiction of the bishop over a clert in holy orders, who officiates in an unconsecrated chapel without the bishop's licence, though such chapel has been duly registered under that statute. Nor is such clerk protected by the Toleration Act, 1 "Will. 4. c. 18. s. 4, from proceedings in the ecclesiastical court for breach of discipline, in officiating in such chapel; as that section only relieves parties from proceedings in the ecclesiastical court " by reason of their non-conforming to the Church of England." Barnes v. Shore, 15 Law J. Rep. (n.s.) Q.B. 296 ; 8 a.B. Rep. 640. Articles against an ordained minister of the Church of England for officiating in an unconse- crated chapel after the revocation of his licence by the bishop, sustained. An allegation responsive to the articles pleading he had prior to the service of the citation seceded from the Established Church, and had taken certain oaths, &c. prescribed by the Toleration Acts, rejected, on the ground that those acts do not apply to a minister of the Established Church, and that one in holy orders cannot divest himself of such orders. An unconsecrated proprietary chapel, into which strangers are admitted, is not a " private house" or "chapel," within the meaning of the 71st canon; consequently to read the service of the church in such a building is publicly to read, &c. To found a sentence under the general ecclesias- tical law, it is not necessary that all the offences charged be proved. Barnes v. Shore, 1 Robert 382. Articles against a clergyman for publicly reading prayers, preaching, and administering the sacrament of the Lord's Supper in an unconsecrated building called Sackville College Chapel, without the licence of, and contrary to the inhibition of the bishop of the diocese, sustained. What constitutes a public reading of the prayers. Freeland v. Neale, 1 Robert. 643. A beneficed clergyman being suspended for mis- conduct and condemned in costs, is entitled to a relaxation of the suspension on the Judge being satisfied with the certificate of good conduct during his suspension, though the costs be not paid j but he is not entitled to be dismissed from the suit until he has paid the costs. Brookes v. Cresswell, 1 Robert. 606. A beneficed clergyman, having been suspended for three years, and further until he exhibited a certificate of good conduct, and having resumed on the expiration of the term his clerical duties without exhibiting such certificate, pronounced in contempt, and the contempt decreed to be signified. Bishop of Lincoln v. Day, I Robert. 724. A priest in holy orders, without preferment, having been convicted at a Quarter Sessions of attempting a nameless offence, was subsequently articled against, and a sentence was prayed against him of degradation. That prayer was refused, but a sentence of unlimited suspension was pronounced, Clarke v. H , 1 Robert. 377. (G) Fees. Debt by the plaintiff, the rector of St. Maryle- bone, and the minister of the new church of that parish, against the defendant, who was the master of the parish workhouse, to recover fees alleged to be due upon the burial of certain paupers. The 51 Geo. 3. c. 151. empowered the vestrymen of St. Marylebone to purchase land for erecting a new church and making a cemetery. By section 35. Dr. H and his successors were declared to be ministers of the new church, and the patron of the living was empowered to appoint successively ministers of the new church, who were to enjoy such oblations, mortuaries, glebes, tithes, profits, and other ecclesiastical dues as the present minister ought to have. By section 49. the vestrymen were empowered to settle the rates and fees for burial in the cemetery, and to alter and amend the same. By section 60. the vestrymen were prevented from reducing the burial fees below the amount payable in the cemeteries of the parish. By section 71. the vestry were empowered to borrow 150,000^ upon the credit of the rates and burial fees, and to assign any portion of such rates or fees to the parties advancing the money. In 1733 the then minister and the parish authorities referred to a third party the settlement of the minister's fees, and a table of fees was accordingly prepared by the referee. From the year 1733 down to the year 1838, a fee of \s. 6d. was paid by the parish officers to the rector, for the burial of a pauper in any of the cemeteries of the parish. From 1835 to the present time the sum of Is. 6d. has been ^aid to the rector, and Is. to the clerk and sexton, in pursuance of a table of fees, settled by the vestry, containing the following item:- — "Paupers from the work- house 2s. 6d." The defendant had given orders for the burial of certain paupers in the cemetery of the new church. The burial service was not per- formed by the plaintiff or any of his curates, but by the reader of one of the chapels in the parish : — Held, that the fees in question were due only by immemorial custom or by some act of parlia- ment ; that no such immemorial custom was stated in the case, nor were the Court empowered by the parties to infer as a jury the existence of such a custom ; and that no such fees were due by virtue of the act of parliament. Held, also, that if such fees were due, they must be recovered in the eccle- siastical court. Spry v. Gallop, 16 Law J. Rep. (n.s.) Exch. 218 ; 16 Mee. & W. 716. [Apportionment of. See Church, Commen- dam.] (H) Appeal in spiritual Causes. The appeal from the court of the archbishop, in all ecclesiastical causes, is under 25 Hen. 8. c. 12. s. 4. to the High Court of Delegates (and since 2 & 3 Will. 4. c. 92. to the Queen in Council), and is not, in causes where there is matter in contention touching the Queen, to the Upper House of Con- vocation, under 24 Hen. 8. c. 1 2. s. 9. Where a clerk presented by the Queen to a vicarage held by her in right of her crown was re- fused institution by the bishop of the diocese on the ground of unsoundness of doctrine, and had instituted a duplex querela in the Arches Court of 132 CLERGY— COAL ACTS. the archbishop, which had been dismissed, and had afterwards appealed to the Queen in Council, the right of the Queen to present a fit clerk not being in controversy, — Quxre, whether the Queen had an interest in the matter in contention within the meaning of 24 Hen. 8. c. 12. s. 9. Ex parte Bishop of Exeter, in re Gorham v. Bishop of Exeter, 19 Law J. Rep. (n.s.) aB. 279; 15 Q.B. Rep. 52. Under 25 Hen. 8. c. 19. s. 4, all appeals in eccle- siastical suits, whether relating to the subject or to the Crown, are to he from the courts of the arch- bishops to the High Court of Delegates (and since 2 & 3 Will. 4. c. 92, to the Queen in Council), there to be finally determined. The provisions in 24 Hen. 8. c. 12. s. 9, that if any of the causes therein mentioned should touch the king, the final appeal is to be to the Upper House of Convocation of the province, is not incor- porated with 25 Hen. 8. c. 19. s. 4, which enacts generally that parties may appeal from the courts of the archbishops to the king in Chancery, &c. Semble — that the words in 25 Hen. 8. c. 19. s. 3, that all manner of appeals in what nature or con- dition soever, or what cause or matter soever they concern, shall be made " after such manner, form and condition " as is limited for appeals by 24 Hen. 8. c. 12, in the causes there mentioned, incor- porate only the manner of proceeding in appeals in general indicated by sections 5, 6, and 7- of the former act, but do not re-enact the particular pro- vision enacted by section 9. of that act. An enactment distinct and without exception in itself is not to be controuled or limited by a doubtful implication to be drawn from a previous section of the same statute, especially in respect of the pre- rogatives of the Crown, which are not to be aflfected, except by distinct enactment. Ex parte Bishop of Exeter, in re Gorham v. Bishop of Exeter, 19 Law J. Rep. (N.s.) C,P. 200. In a suit of duplex querela, before an archbishop, whether the subject-matter thereof touches the Crown or not, an appeal is given by the 25 Hen. 8. c. 19. to the High Court of Delegates, and since 2 & 3 Will. 4. c. 92. to the Queen in Council, there to be finally determined. If this were not the case, the Court of Exchequer has jurisdiction to grant a prohibition. Semble — that the 25 Hen. 8. c. 19. has repealed the 9th section of the 24 Hen. 8. c. 12, which enacts, that in matters "touching the king," the appeal from certain ecclesiastical courts shall be to the Upper House of Convocation. The Crown, as patron, having presented a clerk to a living, the bishop refused him admission on the ground of his opinions being unsound and not in accordance with the doctrines of the Church of Eng- land ; the clerk, thereupon, brought a suit of duplex querela in the archbishop's court, complaining of the archbishop's decision, and stating that his doc- trines were not inconsistent with those of the Chuich of England. Qucere — whether this proceeding was a matter " touching the king," within the statute 24 Hen. 8. c. 12. Ex parte Bishop of Exeter, in re Gorham v. Bishop of Exeter, 19 Law J. Rep. (n.s.) Exch. 376 ; 5 Exch. Rep. 630. COAL ACTS. The act for establishing an oflSce for the benefit of coalwhippers in London, amended by 9 & 10 Vict. ^. 36 ; 24 Law J. Stat. 96. The Coal Act, 1 & 2 Will. 4. c. Ixxvi. s. 54, directs coals delivered in sacks to be weighed, if required, each sack " with the coals therein, and afterwards to weigh, in like manner, each sack without any coals therein." A weighing by put- ting the sacks of coals successively in one scale of the weighing machine against weights equal to the weight each sack should contain, and an empty sack in the other scale, is not a weighing accord- ing to that section. The Coal Act, 1 & 2 Will. 4. c. Ixxvi., provided for the delivery of a seller's ticket, with coals, im- posing a penalty, upon neglect, not exceeding 201, and enacted (sect. 77), that all penalties not exceed- ing 251. should be levied and recovered before any Justice or Justices of the Peace. The 1 & 2 Vict. c. ci. repealed so much of the former act as related to the delivery of a seller's ticket; and by a new enactment required a seller's ticket (according to a certain form) to be delivered, under a penalty not exceeding 201., bat the act was silent as to any mode of recovering the penalty: — Held, that an action for the penalty by the buyer was not main- tainable. Meredith v. Holman, 16 Law J. Rep. (n.s.) Exch. 126 ; 16 Mee. & W. 798. When a statute for the purpose of protecting the buyers, prescribes regulations to be followed in the sale and delivery of an article, the vendor cannot recover the price of such article sold and delivered by him without observing the regulations. By the 1 & 2 Vict. c. ci. s. 3, with any quantity of coals exceeding 560 lb., delivered by any cart, within the city of London, &c,, the seller shall deliver or cause to be delivered to the purchaser or his ser- vant, immediately on the arrival of the cart, &c. in which such coal shall be sent, and before unloading, a ticket, according to a certain form, under a penalty, unless the coals are purchased at the coal market. To debt for goods sold and delivered, the defendant pleaded in substance that the goods were quantities of coals sold and delivered by him to the plaintiffs, respectively exceeding 560 lb. and re- spectively delivered within the city of London, in divers, to wit, two carts, without delivering, before any such quantities of coals were unloaded, ; ticket signed by the plaintiffs according to the form of the statute.; and that the defendant did not purchase the same at the coal market: — Held, that the statute being passed for the protection of the purchasers of coal, the plea was an answer to the action. Also, on special demurrer, that the statute applies if the quantity at one delivery exceeds 560 lb. though delivered in carts each containing less than 560 lb. ; that if the vendor be prevented, by any act of the purchaser, from delivering the ticket, that is matter to be replied ; that the vendor's name must be written in the ticket as a signature, though it would be sufficient if written by an agent ; and that the negation in the plea of the delivery of a ticket was sufficiently applied to each delivery. Cundell v. Dawson, 17 Law J. Rep. (n.s.) C.P. 311; 4 Com. B. Rep. 376. COLLEGE— COMMON. 133 COLLEGE. [See Chawty — Jurisdiction — Fellowship] The words " a coUegii emolumentis discedere" in college statutes, held to import an absolute for- feiture of a fellowship, and not-merely a temporary suspension of the riglit to receive the emoluments thereof. The word " discedere" as applied to a fellow vacating his fellowship, held not to be confined to a vacancy by death. In re St. Catherine's Hall, Cam- bridge, ex parte Goodwin, 1 Mac. & G. 473 j 1 Hall & Tw. 601. College statutes required that, cisteris paribus, preference be given to a candidate from a specified district, and a M.A. was to be elected si talis com- mode reperiri poterit ;—'Se\A, that a candidate who was a M.A. and from the specified district was not entitled to preference over other candidates, except in cases of equality in other respects. The statutes also required that every one admitted a fellow should be in sacerdotio constitutus. Fellows were usually admitted six months after their election : — Held, that admission to deacon's orders was suffi- cient, and thair a layman might be elected who would not at the expiration of six months from his election be old enough to take deacon's orders, it not being Impracticable to obtain afacultyfromthe Archbishop of Canterbury for ordination under the usual age, and the college being willing and having power to extend the period of probation beyond six months. In re University College, Oxford, ex pavte Moorsom, 17 Law J. Rep. (n.s.) Chano. 298; 2 Ph. 521. COLONY. [See FoHEiGN Law.] COMMISSION OF REBELLION. [See Habeas Corpus.] COMMITMENT. [See .Conviction — Malicious Trespass — Mas- ter AND Servant — Rate, Poor Rate.] [Stamp V. Sweetland, 5 Law J. Dig. 179 ; 8 G.B. Rep. 13.] A warrant of commitment, directing the gaoler to imprison a party for three months, omitting the day of the month on which it was granted, — - held bad. In re Fletcher, 13 Law J. Rep. (n.s.) M.C. 16. A warrant for the committal of a party to prison, until he find sufficient sureties to keep the peace, is bad, if it omit to specify the time for which, in default of such sureties, he is to be kept in prison. The warrant need not mention the amount in which the sureties are to be bound. Prickett v. Gralrex, 15 Law J. Rep. (n.s.) M.C. 145 ; 8 0.8. Rep. 1020. A warrant of committal, under the 8 & 9 Vict. c. 127, issued from the Palace Court, after reciting that the defendant " was and now is indebted to J H D in the sum of 41 lOs. and no more, besides costs of suit, amounting to 51. 5s., by virtue of a judgment" in the Exchequer, &c., ordered that the defendant " shall be committed for the term of twenty days to the common gaol, wherein debtors, under judgment and in execution of the superior courts of justice, may be confined within the county of Surrey." The warrant was directed to H H, an officer of the said (Palace) court, and to the keeper of the debtors prison above mentioned, for the county of Surrey, and the defendant was imprisoned under it in Horsemonger-lane gaol, being the debtors county gaol for Surrey; — Held, first, that the warrant was not bad in omitting to state that the sum due was not a balance of an account origin- ally exceeding 201., inasmuch as the defendant might be imprisoned in respect of a judgment debt under 201., although originally exceeding that amount ; secondly, that the twenty days' imprison- ment began to run from the day of the defendant being lodged in gaol; thirdly, that the place of imprisonment was sufficiently stated in the warrant; and, lastly, that the warrant was rightly directed, the execution of the process not being confined by the 8 & 9 Vict. u. 127. to the high bailiff of West- minster. Ex parte Foulkes, 15 Law J. Rep. (n.s.) Exch. 300 ; 15 Mee. & W. 612. After judgment recovered against the defendant in the county court for a debt he became insolvent, and obtained his discharge from the Insolvent Debtors Court, having inserted the debt in his schedule. He was afterwards arrested under a warrant of commitment from the Judge of the county court, made subsequent to the discharge by the Insolvent Court : — The Court refused to grant a habeas corpus to discharge the defendant out of custody, as the warrant of commitment was a subsisting valid commitment. It was objected that the warrant was bad, because it did not appear on the face of it that the defendant was examined on oath touching his estate and eflTects ; also because it stated two ofiences, viz. that the defendant had obtained credit by false pretences, and had made a transfer of his property to defraud his creditors ; also because it stated that the defen- dant had made a delivery, gift or transfer of the property to defraud his creditors, and was therefore uncertain ; also because it ordered the defendant to be imprisoned for forty days, or until he be sooner discharged by due course of law : — Held, that as the warrant was partly a civil and partly a penal pro- ceeding, these objections could not be sustained. Ex parte Purday or Pardy, 19 Law J. Rep. (n.s.) M.C. 95; 1 L. M.&P. 16. COMMON. (A) Right of Entry to abate Nuisance. (B) Common pur Cause de Vicinage. (a) Custom, between adjoining Commons, (b) Custom between private Estates. (c) What Usage will establish. (A) Right of Entry to abate Nuisance. The 8 & 9 Vict. u. 118. for the inclosure and improvement of commons amended by 9& 10 Vict, c. 70 ; 24 Law J. Stat. 174. 134 COMMON— COMPANY. The provisions for inclosing and improving com- mons extended by 10 & 11 Vict. c. Ill; 25 Law J. Stat. 290. Further provisions for the inclosure andimprove- ment of commons and other lands made by 12 & 13 Vict. c. 83 ; 27 Law J. Stat. 159. Where a house has been unlawfully erected on a common, a commoner whose enjoyment of the common is interrupted by it may pull it down. But he is not justified in pulling it down if there are persons in it at the time. And therefore to a declaration in trespass for pulling down a house, which stated that plaintiflF and his family were actually present and residing in the house at the time, a plea by the defendant, a commoner, that the house interrupted his enjoyment of the com- mon, and that he therefore pulled it down, was held ill. Quare — if the plea was bad for not averring notice to plaintiflF to abate the nuisance. A parol licence by a commoner to build a house on a common will not, though executed, run with the land in respect of which the right of common is claimed, so as to bind a subsequent owner of such land. Quare — if it would have been binding as between the original parties. Perry v. Fitxhowe, 15 Law J. Rep. (n.s.) Q.B. 239 ; 8 O.B. Rep. 757. (B) Common fuk Cause de Vicinage. (a) Custom between adjoining Commons, Since the statute 2 & 3 Will. 4. c. 71, common of vicinage from time immemorial may be claimed by a commoner, who states his right to have existed for thirty years ; the substance of the custom being, that cattle lawfully on one common have been used to stray upon the other. Evidence of reputation is admissible to prove a right of common pur cause de vicinage, Pritchard v. Powell, 15 Law J. Rep. (n.s.) a.B. 166 ; 10 Q.B. Rep. 589. (i) Custom between private Estates. Common pur cause'de vicinage cannot be claimed as matter of customary right by the owner of a farm against the owner of the adjoining farm, though there is no fence or inclosure between them. Such a right could only have its origin in a grant or in manorial custom. Jones v. Robin, 15 Law J. Rep.(N,s.)Q.B. 15; 10 a.B. Rep. 581. Sembte, that common pur cause de vicinage may exist between two proprietors of neighbouring farms, independently of any rights of common on either side. But a claim of such a right by an individual, as annexed or incident to a private estate, cannot be good by custom, but must be pleaded as a prescrip- tion in a que estate. Jones v. Robin (in error), 17 Law J. Rep. (n.s.) aB. 121 ; 10 Q.B. Rep. 620. (c) What Usage will establish. A plea of common pur cause de vicinage is not supported by proof that sheep have been accus- tomed to stray from wastes subject to common of pasture, into adjoining lands, not separated from the wastes by any fence or visible boundary, it appearing that the owners of the sheep which so strayed, as well as the owners of the respective lands, made a regular practice of turning them back to the place whence they had strayed. Clarke v. Tinker, 15 Law J. Rep. (n.s.) Q.B. 19; 10 Q.B. Rep. 604. COMMON PLEAS. [See Judgment.] Barristers at law to have equal rights as Serjeants in the Common Pleas. 9 & 10 Vict. c. 54; 24 Law J. Stat. 123. The receipt and amount of fees receivable by certain officers of the Court of Common Pleas re- gulated by 13 & 14 Vict. c. 75; 28 Law J. Stat 203. COMPANY. [See Bond — Contract — Copthold — Injunc- tion — Pleading — Pkactice, Process — Pkoduc- tion and Inspection of Documents — Rate — Release — Staying Proceedings.] (A) Railway and other incorporated Com- panies. (a) Construction of Acts of Parliament. (1) Bye-Laws. (2) Voting by Proxy, (3) Tolls. (4) Exception or Proviso. (6) Shares. (1) Allotment of. (2) Sale and Transfer of. (3) Forfeiture of. (4) Deposits, Payment of. (5) Registry of Shareholders. (6) Proprietorship. (c) Dividends, Id) Calls. (1) Liability to. (i) Where Shares transferred after Call made and before payable. (ii) By signing Subscribers* Agree- ment and Entry of Name in Registry of Shareholders. (iii) Executors, (iv) Legatees, (v) Infants. (2) Making, (3) Notice, Proof of, (4) Action for, and Pleadings, (c) Liability of Promoters and Provisional Committee- men, (1) At Law, (i) In general, (ii) To the Return of Deposits, (iii) Evidence in Actions against, (2) In Equity, (J) Directors, (1) Powers, Duties, and Liabilities, (2) Election of, (g) Duties and Liabilities of Companies, (1) To Shareholders, (2) To other Persons, {h) Actions and Suits against. [See {g) Duties and Liabilities of Companies.^ COMPANY ; (A) Railway and other inoorpokated Companies. 135 (j) Injunctions to Railway Companies. [See (g) Duties and Liabilities of Companies, and titles Injunction — Railways Clauses Consolidation Act — Lands Clauses Consolidation Act.] (j) Compensation. [See title Lands Clauses Consolidation Act.] (B) Banking Company. [See title Banker AND BANKINa COMPANY.] (C) Canal Company. [See title Canal Com- pany.] (D) Mining Company. [See title Mine.] (E) Companies begisteeed under 7 & 8 Vict. c. 110. (o) Registration and Incorporation. (6) Complete Registration, Necessity for and Effect of. (c) Deed of Settlement. (d) Directors. (1) Power to contract or draw Bills on behalf of Company, (2) Rights and Liabilities of. (3) Removal of. [See (c) Deed of Settle- ment.'] (e) Shares. (1) Sale of. (2) Forfeiture of (F) Winding-up Acts. (o) What Companies are within the Acts. (1) Generally. (2) Foreign Companies. (6) Jurisdiction of the Court. (c) Upon whose Petition a Company may be wound up. (1) Contributory sued for Company' s Debt. (2) Creditor of the Company. (3) Where Company abandoned. (4) Prmisional Committee. (5) Other Cases. (rf) Order for Winding up. (e) Reference to the Master. (f) Official Manager. (g) Distribution of the Funds. (A) Actions and Suits against the Company or Contributories. (j) Jurisdiction and Powers of the Master. (1) Settling the List of Contributories. (2) Production of Documents. (3) Payment of Balances. (4) Examijiatitm cf Witnesses. (5) Other Matters. 0) Appeal and Confirmation of Report. (A) Contributories, who may be. (1) Assignees. (2) Executors. (3) Infant Shareholder. (4) Husband of Female Shareholder. (5) Trustees. (6) Pledgee of Shares, (7) Party indemnifying the Holder. (8) Allottee of Shares. (9) Promoters and Provisional Committee. (10) Directors. (11) Transferor under invalid Transfer of Shares. (12) Transferee of Shares. (13) Persons acting as Shareholders. (14) Former Members of the Company. ' {I) Liability of Contributory. (1) Extent of. (2) Mode and Time of disputing Liability, (m) Practice, (1) Service and Advertisement of Petition. (2) Dismissing the Petition. (3) Service and making of the Order, (4) Discharging the Order. (n) Costs. [See (/) Official Manager.] (G) Execution against Shareholders. The gauge of railways regulated by 9 & 10 Vict. 0. 57 ; 24 Law J. Stat. 158. The provisions for inclosing and improving com- mons extended by 11 & 12 Vict. u. 99 i 26 Law J. Stat 254. Commissioners of Railways appointed by 9 & 1 Vict. c. 105 ; 24 Law J. Stat. 284. The time for making railways may be extended on application to the Commissioners of Railways by 11 Vict. c. 3 ; 26 Law J. StaL 13. The abandonment of railways and dissolution of railway companies facilitated by 13 & 14 Vict. c. 83; 28 Law J. Stat. 209. (A) Railway and other incorporated Com- panies. (a) Construction of Acts of Parliament. (1) Bye-Laws. The Plumbers' Company of London were incor- porated by a charter of James the First, and em- powered thereby to make bye-laws. They made a bye-law, that the master and wardens might call, choose, elect, and admit into the livery of the com- pany such person free of the art or mystery of plumbing as they should think fit; and that every person so chosen should, immediately upon notice thereof, prepare himself to serve the same place at the then next meeting of the master and wardens, in such seemly and decent manner as formerly had been used ; and that every person so called and chosen into the same livery, and accepting the same, should bring in and pay at the next meeting unto the master and wardens, to the use, mainte- nance, and relief of the company, and to the officers of the company, for entering the same, and for the warning given, such fees as formerly had been paid in like cases ; " and which of them soever, so called and chosen into the same livery, refuseth to pay the said fees, or what person or persons, so called and chosen to be of the same livery, and refuseth the same, shall forfeit and pay to the master and wardens for the time being, for every such default, the sum of 5/. or less, at the discretion and pleasure of the master and wardens, so it be notless than 40i." In a declaration in debt on this bye-law, against a person who had been elected into the company, and taken the oath to obey the bye-laws, — Held, first, that the bye-law was not bad for uncertainty in the amount of the penalty ; secondly, that the declaration was not bad for not shewing that the company was a company that had a livery, a livery being mentioned in the charter and bye-law ; thirdly, that it was not bad for not shewing that 136 COMPANY ; (A) Railway and other incorporated Companies. the defendant was a freeman of the City of London; for that the Court could not take notice that none hut freemen of the City of London were admissible into the livery of a company unless it had been certified to the Court by the Recorder of London ; fourthly, that the master and wardens alone might sue for the penalty, though it was reserved to the use of the company generally. The breach alleged in the declaration was, that the defendant although requested, and although a reasonable time had elapsed, and although he was and continued such freeman, did not nor would attend or serve the said place to which he had been so chosen, and did not nor would attend and serve the said place at the next meeting or at any subse- quent meeting of the master and wardens, hut therein made default and refused to prepare him- self to serve the said place : — Held, that the breach was well assigned ; for that one refusal, to which by the bye-law the penalty was attached, was the refusal to prepare to serve, and to serve at the next court. Piper v. Chappell, 14 Mee. & W. 624. The 5 Will. 4. c. x. incorporated the London and Croydon Railway Company, and (by sec. 106. em- powered the company to make bye-laws for the good government of the affairs of the company, and for regulating the proceedings, and remunerating and reimbursing the expenses of the directors, and for the management of the undertaking, and of the officers and servants of the company in all respects whatever, and to impose and inflict reasonable fines and forfeitures upon persons offending against the samCj not exceeding 51, for any one offence, to be levied and recovered as any penalty might by that act be levied and recovered j such bye-laws to be binding upon and be observed by all parties ; pro- vided that they were not repugnant to the laws of England, or the directions of that act. The 148th section enacted that it should be law- ful for the company to make orders and regulations for regulating the travelling upon and use of the railway, and for or relating to travellers upon the line ; such orders and regulations to be binding upon travellers and passengers passing upon the railway, upon pain of forfeiting and paying a sum not exceeding 51. By section 163. penalties and forfeitures imposed by the act (of which there were several) or by any bye-law might be recovered in a summary way, by the adjudication of Justices ; half the penalty to go to the informer and the other half to the com- pany. And section 165. enacted that it should be lawful for any oflScer or agent of the company to seize and detain any person whose name and residence should be unknown to such officer or agent, who should commit any offence against that act, and to convey him, &c. before a Justice without any warrant or other authority than that act The company made a bye-law, whereby a pas- senger not producing or delivering np his ticket was to be required to pay the fare from the place where the train originally started : — Held, that this was not a bye-law imposing a penalty or forfeiture; and that the arrest of a passenger not producing his ticket, and refusing to pay the fare from the place where the train originally started, was illegal. Qutere — Whether the 16Sth section gives power to apprehend a person, except for an offence against the act of Parliament itself. Qaesre, also, whether the bye-law was a reason- able and valid bye-law. Chilton v. Lmdon and Croydon Rail. Co., 16 Law J. Rep. (n.s.) Exch. 89 ; 16 Mee. & W. 212. (2) Foting by Proxy. By the 7 & 8 Vict. c. 21. it is enacted that any " letter or power of attorney, or other instrument, made for nominating a proxy, and chargeable with duty under this act, shall authorize such proxy to vote on any matter at one meeting of the proprietors, &c., the time of the holding whereof shall he speci- fied in such instrument, or at any adjournment of such meeting, and shall not be further available." By a local act, 7 & 8 Vict. c. ciii., it was enacted that it should be lawful for the plaintiffs to "depute and appoint any one of the elder brethren of their guild or brotherhood, by writing under their com- mon seal, to represent their guild or brotherhood at all meetings of the company, &c., and to vote at sjich meetings as the proxy of the said guild or brotherhood on whatever question, matter, or thing mightbe proposed, discussed, or considered thereat": — Held, that there was no inconsistency in the provisions of the two acts, and that the general proxy to vote at all meetings was good. Trinity House at Hull v. Beadle, 18 Law J. Rep. (n.s.) as. 78 ; 13 a.B. Rep. 175. (3) Tolls. The Great Western Railway Company are en- titled to take tolls authorized by the 5 & 6 Will. 4. c. cvii., 6 & 7 Will. 4. c. xxxviii. and 1 Vict. c. xcii. until they have completed the purchase of either the Birmingham and Oxford Junction Railway, or the Birmingham, Wolverhampton and Dudley Railway ; but after such completion the tolls both on the original line and on such purchased line must he reduced to the lower scale fixed by the 10 & 11 Vict. c. cxlix. and 10 & 11 Vict. c. ccxxvi. Attorney General v. Great Western Mail. Co., 19 Law J. Rep. (n.s.) Exch. 407 ; 5 Exch. Rep. 520. (4) Exception or Proviso. To an action for money had and received the defendant pleaded, that after the passing of the 7 & 8 Vict. c. 110, and after the 1st of November 1844, the defendant, as the broker and agent of the plain- tiff, sold on account of the plaintiff fifteen scrip shares of and in a certain joint-stock company, called the Boston, Newark and Sheffield Railway Company, for the sum of 94Z. 2s. 6d., the formation of which company was commenced after the 1st of November 1844, and which, at the time of such sale was a joint-stock company established in Eng- land for profit, within the meaning of the said act of parliament, that is to say, a partnership whereof the capital was intended to be divided into shares, and so as to be transferable without the express consent of all the co-partners, and not then being a banking company, school, or scientific or literary institution (following the words of the 2nd section); and that the said sum of 94Z. 2s. 6cJ. so received by the defendant for the plaintiff, was the price and proceeds of the sale by the defendant of such shares ; and that at the time of the sale, and of the receipt COMPANY; (A), (6) Shares. 137 of the said sum, the said jofnt-stock company had not been completely registered, nor had obtained any certificate of complete registration ; — Held, on demurrer, that the clause at the end of section 2. in the 7 & 8 Vict c. 110. was an exception and not a proviso ; and that the defendant ought to have negatived in his plea that the company was one which could not be carried into execution without the authority of parliament. And per Alderson, B., assuming the sale to be illegal, the defendant, who had received the proceeds from the purchaser, could not refuse to pay them over to the seller, on the ground of the illegality of the transaction. Bousfield V. Wilson, 16 Law J. Rep. (n.s.) Exch. 41 ; 16Mee. & W. 185. (6) Shares. [Pearson v. London and Croydon Rail. Co., 5 Law J. Dig. 676 ; H Sim. 541.] (I) Allotment of. A projected railway company issued prospectuses, containing names of provisional directors, and di- recting applications for shares to be made, in a form annexed, to the provisional committee of manage- ment of the company. An application was accord-, ingly made by the defendant on the 1 3th of October in the prescribed form, and a letter of allotment sent to him on the 15th of December, announcing that the committee bad allotted him certain shares. At the foot of this letter was the form of a banker's receipt, which purported to he given " on account of the provisional committee." It also appeared by resolutions that there was a provisional com- mittee, and also a part thereof formed into a com- mittee of management, by whom the business of the formation of the company was conducted. Between the time of application and the allotment to the defendant, some of the members of the pro- visional committee had withdrawn from that body, and others had been added : — Held, that the con- tract to take shares and pay the deposit was made with the provisional committee and not with the committee of management ; and, Qutere — Whether the change in the state of the company between the application and allotment affected the contract. It appearing- that the committee had delayed to allot the shares until it became impossible to carry on the concern, — Quare — Whether the defendant's proposal was accepted within a reasonable time. Woolmer v. Toby, 16 Law J. Rep. (n.s.) Q.K. 225; 10 Q.B. Rep. 691. The defendant having applied to a railway com- pany for an allotment of 100 shares, undertaking to accept the same or any less number, and to pay the deposit thereon, received an assignment of sixty shares, by a letter of allotment, from the company, headed by the words "Not transferable'''': — Held, in an action by the company against the defendant, to recover the deposit, that the contract was not binding on him, inasmuch as his proposal was absolute, whereas the acceptance in the letter of allotment was conditional, as it contained a qualifi- cation that the contract was "not transferable." Duke V. Andrews, 17 Law J. Rep. (n.s.) Exch. 231 ; 2 Exch. Rep. 290. Digest, 1845—1850. By a railway act, power was given to the direc- tors to borrow money upon debentures, when all the shares should be allotted and half the capital paid up. The company having a great number of shares unallotted, contracted to sell them to the defendant at a discount of 6t per share, and upon payment by the defendant of the whole sum agreed upon, the company were to deliver debentures to the amount of 5Z. per share to the defendant, pay- able three years after date, provided they were in a position legally to do so. At the time of the con- tract, much less than half the capital had been paid up : — Held, upon demurrer to a hill by the company for specific performance, that the contract could not be enforced. West Cornwall Rail. Co. v. Mowatt, 17 Law J. Rep. (n.s.) Chanc. 366. [See' (4) Deposits, Payment of] (2) Sale and Transfer of. The 26th section of the 7 & 8 Vict. u. 1 10. enacts, " That in any joint-stock company, commenced after the 1st of November 1844, until complete registration, a sale of shares by a subscriber, &c. shall be void, and every person entering into such contract shall forfeit a sum not exceeding Wl.:" — Held, that that section did not render void the sale of shares of a railway company com- menced after the 1st of November 1844, and requiring an act of parliament for the execution of the railway, such company not being specially pro- vided for in that section within the meaning of the words in the 2nd section, " except as hereinafter specially provided." Young v. Smith, 15 Law J. Rep. (N.S.) Exch. 81 ; 15 Mee. & W. 121. A stockbroker, having an order to purchase shares in a foreign railway, bought a letter of allotment. There were no shares in the market, and the prac- tice of the stock exchange was to buy and sell letters of allotment as shares, in that railway. In an action for the value and broker's commission, — Held, that the jury were properly directed to con- sider whether the order was to buy that which waj^ sold in the market as shares, or to wait till the actual shares were procurable. Mitchell v. Newhall, 15 Law J. Rep. (n.s.) Exch. 292 ; 15 Mee. & W. 308. The defendant, a sharebroker, bought for the plaintiff certain scrip certificates of the Kentish Coast Railway Company, which had been sold in the share-market as genuine scrip, and at a premium. In an action by the plaintiff to recover the price paid to the defendant, on the ground of their not being genuine, — Held, that the question for the jury was whether the defendant obtained that which he desired to buy. Lambert or Lamert v. Heath, 15 Law J. Rep. (h.s.) Exch. 297 j 15 Mee. & W. 486. A sharebroker employed to purchase shares or scrip of a railway company, does not thereby under- take to procure them absolutely and at all events, but only to use due and reasonable diligence to en- deavour to do so. A employed B, a sharebroker at Manchester, and lodged money in his hands, to procure for him fifty shares in a certain railway company. E, without disclosing the name of his principal, entered into a contract with H, another sharebroker, to purchase them for him. According to the usage of the Stock 138 COMPANY; (A), (6) Shares. Excliange at Manchester, there are tn'o " settling days" in each month, on which all transactions be- tween brokers, and between them and their prin- cipals, are to be settled, although in some instances settlement is not enforced by brokers on the pre- scribed days. H did not perform bis contract with B by the next settling day ; and B having, after that day, refused to return A his money, — Held, that A was entitled to recover it back from B in an action for money had and received. Fletcher v. Marshall, IbUee.&Vl. 155. The plaintiff having on the morning of a certain day agreed to sell railway scrip to the defendant, the defendant in the afternoon of the same day signed the following document, with a view to its being shewn to the plaintiff: "Bought of N K (the plaintiff) fifty shares in the H, H, and B Rail- way Company, at 10/. per share" : — Held, that the contract between the parties was contained in this document; that it required an agreement stamp, although signed by the defendant only ; and that the sale of railway scrip was not a sale of " goods, Wales, or merchandise," within the meaning of the exemption in the Stamp Act, 55 Geo. 3. c. 184. Sched. Part 1, tit. ' Agreement.' Knight v. Barber, 16 Law J. Rep. (n.s.) Exoh. 18 ; 16 Mee. & W. 66. The plaintiff, a sharebroker at Leeds, bought for and by the orders of the defendant ten railway shares, to be paid for on delivery. The shares were delivered, and had fallen in price between the time of the sale and the delivery. The plaintiff not being able to pay at the time of delivery the vendor demanded the shares back from the plaintiff, who gave them back to the vendor, who sold them at the then market price, and called upon the plaintiff, according to the usage of the Stock Exchange at Leeds, to pay the difference, which he did : — Held, that the plaintiff was entitled to recover the sum so paid from the defendant as money paid to his use, as he must be taken to be cognizant of the usage of the Stock Exchange, which his broker attended. folloclc V. Stables, 17 Law J. Rep. (n.s.) Q.B. 352 ; 12 aB. Rep. 765. The defendants, who were sharebrokers at Liver- pool, on the 30th of August 1845, bought for the plaintiff, who was also a sharebroker, tliirty-eight T and D railway shares, at the price, according to the advice note, of 2i. 8s. Qd. per share. The scrip had not then issued, and the 21. 8s. . 16, the Companies Clauses Consolidation Act, empowered the company to make calls. The 90th section authorized the directors to exercise all the powers of the company except as to matters directed by that and the special act to be transacted by a general meeting of the company. Neither the 8 Vict. c. 16. nor the special act directed calls to be made at a general meeting of the company. The special act directed that three months at least should be the interval between successive calls. After the formation of the company, the shai°es were altered to 20i. each. The directors on the 11th of January passed a resolution for a call to be paid on the 15th of Feb- ruary, and on the 8th of May a resolution for a second call to be paid on the 19th of June. Held, in an action against a shateholder to re- cover the amount of these calls, first, that the calls were not illegal, by reason of the shares having been altered to 201.; secondly, that it was competent for the directors to make a call ; and lastly, that an interval of three months had elapsed between the two calls pursuant to the act. Ambergate, Notting- ham and Boston and Eastern Junction Rail. Co. v. Mitchell, 19 Law J. Rep. (n.s.) Exch. 89 ; 4 Exch. Rep. 540. Under an act of parliament the capital of a rail- way was converted into shares of the nominal value of 271. 10s., 221. and 311. upon which unequal sums were due, and upon which profits were payable in proportion to the money actually paid. A bill was filedby a holder of shares ofSU. on behalf of himself and the other holders of suohshares, allegingthat the directors had formed a scheme to conduct the affairs of the company without regard to the general benefit of the shareholders, but for the benefit of the holders of shares of 27 /. 10s. and 221. ; and that in further- ance of such design they had made a dall of 101. on the holders of shares of 311., and that they had done various other acts stated in the b;ll to intimi- date and induce the shareholders to consent to terms which would give an advantage to the holders of shares of 2TI. 10s. and 221. It was also alleged that the call was not required for the works which the company had power to make, and it prayed for an inquiry to ascertain how much of the 101. was required for the purposes of the company, and for an injunction to restrain the proceedings to enforce payment of more of such calls than should be found necessary. The bill also alleged that the plaintiff and other holders of Sll. shares had not paid the call, but that some had : — Held, upon a demurrer by the company for want of equity and for want of parties, that, as the bill contemplated a continuance of the company, the Court could not entertain jurisdiction and assume to interfere in the internal management of the company, and that the plaintiff was not entitled to relief on this^bill. Held, also, that the bill was defective for want of parties, as the plaintiff sued as well for share- holders who had paid, as for those who had not paid, and also because the bill did not allege that the holders of other shares were fully represented by the defendants; and the demurrer was allowed, and leave to amend the bill refused. The clauses in a railway act upon which a plain- tiff intends to rely should be stated in the bill; and, if omitted in the bill, cannot be referred to upon demurrer, although the act is a public one. Bailey v. tlie Birkenhead, Lancashire and Cheshire Junction Rail. Co., 19 Law J. Rep. (n.s.) Chanc. 377 ; 12 Beav. 433. [See (1) Liability to, (iii) Executors.] 144 COMPANY; (A), (d) Calls. (3) Notice, Proof of. In order to prove the service of a notice of a call, the plaintiff proved that it was the duty of C to fill up the printed notices and direct them to the shareholders; that on the day of the call he had received instructions to send out such notices; that he had heen seen in the act of making out such notices, and putting them into a basket ready to be posted, andthathehadatthattimea list in his hand. It was proved that all the letters in the basket were posted. C was dead at the time of the trial, but a list, containing the name of the defendant, was produced in his hand-writing, with an indorsement by him " letters sent out." Held, that this list so indorsed was admissible, as it might reasonably be inferred that it was a con- temporaneous entry. Eastern Union Rail. Co. v. Symonds, 19 Law J. Rep. (n.s.) Exch. 287; 5Exch. Rep. 237. (4) Action for, and Pleadings, The directors of a railway company made a call of U. 15s. per share, ordering, at the same time, the sum of 15s. per share, part thereof, to be paid on the 28th of February, and the remaining U. on the 7th of May, and between the two latter days brought an action to recover the instalment of 15s. Held, that they were not entitled to recover this amount, being part of a call. Ambergate, Notting- ham, Boston and Eastern Junction Rail. Co. v. Coul- thard, 19 Law J. Rep. (n.s.) Exch. 311 ; 5 Exch. Rep. 459. Debt for calls. The declaration stated that the defendant, on the 27th of November 1848, and from thence hitherto, hath been and still is the holder of forty shares in the said company, and then, and at the time of the commencement of this suit, was and still is indebted to the company in ZOOl. for calls, whereby an action hath accrued by virtue of a certain act of parliament (the Companies Clauses Consolidation Act), and also by virtue of the Mid- land Great Western Railway of Ireland Act, 1845, and of the Midland Great Western Railway of Ire- land Act (Mullingar to Athlone, 1846), to demand of the defendant 300t : — Held, that the declaration was not bad on special denmrrer by reason of the averment as to the time of the holding of the shares and the debt to the company, or the statement as to the two special acts. Midland Great Western Rail. Co. (Ireland) v. Evans, 19 Law J. Rep. (n.s.) Exch. 118; 4 Exch. Rep. 649. The form of declaration in an action for calls prescribed by 8 & 9 Vict. c. 16. ». 26. is not open to any objection on special demurrer. Birkenhead, Lancashire and Cheshire Junction Rail. Co. v. Webster, 19 Law J. Rep. (n.s.) Exch. 146. The form of declaration given by the 26th section of the 8 & 9 Vict. c. 16, the Companies Clauses Consolidation Act, is not applicable in an action for calls against an executor, where the calls were made in the lifetime of the testator. Birkenhead, Lanca- shire and Cheshire Junction Rail. Co. v. Cotesworth, 19 Law J. Rep. (n.s.) Exch. 240; 5 Exch. Rep. 226. Debt for calls. The first count stated that the defendant, on &c., was and still is the holder of thirty-nine shares in the said company, and before, &c., was and still is indebted to the said company in respect of the calls theretofore duly made by the said company, each of the said calls being, &c. ; whereby and by reason of the said sum being wholly unpaid, an action hdth accrued by virtue of a certain act of parliament (the special act), and a certain other act (another special act), &c. The second count was similar, but stated the action to have accrued by virtue of a certain act of parliament (the Companies Clauses Consolidation Act) and a certain other act (the special act). The special act first referred to in the first count contained the same clause as the Consolidation Act, 8 & 9 Vict. c. 16. ». 26, and the second special act incorporated the Consolidation Act. Held, on special demurrer, that the declaration was not bad for not adopting the precise language of the special and genera] acts, nor for not referring to the general act in the first count. East Lanca- shire Rail. Co. V. Croxton, 19 Law J. Rep. (n.s.) Exch. 313 ; 5 Exch. Rep. 287. In an action by a company for calls under the 8 & 9 Vict. c. 16.SS. 26, 27, the defendant, under a traverse of his being a shareholder in the company, may not only dispute that he is such de facto, but may shew that he is not a shareholder t parliament, within the meaning of the proviso in the 2nd section of that act (setting it out) ; and that it had, within twelve months before the sale, &c,, obtained a certificate of provisional regis- tration : — Held, that the replication was an answer to the plea. Held, also, that to a similar plea a replication. 158 COMPANY; (E) Companies Registeeed. that the joint-stock company was a company for executing a work which could not he carried into execution without the authority of parliament, was a good replication. Held, lastly, that a plea setting up the illegality of the sale of shares under the statute, without nega- tiving the exception in the 2nd section as to bank- ing companies, schools, &c. was ill on general demurrer. Lawton v. Hickman ; Loonie y. Oldfield ; Eadon v. Branson) ; Ray v. Hirst; and O'Neil v. Brindle, 16 Law J. Rep. (n.s.) a.B. 20 ; 9 Q.B. Rep. 563. By 7 & 8 Vict. c. 1 10. s. 7. it is provided that no joint-stock company shall be completely registered, unless it is formed by a deed setting forth in the schedule several particulars, one of which is the name of the company ; sect. 10. provides for a return of a change in any of the particulars set out in the schedule to the deed, after complete registration ; sect. 25. incorporates companies completely regis- tered by the name set forth in the deed, and declares that they shall continue so incorporated until dis- solved: — -Held, that a joint-stock company com- pletely registered and thus incorporated by that act has no power to change its name after such incor- poration. In re Sheffield, Rotherkam and Chesterfield Fire and Life Insurance Co., 16 Law J. Rep. (n.s.) Q.B. 407. To a declaration in debt by a joint- stock com- pany completely registered, pursuant to the 7 & 8 Vict. c. 110. s. 25, against a shareholder for certain instalments of capital due on calls in respect of his shares, the defendant pleaded several pleas, which stated "that the company was formed by deed under the Joint-Stock Companies Act, and that such deed ought to have contained provisions for prescribing the maximum number of directors, the amount of their qualification, the timefor which they shouldhold office so that one-third should retire annually, and for determining at what periods the instalments of payment on capital were to be made, according to the requirementsof the said act; that the said deed did not make provision for prescribing the maxi- mum number of directors, &c. ; that such deed was produced before the registrar as a proper deed, who thereupon, notwithstanding it was not conformable to the provisions of the said act, granted a certificate of complete registration to the said company, and that the plaintifis never were a company completely registered otherwise than as hereinbefore mentioned, and that the defects in the deed had never been supplied by a supplemental deed :" — Held, on de- murrer, that the pleas were bad. The certificate of the registrar of joint-stock companies incorporates a company under the 7 & 8 Vict. c. 110. s. 25, although the deed registered be a defective deed. Banwen Iron. Co. v. Burnett, 19 Law J. Rep. (n.s.) C.P. 17 ; 8 Com. B. Rep. 406. (c) Deed of Settlement. A shareholder who has signed the deed which is registered cannot avail himself as a defence to an action for calls of any omission from the deed of certain provisions required by the 7 & 8 Vict. c. 1 1 0. to be inserted therein. Banwen Iron Co. v. Barnett, 19 Law J. Rep. (n.s.) C.P. 17; 8 Com. B. Rep. 406. The deed of settlement of a joint-stock company provided that an extraordinary general meeting. specially called for the purpose, might remove from his office any director for negligence, misconduct in office, or any other reasonable cause. A meeting was duly convened for the purpose, among other things, of removing I, C, and J from the office of directors for negligence, misconduct in office, and other reasonable cause. I and C attended the meeting, but merely to protest against its legality, and then retired ; when the meeting unanimously removed I, C, and J from the office of directors. On bill by I and C, on behalf of themselves and other the proprietors, except the defendants, — Held, that the " reasonable cause" was such cause as in the opinion of the shareholders duly assembled should be considered reasonable; and that in the absence of proof of fraud, it was not competent to the Court to review the resolution of the meeting on the ground that uhfounded statements were made, and the charges were not substantiated in Eueh manner and by such evidence as a court of justice would require. Inderwick v. Snell, 19 Law J. Rep. (n.s.) Chano. 542; 2 Mac. & G. 216 j 2 Hall & Tw. 412. {d) Directors. (1) Power to contract or draw Bills on behalf of Company, A declaration stated that the company was a joint-stock company completely registered; that one S P and one C L, then being two of the direc- tors of the company, made their promissory note, and thereby promised, on behalf of the said com- pany, to pay the plaintiif or his order 32/. 4s. dd., the balance of his account due from the company, three months after date, which note was signed by the said S P and C L, and made by them, and in their names, and onbehalf of the said company, and was expressed by them to be made on behalf of the said company, and countersigned by the secretary of the company ; and thereupon the defendants, in consideration of the premises, then promised the plaintiff to pay him the amount of the said promis- sory note :— Held, on general demurrer, that the declaration was bad. Thompson v. Universal Salvage Co., 1 7 Law J. Rep. (n.s.) Exch. 118; 1 Exch. Rep. 694; 5 Dowl. & L. P.C. 380. In an action ex contractu against a joint-stock company, completely registered under the 7 & 8 Vict. c. 110, the plaintiff must prove that the con- tract was made by persons having authority from all the shareholders to bind them by such a contract ; and this may be done by proving that the contract was sanctioned by the persons authorized by the deed of the company to conduct the affairs of the company. The plaintiff is not confined to proof of authority conferred by the deed, if he can in any other way shew that the whole of the shareholders have mediately or directly given authority to those making the contract to bind them ; but it is not enough to shew that the contract was made or sanc- tioned by some of the directors, without proving that by the deed or otherwise the shareholders had authorized that number to act for them. Therefore, where the deed of a company appointed eleven directors and declared that five should be a quorum, the company were held not to be bound by contracts made at a board meeting by three only of the directors. COMPANY; (E) Companies Reoistbbed. 159 If a contract be made or sanctioned by a com- petent number of the governing body, in such a ' manner that it would bind the company if only a partnership at common law, it binds it, though completely registered under 7 & 8 Vict. t. 110 ; for the 44th section, which enacts that contracts in the absence of certain requisites shall be void and in- effectual, also prohibits the company from taking the objection of the absence of these requisites. The company cannot therefore object that a con- tract is not in writing, signed by two directors, and under the seal of the company, or signed by an officer of the company, but it may object that the persons making the contract had no authority at all to bind the whole shareholders. Semble — that acts and admissions bya competent number of the governing body of the company are admissible as evidence against the company, and have the same legal effect as if made by the company itself, and, consequently, that a verbal statement made by the chairman, at a board meeting of the directors, to the plaintiff, that a distress made on his goods had been rightfully made by the landlord of the company, and that the company were bound by a contract made with the plaintiff in their name, to indemnify him against it, would have operated as a ratification of the contract with the plaintiff, and have been original evidence of the rightfulness of the distress (without producing or accounting for the absence of the lease to the company, under which the rent distrained for became due though shewn to be in writing), if there had been a compe- tent number of the directors present at the board meeting, when the statement was made. Ridley v. the Plymouth, Devon and Stonehouse Baking and Grinding Co., or, the Plymouth, Stonehouse and Devon- port Grinding and Baking Co. ; Kingsbridge Mill Co. v. the Same, 17 Law J. Rep. (n.s.) Exch. 252 ; 2 Exch. Rep. 711. A joint-stock newspaper company having agreed to purchase the Wesleyan Record of H, two of the directors of the company gave him in part pay- ment of the purchase-money a promissory note in the following form : — • " 250/. On demand we jointly and severally promise to pay to Mr. Edward Healey or order the sum of 250i, value received, for and on behalf of the Wesleyan Newspaper Association." Signed, •' P. S, J. W., Directors" :— Held, that P S and J W were personally liable to H for the amount of the note. Healey v. Story, 18 Law J. Rep. (n.s.) Exch. 8 ; 3 Exch. Rep. 3. The deed of settlement of a registered joint-stock company contained a provision that the directors might issue a promissory note or accept a bill of exchange for the balance of a certain debt, not ex- ceeding \,000l. The directors accordingly issued a note for 1,000?., but afterwards accepted and gave several bills, in place of the note, for smaller sums amounting together to 1,000/. and interest up to the time at which they were to become due : — Held, that the accepting of the bills was within the authority given by the deed. Thompson v. Wesleynn Newspaper Association, 19 Law J. Rep. (n.s.) C.P. 114; 8 Com. B. Rep. 849. In an action against a registered joint-stock com- pany for the price of goods supplied for the purposes of the company, used on their premises, and ordered by their officers, it is unnecessary to give any evi- dence that those officers were authorized to make the contract, or that it was made pursuant to the provisions of the deed of settlement and the bye- laws of the company. Smith v. Hull Glass Co., 19 Law J. Rep. (n.s.) C.P. 123 ; 8 Com. B. Rep. 668. A document signed by two directors of a joint- stock company, and directed to their cashier, in the following form: — "Thirty days after date, credit Mrs. A or order with the sum of 31 H. claims per Susan King, in cash on account of this corporation," was held to be a promissory note ; to be binding on the company, though it might not have been issued so as to bind the shareholders unSer the deed of settlement ; and to be sufficiently signed under the 7 & 8 Vict. c. 110. Allen v. Sea Fire, Life Assurance Co., 19 Law J. Rep. (n.s.) C.P. 305. (2) Rights and Liabilities of. To a bill filed by three directors of a company against the company to obtain re-payment of money lent by them to the company, a general demurrer was allowed, on the ground that such a case was within the 29th section of 7 & 8 Vict. o. 110, which invalidates all contracts with a company in which the directors are personally interested as the con- tracting parties. Teversham v. Cameron's, ^c. Co., 18 Law J. Rep. (n.s.) Chanc. 177 ; 3 De Gex & S. 296. Declaration of various liabilities incurred by directors of a joint-stock company in respect of the acts of their co-director. Benson v. Heathorn, 2 Coll. C.C. 309. (3) Removal of. [See (c) Deed of Settlement.] (e) Shares. (1) Sale of The allottee of scrip in a provisionally registered public joint-stock company sold the scrip certifi- cates in the market, and after the company obtained its act of parliament, and in default of the scrip- holder claiming to be registered within the time required by the company, was registered as the owner, and received sealed certificates of the shares. He subsequently paid calls and sold the shares in the market : — Held, that the allottee was trustee of the shares standing iu his name for the purchaser of the scrip certificates. The plaintiff (the purchaser of the scrip) dis- covering from the answer of the defendant (the allottee) that the amount received for the shares was only 9/., and having previously grounds for supposing that a largeramount might be recovered, offered to abandon the suit upon payment of the 91. and his costs. The defendant refused, and the Court decreed payment to the plaintiff of the 9/. and costs of the suit. Beckitt v. Billborough, 19 Law J. Rep. (N.S.) Chanc. 522. The shares of a proprietor of a joint-stock com- pany were sold out without- his authority, and not in conformity with the provisions of the deed by which the company was constituted. On a bill filed by a shareholder alleging that the sale was the fraudulent act of the secretary of the company, and 160 COMPANY ; (F) Windiho-0P Acts, (a) Companies within the Acts. sanctioned by the directors, but assuming the trans- action to be valid as against the transferee, and praying that the loss might be made good out of the assets of the company, demurrer, for want of equity, allowed, on the ground that the bill stated no case for making the company liable in damages. Held, also, that the transferee was not a necessary party to the suit. Duncan v. Luntley, 2 Mac. & G. 30; 2Hall&Tw. 78. (2) Forfeiture of . The deed of settlement of a joint-stock company, after giving power to the board of directors to make calls upon the shareholders of the company, de- clared that upon the neglect or refusal of any such shareholder to pay such calls after having received one calendar month's notice thereof, the board of directors should have power " at any time after the expiration of such calendar month to fix a day on or before which the amount due for the call and in- terest should be paid, and in default of payment to declare the shares in respect of which such default should be made thenceforth absolutely forfeited." By another provision in the de,ed power was given to the directors, if they should think fit, " to enforce the payment of the amount due in respect of any call, &c. instead of declaring the same to be for- feited": — Held, that under this deed, the power given to the directors was in the alternative, either to declare the shares of a shareholder making default in the payment of a call, &c. forfeited, or to enforce the payment thereof by action ; and that after an action had been commenced against such share- holder for the recovery of a call, &c. due in respect of his shares, that amounted to an election by tbedi* rectors so as to make a resolution subsequently come to by them, declaring the shares of such shareholder to be forfeited, a nullity. Giles v. Hutt, 18 Law J, Rep. (n.s.) Exch. 53; 3 Exch. Rep. 18. (F) Winding-up Acts. [See Attoknet and Solicitok, Lien for Costs.] The dissolution of certain railway companies facilitated by 9 & 10 Vict. c. 28 ; 24 Law J. Stat 78. The acts for winding up joint-stock companies amended by 11 & 12 Vict. c. 45; 26 Law J. Stat. 121. The Winding-up Act, 1848, amended by 12 & 13 Vict. c. 108 ; 27 Law J. Stat. 244. (a) What Companies are within the Acts. [See 11 & 12 Vict. c. 45. ss. 1, 2.] (1) Generally. A company, incorporated by act of parliament in 1830, authorized to raise capital in shares, and empowered to make a pier and works for landing passengers and goods : — Held, not to come within the provisions of the 11 & 12 Vict c. 45. In re Herne Bay Pier Co., 18 Law J. Rep. (n.s.) Chanc. 71; 1 PeGex& S. 588. An association, provisionally registered, for the purpose of obtaining an act of parliament for the formation of a railway, whether it is the intention of the association to use the railway for the convey- . ance ofpassengers and goods in their own carriages. or to let it out to others for that purpose, is an association " for a commercial or trading purpose;" and as such, though the project be afterwards aban- doned, is within the operation of the Winding-up Act, 1 1 8; 1 2 Vict. c. 45. In re the London and Man- chester Direct Independent Rail. Co., ex parte Barber, 18 Law J. Rep. (n.s.) Chanc. 242; 1 Mac. & G. 176; 1 Hall & Tw. 238. A mining company on the cost-book system, formed before the passing of the Joint- Stock Com- panies Winding-up Act is not within its operation. In re Unheal Lovell Mining Co., ex parte Wyld, 18 Law J. Rep. (n.s.) Chanc. 139 ; 1 Mac. & G. 1 ; 1 Hall & Tw. 125. Under the Winding-up Act, the name of a gentle- man was placed by the Master on the list of contri- butories who had become a provisional committee- man, upon the understanding that he was not to incur any liability for expenses. No shares were -allotted. Motion to reverse the Master's decision refused. In re the Direct West-End and Croydon Junction Rail. Co., ex parte Studley, 19 Law J. Rep. (n.s.) Chanc. 417. [See (S) Jurisdiction of the Court — (/) Official Manager.^ (2) Foreign Companies. A company was formed for making a railway in Spain, with a board of directors both at Madrid and in London; the locale of the company to be in Spain, and its afifairs to be regulated by the com- mercial code of Spain ; two-thirds of the capital to be subscribed by English shareholders, and the remaining one-third by Spanish shareholders: — Held, that such a company was within the scope of the Joint-Stock Companies Winding-up Act, 1848, as far as regarded the English subscribers. It appeared that the money subscribed by the Spanish shareholders had been returned: — Held, that such a reduction of the capital was a sufficient ground for winding up the company. In re Madrid and Valencia Rail. Co. ex parte James, 19 Law J. Rep. (n.s.) Chanc. 260 ; 1 Hall & Tw. 597 ; 2 Mac. & G. 169 ; 3 De Gex & S. 127. An Anglo-Belgian company constituted a society anonyme, with domicile at Brussels, a board of direc- tors there and in London, and shares divisible equally between English and Belgian allottees, was formed for making a railway and canal in Belgium ; but being unable to complete the undertaking within the time limited, contracted, with the concurrence of the Belgian Government, to lend the caution- money to other railway companies for a definite period: — Held, on the petition of an English share- holder, that the company was within the operation of the Winding-up Acts, and that, notwithstanding the collateral contract into which the company had entered, the Court had jurisdiction to adjudicate in respect of the English shareholders. Reference ordered to the Master to inquire whe- ther the original undertaking had been finally aban- doned, or merely suspended, and could hereafter, as between the company and the Belgian Govern- ment, be resumed ; and, if abandoned or incapable of being resumed, whether it would be expedient to make an order to wind up the afiairs of the com- pany. In re Dendre Valley Rail, and Canal Co., ex parte Moss, 19 Law J. Rep. (n.s.) Chanc. 474. COMPANY ; (F) WiKDiNa-xrp Acts. 161 (i) Jurisdiction of the Court. The Winding-up Act (9 & 10 Vict. c. 28.) does not affect the jurisdiction of the Court of Chancery. Jones V. Charlemont, 16 Sim. 271. A joint-stocli company formed for the insurance of cattle sustained heavy losses in every year from the commencement of their husiness, and were under liabilities to a large amount, and had allowed a great number of the members to retire upon terms. Upon a petition being presented under the Winding-up Act for a dissolution, it was held, that the Court could only interfere upon proof of the existence of some of the tests of insolvency pre- scribed by the act, and was not entitled to go into the pecuniary accounts of the company ; and that the permitting a number of the members to retire upon terms did not amount to a dissolution of the company. Whether such a company is within the scope of the Winding-up Act — qu»ChSic. 120; 1 Mac. & G. 25; 1 Hall & Tw. 1. - (4) Actions and Suits for Infringement of Copyright. (1) Joinder of Parties. The bill stated that one of the plaintiffs had com- posed a hook, and that all the plaintiffs had caused the book to be printed and published for their joint benefit, and the said book had been duly registered by the plaintiffs as proprietors of the copyright thereof at Stationers' Hall, and the copyright had ever since remained in the plaintiffs, for their joint benefit. The bill also alleged that the defendants had published a book, in which numerous passages were copied from the plaintiffs' book, and it prayed an injunction to restrain the sale of the defendants' book : — Held, upon motion, for the injunction, that under the Copyright Act, 5 & 6 VicL c. 45, the plain- tiffs had a joint right to sue. Held, also, upon comparison of the two books, that in the defendants' book there had been such copying from the plaintiffs' book as would entitle them to the injunction. Stevens v. Wildy, 19 Law J. Rep. (N.s.) Chanc. 190. (2) Pleading and Evidence. In an action for the infringement of a copyright, the plaintiff will not be allowed a count on the statute 5 & 6 Vict. c. 45, in conjunction with a count for the infringement of the same copyright at common law. Digest, 1845—1850. Under a count on the above statute for infringing a copyright, setting forth the requisitions of the statute, and concluding contra formam statuti, the plaintiff may set up his common law right if he fail to bring himself within the operation of the statute. Boozeyir. Tolkien, 17 Law J.Rep. (n.s.) C.P. 137; 5 Dowl. & L. P.C. 549; 6Com. B. Rep. 476. In an action on the case for an infringement of the copyright of a certain book, the defendant pleaded several pleas, denying that the plaintiff was the proprietor of the copyright; that there was any copyright subsisting ; that the books were first published in England; and that the copies com- plained of were unlawfully printed: — Held, on ap- plication by the plaintiff to have the notice of objec- tions, delivered with the defendant's pleas under the 5 & 6 Vict. c. 45. s. 16, amended, that the alleged first publication having taken place abroad, and so far back as the year 1831, it was sufficient for the defendant to state the year of the first publication, and that it was not necessary that he should specify the day or month. But that he was bound to state the name of the party whom he alleged to he the proprietor oi first publisher, the tith of the work, the place where, and time when, the first publication took place. Held, also, that he was not entitled to object that " some person whose name is to the defendant un- known, and not the plaintiff, was the proprietor of the said copyright." Nor "that the plaintiff was not himself the author." Nor "that the work was not first printed or published in the " British domi- nions." Nor that the plaintiff never acquired any title by assignment or otherwise, to the copyright. Nor that there was no valid assignment, &c. Nor " that there is no copyright in a work first published out of the British dominions, under such circum- stances asjhe books in question were published." But that he might object that A B, if anyone, and not the plaintiff, was the proprietor ; and that at the time of committing the alleged grievances no copy- right in the work was subsisting. Boosey v. Davidson, 4Dowl. &L. P.C. 147. (3) Costs. The costs of a suit to protect a copyright will follow the result of an action at law, to try the vali- dity of the copyright, although the mode of defence in the action directed at lawmay havebeen improper. Where upon a bill filed to restrain the alleged infringement of a copyright, the bill was retained, with liberty for the plaintiff to try the title by an action at law, and the action was brought and failed, it is of course that the bill should be dismissed with costs. Chappell v. Purday, 16 Law J. Rep. (n.s.) Chanc. 261 ; 2 Ph. 227. (B) Musical Compositions and Dkamatic Entertainments. The plaintiff was the original composer of the music of a song of a narrative character, which he sang publicly for profit, and accompanied it by gesture and expression. The defendant announced by handbills the performance of, and subsequently performed, the plaintiff's song at Crosby Hall, a 2 C 194 COPYRIGHT— CORPORATION. place licensed for music and dancing under 25 Geo. 2. i;. 36. In an action for penalties under the 5 & 6 Vict. c. 45, — Held, first, that the plaintiff's song was a musical composition within the 20th section of that act. Secondly, that Crosby Hall was a place of dramatic entertainment within the 3 Will. 4. c. 15. Thirdly, that the allegation in the declaration in the terms of the statute, that the plaintiff had the " sole liberty of representing a certain musical composi- tion," was a sufficient statement of the plaintiff's right. Fourthly, that it was not necessary that the plaintiff, who was the assignee of the copyright of the words, should be registered under section 14. before bringing the action. Russell v. Smith, 17 Law J. Rep. (n.s.) aB. 225 ; 12 aB. Kep. 217. A person who lets for hire by the evening a place of dramatic entertainment for the public perform- ance of songs and music, and provides the hirer, who performs song."! and music which he has not liberty to perform, with lights, benches, &c., is not liable to pay damages to the author for causing or permitting to be represented or performed a musical composi- tion without the author's written consent. ■ Under the 3 & 4 Will. 4. c. 15. s. 2. such person only is liable to an action who by himself or his agent actually takes part in a representation which is a violation of copyright. Russell v. Briant, 19 Law J. Rep. (n.s.) C.P. 33 ,• 8 Com. B. Rep. 836. (C) Copyright of Designs. The acts relating to the copyright of designs extended and amended by 13 & 14 Vict, i;, 104; 28 Law J. Stat. 315. The publication of a book of designs by the owner of the copyright, under 5 & 6 Vict c. 100, does not give any right to the purchaser of such book to apply the designs to articles for the pur- pose of sale without the permission of the proprietor. The copies of a duly registered design published in a book for sale need not have any registration mark attached to them. Branchardiere v. Elvery, 18 Law J. Rep. (n.s.) Exch. 381; 4 Exch. Rep. 380. The protection given by 6 & 7 Vict. c. 65. to any new or original design for any article of manufac- ture having reference to some purpose of utility so far as such design shall be for the shape or con- figuration of such article, " is not clearly applicable to the design of a 'protector label,' "which consisted in making in the label an eyelet hole and lining it with a ring of metal, through which a string attach- ing the label to packages passed. The Court refused to grant an injunction before the hearing against an infringement of such a design. Qu(ere — The meaning of " shape or configura- tion" in the act. Margetson v. Wright, 2 De Gex & S. 420. Whether, in the condition of copyright men- tioned in section 4. of the Designs Copyright Act (5 & 6 Vict. c. 100.) that the design has, before publication, been registered, the term publication is limited to publication after the design has been embodied and introduced into some fabric — quiere. Dalglish V. Jarvie, 2 Mac. & G. 231; 2 Hall & Tw. 437. Under the 5 & 6 Vict. o. 100. the proprietor of a design protected by the act is entitled to an injunc- tion restraining" not merely the sale but the manu- facture of any article to which the design is applied during the period of protection. Form of order on compromise staying all pro- ceedings except on breach of an injunction. Macrae V. Holdsworth, 2 De Gex &. S. 496. CORN. Duties on the importation of corn regulated by 9 Vict t. 22 ; 24 Law J. Stat. 62. CORONER. A coroner's inquisition on paper only, instead of parchment (but not having been quashed), is ad- missible in evidence, not as an inquisition proving the statements therein contained, but to shew that an inquiry into the subject-matter of it did in fact take place. Regina v. Gregory, 15 Law J. Rep. (n.s.) M.C. 38; 8 as. Rep. 508. A coroner's inquisition finding a person /eio de se will be quashed if written on paper ; it should be written on parchment Regina v. Whalley, 19 Law J. Rep. (n.s.) as. 14; 7 Dowl. & L. P.C. 317. The Quarter Sessions has a discretion as to allowing the fees payable to coroners under 25 Geo. 2. c. 29, in case of inquisitions duly taken, and the Court of Queen's Bench will not controul that discretion. A coroner is entitled to be reimbursed the neces- sary expenses of holding inquests (such as fees to medical men, payments to the jurors, and for hire of rooms, &c.) which he is compelled to discharge by 7 Will. 4. & 1 Vict c. 68, the power of examin- ing him on oath given to the Quarter Sessions by sections 3 of that statute, being only with regard to these expenses having been actually incurred, and not to the propriety of holding the inquest. Regina v. the Justices of Carmarthenshire, 16 Law J. Rep. (n.s.) M.C. 167; 10 Q.B. Rep. 796. Certain freeholders of the county of S presented a petition to the Lord Chancellor praying that a writ issued for the election of a coroner might be set aside, or its execution stayed until after a meet- ing of the Quarter Sessions, at which the magis- trates of the county intended to propose a division of the office. The Lord Chancellor, in the absence of any authority in support of the application, refused to interfere. In re the Cormership of Salop, 1 Mac. & G. 377. CORPORATION. [See Company — Municipal Corporation.] COSTS, AT LAW ; (A) In genekal. 195 COSTS, AT LAW. [Indemnity for, see Bankrujtcy.] (A) In general. (a) Motions, Rules, and other Proceedings. (A) Costs in the Cause. ' (c) Costs on Indictment after Removal by Certiorari, {d) After Reversal of Judgment by Court of Error. (B) Plaintiff's Right to. (a) Costs of the Day. (i) Costs of Issues of Fact after Judgment on Demurrer, (fi) In Action on a Judgment under 43 Geo. 3. c. 46. (d) Under 4 Anne, c. 16. (e) Deprivation of by Small Debts Acts. [See also (I) Suggestion on the Roll.] (C) Defendant's Right to. ' (a) Costs of the Day for not proceeding to Trial, (h) Costs of the Cause. (c) Under 43 Geo. 3. c. 46. (d) After Verdict on Plea of Coverture, {e) Costs of Nonsuit. (/) After Amendment, (D) Security for Costs. (o) Where Money paid into Court in Lieu of Bail. (i) By Mortgagee of Plaintiff's Claims. (c) By Insolvent. (rf) By Attorney of insolvent Plaintiff. (e) By Representatives of Plaintiff in error. (E) Taxation of Costs. (a) Notice of. (6) Rate of. (c) Order for Payment. (rf) As between Attorney and Client. (e) Witnesses and Documents. (/) Reviewal of. (F) Payment of, how enforced. (a) By AttachTnent. (6) By Rule. (G) Certificate. (H) Setting off Costs. ( I ) Suggestion on the Roll. (a) Motion for Leave to enter. (1) In general. (2) After Judgment. (3) Judgment by Default. (4) What Cases are within the Jurisdiction of inferior Courts. ■(5) Pauper Plaintiff. (6) Action on Judgment for Debt under 201. (7) Affidavits. (J) After Notice not to trespass. (A) In general. [See Sale, Bill. of Sale.] (a) Motions, Rules, and other Proceedings. Where, the defendant having changed the venue, tlie plaintiff has brought it back upon the ordinary undertaking, the Court will, upon the application of the plaintiff, discharge that rule upon payment of the costs J and if the rule nisi for discharging that rule be drawn up on the terms of paying to the de- fendant the costs of and occasioned by the rule to change the venue, as well as of the application, the Court will not grant the defendant the costs of shewing cause. Robinson v. Crewdson, 15 Law J. Rep. (N.s.) C.P. 152. A party who shews cause successfully in the first instance against a motion for a rule which, if granted, would cause delay to the plaintiff, and so operate to his prejudice, will he allowed the costs of coming to oppose the application. Rennie v. Beresford, 15 Law J. Rep. (n.s.) Exch. 78; 15 Mee. & W. 78 ; 3 Dowl. & L. P.C. 464. Where, after verdict, the parties, at the sugges- tion of the Court, agreed to state a special case, and the plaintiff accordingly drew and delivered to the defendant a case which was rendered abortive by the defendant's default, — Held, that the plaintiff, who had the general costs of the cause, was not entitled to any costs of the abortive special case. Foley v. Botfield, 16 Law J. Rep, (n.s.) Exch. 3j 16 Mee. & W. 65 ; 4 Dowl. & L. P.C. 328. The resolution of Trinity term, 3 Vict., declaring the costs of the application to be consequential on making a. Judge's order a rule of court, applies where the party sought to be charged is an infant. Beames-Y. Farley, 5 Com. B. Rep. 178. A defendant may plead his discharge under the Insolvent Debtors Act, puis darrein continuance, on payment of costs, without an affidavit that the matter arose within eight days next before the pleading thereof. Dunn v. Loftus, 8 Com. B. Rep. 76 ; 7 Dowl. & L. P.C. 158. Where, in trespass, there were several issues, one of them on a plea of lib. ten., and the Judge at the trial improperly rejected evidence applicable to that issue only, the Court discharged a rule for a new trial, after a verdict for the defendant on several issues, on his consenting to the verdict being en- tered for the plaintiff on that issue; and gave no costs of the rule to either party. Hughes v. Hughes, 15 Mee. & W. 701. Where a rule nisi has been obtained for a pew trial, or to enter a verdict for the defendant, unless the plaintiff consents to reduce the verdict, and the rule is thereupon discharged, each party pays his own costs of the rule. Thompson v. Bailey, 4 Exch. Rep. 86. Where an order for leave to amend is " upon payment of costs," the payment of those costs is a condition precedent. Therefore, where, after demurrer, an order was made, that upon payment of costs the plaintiff should be at liberty to amend his declaration j and the plaintiff did amend, and delivered his amended declaration ; but did not tender the amount of the costs as ascertained by the Master's allocatur, — Held, that an interlocutory judgment, signed by him for want of a plea, was irregular. Where an order for leave to amend is made upon payment of costs, and the costs are taxed and ascer- tained by the Master's allocatur, the party in order to avail himself of leave to amend must tender the full amount of allocatur, and not a less sum ; although he may be prepared to shew that a mistake 196 COSTS, AT LAW; (A) In geneeal. has been made in allowing certain items. Levy v. Drew, 5 Dowl. & L. P.C. 307. [See Quo Wabbanto.] (i) Costs in the Cause. Where a town cause is made a remanet, the costs so occasioned are costs in the cause, and need not he paid by a party who obtains a rule for a new trial on payment of costs. Bentley v. Carver, 15 Law J. Rep. (n.s.) C.P. 173; 2 Com. B. Rep. 817. A new trial had been granted without mention of costs, and shortly before the cause was to be again tried, an order was made to stay further proceed- ings on payment of 201. damages, and all such costs already incurred as plaintiff would have been entitled to if he had gone to a second trial and ob- tained a verdict. The Master allowed, on taxation, the costs of the briefs delivered, and the fees paid to counsel on the first trial, and the costs of the subpoenas, and of the copies and service thereof upon the witnesses at the first trial. No briefs had been delivered or witnesses subpoenaed for the second trial at the time the order was made : — Held, that the fees to counsel and the costs of serving the sub- poenas were wrongly allowed, as those costs alone which would be available at the second trial ought to have been allowed as costs in the cause. Lambert V. Lyddon, 16 Law J. Rep. (n.s.) a.B. 34; 4 Dowi & L. P.C. 400. (c) Costs on Indictment after Removal by Certiorari. The Court will not discharge a side bar rule for costs of a prosecution obtained by a party grieved, on the ground that such party is only one of several, who have subscribed together to conduct the prose- cution. Regina v. Williams, 15 Law J. Rep. (M.S.) Q.B. 98, n. ; 6 Q.B. Rep. 273. The Court will not inquire into any aid which a prosecutor may have received from other parties to enable him to defray expenses of prosecution. Regina V. Dobson, 15 Law J. Rep. (n.s.) Q.B. 376 ; 9 Q.B. Rep. 302. (d) After Reversal of Judgment by Court of Error, [Evans v. Collins, 5 Law J. Dig. 209 ; 2 DowL & L. P.C. 989.] (B) Plaintiff's Right to. (a) Costs of the Day. A plaintiff is not entitled to move for costs of the day, unless he is present when the cause is called on. Newton v. Chaplin, 7 Com. B. Rep. 774. (6) Costs of Issues of Fact after Judgment on Demurrer. In assumpsit on a special agreement and pleas of the general issue, and a special plea going to the whole cause of action, to which the plaintiif de- murred, and a verdict was found for the plaintiff, with Is. damages, the defendant afterwards ob- tained judgment on the demurrer .- — Held, that the plaintiff was entitled to the costs of the trial of the issue of fact. Clarke v. Allatt, 4 Com. B. Rep. 335. (c) In Action on a Judgment wider 43 Geo. 3. c. 46. On the motion for costs on a judgment, — ^in debt upon a judgment, upon a plea of nul tiel record, the reason must be shewn for adopting that course, and is indispensable under 43 Creo. 3. c. 46. Revell V. Wetherell, 3 Com. B. Rep. 321. (d) Under 4 Anne, c. 16. To an action for trespasses in three closes. A, B, and C, in one count, the defendant pleaded a public way over all three, and other pleas of justification ; the plaintiff traversed all the pleas except so much of the plea of public way as related to close C, as to which he new assigned trespasses extra viam. The jury found for the defendant on the plea of public way over closes A and B, and for the plain- tiff on not guilty to the new assignment, with a farthing damages : the other pleas were all found for the plaintiff. There was no certificate under the 3 & 4 Vict. c. 24 : — Held, that the trespasses in the three doses were divisible causes of action ; and that the plaintiff was entitled under the 4 & 5 Anne, c. 16. ss. 4. and 5. to the costs of the issues found for him as to closes A and B, on which he had failed ; but that under the 3 & 4 Vict. c. 24. he was entitled to no costs in respect to close C, on which he had succeeded, but had recovered less than 40s. damages. So that the effect of the 3 & 4 Vict. c. 24. combined with the 4 & 5 Anne, c. 16. ss. 4. and 5. as construed by decided cases is, that the plaintiff is in a better condition by bringing an action in which he fails altogether, than by bringing a frivolous one in which he succeeds. The defen- dant when he succeeds is punished by the one statute if he improperly plead pleas which he can- not support, and the plaintiff when he succeeds is punished by the other statute if he brings a frivolous action. Sharland v. Loaring, 17 Law J. Rep. (n.s.) Exch. 32; 1 Exoh. Rep. 375; 5 Dowl. & L. P.C. 178. In an action of assumpsit, pending on demurrers to the pleas, the plaintiff took the issues in fact down to trial, and obtained a verdict with contingent damages. On the argument of the demurrers, the Court held the declaration to be insufficient : — Held, that as no issue in fact had been found for the de- fendant, the plaintiff was not entitled to deduct the costs of the trial from the defendant's costs on the demurrers, overruling Bird v. Higginson. Partridge V. Gardner, 18 Law J. Rep. (N.s.) Exch. 415 ; 4 Exch. Rep. 303. Case by the reversioner. The first count stated an injury to the surface of the land; the second count alleged an injury to the foundations of a house. The defendant pleaded not guilty, a plea traversing the reversion, and the Statute of Limitations. He also pleaded, to the first count, a justification under a mining lease. To this plea there was a replica- tion, demurrer thereto, and judgment for the de- fendant. There was also a plea to the second count, from which the jury were, by consent, discharged from giving a verdict. There was also a new as- signment and plea of not guilty. The verdict was as follows, on not guilty, as to part of the first count, for the plaintiff,, with damages, and as to the residue of the first, and as to the second, for the defendant ; on the plea to the first and second counts traversing the reversion, and on the plea of the Statute of Li- mitations, for the plaintiff. On the plea to the new assignment, the verdict was for the defendant : — Held, that as, with regard to the second count COSTS, AT LAW ; (C) Defendant's Right to. 197 and part of the first count, the case was one of double pleading, the plaintiff was entitled, under the 4 & 5 Anne, c. 16, to his costs as to the second count and that part of the first on which he had succeeded, including not merely the costs of the pleadings, but a portion of the expenses of briefs and witnesses. Howell v. Rodhard, 19 Law J. Rep. (n.s.) Exch. 350 ; 4 Exch. Rep. 309. (e) Deprivation of by Sinall Debts Acts. Plaintiff sued out a writ, indorsed, as claiming 61, 15s. for debt and U. 15s. for costs. In pursuance of a Judge's order, particulars were delivered, among which was an item of 18*. Defendant, who lived within the jurisdiction of acourt of requests, admitted that sum to be due, and took out a summons to stay all proceedings, without costs, upon payment of 18s. Plaintiff attended before a Judge, and claimed more, whereupon no order was made. Defendant then pleaded nou assumpsit except as to 18s., and paid that sum into court. Plaintiff took out the 18s., entered anolle prosequi, and taxed his costs : — Held, that the plaintiff was not entitled to costs, as the proceedings should have been in the inferior court Fletcher v. Tanner, 16 Law J. Rep. (n.s.) C.P. 137 ; 3 Com. B. Rep. 963. [See (I) Suggestion on the Roll.] (C) Defendant's Right to. (a) Costs of the Day for not proceeding to Trial. Where issue in fact is joined upon a writ of error coram nobis, and notice of trial is given by the plaintiff in error, and not countermanded, the defen- dant in error may have a rule absolute in the first instance for the costs of the day for not proceeding to trial pursuant to the notice. Greville v. Chapman, or Sparding, 15 taw J. Rep. (n.s.) Q.B. 41 ; 3 Dowl. & L. P.C. 336. Where the plaintiff declined to proceed to the trial of a feigned issue under the 6 & 7 Will. 4. c. 71, the Court having so narrowed the issue as to render it inexpedient for the plaintiff to proceed, and had allowed two assizes to pass by without going to trial, although, semble, the defendant cannot have judg- ment as in case of a nonsuit, he may move for the costs of the action under section 46, and the Court will act on the general rule in favour of the success- ful party, unless there be special circumstances to induce a departure from it. Tomlinson v. Boughey, 2 Com. B. Rep. 844. A cause being called on for trial after the jury were sworn, it was discovered that the record was defective in not containing a similiter to one of the plaintiff's replications, or any award of the venire, and in consequence of the defendants withholding their consent to an amendment of the record in these respects, the Judge discharged the jury: — Held, that the defendants were not entitled to the costs of the day. Sleematt v. the Copper Miners Company, 17 Law J. Rep. (n.s.) CI.B. 113 ; 5 Dowl. &L. P.C. 451. The plaintiff having entered his cause for trial on the first day of the assizes, before it was reached in its order, called the principal witness, who was clerk to the defendant, an attorney, upon his sub- poena, and upon his not appearing and the Judge's clerk stating that the cause could be re-entered. withdrew the record. Presently afterwards he wished to re-enter it, but, upon the defendant ob- jecting, the Judge ruled that it could not be re- entered after ten o'clock. The witness having arrived, the plaintiff offered to try the cause in its original place, or that it should stand at the bottom of the list. The defendant refused to consent, and the cause was not tried : — Held, that the defendant was not entitled to the costs of the day, for that it was his own default that prevented the cause being tried. Pope v. Fleming, 19 Law J. Rep. (n.s.) Exch. 268 ; 5 Exch. Rep. 249. [See (I), (o), (5) Pauper.] (6) Costs of the Cause. To an action of trespass the defendants pleaded four pleas, of which the third was bad. The cause stood for trial at the Summer Assizes in 1844, and was made a remanet. Before the next assizes the defendants amended by substituting another plea in room of the third, and paid the costs of the amendment. The cause was tried at those assizes, when a verdict was returned for the defendants on the substituted plea, and for the plaintiff on the three others : — Held, that the defendants were entitled to the general costs of the cause, hut that the plain- tiff was entitled to the costs of the remanet Waller V. Blacklock, 15 Law J. Rep. (n.s.) Exch. 333 ; 15 Mee. & W. 715 ; 4 Dowl. & L. P.C. 4. In an action for slander where the declaration contained three counts, the defendant pleaded the general issue to the whole, and a special plea of justification to each count ; the plaintiff recovered a verdict on the general issue on the third count, and on all the special issues, and the defendant got a verdict on the general issues on the first and second counts. The judgment for the plaintiff on the third count was arrested. The Master taxed the general costs of the cause for the defendant. - On a motion for a review of the taxation, held, that the defendant was entitled, under the rules of Hilary term 2 Will. 4. and Hilary term 4 Will. 4, only to the costs of the issues found for him, and not to the general costs of the cause. James v. Brook, 16 Law J. Rep. (n.s.) Q.B. 168; 4 Dowl. & L. P.C. 677. Defendant pleaded non assumpsit to all but 12/. To 111. parcel of the 121. payment and acceptance in satisfaction, after action brought. To the resi- due, payment of 11. into court. The plaintiff tra- versed the paymentof the Hi and took the 11. out of court. It appeared by the evidence that the amount due to the plaintiff, at the commencement of the suit, did not exceed 121., and that 111. was paid after action brought, and accepted by the de- fendant in satisfaction of that amount: — Held, that the plaintiff after the payment of the 12. was not entitled to proceed for costs, in respect of the 111.; but that the defendant was entitled to have the ver- dict entered for him, and to the general costs of the action. Horner v. Denham, 17 Law J. Rep. (n.s.) a.B. 29; 12aB. Rep.813, n. A declaration contained four counts. The de- fendant pleaded the general issue to the whole declaration, and special pleas to each count. The verdict was for the defendant on the general issue to the first, third, and fourth counts, and on all the other issues for the plaintiff Judgment on the 198 COSTS, AT LAW ; (C) Dependant's Rioht to. second count (upon which the plaintiff succeeded,) was arrested : — Held, that the defendant was enti- tled to the general costs of the cause. The case of James v. Brook overruled. Elderton V. Emmens, 17 Law J. Rep. (n.s.) C.P. 277; 5 Dowl. & L. P.C. 489 ; 4 Com. B. Rep. 498. A defendant who pays money into court gene- rally upon the whole declaration, is entitled to his general costs of the cause if he obtain a rule for judgment as in case of a nonsuit. M'Lean y.J'hil- lips, 18 Law J. Rep. (n.s.) C.P. 248; 7 Com. B. Rep. 817. Where, after writ issued, the defendant applies to a Judge to stay proceedings on paymentof a certain sum and costs, and the plaintiiF refuses to accept the sum oiFered, alleging that more is due, hut at the trial recovers no more, he is entitled to full costs unless the amount offered has been paid into court. Clar?c v. Dann, 3 Dowl. & L. P.C. 513. (c) Under 43 Geo. 3. c. 46. The statute 43 Geo. 3. c. 46. does not apply to an arrest under the 1 & 2 Vict. c. 110. Where therefore a defendant had been arrested under that statute for a debt of 71^., which sum, together with the sum of 201, for costs, he had paid into court in lieu of putting in special bail, and the plaintiff recovered only 61. damages, and the Court were of opinion that there was no reasonable, or pro- bable cause for arresting the defendant for so large a sum, — Held, nevertheless, that the defendant was not entitled to costs, under the 43 Geo. 3. c. 46. Ricketts v. Noble, 18 Law J. Rep. (n.s.) Exch. 201 ; 3 Exch. Rep. 521. (d) After Verdict on Plea of Coverture. On a plea in bar, by a married woman, of her coverture, and a verdict in her favour thereupon, she is entitled to costs. Findley v. Farquharson, 15 Law J. Rep. (n.s.) C.P. 262; 4 Dowl. & L. P.C. 185; 3 Com. B. Rep. 347. (e) Costs of Nonsuit. The 7 & 8 Vict. c. 96. s. 57. enacts, that no per- son shall be taken in execution upon any judgment in any action, wherein the sum recovered shall not exceed the sum of 20/., exclusive of costs. In an action, wherein the plaintiff was nonsuited, the defendant made up the judgment roll, and en- tered thereon the award of a ca. sa. for the amount of the taxed costs; the plaintiff brought a writ of error and assigned as error the entry of the ca. sa. on the record : — Held, that the ground of error assigned was not frivolous. Semble — A plaintiff cannot be taken in execution for costs. Newton v. Conyngham, 17 Law J. Rep. (n.s.) C.P. 200 ; 5 Dowl. & L. P.C. 762 ; 5 Com. B. Rep. 749. (J) After Amendment. After a general demurrer to a declaration, and leave to amend upon the usual terms, the amount of the costs must depend upon the course the defen. dant elects to adopt, as to demurring or pleading over to the amended declaration. Where, after the argument of a general demurrer to a declaration, the plaintiff, having obtained leave for that purpose upon the usual terms, amended a defect in his declaration then suggested, and not pointed out during the argument, and the defendant thereupon elected to abandon the demurrer and plead over, — Held, that the defendant was entitled to have his full costs of pleading over taxed, and that the tender of the ordinary costs of amendment, 13s. 4(/., was not sufficient. Metcalfe v. Booth, 18 Law J. Rep. (n.s.) Q.B. 247 ; 7 Dowl. & L. P.C. 15. (D) Secukitt for Costs. \^Doe d. the Earl of Egremont v. Stephens, 5 Law J. Dig. 213 ; 2 Dowl. & L. P.C. 993.] (a) Where Money paid into Court in Lieu of Bail. An action was commenced in the Lord Mayor's Court, and goods attached. The cause was re- moved into the Court of Queen's Bench, and the defendantpaid into court a sum of money in lieu of bail. He then obtained an order for the plaintiff, who lived in Scotland, to give security for costs, with the usual stay of proceedings : — Held, that after a long delay, the defendant was entitled to a rule, calling on the plaintiff to put in the security within a limited time, and, on his default, to have the money paid out of court Tassie v. Kennedy, 17 Law J. Rep. (n.s.) G.B. 215; 5 Dowl. & L. P.C. 687. (6) By Mortgagee of Plaintiff's Claims. Where a cause had been referred to arbitration, and the plaintiff had assigned by way of mortgage, hut not absolutely, his interest in all his claims upon the defendants to a third party, who had at- tended the reference expressly on the ground that he was interested in the action as assignee of the plaintiff's claims on the defendants, the Court re- fused a rule to shew cause why such third party should not give security for costs to the defendants. Parker v. Great Western Rail. Co., 19 Law J. Rep. (N.s.) C.P. 335. (c) By Insolvent. Security for costs must be given hy a party in insolvent circumstances, who sues for the benefit of creditors to whom he has assigned his property in trust for the benefit of the body of his creditors. Perkins v. Adcock, 15 Law J. Rep. (n.s.) Exch. 7 j 14 Mee. & W. 808 ; -3 Dowl. & L. P.C. 270. It is no ground for requiring security that the plaintiffs have compounded with their creditors, and the circumstance of one being resident abroad carries the case no further. Thomel v. Roelants, 2 Com. B. Rep. 290. The Court required a plaintiff who had taken the benefit of the Insolvent Act, and who sued as trus- tee for one also in insolvent circumstances, to give further security for costs, than that of the person for whose benefit he sued. Mais v. M'Namara, 1 L. M. & P. 296. (d) By Attorney of Insolvent Plaintiff. A cause was referred to arbitration in November 1846. Several meetings were held, and several enlargements of time for making the award were made, and the last meeting was held on the 13th of December 1847. By order of a Judge, on the 3rd of January 1848, the time was enlarged until the 1st of January 1849. The last appointment was COSTS, AT LAW ; (E) Taxation or Costs. 199 for the 24th of May 1 848, but no meeting then took place. A vesting order under the Insolvent Act was made as to the plaintiff's property on the 14th of August 1849. On the 18th of December 1849, a Judge's order enlarging the time until Trinity term 1850, was obtained on behalf of the plaintiff. On an application by the defendant, the attorney for the plaintiff was ordered to give security for costs, it not being clear upon the affidavits that the proceedings were not for his benefit. Held, also, that the application was not too late. Gell v. Curzon, 19 Law J. Rep. (n.s.) Exch. 225 ; 4 Exch. Eep.813. (e) By Representatives of Plaintiff in error. Where plaintiff in error died after joinder in error, proceedings were stayed until security for costs was given to the defendant in error, as plain- 'tiff had died insolvent, and his attorney was going on for his own benefit. Haygarth v. Wilkinson, 12 Q.B. Rep. 851. (E) Taxation op Costs. (o) Notice of. The omission to give notice of taxation is not such an irregularity as entitles the party to whom it should have been given to set aside the judgment. But where judgment was signed for want of a plea , and the costs were taxed without giving such notice, the Court, on an afiidavit of merits, set aside the judgment and the execution issued upon it, without costs. Ilderton v. Sill, 15 Law J. Rep. (N.s.) C.P. 1 ; 2 Com. B. Rep. 249. (6) Rate of. Where, by consent of parties, a verdict is taken for a sum named for damages, and also all costs to which plaintiff had been put relating to the sub- ject-matter of the cause, as between attorney and client, without being subject to taxation, that agree- ment is to pay such a sum for costs as would be considered fair and reasonable on taxation in a liberal way, and not by the ordinary rule. . Young v. Walker, 16 Mee. & W. 446. (c) Order for Payment. After an order obtained for taxation under 6 & 7 Vict. c. 73. a. 43, before an attachment can issue an order for payment of the amount certified must be made, and have been disobeyed. In re Wood- house, 2 Com. B. Rep. 290. {d) As between Attorney and Client. Where proceedings in an action were stayed by Judge's order, on payment by defendant of debt and costs, to be taxed as between attorney and client, the costs of obtaining the leave of the Court of Chancery to bring the action, the plaintiff hav- ing, on a creditors' bill being there filed, been re- strained from bringing any action against persons indebted to the estate without the leave of the Court, were not allowed. Lipscombe v. Turner, 15 Law J. Rep. (N.s.) Q.B. 410 ; 4Dowl. & L. P.C. 125. (e) Witnesses and Documents. Where a trial has been postponed at the instance of a defendant, a plaintiff who succeeds in the action is entitled to the costs of detaining a mate- rial witness, a captain of a vessel, for 300 days, and is not bound to examine him on interrogatories. Evans v. Watson, 15 Law J. Rep. (n.s.) C.P. 256 ; 4 Dowl. & L. P.C. 193 ; 3 Com. B. Rep. 327. The rule requiring that the costs of witnesses be actually paid before the allowance of them on taxa- tion, applies to a plaintiff suing informd pauperis. The costs of proving documents ordered to be admitted under a Judge's order cannot be obtained unless the Judge at the trial actually certifies that they were proved to his satisfaction. Therefore, where such proof was not given, and no certificate obtained, in consequence of the counsel on the other sid£ admitting the facts intended to be proved by such documents, — Held, that the costs of the wit- nesses subpoenaed to prove such documents could not be allowed upon taxation. Where the plaintiff succeeded upon the issue of never indebted, but the defendant upon the plea of set-off, — Held, that the plaintiff was not entitled to the costs of a witness whose evidence was material to prove the issue found for the defendant as well as that found for the plaintiff Freeman v. Rosher, 18 Law J. Rep. (n.s.) Q.B. 105; 6 Dowl. & L. P.C. 517. A party is not entitled to the expenses of wit- nesses going to see the premises in question, and making scientific experiments to enable them to give evidence in the cause. Lumb v. Simpson, 18 Law J. Rep. (n.s.) Exch. 377: 4 Exch. Rep. 85. The expenses of surveying and taking levels in order to ascertain whether a weir had been impro- perly raised, to the prejudice of plaintiff's water- mill, will not he allowed him on taxation. Ormerod v. Thompson, 1 6 Mee. & W. 860. A party succeeding on an issue which entitles him to the postea and the general costs of the cause, is entitled to the costs of all witnesses attending to prove that issue, whether their evidence applies to any other issue or not. But the opposite party is entitled only to the costs of such witnesses as at- tend solely to prove the issue on which he succeeds, and if they also attend to prove an issue on which he fails, he is not entitled to any costs in respect of them. Welby v. Brown, 5 Dowl. & L. P.C. 746 j 1 Exch. Rep. 770. (f) Reviewal of. Where the sum of 21. 5s. only for costs was in- dorsed on the writ, the plaintiff, having succeeded in the action, was entitled to recover 1781. for a long and special notice of action ; and the defendants, not having objected to the quantum, but only to any allowance at all, were not allowed, on a motion to review the Master's taxation, to question the amount allowed. Kent v. Great Western Rail. Co., 16 Law J. Rep. (n.s.) C.P. 72 ; 3 Com. B. Rep. 714. The Master having allowed a large amount for expenses of a commission to examine witnesses abroad, without exercising a discretion as to the propriety of particular charges, was ordered to review his taxation. Stewart v. Shell, 4 Com. B. Rep. 460. The Master having, upon the taxation of the plaintiff's costs, been induced by false affidavits to allow a large sum as the fees and expenses to Com- missioners named in a commission for the examin- 200 COSTS, AT LAW. ation of witnesses, which sum, it was suggested, had not been paid,— the Court referred it back to the Master to inquire, by sxich means as he should think fit, what sums had actually been paid, and to review the taxation, if necessary. Barnes v. Atiwood, 5 Com. B. Rep. 164. (F) Payment of, how enforced. ( IN EQUITY ; (W) Taxatiok of Costs. 213 expenses, including tlie attendance of counsel at the Master's, oflSces, upon questions relating to pleadings or title, the Master would not be justified in allowing fees for the attendance of counsel upon questions relating, to the allowance qf items in an executor's account. Russell, v. Nicholls, 15 Law J. Kep. (ii.s.) Cljauc. 289; 1.5 Sim. 151. (e) Solicitor's Bills. A solicitor on behalf of a client agrees to advance a sum of money for him in payment of legMy and administration duties, on condition that the same be secured with: interest on a fund, in court to which the client is entitled ; a seciirity is accordingly given by the client, charging the fund in court with the payment of the sum to be advanced, by the soli- citor, with interest thereon ;, the sura actually .ad- vanced by the solicitor is much le^s in amount than the sum originally mentioned and intended to be advanced, and is inserted in the ,solicitoj;'s. bill of costs as a disbursement :— Held, that the snua was properly introduced into the bill as a disbursement. Anticipated charges introduced into a bill in re- spect of business to be transacted at a futur,e period, not allowed. . Where a 5/. stamp was affixed to an instrument executed for securing a particular sum of money, and it was afterwards discovered, that a smaller sum was all that was required to be advanced, and that a stamp of less value would have been sufficient, the 51. stamp was allowed on the ground of the trans- action having been a bon& fide one on the part of the , solicitor. In re Bedson, 15 Law J. Rep. (n.s.) , Chanc. 153; 9 Beav. 5. In a case directing taxation of an agent's bill of costs, where the. .Master has received no special directions from the Court, it is his duty to confine himself to the payments -plainly proved.^, have been made on account of the bills of costs, and not to take on himself to certify . whether a certain alleged transaction, not amounting, to actual pay- ment, and the nature and, circumstances of which were disputed, was or was not such a transaction as either a court of law or equity would, under the special circumstances, havo adjudge;d to. cqnstitute a debt or payment. Under an order, directing taxation of a town agent's bill of costs, the taxing Master taxed all the bills except certain bills which had been pre- viously taxed by the proper officer, and paid, and, in respect of the latter, the Master merely required the agent to verify his disbursements :• — ^Held, that the Master was right, the petition containing no allegations of speciiic errors. Interest on a bUl of costs while under taxation, not allowed. In re Smith, 15 Law J. Rep. (n.s.) Chanc. 238 ; $ Beav. 182. "Where a solicitor makes against his client, any charge not authorized in the usual and regular mode of proceeding, the burthen of proving autho- rity is on the solicitor. Money advanced to put in the answer of a co- defendant, though for the interest of the client, dis- allowed without clear proof of his authority or acquiescence. In re Pender, 10 Beav. 390. The solicitor of a defendant in the cause, and who is himself a defendant in the same cause, and ap- pears by a second solicitor, -cannot be allowed more than one bill of costs, if it appears that the second splicitpf has either before or after retainer agreed to allow his client a portion Of the profits of his costs. If the taxing Master has ground for .suspecting that an arrangement has been made between soli- citors in the cause by which a portion* of the' profits of the bill of costs of one is to he paid to another, he may inquire into it on affidavit, and if such 'an arrangement appear, the bill of costs should 'be taxed as in case of agency. ' ''" A, B and C were defendants against whom the bill was dismissed, witH costs. B and C acted as the solicitors of A, and appointed Dtp act as their own solicitor in the same cause. After Ae't'eiaivei an agreement was entered into between B and D, whereby D agreed to alio* B and C a portion ' of the profits of his'bill of costs. ' Held, that this constituted D in' substance an agent fqr B and C, and that the separatfe bills of B and of C ^nd D were properly taxed as 'a joint bill, and that all such costs as' woiild Hilt' have been . allowed in a case, of agency were jjrop'erly dis- allowed. Deere V. Robinson, 7 Hare, 283. ' '" An order had been made for' the taxation of a .solicitor's bill, and the solicitor was to'reffaild what (if anything) should be certified to have been over- paid; Under such an order, the .Master Was 'hot authorized to take a general accouiitof all 'trans- actions between the parties ; but he ought to take into account all monies which were received |*y'the solicitor in that character, "and which were afipli- cable by him to the payment of his bill of Costs. Cooper V. Swart, 16 Law J. Rep. (n.s.) Chanc. 417 ; 2 Ph. 362 ; 15 Sim. 564. _ '' A, as the executor of B, employed R as his soli- citor and agent. A, as such, exfecutof,' became indebted in 6il. 18s. 6d., for the costs of an action brought by him through another attorney. '' In negotiating the, payment of these costs, R wa.s em- ployed for A, who finally requested R to p'ay'them for him, and he signed an authority to that eifect. R accordingly gave his undertaking to p'a'y',''and subsequently paid, the costs. In makjng out his bill of costs, R included the 64/. 18s. 6d. paid for these costs as a professional disbursement, but the taxing Master disallowed it. R applied for Wave to except to the taxing Master's certificate, and for a. reference back to him to review his report: — Held, upon a general certificate of all the taxing Masters, that, those payments only which are made in performance of professional duties and in a''pro- fessional character, ought to be allowed as disburse- ments in a hill of costs^ and that the 6il. 18s. Od. was not paid in a professional , character, and was not properly introduced into the bill of costs ; and the petition was dismissed, but, under the circum- stances, without costs. In re Re'mnQnt, 18' Law J. Rep. (n.s.) Chanc. 374; 11 Beav. 603. ,The taxing Masters of this Court, uhder the common order, can tax a bill of costs for parlia- mentary business upon the scale of patliatnentary allowances, and will not confine the charges within the allowances made for business done in this court. I A solicitor and agent of a company retained par- liamentary agents on behalf of the company. The bills of costs were delivered to this solicitor, but the directors of the company obtained ah orderfor taxa- 214 COSTS, IN EQUITY ; (X) Rate op. tion :— Held, that such order was irregular. In ra Sudlow, 18 Law J. Rep. (N.s.)Chano. 182i 11 Beav. 400. A solicitor in carrying in a state of facts to obtain the Master's approval of a contract to purchase, appended thereto a long schedule of the parcels proposed to be purchased. The taxing Master dis- allowed the charge for drawing, and allowed only for copying the schedule, — Held, that the disallow- ance was proper, although the Master in ordinary had allowed attendances upon a number of warrants proportioned to the length of the state of facts, In- cluding the schedule. — Held, also, that the allow- ances in respect of these attendances were properly considered by the taxing Master as a compensation for other business actually transacted, and in respect of which he disallowed the charges. Jones v. Lewis, 1 De Gex& S. 2*5. Two of the defendants, the solicitors in the cause of a co-defendant, from whom they had severed in their defence, appeared by their own solicitor, and agreed with him for the allowance of part of his profits in the cause. The suit having been dismissed, with costs, as against all three defendants, two bills of co^ts, were carried in — one for those of the two soli- citors defendants, and another for those of their co- defendant. The taxing Master required evidence of , the fact of alleged agency between the two solicitors, defendants, and their solicitor in the cause, and ultimately blended the costs of the three de- fendants into one bill, allowing only costs of agency as between the two defendants and their solicitor j — Held, on petition, that the taxing Master was right, and had a discretion in requiring evidence of the fact of agency, and that in cases of agency the solicitors could only carry in one bill of costs. Deere V. Robinson, 19 Law J. Rep. (u.s.) Chano. 405. The costs of a petition and order th^eon for the transfer of certain funds in a cause were allowed to a solicitor, nptwithstanding he had not used his best exertions to procure an earlier transfer of the funds under an order made on further directions ; but the suras of lOs., paid by the solicitor to a stationer for expedition money, and of 31. 3s. being a customary allowance to the, clerks in the Accountant General's office, as a gratuity, and also of lis. paid by the solicitor for two transfers, owing to the want of reasonable diligence on the part of the solicitor, were disallowed on taxation of his bill of costs. In re Bedson, 16 Law J. Rep. (n.s.) Chanc. 189; 9 Beav. 187. The town agents of a country solicitor, in passing the accounts of an administrator, paid four sums amounting to 1 n. 8s.6A at the Stamp Office forlegaey duty and stamps. These were included by the country solicitor in his bill of fees and disburse- ments, but upon taxation they were struck out, by which the bill was reduced more than one-sixth. Upon a petition asking for liberty to except to the taxing Master's certificate, — Held, that the payment for legacy duty and stamps could only be made as agent, and that it was not a professional disburse- ment i that it ought to be inserted in the cash account, and not in the bill of fees and disburse- ments ; that the taxing Master was right: and the pedtiou was dismissed, but without costs. }n re Haigh, 19 Law J. Rep. (N.s.) Chanc. 79 ; 12 Beav. 307. (X) Rate op. (o) In general. Davenport v. Powell, 5 Law J. Dig. 227 ; 14 Sim. 275. The costs of more than two counsel disallowed in taxation between party and party, notwithstanding the third counsel was retained after the counsel by whom the pleadings were drawn had been called within the bar. In taxation between party and party, it is not the practice to allow the common retaining fee to counsel. Before the 120th Orderof May 1845, the expense of attending the Master by counsel was not allowed between party and party, except on references for scandal. Green v. Briggs, 7 Hare, 279. Upon taxation of costs the taxing Master dis- allowed the fees paid upon the hearing to a second Queen's counsel who had drawn all the pleadings, hut had subsequently been called within the bar : — Held, that under the circumstances of this ease, the Master had decided wrongly in disallowing the said fees. Carter v. Barnard, 17 Law J. Rep. (N.s.) Chanc. 278; 16 Sim. 157. The circumstance of the junior counsel being called within the bar after settling the pleadings and before the cause is at issue, will not of itself justify the plaintifFin retaining him as third counsel, and to the allowance of his fees on the taxation of costs between party and party. The retaining fee for counsel is not allowed on taxation of costs between party and party. The fe?s for the attendance of counsel in the Master's office (except upon reference for scandal) were not allowed in taxation of costs between party and party previously to the 120th Order of May 1845. , Green v. Briggs, 19 Law J. Rep. (n.s.) Chane. 294. Where the subject-matter of a petition is of a very complicated and intricate character, the costs of two counsel for the petitionerwill occasionally beallowed, although the petition is unopposed. Sturge v. Dimsdale, 15 Law J. Rep. (n.s.) Chanc. 124; 9 Beav. 170. The general rule, that for the purposes of taxation as between party and party only two counsel can be allowed as against an adverse party, will not be departed from except under very special circum- stances. Attorney General v. Munro, 1 Mac. & G. 213; 1 Hall& Tw. 457. In taxing the costs of a suit^o be paid by defen- dant, a special retainer paid by plaintiff to the Attorney General who did not usually practise in Chancery was allowed, though there were no special circumstances which rendered his employment necessary. Nichols v. Haslam, 15 Sim. 49. On a re-hearing the petition was dismissed, with costs, as between party and party. On the taxation the taxing Master refused to allow a special fee which had been paid to a senior counsel of the common law bar, the costs of short-hand writer's notes of the proceedings at the hearing in the court below, the fees paid to a third counsel engaged on the re- hearing, and also the fees of the second and third consultations preparatory to there-hearing!' — Held, that the Master was correct in the conclusions he had come to in each particular. COSTS, IN EQUITY; (Y) SBCtTRiTT for Costs. 215 The general rule In the taxation of costs as be- tween party and party is, that the client, and not the adverse party, who is ordered to pay the costs, must bear the costs of specially retaining' counsel. The rule of allowing the costs of two counsel only where the taxation is as between" party -and party will not be departed from, except in a 'few very special cases. ■ ., , ^.j (,,,■■ i ' No general rule has been laid down in ijjraotioe since the General Orders of the 8th. of May 1845 were issued, as to the number of consulnations to be allowed- on taxation^ of costs as* between party and party, each case depending on its own particular circumstances. „ Smith v. Effingham (Earl), 16 Law J. Bep. (n.s.) Chanc.297; 10 Beav. 378. ' I In a suit by residuary legatee, the assets proved insufiScient to pay the expenses andgeneral legacies: — Held, that the plaintiff was not entitled to his costs as between solicitor and client, except so far as the general estate had been increased by the pro- ceeding. Wroughton v. Colquhoun, 1 De Gex & S. 857. In a suit by residuary legatee, against an exe- cutor, the testator's estate proved insufScient to pay his debts : — Held, that the plaintiiE was enti- tled to his costs not as between 'Solicitor and client but as ibetween party and paity only. Weston v. Clowes, 15 Sim. 610. Four suits were consolidated^ < and the conduct given to the plaintiff in one of them, who was a devisee and legatee : — Held, that he was entitled to his extra costs properly incurred in the prosecution of the decree. Lockhartii. Hardy, 10 Beav. 292. (6) Pauper. In all cases in which costs are ordered to be paid to a party suing, or defending in fovmd ptmperis, such costs shallj unless the Court shall otherwise order, be taxed as dives costs. Order of December 10, 1849. 19 Law J. Bep. (n.s.) Chanc. i ; 1 Mae. & G. xi; 1 Hall&Tw. ix [See as to the former practice, Rubery v. Morris, 18 Law J. Bep. (n.s.) Chanc. 444; 16 Sim. 433; 1 Mao. & G.4I3 ; 1 Hall & Tw. 400.] (Y) Secubity fob Costs. [See Company, Joint-Stock Companies .Winding- up Acts.] The plaintiff in a cross-^suit (impeaching an in- strument which the original suit seeks to enforce), although residing out of the jurisdiction, is not bound as against the plaintiff in the original suit to give security for costs. Vincent y. Hunter, 5 Hare, 820. A plaintiff having no settled place of residence was ordered to find security for costs, although his temporary place of abode was correctly stated. Player v. Anderson, 15 Law J. Bep, (n.s.) Chanc. 189 ; 15 Sim. 104. After the defendant had put in his answer the plaintiff let his house and went to reside at Bou- logne, but had since occasionally been within the jurisdiction. He denied all intention to reside abroad, but said it was pleasant to remain where he was then staying, ; he also denied leaving Englatid to avoid the jurisdiction :— Held, that the plaintiff's explanation was ambiguous, and that he iriust give security for costs. Kenndivay v. Tripp, 18 Law J. Bep. (n.s.) Chanc. 298 ; 11 Beav. 588. The residence of the' plaintiff, as' Stated 'iii the bill, was the place at which he had- lived many years, but being in pecuniary diiSculties, hi? *as not at present to be met With thei'fe { but it did nOt appea'r that any communications addressed to him there would not find him. A motion' that he should give security for costs was refused. Hurst v. Pad- wick, 17 Law J. Bep. (n.s.) Chanc. 169. A petitioner having In his petition given a false address, and having neither explained it nor given a true address, was ordered to give security for costs, though he was not 'contemplating going out of the jurisdiction. Ex parte Foley in re Smith; 11 Beav. 456. A plaintiff filed his original bill stating himself to be resident within the jurisdiction. The bill was amended on June -28, 1847. On the'14th df July 1847 the defendant served anotice of motion on the plaintiff, seeking an order for security for costs on account of the plaintiff being resident abroad, which was afterwards abandoned by the defendant. On the 8th of January 1848 a demurrerto the plaintiff's amended bill was filed, and the ' same was alloWd by the Court on the 13th of March lEi48, but leave was at the same time given to the plaintiff to atnend. On tbe 8th of March 1848 an order was made by the Court in the cause on a motion of the defendant. On the 27th of March 1848 the plaintiff furthe* amended his bill, in which Ke for the first tinie stated himself to be residing out of the jurisdicftion of the Court: — Held, that an ordSr' as' of'coiirS^, for security for costs, obtained by the plaintiff, v'a's regular. The rule that parties must state clearly the facts to the Court applies only to material facts. ■ After answer, ordinarily, security for costs is not ordered, except on petition stating; special cii^Aiim- stances. Wyllie v. Ellice, 17 Law J^ Bep. (n.sI) Chanc.378; llBeav. 99. A plaintiff who inadvertently described herself as of a place which she had left at the date bf 'filing the bill was not ordered' to give security fot- co'stS, and a motion for that purpose was refused, but the Court gave the defendant making it hife ' costs, bti his not putting the plaintiff to amend her bill. Smith V. Cora/oo*, 1 De Gex St S. 684. ' ' ' A plaintiff described himself as "lateof Bi in the county of L, but now working on the railway line between S and M, labourer'' ': — Held, that this description was insufficient, and the plaintiff' wlaS ordered to give security' for costs. Sibberivg v. Balcarras (Earl), 17 Law J. Hep. (N.s.)Chanc. 102; 1 De Gex & S. 683. ' A plaintiff described himself as living abroad.' Having given notice of' motion the defendant ap- peared and asked for time to answer the affidavits, and he ' afteirwirds filed affidavits in opposition : — Held, that he had not thereby waived his right to security for costs; A defendant does not by simply defending ah application against hini lose his tight to security for costs. Marrow v. Wilson, 12 Beav. 497. A petitioner who is out of the jurisdiction ' may deposit a sum in lieu of giving' security for costs, 216 COSTS; HOUSE OF LORDS AND ECCLESIASTICAL COURTS. but the undertaking of his solioitor is insufficient. In re Norman, 11 Beav. 401. After an order had been made that the plaintiif, , who was resident abroad, should, within a month, procure a sufficient person to give security for costs, and that, in the mean time, proceedings should be stayed, with which order the plaintiff neglected to comply ; the Court directed the plaintiff's bill to, be dismissed, with costs, in default of the plaintiff' giving security for costs within six months. Gid' dings V. Giddings, 16 Law J. Rep. (n.3.) ,Chanc. 183 ; 10 Beav. 29. A bill was filed by a mortgagee of a reversionary interest for sale or foreclosure. The defendant by his answer, admitted the debt. The defendant filed a bill against the plaintiff alleging that nothing was due from him to the plaintiff, but that the plaintiff was indebted to him and that the security had been obtained from him by fraud, as had also been his answer" in the original suit, and praying an account and payment of what was due to him froni the plaintiff and a re-assignment of the pro- perty comprised in the security : — Held, that the second suit was a cross-suit, and that the plaintiff in it, although out of the jurisdiction, need not give security for costs. Macgregor v. Shaw, 2 De Gex & S. 360. A brought an action against B. B thereupon filed a bill against A in respect of the matters which were the subject of the action. On a motion by A thatB should give security for the costs of the suit, — Held, that A was not entitled to such security. Watteeu V. Billam, 18 Law J. Rep. (n.s.) Chanc. 455. COSTS ON APPEAL TO THE HOUSE OP LORDS. When a decree is varied by the House, but only on a point which was not raised in the court below, nor made a ground of appeal, the appellant must pay the costs of the appeal. Wallace v. Pattm, 12 CI. & F. 491. The House will not grant the costs of an appeal to come out of the estate, upon a mere miscarriage of the Court below, where the subject of litigation, though in the result decided by the Court, was one which might have required to be tried as a question of fact. Piers v. Piers, 2 H.L. Cas. 331. The officers of state in Scotland obtained a judg- ment on interdict against an individual who had, by erecting a wall, encroached on the sea shore, the suit being instituted by them solely to protect the public right. The judgment of the Court below was appealed against, and affirmed, but was affirmed without costs. Smilh v. Earl of Stair, 2 H.L. Cas. 807. COSTS IN THE ECCLESIASTICAL COURTS. An allegation, responsive to a libel for the resti- tution of conjugal rights, pleaded cruelty and adul- tery, which were held not to be proved. The charge of adultery rested on the testimony of the woman alone, with whom the husband had, previously to his marriage, cohabited. Evidence of mere proba- bility of a transaction is not evidence to corroborate asingle witness. To constitute evidence corrobo- rative, the evidence must b&ve relation to the trans- action itself. The Court will not give costs to a party who has fettered a witness by taking written declarations from the witness previously to his examination. Simmons v. Simmons, 1 Robert. 566. A vessel sailing upon a foggy night with all her sails set excepting her foretop gallant sail, dismissed upon the ground of inevitable accident. Practice of the Court is not to give costs on either side where a collision has occurred from inevitable ac- cident. The Itinerant, 2 Rob. 236. A salvage claim is part sustained and in part dismissed upon the ground that the salvors had misconducted themselves in the latter stages of the alleged service, by continuing to obtrude their services after they had been formally discharged by the owners. Full costs not allowed, but a sum nomine expensarum only given in consideration of the salvors' misconduct. The Glascow Packet, 2 Rob. 306. Objections to the report of the registrar and merchants in a case of damage by collision. All the objections with one exception overruled. Ob- jection sustained, that the repairs of the damaged vessel were paid for on the 25th of January 1845; and interest was allowed by the registrar to run only from the 15th of May 1846, on which day the damage was pronounced for. Report directed to be amended with respect to this item. Each party to pay their own costs. The Hebe, 2 Rob. 530. Question as to the costs of a reference to the registrar and merchants. Where a bond is pro- nounced for, and upon being referred to the regis- trar and merchants large deductions are made in the registrar's report, the party setting up the bond will be liable to the costs of the reference. Semhle, the main consideration in the judgment of the Court will be the amount of the sum deducted in proportion to the sum which is claimed. The Catherine, 3 Rob. 1. An agent at Lloyd's is not entitled to sue as a salvor for the mere hiring and engaging of men to assist a vessel in distress. Claim of alleged salvor dismissed, with costs. The Lively, 3 Rob. 64. Claim for salvage pronounced for, but without costs, the nature of the claim being so trivial, that in the opinion of the Court it ought not to have been brought into the Court of Admiralty. The Red Rover, 3 Rob. 150. Primd facie a bondholder establishing his bond is entitled to his costs. Where, however, the gene- ral validity of the bond is established, and upon reference to the registrar and merchants a large deduction is made, and is confirmed by the Court, the bondholder will not be entitled to his costs in the original suit. The party opposing the bond in the original suit having made various charges against the bondholder, which were not established, equally disentitled to his costs in the original suit; but the costs of the reference decreed to him. The Gauntlet, 3 Rob. 167. COSTS IN CRIMINAL CASES- COVENANT. 217 COSTS IN CRIMINAL CASES. A prosecutrix and witnesses were toupd by re- cognizance to appear against a prisoner at the assizes, on a charge of felony. By the advice of counsel, instead of an indictment for felony, an indictment was preferred for a misdemeanour at common law, on which no costs could be allowed. The Judge made an order for the expenses of the attendance of the prosecutrix and witnesses. Regina V. Hanson, 2 Car. & K. 912. COUNSEL. [See Bahristeb.] Fees to counsel's clerks. Ex parte Cotton, 9 Beav. 107. COUNTY COURT. [See Infekiok Coubt^ — Small Debts.] County Courts for the recovery of small debts established by 9 & 10 Vict. c. 95 ; 24 Law J. Stat. 219. The County Courts Act, 9 & 10 Vict. u. 95, amended by 12 & 13 Vict, c, 101 ; 27 Law J. Stat. App. i. The County Courts Acts extended and amended by 13 & 14 Vict. c. 61 ; 28 Law J. Stat. 121. COURT BARON. [See Inferior Court.] COURT-MARTIAL. Acts relating to courts-martial altered by 10 & 11 Vict. c. 59 J 25 Law J. Stat. 199. COVENANT. [See Injunction, Special Injunction — Lease — Limitations, Statute op — Settlement.] (A) Form of. "^ (B) Construction of. (a) In general. (h) Covenants in gross. (c) Independent Covenantsand Conditions Pre- cedent. (d) What passes with the Land. (e ) In restraint of. Trade. {/) Joint and several. (C) Actions and Suits, when maintainable. (D) Pleadings. (E) Damages. (A) Form of. A declaration in covenant stated that the defen- dants demised to the plaintiifs certain refreshment- rooms at Swindon, for ninety-nine years, at the Digest, 1845—1850. annual rent of one penny; and that the plaintiffs covenanted to complete, to keep in repair, and to insure the same; and that the defendants cove- nanted, that in case the refreshment-rooms should be disused as the regular and general place of stop- page for refreshment of passengers,' 'they would purchase the buildings of the plaintiffs on certain terms. That it was, by the said indenture, declared to be the intention of the defendants and the under- standing of the plaintiffs, that all trains carrying passengers, not being goods, express, or special trains, &c., should stop at Swindon for refreshment of passengers for a reasonable time of about ten • mintites ; and that the defendants engaged not to do any act which should have an effect contrary tb that intention.- The declaration then assigned as a breach, that whilst the Swindon station was uSed as the regular and general place of stoppage for refresh- ment for passengers, the defendants caused divers trains containing passengers to pass Swindon' with- out stopping for the refreshment of passengers' for' a reasonable space of about ten minutes, and caused several trains to stop for a short and unreasonable time, to wit, for the space of one ntiinute arid no more; the said time not being sufficient to enable' the passengers to obtain any refreshment ; — Held, on demurrer, that the declaration of the defendants' intention, coupled with the rest of the indenture, amounted to a covenant by them, th^t so long as they made Swindon the general place of stoppage for refreshment, they would not do any aCt to pre- vent the trains stopping there ; and that the breacH was well assigned, although it was not stated that any passengers wanted refreshment, or had given' notice thereof. Right/ v. the Great Western Rail. Co., 15 Law J. Rep. (n.s.) Exch.60; 14 Mee. & W. 811. .-. y: An agreement must be taken to be in the words of both parties. Where in an instrument under seal incorporating an agreement, the language of the agreement shews that it was the intention of the parties, that one of them should be liable to do a certain thing, a cove- nant by that party to do the thing will be iiriplied. The plaintiff and the defendants agreed by deed to a series of articles. The defendants were to let to the plaintiff, for a term of t^^elve years, premises in which the plaintiff carried on the manufactiire of fuel. The fourth stipulation in the agreement was, that all the coals used by the plaintiff for the pur- pose of his manufacture during the Said term of twelve years should be bought and purchased of the defendants, provided they could and should supply hinl with the quantity required, at a certain price and no more. The fifth stipulation provided that the defendant should not be compelled to supply more than 500 tons per week, and that in case they should, from any substantial cause, he unable to supply certain coal, then they were to give six months' notice, &c. : — Held, that it sufficiently appeared that it was the intention of the parties that the defendants should be liable to supply the plaintiff with coal to the extent of 500 tons per week, during the twelve years; and that a breach of the agreement in a declaration of covenant com- plaining of the non-supply of coal by the defen- dants was good, although the deed contained no express covenant by the defendants to sell the coal 2F 218 COVENANT; (B) Construcition or. to -the plaiatiiF. Wood v. Copper Miners Co., 18 Law J. Rep. (n.s.) C.P. 293 ; 7 Cora. B. Rep. 906. (B) Construction of. I (a) In general. ., ,,W, by voluntary conveyance, assigned to plainr tiffjj bis exe,outors, &c., his furniture, effects, &c., in,tru^t,, to the use ofW, the settlor, for his life, and at, his death, in equal moieties, to the use of two nieces of W,, named. Covenant by W, for himself and his teirs and executors, to do all further reason- able acts and things for further and, bettei; assigning and transferring tlie said furniture, &c. to plaintiff, on the same trusts as by plaintifT or his counsel should be reasonably advised. W was in possession af the furniture, &c. till his death. On that event, defendant, his, executor, became possessed, and sold the whole, , Plaintiff sued the defendant, as executpr of W, on, the, above covenant for fur.thei; assurance, averring, in his , declaration that it w^s at np time nefiessary to sell any of W's chattels to pay any debt of M, and.that there wei^e no creditprs.of, his viriio jCOuld, impeach the validity pf. the indenture, and,a5sigu,ing„by way of breaches, first, that defen; danc refused to deliver possession of the furniture to pl^mfiiff,; and, secondly, that defendant converted and sold the, same, not alleging that jie sold it .in market overt i^rHeld, that the plaintiff was entitled to recover, at le,ast on the last breach, thq value of the furniture ,po|iaessed,,by W from the time. of his e^e^uting the deed to liis death, and afterwards sold by the defendant , as his executor, though, trover inight have bee:n sustained for the same cause of action. Ward v. Audland, 16 Mee. & W. 862. ,A. decla];ation in covenant, after reciting an agreement. dated the 27th of April 1840, between the plaintiffs and the defendant, and that the defeur dant was .ii^debted to the plaintiffs in 60/., to be repaid with|ii\terest„ stated the agreement thus:— That the s^'n of ,60Z. shall remain in the hands of J H (the defendant) from the date hereof for one whole year ; that at the expiration of that period (if the,interest shall te then paid, and no notice be then given to call in, the same,) the 60/. shall continue ip the.hands of the said J H for another year, and so on from year to year, until notice in writing shall be given by the said W B (the plaintiff) to call in the ,?^me ; tjiat twelve calendar months' notice in writing shall be given to call in the said 60/., and that at the expiration of the said notice the same sji^U be paid by instalments of 10/. every third month, until the whole amount be paid, the first payment of 10/. to be made at the expiration of fifteen months from the date of the said notice, so that the whole amount of 60/. shall be paid by the end of two years and six months from the date of the said notiqef , The declaration then stated, that on the 29th of May 1846, a notice in writing of that date was served upon the defendant, to call in the suni of 60/., and alleged,, that although twelve calendar months from the date of service of the notice had elapsed before the commencement of this suit, and although six months from the expiration of. the said i calendar months had also elapsed before the commencement of this suit, and although two instalments had become due and payable from the defendant, yet the defendant h^d not paid the said two instalments: — Held, (Piatt, B., dissentiente,) that the notice to pay the principal sum might be given at any period of the year, and .that the payment of the instalments was to be calculated frpm the date of the notice, and not from the end of the current year under the agree- ment. Brown v. Hartill, 17 Law J. Rep. (n.s.1 Exch. 278 i 2 Exch. Rep. 434. . A declaration stated that, by an indenture be- tjveen.the plaintiff and the defendants, the .plaintiff sold certain letters patent. tp the defendants,, and that the defendants cevenanted to pay the price by instalments : provided, that if within twelve months from the date of ,theindenture the defendants should ' disapprpve of tlie patent, and of their, disapprobation an(l,intentioii to sell it they should give notice to the plaintiff, the payment of the instalments should be suspended ; and if the defendants should within six iiipnths after notice sell the said patent, and retaining to themselves 246/. pay over the surplus to the plainti^,, the covenant fpr, payment pf the entire, sum shpuld cease; hut if the defendants having given such notice should neglect or refuse to pbserve all the other matters or things in the proviso, the , covenant for payment of 840/. should stand. Averment, that the defendants gave due notice pf their disapprpbation and of their in- tentipn to sell, and.that the defendants had not sold the letters patent Breach, non-payment of the in- stalments. Plea, that, the defendants were ready and willing aiifi endeavoured to sell the letters patent, but that no bond fide sale could be effected : —Held, that the defendants not having sold the letters patent were liable to pay the instalments. Cherry v. Heming, 17 Law J. Rep. (n.s.) Exch. 305 ; 2 Exch. Rep. 557. A insured his life for 1,000/., subject to a con- dition, that " in case the assured should die upon the seas, except in certain passages, or go beyond the limits of Europe, or enter into or engage in military service, unless licence were obtained, or should die by his own hands or by the hands of justice, or in consequence of a duel, &c., the policy should be void." Previously to his marriage in 1828, A assigned the policy to trustees, for the benefit of his intended wife and the issue of the marriage. The settlement contained a covenant by A that he would "at all times during his life duly pay all such premiums and other moneys, and do and perform all such acts, matters, and things as should be requisite for keeping on foot the said policy." In 1838, A threw himself into the Thames and was drowned. In an action to recover the amount of the policy, the jury had found that the assured voluntarily threw himself into the river, intending to destroy his life, but that at the time of committing the act he was not capable of judging between right and wrong j upon which finding the Court of Common Pleas had held that this was such a dying by the party's own hands as discharged the office from liability :— Held, that the act of self- destruction by A was not a breach of the above , covenant for keeping the policy on foot. Dormayv. Borradaile, 5 Com. B. Rep. 380. Held also, that the trustees of the settlement were not entitled to claim as against the settlor's estate the sum secured by the policy. Dormay v. Borradaile, 16 Law J. Rep. (n.s.) Chanc. 837 ; 10 Beav. 263, 335. COVENANT ; (fi) Construction of. 219 A declai-ation on a covenant in a farming lease stated, that the defendant covenanted to consume and convert into manure and spread on the premises all the green crops grown on the farm. Breach, that he carried turnips off the premises and sold them. The covenant, as it appeared in the lease pro- duced at the trial, went on to say that in case the tenant should sell off any part of the green crops, wliich he was at liberty to do, he should bring back and spread on the premises a ton of stable manure for every ton of such crops within three months : — Held, that the covenant was in the alternative, and that the latter part was not a proviso to be pleaded by the defendant ; and that the Judge at the trial was right in refusing to give the plaintiff leave to amend the declaration. Richards V. Blucic, 18 Law J. Rep. (n.s.) C.P. 15; 6 Com. B. Rep. 437. The plaintiff being lessee of certain coal mines, &c. for a term of years, by indenture assigned the same for the residue unexpired of the same term to the defendant, who thereby covenanted with the plaintiff in^er alia, to pay the rents, galiages, &c. by the original indenture of lease reserved so long as the defendant should be in possession or receipt 6f the rents, produce, and profits of the premises, and at all times thereafter effectually to keep harmless and indemnify the plaintiff from and against all the rents, covenants, &c, of the original lease, and against all actions, &c. in respect of the same. To a declaration assigning as a breach non-pay- ment by the defendant of certain rents due whilst he was in possession or receipt of the rents, pro- duce, and profits, per quod the plaintiff was forced to and did pay the said rents, and was put to great charges, &c., together with a breach of the covenant to indemnify the plaintiff against the consequences of such non-payment by the defendant, the pleas were, first, a denial of the original demise ; second, non est factum; third, that the defendant was not in possession, &c. when the said rents became due ; fourth, as to the non-payment by the defendant of the said rents, payment to the plaintiff in accord and satisfaction ; fifth, that the defendant did in- demnify ; and sixth, that the plaintiff did not pay the said rents, and was not put to great charges, &c. After a verdict for the defendant on the third, and the plaintiff on the other issues, — Held, that the restrictive words, " so long as the defendant should be in possession or receipt of the rents, pro- duce, and profits," &c., contained in the first cove- nant, did not extend to the covenant to indemnify, and that such a plea was no answer to the breach to that covenant. That on the whole record the plain- tiff was entitled to judgment non obstante veredicto ; and that a repleader was unnecessary. Crossfield v. Morrison, 18 Law J. Rep. (n.s.) C.P. 135 ; 7 Com. B. Rep. 286. A declaration by executors of covenantee forbreach of covenant for quiet enjoyment, after reciting that the defendant's wife was heiress of A H, alleged that the defendant covenanted that for and notwith- standing any act, matter, or thing done, omitted, Sfc. by the defendant and wife or A H deceased, defendant and wife were lawfully seised of or enti- tled to the premises, &c., and that for and notwith- standing, &c. defendant and wife had power to ap- point the said premises, &o. to the uses thereby declared. And that it should be lawful for the testator, his heirs, &c. peaceably to enter and possess the said premises, &c. without any lawful let, suit, or eviction of the defendant and wife, or of, from, or by any other person, lawfully, or equitably claiming under them, or the said A H deceased. Then followed a covenant for further assurance against all acts, &c. of defendant and wife, and all persons claiming under them or A H deceased. The declaration alleged, as' a breach of covenant for quiet enjoyment that the testator was not permitted peaceably, &c. to enter and possess, &c. in words negjativing the averment, but that on the contrary thereof, one P H, claiming as heir of A H, brought eject- ment against the testator, and recovered pos- session of the premises. Plea (/n/era/io), that A H died, leaving the defendant's wife heiress-at-law, and the testator instigated P H to claim the said premises, and institute the said proceedings against him, and so the testator was ousted thi-oUgh his own act. Replication, de injurid : — Held, first, that if the recital in the deed that the defendant's wife was heiress was an estoppel, it was waived by the defendant's pleading over and averring in his' plea that the wife was, in fact, heiress. 2. That the allegation in the plea of the defen- dant's wife's heirship required to be proved. 3. That the statement in the declaration that P H claimed as heir must, after pleading over, be con- sidered a sufficient allegation that he was heir; 4. That the covenant for quiet enjoyment was not qualified by the restrictive words introductory to the set of covenants. Young v. Raincdch, 18 Law .7. Rep. (n.s.) C.P. 193 ; 7 Com. B. Rep. 310. A lease, reciting that the defendants had 'appro- priated and laid out certain meadoWs as building ground, demised a portion of them' to the plaintiff, who covenanted to build two houses thereon ; and the defendants covenanted "that on such buildings being covered in they would cut good and sufhcieht roads and footpaths in, through, and ttver the said fields and meadows, and cut and construct a good and sufficient sewer along and und^ the said turn- pike road and under the said intended roadfe iii the said fields for the common use of the plaintiff and all other lessees or'tenants of other portions of the said fields or meadows" : — Held, that this covenant, so far as concerned the roads, was not performed by the defendants making a road up to tlie plaintiff's bouses; but that they ought, as soon as the plain- tiff's houses had been covered in, to have made the roads in, through, and over the whole nieadows as contemplated by the building scheme, although ho other houses than the plaintiff's had been built. Mason V. Cote, 18 Law J. Rep. (n.s.) Exch. 478; 4 Exch. Rep. 375. The Great Western Railway Company leased to Messrs. R certain refreshment-rooms at Swindon, and covenanted (inter alia) that every train should stop at Swindon station ten minutes for refreshment. The Messrs. R afterwards sub-leased the prentiiSes to S Y G by a deed which, after reciting the said covenant by the Great Western Railway Company, contained a covenant by the Messrs. R, that they would during the continuance of the tdriti do k\\ such acts and things as should be necessary and proper for enforcing the fulfilment and performance of the said covenants by the Great Western Railway 220 COVENANT; (B) Construction op. Company. It then contained » proviso tliat tlie said S y G might, in the names or name of the Messrs. R, hring, commence, and prosecute any action, suit, or other proceeding whatsoever for enforcing the fulfilment and performance of the covenants and agreements in the said recited in- denture of lease contained on the part of the said Great Western Railway Company, or for recovering damages and compensation for the non-performance or non-fulfilment of the same covenants and agree- ments or any of them, he the said S Y G indemnify- ing the said Messrs. R from and against all costs, charges and expenses to he incurred or defrayed in or about any such action, suit, or other proceeding as aforesaid. S Y G entered under this lease. The Great Western Railway Company caused some trains to pass Swindon without stopping for re- freshment. Messrs, R had notice of this breach of covenant, and were requested to file a bill in Chancery against the company, by way of injunction, to prevent the said trains so passing Swindon : — , Held, that assuming the filing such bill was under the circumstances a necessary and proper act, the Messrs. R were bound to have filed such hill, for that the latter stipulation empowering S Y G to sue in the name of the Messrs. R did not limit or qualify the general covenant, and they were there- fore liable in an action of covenant for not filing such bill. Rigby v. Great Western Rail. Co., 18 Law J. Rep. (n.s.) Exch. 404; 4 Exch. Rep. 220. ,, A lease contained a demise of land and quarries, with power to open and work them at certain rent and royalties, with an exception of the trees on the premises. The lessee covenanted not to commit waste by cutting the trees, &c. ; and there was a proviso for re-entrj' in case the lessee should commit any waste by any of the means aforesaid. The lessee cut down trees which it was necessary to remove in order to work the quarries : — Held, that this was not a breach of the covenant working a forfeiture ; and that the covenant meant that the lessee was not to cut down the trees excepted so as that the cutting should amount to an excess of the rights which it was intended that he should exercise. Doe d. Rogers V. Price, 19 Law J. Rep. (n.s.) C.P. 121 ; 8 Com. B. Rep. 894. A declaration in assumpsit stated that an action had been commenced by the public officer of the North of England Joint-Stock Banking Company against T, for the recovery of the amount of a bill of exchange drawn by him upon and accepted by the defendant for l,250i. ; that whilst the action was pending, it was agreed between the company and T and the defendant, that the action should be settled as follows ; 2501. and 500^. by the promissory notes of T, and 500/. to be paid by the defendant's promissory note of 500/., the defendant consenting to the company appropriating the securities held by them to the payment of the balance, and the defen- dant agreeing to give them a power of selling certain property, the company to forego all interest on re- ceiving the three notes, and to guarantee to give up the bills sued on, and also the 1,000/. bill. Breach, that the defendant did not give the hanking com- pany the promissory note for 500/., together with the said power of sale. Plea, that the defendant made the said agreement jointly with M B, B B, and J B, and that after breach thereof by an inden- ture to which the public officer of the banking com- pany, the plaintiffs, the defendant, M B, B B, and J B, and T were parties, the public officer did remise, release, and for ever discharge the said B B, M B, and J B from the said action, and all actions, &c. without the consent of the defendant, and thereby released the defendant from the same : — Held, on motion to arrest the judgment, first, that the release stated in the plea operated only as a covenant not to sue. Secondly, that the agreement in the de- claration was a binding agreement and not a mere accord, inasmuch as it would be broken if the plaintifls proceeded with the action. Henderson v. Stobart, 19 Law J. Rep. (n.s.) Exch. 135 ; 5 Exch. Rep. 99. A wife's distributive share of.her husband's eifects under' his intestacy is not a performance of the husband's covenant to leave her an annuity for life. Salisbury v. Salisbury, 17 Law J. Rep. (n.s.) Chanc. 480 ; 6 Hare, 526. (6) Covenants in gross. Where it appears on the face of a lease as set out in the declaration, in an action of covenant for rent, that the lessor has only an equitable interest, the covenant for the payment of the rent may be pro- perly treated as a covenant in gross. And it may be well averred in the declaration that the plaintiffs had no reversion' at the time of the demise. And a plea that the rever.sion was in the plaintifl's, at the time of the deinise, and that before breach the plain- tiffs had assigned it to J S, is a had plea. Pargeter V. Harris, 15 Law J. Rep. (n.s.) Q.B. 113 i 7 aB. Rep. 708. (c) Independent Covenants and Conditions Precedent. By an indenture, reciting that by a deed of 1842, the plaintiff had granted to the defendant a licence to make and vend a patent, subject to payment of a royalty, with a proviso for keeping the royalty at an average of 16/. 1 3s. id. per month, and also re- citing that the defendant had agreed with the plain- tiff to purchase one-half of the patent, (subject to the previous deed, but with the benefit to the defen- dant of one-half the royalty thereby reserved), the plaintiff, in consideration of 2,200/. for the purchase of one-half the patent and one-half the royalty, as- signed to a trustee for the defendant the patent and the matters intended to be assigned as therein men- tioned. The plaintiff covenanted in the usual form for the title; and the indenture contained a covenant by the defendant to pay the 2,200/. by certain in- stalments. In an action on this last covenant, alleging as breaches non-payment of two instalments, the defendant, after setting out the deed of 1842 and the letters patent, pleaded several pleas, merely denying the validity of the patent : — Held, to be no answer to the action : first, because the defendant, under the deed of 1842, would be at all events bound to pay 16/. 13s. id. royalty per month; and, secondly, because the defendant's covenant was independent of the covenant for title by the plaintiff. Cutler v. Bower, 17 Law J. Rep. (N.s.) a.B. 217; 11 a.B. Kep. 973. A declaration in covenant stated that the plaintiflT and the defendant had agreed to enter into partner- ship as surgeons, &c. until January 1, 1846, for certain considerations therein mentioned ; and that COVENANT; (B) Constbdotion or. 221 it was further agreed that the plaintiff should, after the 1st of January 1846, introduce the defendant to his patients as his successor in husiness, and use his best endeavours to establish him in it ; in con- sideration whereof the defendant covenanted to pay a further sum of 501. on the 25th of March 1846, in addition to another sum covenanted to be paid. Breach, non-payment of the said sum of 50/, Plea, that after the 1st of January 1846, and before the 2ath of March 1846, the plaintiff refused to intro- duce the defendant as the plaintiff's successor to, &c., wherefore the defendant refused to pay the said sum of 501, Verification : — Held, that the plea was bad, as the introduction to the patients was an independent covenant, and not a condition prece- dent to the payment of the 502. Judson v. Bowden, 17 Law J. Rep. (n.s.) Exch. 172 ; 1 Exch. Rep. 162. A declaration stated that by indenture the plain- tiff conveyed all the coals and mines of coal within and under certain premises to the defendant, and the defendant covenanted to pay 40i. for every statute acre of coal which should be found ; and that he would, till the consideration money should be paid, pay the sura of 40i. part, &c. annually by half-yearly instalments, commencing from the date of the indenture, whether a whole acre should have been gotten in any such year or not. It was then averred that at the time of making the indenture there had been, and still was, coal within and under the premises, and that two half-yearly instalments were in arrear : — Held, reversing the judgment of the Court of Exchequer, that the declaration was good, and that the finding of coal was not a condi- tion precedent to the payment. Jowett v. Spencer, 17 Law J. Rep. (N.s.) Exch. 367 ; 1 Exch. Rep. 647. By a deed which recited that the defendant was the surviving devisee in trust, under the will of J B, and that the plaintiff and his brother, amongst others, were each entitled to legacies of 3,000/., and that the assets of J B were insufficient to pay the legacies, and also that the plaintiff was in want of 1,700/. before a certain day, and had requested the defendant to advance him that sum out of the assets of J B, which the defendant had covenanted to do on the terms after mentioned, the defendant cove- nanted that he would before the day mentioned pay the plaintiff by and out of the assets of J B the sum of 1,700/., and the plaintiff and his brother, in con- sideration thereof, agreed that they would execute an indemnity and release to the defendant in respect of all matters connected with the will of J B, and that in case the share of the plaintiff and his brother of and in the assets of J B, should not amount to 1,700/., they would pay him the difference, and in- demnify him against all loss, &c., by rea.son of the payment by him: — Held, that the covenant of the defendant was absolute, and not conditional or contingent on the receipt of assets. Bain v. Kirk, 18 Law J. Rep. (n.s.) Q.B. 83. A declaration in covenant stated that the defen- dant covenanted that she would within eighteen months from the date of the indenture erect certain buildings, " the whole of which were to be left to the superintendence of the plaintiff and E J, the defendant's son." The breach alleged wa."!, that though the eighteen months had expired, the defen- dant had not erected the buildings: — Held, that the declaration was good, although it contained no averment that the plaintiff was ready and willing to superintend the erection of the buildings; for that the covenant to erect the buildings was an abso- lute covenant, and the clause respecting the super- intendence merely granted a liberty to the parties to superintend, but did not impose any duty so as to make the superintendence a condition precedent or concurrent. Jones v. Connoch, .19 Law J. Rep. (N.s;) Exch. 371 ; 5 Exch. Rep. 713. A lease contained a proviso, that on notice to quit being given by the lessor eighteen months before the end of the eighth year, and all arrears of rent being paid, and all covenants and agreements on the part of the lessee having been observed and per- formed, the lease should determine at the end of the eighth year, " nevertheless, without prejudice to any claim or remedy which any of the' parties hereto may then be entitled to for breach of any of the covenants or agreements hereinbefore contained." Held, that the performance of all the covenants by the lessee was not a condition precedent to his right to determine the lease. Friar v. Gray, 19 Law J. Rep. (N.s.) Exch. 368 j 5 Exch. Rep. 584. A party covenanted with a single woman to pay to her for her life, subject to the proviso thereinafter contained, an annuity of 40/. per annum. The proviso was, that if she should marry, the annuity should be reduced to 20/. per annum. She after- wards married: — Held, that she was entitled after her marriage to the annuity of 20/. per year only; there beipg no unqualified gift of an annuity of 40/. for life, and the qualification of being unmarried being as to each successive paymeiit a condition precedent. Held, also, that the principles of law, upon which restraints upon marriagewere void as against public policy, did not apply to this case. Grace v. Weib, 18 Law J. Rep. (n.s.) Chanc. 13: reversing s. c. 16 Law J. Rep. (n.s.) Chanc. 113 ; 15 Sim. 384. (d) What passes with the Land. A, by indenture, demised to B certaih land, and B, covenanted for himself, his heirs, executors, ad- ministrators and assigns, to build Certain houses upon such land within two years. B underlet to C, and covenanted for himself, and his heirs, executors and administrators, to observe and perform, or effectually to indernnify C agaiiist, the covenants in the first indenture. B afterwards assigned his re- version to D. A having entered, and ejected C by reason of the non-performance of the first-meiitioned covenant, — Held, (in error, affirming the decision of the Queen's Bench, 16 Law J. Rep. (n.s.) G.B. 414) that B's covenant with C did not run with the land, and that D was not liable to C- Doughty v. Bowman, 17 Law J. Rep. (n.s.) Q.B. Ill ; 11 Q.B. Rep. 444. (e) In Restraint of Trade. A covenant not at any time to be concerned as attorney or agent, or otherwise, for any person who had already been, or who should thereafter be the client of the plaintiff, or any partner he might have, or any person to whom he might assign his busi- ness ; and not to act as partner, clerk, &c. with any person who should interfere as aforesaid, — Held to be divisible, and that the plaintiff might recover in respect of breaches as to persons who had beijn his 222 COVENANT; (B) CoNSTRTrcTiON op. clients before and at the time of making the cove- nant, and of persons who had been his clients while the defendant was under articles. Niehollav.Stretton, 10 a.B.Rep. 346. The saleable quality of good- will in trade deserves protection. A covenant by which a butcher, on assigning certain premises for the residue of a term, and also his good-will in trade, to another butcher, cove- nanted not to carry on the trade of a butcher within five miles of the premises assigned, is good in law, and it continues binding on the covenantor after the expiration of the term, and during the life of the covenantee, although he may have ceased to carry on the trade. Elves v. Croft, 19 Law J. Rep. (n.s.) C.P. 38S. (/) Joint and several. A being possessed of a term of 5,000 years created on the 4thof August 1815, assigned to B by inden- ture of the 5th of August 1818, subject to redemp- tiQuon payment by A to B of l,200i. and interest. On the, 17th of August 1820, B (by indenture, to which A was a party, and executed by him), at the request of A, demised to C for 4,000 years : " red- dendum to B, his executors, &c. during the con- tinuance of the mortgage, and after payment and satisfaction thereof, to A, his executors, &o., the yearly rent of 18/. l&s." ; and C covenanted " to and with A, his executors, &o., and also to and with B, his executors, &c., to pay the said yearly rent of \&l. 18s. on the several days and times and in the manner in which the same was made payable." To an action . of covenant by the assignee of B against the assignee of C, for non-payment of this rent, the defendant pleaded that before the rent became due, and during the continuance of the mortgage, B was paid and satisfied all the principal and interest due on the mortgage, out of monies arising by the sale of the demised premises, and afterwards, by indenture executed by him, acknow- ledged himself to be so paid and satisfied, and released and discharged A from all claimsin respect thereof: — Held, on demurrer to the plea, first, that it sufficiently shewed that the mortgage no longer continued ; but, secondly, that it was bad for dupli- city, in averring both the payment of the mortgage money and the execution of the release ; thirdly, that the covenant was capable of being read as several by reason of its being for payment of the rent at one period to A, and at another to B, and that the action was therefore rightly brought by B only ; lastly, that the continuance of the mortgage was suifioiently shewn, on general demurrer. Har- rold V. Whitaker, 15 Law J. Rep. (n.s.) Q.B. 345. B having a term of sixty-one years in land, granted an annuity to W; and, for securing pay- ment, assigned the term, wanting one day, to R. R thenj at the request of W and of B, demised, and B demised and confirmed the premises to S for thirty-one years, paying rent to W, while the land remained subject to the annuity, and afterwards to B. S covenanted with W and R, and their re- spective executors, &c., and also with B, to pay the rent, while the land was subject to the annuity, to R, and afterwards to B, and also to repair the pre- mises. The premises came by assignment to G, who failed to repair. W being dead,— Held, that an action for breach of the covenant to repair was properly brought against G by R and B jointly. Wakefield v. Brown, 15 Law J. Rep. (n.s.) Q.B, 373 ; 9 aB. Rep. 209. A declaration stated that the defendant cove- nanted with the plaintiffs to pay a certain sum of money, and alleged as a breach non-payment thereof, and that the amount was and is still due and owing from the defendant. Plea, von est factum. The covenant given in evidence was that defendant and A and B, and any two of them, did for them- selves jointly, and each of them for himself, &c. severally, covenant with the plaintiffs that the de- fendant, A and B, or some or one of them, would pay to the plaintifls a certain sum of money on a day named: — Held, no variance. Addison v. Gibson, 16 Law J. Rep. (n.s.) aB. 165 ; 10 Q-B. Rep. 106. A, by indenture, covenanted with B & C, their executors, administrators, and assigns, to pay a sum of money, to be held by them on certain trusts. C did not assent to or execute the deed, and subse- quently by an indenture, to which neither A nor B were parties, disclaimed all the trusts of the first indenture !-:-Held, that B could not alone sue A upon the covenant during the lifetime of C. We- therellv. Langston, 17 Law J. Rep. (n.s.) Exch. 338; 1 Exch. Rep. 634. The rule as to joint and several covenants is one merely of construction, and parties may by apt words covenant severally although there be a joint interest. If the words are capable of two con- structions, then the legal construction will depend upon the nature of the interest. A covenanted with B, and as a separate covenant with C : — Held, that B could sue alone, although the deed shewed that the consideration moved partly from C ; and that C would under some circumstances be interested in the amount recovered. Keightley v- Watson, 18 Law J. Rep. (n.s.) Exch. 339 ; 3 Exch. Rep. 716. By an indenture between E H, G- B, and others, subscribers to a certain projected company, of the first part, A B and C D of the second part, and G B and others (being some of the parties of the first part) of the third part, it was recited that the parties of the third part had acted as managing directors, that the parties of the first part had become respec- tively subscribers, and paid their respective deposits into the hands of certain bankers of the company, appointed by the parties of the third part, the receipt of which by the said bankers the parties of the third part acknowledged : it was then witnessed that for the purpose of carrying out the objects of the com- pany, the parties of the first part did mutually agree with each other, and with each and every of the persons who were subscribers, and each of them did for himself, and as to and concerning only the acts and deeds and defaultsof himself respectively cove- nant with A B and C D in manner following. The deed then set out several clauses, the first of which was, that the parties of the third part should be managing directors. The seventh and eighth were, that the managing directors should have absolute discretion to do what was necessary for the obtaining an act of parliament, and as to the expenditure of the funds until the act should be obtained, subject to certain provisoes. The ninth was, that the manag- ing directors should have power to dissolve the COVENANT; (D) Pleadings. 223 company, and that their deposits were to be returned without any abatement. The tenth was, that if within three years the act was not obtained the deed should be null and void to all intents and purposes whatever, and thereupon the deposits should be re- turned without any deduction or abatement what- soever. After the lapse of the ttaee years, E H brought an action of covenant against G B, and joined A B and C D as co-plaintiifs: — Held, on demurrer to the declaration, first, that there was a misjoinder of plaintiffs. Secondly, that there was n jointcovenant by the managing directors to return the. deposits. ! And, semble, that the tenth clause did not avoid the deed so as to prevent an action of covenant upon it. Higginbotham or Higginbottom v. Burge, 19 Law J. Bep. (n.s.) Exch. 73 j 4* Exch. Rep.667. (C) Actions and Suits, when maintainable. No action will lie on a covenant by C to pay a sum of money to A B, and himself C, or the sur- vivors or survivor of them, on their joint account. Faulkner v. Lowe, 2 Exch. Rep. 595. , . , A father, on the marriage of his, daughter,' cove- nanted with her intended husband, by deed or will, to -give, leave, and bequeath to . her an equal share with his, the covenantor's, other children in his real and personal estate at the time of his death. The daughter died in her father's lifetime, without issue, after the new Will Act came into operation. .The- father, by his will, gave all his real and personal property to executors and trustees for the benefit of his surviving widow and daughters, having provided for a son in his lifetime, but not leaving any pro- vision for the deceased, daughter : — Held, by this Court (concurring with the certificate of the Court of Common Pleas), that the covenantee, the hus- band of the deceased daughter, had not, under the circumstances, any good cause of action against the executors of the father, the covenantor ; and that if the latter had died possessed of no personal estate, and seised only of copyhold estate, the husband could not have recovered any substantial damages in such action. Jonesv. How, 19 Law J. Hep. (n.s.) Chanc. 324. Bill for the execution of a covenant contained in a renewed lease granted by trustees, dismissed, the covenant being ultra vires of the trustees. Bell- ringer V. Blagrave, 1 De Gex & S. 63. (D) Pleadings. A declaration in assumpsit recited an agreement in writing by which the defendant agreed to permit the plaintiff to occupy certain lands until the 2pth of September 1843, the plaintiff paying therefore on that day, as he thereby agreed to do, 30t as rent for the same, and then to deliver up the, premises to the defendant in good repair, and meantime to cultivate the same in a husbandlike manner; and that, upon the plaintiff so, quitting the premises, paying the rent, and observing the other stipula- tions, and releasing the defendant from all claim under the will of H S, as. also releasing to the de- . fendant all the lands devised by H G, which the plaintiff thereby agreed to do, the defendant should pay to the plaintiff 200/., with interest from the 29th of September 1842 ; it was further agreed that all releases required by the defendant should, be prepared by the defendant's' attorney. Averment, that the plaintiff was ready and willing to deliver up the premises,' and to pay the rent; and to release the defendant (as agreed on). Breach, that al- thoughthe 29th of "September did elapse, 8jc., and although a reasonable time elapsed between that day and the commencement of this suit for the pay- ment of the 200i., and although no release was prepared' by i defendant's attorney before the said day,— non-paytaent of the 200/. by thd defendant. Plea, that the plaintiff was not ready and willing to deliver up the premises: — Held, on ispeeial de- murrer, that the acts to bedone by the plaintiff were not conditions precedent to, nor independent of, but concurrent with,, the payment of the 200J.' by the defendant. That it was, therefore, sufficient for the plaintiff to aver his readiness and willingness to do them, without alleging performance ; but that this averment was necessary, and^ therefore, that the plea was good, as raising a material! issue. ■'■' '" Third plea,- that the plaintiff was not ready and' willing to release the defendant: — Held,' that as the release was to be prepared, by the deibndant's attorney, and it was averred that no such 'release was prepared; the plaintiff's readiness to execute' it was immaterial, and the plea was therefore bad, as raising an imiliaterial issue. Giles v. Oiles, 15 Law J. Rep. (n.s.) Q.B'. 387; 9Q..B. Rep. 164. A defendant covenanted that he would pay over the first fruits and proceeds; .whieh should be first realized and he at his disposition, undel a seques- tration, forthwith upon the receipt thereof to tht plaintiff. In an action upon thS covenant, the deela^ ■ ration stated, that although divers first fruits and' proceeds were realized and at the defendant's dis- position, yet that the defendant had not paid' them ' oyer: — Held, sufficient; and that it was nbt neces- sary to aver a receipt of them by the' defendant. Smith V. Nesbitt, 15 Law J. Rep. (n.s.) C.P. 9 ; 2 Com. B.Rep. 286 ; 3 Dowl. & L. P.C. 420.i;' A declaration stated, that, by an indenture be- tween the plaintiff, J J, and the dtefendantj the plaintiff granted to the defendant all the' coals, and mines of coals, under a certain messuage and lands ; that the defendant covenanted to pay to the plaintiff, as the price of the coal so granted, 40?. for every statute acre of the said coal which should be /oM«(i under the said messuage and lands, and, until the said price for thesaid coal should be fully paid, to pay to the plaintifis 40/., part of the said price, ii|)ieach year; by two equal instalments, on the 3rd of January and the 3rd of July, and whe- ther the whole of an acre of the said coal Should in every such year be gotten or not That, at the making of the said indentures, there were under the said messuage and lands, divers, to wit, four- teen acres of the said coal, and that thirteen acres of the said coal still remained under the said mes- suage and lands, and that a sum of money, to wit, 40/., for two of the half-yearly instalments of the said price for the' coal aforesaid, became and was due, and still was in arrear and unpaid :-^Held, that, as the finding of the coals was a condition' precedent to the defendant's obligation to pay, the declaration was bad, in arrest of judgment, for not averring that coals had been found." Jowett v. Spencer, 15 Law J. Rep. (n.s.) Exch. 317-; 15 Mee. &W. 662. 224 COVENANT; (D) Pleadings. A declaration alleged that the defendant cove- nanted that he and all persons claiming under him would, upon request, and at the expense of the said defendant, execute all such further assurances as might he required, &c. It appeared by the inden- ture, when produced at the trial, that the covenant was, that the defendant " would, upon the request and at the expense of the said defendant, execute," &c. : — Held, a fatal variance. Whyte v. Burnhy, 16 Law J. Rep. (n.s.) a.B. 156. A lease contained a proviso that on notice being given by the lessee eighteen months before the end of the eighth year, and all arrears of rent being paid, and all covenants and agreements on the part of the lessee having been observed and performed, the lease should determine at the end of the eighth year; "nevertheless, without prejudice to any claim or remedy which any of the parties hereto may then be entitled to for breach of any of the covenants or agreements hereinbefore contained": — Held, that the performance of all the covenants by the lessee was a condition precedent to his right to determine the lease, notwithstanding the con- eluding clause. To an action by the lessor on the lease where the declaration alleged specific breaches of covenant, the lessee pleaded that he gave eighteen months' notice to determine the lease at the end of the eighth year, and that at the expiration of that year all arrears of rent had been paid, and all and sin- gular the covenants and agreements on the part of the lessee had been observed and performed, and thtreupon the lease determined. The plaintiff replied, setting out a specific breach of covenant which had been assigned in the declaration, absque hoc that all and singular the covenants and agree- ments on the part of the lessee had been observed and performed by him at the end of the eighth year, concluding to the country : — Held, that &e plain- tiff was at liberty to put the defendant to proof of his averment in the general terms in which it was made, and that the replication concluded properly to the country. Friar v. Grey, 17 Law J. Rep. (n.s.) Q.B. 301 (see this ease in error, next below). It is a general rule of pleading, and not confined to actions on bonds, that where a defendant, in order to have a complete defence to the action, ought to have performed all of a large number of cove- nants, and the breach of any one of them would entitle the plaintiff to succeed, the defendant may plead performance of all generally ; and the plaintiff in his replication must then specify some particular breach, concluding with a verification, and cannot take issue on the general averment of performance. A lease for forty-two years contained a proviso, that if the lessee should desire to quit at the end of the first eight years and should give eighteen months' notice beforehand of such desire, then and in such case, all arrears of rent being paid, and all covenants and agreements on the part of the lessee having been observed and performed, the lease should at the expiration of the eighth year cease, determine and be utterly void, as if the whole term of forty-two years had run out. The proviso con- cluded thus: — " bat nevertheless, without prejudice to any claim or remedy which any of the parties hereto, or their respective representative^, may then be entitled to for breach of any of the covenants or agreements hereinbefore contained :" — Semble — that the payment of the rent and per- formance of the covenants was not a condition pre- cedent to the tenant's right to determine the lease at the end of the eigiith year, since the latter branch of the proviso contemplated that breaches of cove- nant might exist for which the lessor might have to sue after such determination of the lease. A declaration in covenant on the lease stated various breaches. The defendants pleaded, that the breaches happened after eight years of the lease had expired, and that they had determined the lease by a notice at the end of the eight years. The plaintiff replied to the plea, and also new assigned that certain of the breaches were committed within the eight years. The defendants demurred to the replication, and traversed the new assignment. After judgment for the plaintiff that the replication was sufficient in law, the jury assessed separate damages on the breaches and on the issue in law, and Is. damages on the new assignment. On a writ of error brought, the Court of Exchequer Chamber decided that the replication was bad in law : — Held, that the judgment must be reversed alto- gether, and that the court of error could not with- out the consent of the plaintiff below, the defendant in error, reverse the judgment as to the demurrer and affirm it as to the causes of action contained in the new assignment Grey v. Friar, 19 Law J. Rep. {N.S.) Q.B. 393. A declaration in covenant stated the maHng of an indenture between the plaintiffs and the defen- dant which recited the effecting of a life policy of assurance by the defendant, he paying the annual premium of i9l. 8s. id. on or before the 24th of June in each year; that the defendant covenanted with the plaintiffs to pay them the premiums and all other sums of money that should become due on the policy at the proper times for that purpose, and do every other matter or thing which should be necessary for keeping on foot the policy. First breach, that the defendant did not pay the plaintifis the premiums which became due on the policy ac- cording to his covenant, but, on the contrary, to wit, on the 24th of June 1847, a premium of i9l. 8s. id. became due, yet the defendant did not then or at any other time pay it. Second breach, that the defendant did not do all such matters or things as were necessary for keeping on foot the policy, but that on the 24th of June 1847 it was necessary in order to keep the policy on foot, that the annual premium should be paid within twenty-one days from that day, yet the defendant did not pay it within that period or at any other time : — Held, on special demurrer, that the first breach was good, and the second bad. North British Insurance Co. v. Riky, 18 Law J. Rep. (n.s.) Exch. 281 ; 2 Exch. Rep. 687. A declaration in covenant by the assignees of B, a bankrupt, stated, thafhy a deed between B of the first part, D and S his wife of the second part, V and the said B, described as trustees, of the third part, and the Thames Haven Dock and Railway Company, the defendants, of the fourth part ; after reciting that certain persons, on behalf of the com- pany, had agreed to buy certain premises, and that B had agreed to sell the sanle, it was witnessed that, in consideration of a certain sum already paid COVENANT. 225 to B, and in consideration of the further sura of 2,936i. to be paid to B and to V and B according to their respective rights and interests in the pre- mises, on or before the 25th of March 1844, B G S and V agreed to sell the premises, and that B would at his own expense deduce a good title to the same ; and that B and all other necessary parties would, on or before the said 25th of March, on payment by the company of the said sum of 2,936t, at the costs and charges of the company execute and procure to be executed a proper conveyance for conveying the fee simple of the premises ; and that the com- pany thereby agreed with B that they would, on or before the said 25th of March, and on the execution of such conveyance, pay the said sum of 2,9361., and until payment of the said sum would pay interest on the same unto B and his assigns r that the 25th of March 1844 had elapsed j that although B before his bankruptcy, and the plaintiffs as his assignees after it, were ready and willing to deduce a good title, and though B and the necessary par- ties were ready and willing on payment by the defendants of the said sum of 2,9362. to execute a conveyance, and would have done so, but that the defendants discharged B and the plaintiffs from deducing such good title and from executing such conveyance. It then alleged as a breach, that the defendants did not prepare a proper conveyance, nor pay to B or to the plaintiffs the 2,936i., or any part thereof: — The Court of Exchequer Chamber affirmed the judgment of the Court of Excheq^uer in favour of the plaintiff, on a special demurrer to the declaration. And, held, that assignees of a bankrupt, suing on a deed made to the bank- rupt, are not bound to make profert of the deed ; that the breach, that the defendants had not prepared the conveyance nor paid the money, was good, since as the deed provided that the conveyance was to be at the costs and charges of the defendants, it lay on them to prepare it; that the execution of the conveyance and the payment of the money were to be concur- rent acts, but that the deduction of a good title by B was necessarily a condition precedent to the pre- paration of the conveyance, as the conveyance could not be properly prepared until the title was deduced; that the averment that the defendants discharged B and the plaintiffs from deducing title was sufficient on general demurrer, as if traversed the averment could not have been proved otherwise than by the production of a deed of discharge, and it was not made a ground of special demurrer that the dreclaration did not allege the discharge to be under seal ; and that it was not necessary to point out the respective interests of B and others in the money to be paid, as the covenant was not a cove- nant to pay the principal sum to B and the others, according to their respective interests, and the interest to B, but was a covenant to pay to B, both principal and interest. Thames Haven Dock and Sail. Co. V. Brymer, 19 Law J. Rep. (n.s.) Exch. 321 ; 5 Exch. Rep. 696. (E) Damages. R P covenanted with J G not to carry on the trade of a perfumer, &c. within the cities of London and Westminster, or within 600 miles from the same, and bound himself in 5,000t by way of liqui- DiGEST, 1845—1850. dated damages for the observance of the covenant. The plaintiff below, the executor of J G, brought his action for a breach of the covenant by the de- fendant carrying on the business in the city of London. Plea, that the indenture was void, because the covenant extended to all England. On demurrer to the plea, judgment was given fbr tlie plaintiff. A writ of inquiry having been executed before a Judge, he directed the jury to assess the damages at the whole sum of 5,0002. The 'defehdant' tendered a bill of exceptions to the Judge's rUlin^, aiid brought a writ of error on the judgment upon the demurrer: — Held, that the covenant was divisible ; and' that, although void as regarded the distance of 600 miles from London and Westminster, it was good ks regarded the cities of London and Westrhinster themselves'. '■ Held, also, that the jury'were properly directed to assess the damagfeS at the whole 5,0002, and not to ascertain the actual damage. Price v. Green, 16 Law J. Rep. (n.s.) Exch. 108; 16 Meei&W; 346. The plaintiff and the defendant being atfornies and solicitors, carrying on business at Ely Place, in London, in co-partnership, dissolved'the partner- ship by indenture, whereby the defendant covenanted with the plaintiff that he, the defendant, would not thereafter, within the next seven years, directly or indirectly, by himself or in partnership, carry on the business of an attorney or solicitor within fifty miles from Ely Place, nor interfere with, solicit, or influence the clients of the said co-partnership, and if he should infringe the covenant, then that h'e would immediately pay to the plaintiff 1,0002. as and for liquidated damages, and not; by way-iof penalty : — Held, that the intention ' of the • parties was, that the sum of 1,0002. was to be considered as liquidated damages, andnot as a penalty. Oals^ worthy V. Strutt, 17 Law J. Rep; (N.g.) Exch. 226 ; 1 Exch. Rep. 659., l i. l /I Lessees covenanted that they would payalltaxes, charges, rates, or rent-charges in lieu of tithes that then were or should at any time , thereafter! during the demise be taxed, charged, assessed, or imposed upon the demised premises^ , except the land tax and property tax: — Held, that the lessees were bound to pay all rates then imposed on the lessees in respect of their occupation, c. g., church-ratej highway rate and poor-rates, and all other rates which might be imposed on the land. itself. A declaration stated that the , defendants had covenanted not to cut down or lop any tree under a penalty of 202. for each tree so cutdownor loppedi over and above the value of such tree, and averred( as a breach that the defendants lopped divers, to wit, twenty trees, of the value of 802,, a^d^ then and thereby the defendants became , liable ' tq pay a large sum, to wit, 102., being the va,lue of the said trees to the plaintiff, and also the further sum of 202. for e^ch of the trees so lopped. It v^as proved- that one tree only .had been lopped: — Held, that the Judge ought to have directed the jury that the 202. penalty could not be recovered. Hurst v. Hurst, 19 Law J. Rep.' (n.s.) Exch, 410 ; 4,ExcJi. Rep. 571. A dreclaration in covenant, after stating that the defendant and the plaintiff had agreed to enter into partnership as surgeons, &c., stated that the defen- dant covenanted that he would not j(t any time 2 G 22(3 COVENANT— CURRENCY. practise in tlie profession of a surgeon at No. 28, Dorset Crescent, or within the distance of two miles thereof, measuring by the usual streets or ways of approach thereto, nor reside within the distance of two miles and a half of No. 28, Dorset Crescent, without the plaintiiF's consent, nor would attempt to prevail on any of the patients of the defendant or of the partnership to withdraw from the plaintiff, or to employ any other medical attendant in preju- dice of the plaintiff, but would in all things endea- vour to proiriote the business and advantage of the plaintiff in the profession of a surgeon as far as it was in the power of the defendant and he could reasonably and properly be required to do, and that if the defendant should in any respect break or infringe this stipulation he should pay the plaintiff 1,000?. as liquidated damages and not hy way of penalty : — Held, first, that the distance was to be measured not by the most frequented public ways but by any of the usual public ways ; secondly, that the stipu- lation as to residence was not void as being in re- straint of trade or contrary to public policy, and that the declaration was good in arrest of judgment ; lastly, that the sum payable was to be considered as liquidated damages and not as a penalty. Aikyns V. Kinnier, 19 Law J. Rep. (n.s.) Exch. 132; 4 Exch. Kep. 776. A declaration in covenant, after reciting two agreements between the plaintiff and the defendant, stated that hy a third agreement, of the 27th of September 1848, between the same parties, the de- fendant agreed to demise to the plaintiff, on or before the 29th of November, a certain ferry, &c. at a certain rent, and agreed, within fourteen days from the date thereof, to deduce a good title thereto ; and that the plaintiff agreed to pay to the defendant, before the 29th of November, 3,150?. upoii having a good title deduced. Breach, that the defendant did not, within fourteen days, &c., or at any time, deduce a good title. Second plea, that the plaintiff was not ready and willing to perform all things to be performed, &c. Third plea, that the defendant did deduce a .good title to the premises accord- ing to the agreement : — The plaintiff, a solicitor and promoter of a company, provisionally regis- tered, for making improvements in Hayling Island, by agreement of the 17th of Septem- ber 1850 agreed with the defendant, who was the owner of land there, for the demise to the plaintiff of a ferry, land, houses, and premises, and that the defendant should, within fourteen days from the date thereof, furnish an abstract of his title to the premises and deduce a good title thereto, and that the plaintiff agreed to pay to the defendant, on or before the 29th of November, 3,150?. After this agreement a company was formed and provisionally registered by the plaintiff as its promoter, its object being to make a ferry, to erect gas works and bathing-houses, &c., on Hayling Island. On the 1 0th of November the defendant sent to the plaintiff an abstract of his title, which disclosed a mortgage of the premises to the trustees of the defendant's marriage settlement, one of whom was imbecile. There were also two judgments against the. defen- dant. In consequence of these objections to the title, the association was dissolved by its members, and the 3,150?. was not paid to the defendant: — Held, that the plaintiff was entitled to succeed on the above issues, and that he was entitled to recover as damages the costs of preparing and entering into the agreement, of investigating the title, of endea- vouring to procure a good title, and also of the grant of the lease; but that. he was not entitled to recover as damages the expenses of raising the 3,150?. and loss at interest ; nor the expenses of preparing the deed of settlement of the company ; nor the money expended in forming the company and in registering it provisionally; nor the loss of profits from the granting of the lease and the establishment of the association ; nor the profits he would have derived as an attorney in carrying ont the objects of the association ; nor the other advantages he would have derived from his time, trouble, &c. bestowed in the formation of the company. Hanslip v. Padwick, 1 9 Law J. Rep. (n.s.) Exch. 372; 5 Exch. Rep. 615. CRIMINAL LAW. [See the various titles of Criminal Offences; also Felony — Indictment — Misdemeanour — Plead- ing.] Power of transportation and imprisonment altered, 9 & 10 Vict. c. 24 ; 24 Law J. Stat. 70. CROWN CASES RESERVED, COURT FOR. The Court of Criminal Appeal, constituted under the statute 11 & 12 Vict. c. 78, has no power, on a case stated by the Judge, to review the propriety of a judgment given by him for the Crown on a de- murrer to an indictment. Regina v. Faderman, 19LawJ. Rep. (N.s.)M.C. 147; 1 Den.C.C. 565. On a case reserved, the question . stated in the case upon the facts there stated can only be argued ; and if any material fact has been omitted, applica- tion should be made to the Judge to insert it. Regina v. Smith, 2 Car. & K. 882. Semble — that the recorder of a borough has power to reserve questions of law under the 11 & 12 Vict. c. 78. Regina y. Masters, 18 Law J. Rep. (n.s.) M.C. 2 ; 1 Den. C.C. 332. CRUELTY. Cruelty to animals more effectually prevented by 12 & 13 Vict. c. 92; 27 Law J. Stat. 182. CURRENCY. A, resident in Amsterdam, being the owner in possession of a plantation in British Guiana, by an instrument executed in her behalf by her attorney in London, in 1817 sold the plantation, cum annexis, to B for 100,000 guilders " Holland cur- rency," and 30,000?. sterling, taking, as part of the consideration money, a first mortgage on the planta- tion for the 100,000 guilders. By the terms of this mortgage it was stipulated that the 100,000 guilders were not to be paid during the lifetime of A, but upon her death to her lawful descendants (if she had any), and if not to the nephews and nieces of J B ; and it was specially provided that if, at any timethe interest, CURRENCY— DEBT, ACTION OF. 227 at the rate oi 51, per cent, should not be punc- tually paid every year at Amsterdarn, and that if, by such default, A should be obliged to appoint an attorney to demand the same in the colony, the interest in that case should be at the rate of 61. per cent, and a further charge of 101. per cent, for com- mission. A intermarried with E, and the interest on the mortgage not having been paid as stipulated, an attorney was appointed at British Guiana to re- cover the arrears. In 1828 A died without issue or lawful descendants, leaving E, her husband, sur- viving, at which time the interest on the mortgage was still in arrear. In the year 1836, C & Co. pur- chased the first mortgage, and all the interest therein, which the parties claiming title under the limitation in the mortgage deed to the nephews and nieces of J B had. The consideration money ^aid by C & Co. was considerably less than the amount of the first mortgage and. interest thereon. Upon the passing of the act for the abolition of slavery & Co. received from the Compensation Commis- sioners, in respect of this mortgage, a sum more than sufficient to repay them what they Ijad paid for the mortgage, but much less than was due upon the mortgage for principal and interest. Tlie plantation was sold in 1838 at the suit of B, and all creditors having claims were summoned to render their claims, and upon C & Co. claiming priority under the first mortgage, the Supreme Court of Demerara and Essequibo held, that the second mortgagee was preferent over the first, as under the Anastasian law, which they declared prevailed in British Guiana, an assignee for a valuable consider- ation of a debt or chose in action secured by deed could not recover more than the amount of the consideration money actually paid to the assignor with legal interest from the time of payment, and that the sum received by C & Co. from the Com- pensation Commissioners was more than sufficient to pay off, and must he held to extinguish the whole debt upon the first mortgage : — Upon appeal, it was held by the Judicial Committee of the Privy Council (reversing the decree) — ^first, that in the absence of any fraud by C & Co. in the pur- chase of the first mortgage, and of any authority to shew that the lex Anastasiana prevailed in British Guiana, or could he applied to a case so circum- stanced, the amount of the consideration money given by C & Co. was not to enter into question between them and the second mortgagee ; secondly, that the term, iu the mortgage deed, " Holland currency," coupled with the fact of Amsterdam being the place mentioned for payment, meant Dutch currency, and not colonial currency; thirdly, that the clause for varying the interest from 51. io 61. was not confined in its operation to the lifetime of A, but that circumstances might have rendered it inequitable to increase the rate of interest after A's death, or during some portion of the time after that event. Macrae v. Goodman, S Moore F.C. 315. DAMAGES, Genebai, Points. [See Bankrupt — Covenant — Lands Clauses Act — Pleading.] In Actions pok Personal Injukies. [See Libel— Malicious Pupsboution— Slan- . DER.] In Actions for Injuries to Proper,ty. [See False , Representation — Nuisance — Sherief^ — Trespass.] In Actions on Contracts. [See Principal AND Agent — Vendor and Purchaser.] Double and Treble Damages. [See, Dis- tress — Sheriff, Extortion.] Special Damage. [See False Representa- tion — SlanSek — Trover.] ,; Reduction of Damages. [See New Tbial-;- Set-ofp.]' Motion to increase Damages. [See Prac- tice.] , |, .Neglect to assess Damages. [See ERiipB.] Nominal Damages. [See Payment.] , CUSTOMS. [See Revenue.] DEBT, ACTION OF. [See Payment.] , . ', When it lies. > By indenture under seal, B assigned to A a policy of insurance, as security for a debt due from B to A, and covenanted to pay to 'the insurance office the annual premium thereon as it should become due. It was in the same deed ' further agreed, that if B should neglect to pSy the 'pre- mium, it should be lawful for A to ■j)ay it, and recover the same from B in an action for money paid. A having paid the premium, upon B's neglect so to do, — Held, that an action of debt lay for the amount. Barber v. Butcher, IS Law J. Rep. (N.S.) aB. 289 j 8 Q.B. Rep. 863. An action of debt lies upon a bond bitiding the defendant to pay to a party, treasurer of a company, or his attorney, executors, &c., or the treasurer of the company for the time being.; White v. Han- cock, 15 Law J. Rep. (n.s.) C.P. 186; 2 Com. B. Rep. 830. The defendant entered into an agreement, in writ- ing, with the plaintifl^, by which he was to board and lodge with the plaintiff at acertiinweeklysum, and the plaintiff agreed to take, in payment for the board and lodging, certain furniti;ice oT the defen- dant, then in the plaintiff's house. The furniture having afterwards, and before the plaintiff had appropriated it, been taken in execution for a debt of the defendant to another party, — Held; that the plaintiff was entitled to recover, in the ordinary action of debt, for board and lodging, as if the spe- cial contract had never existed. Keys v. Harwood, 15 Law J. Rep. (n.s.) C.P. 207; 2 Com. B. Rep. 905. An action of debt for turnpike tolls lies where the defendant has frequently passed through the gate, misrepresenting facts. Which led the collector to believe he wa^ not entitled to receive toll, aiid consequently demanded no toll at the times the defendant passed through. Maurice v. Mdrsden,'i9 Law J. Rep. (n.s.) C.P. 152. 228 DEBT, ACTION OF— DEBTOR AND CREDITOR, By a local act of parliament overseers of a parish ■were authorized to grant the fee simple of certain plots of land to certain parties, subject to the pay- ment to the said overseers and their, successors of certain yearly chief rents, and also subject to certain covenants, amongst which covenants were, that the grantee, for himself, his heirs, &c. covenanted with the said overseers and their successors, " that he would duly pay the said yearly chief rent to the said overseers," &c. In an action of debt brought by the overseers against a grantee holding under a conveyance containing such covenant, for arrears of rent, — Held, on general demurrer, that debt would lie. Quare — Whether since the passing of the statute 3 & 4 Will. 4. c. 27. s. 36. an action of debt lies for the recovery of the arrears of a rent in fee. Farley v. Leigh, 17 Law J. Rep. (n.s.) Exch. 289; 2 Exch. Rep. 446. The plaintiff was mortgagee under a mortgage from the defendant to him, with a power of sale in the event of non-payment of a certain sum of money, which was further secured by a bond given by the defendant to him. The property was after- wards sold by the plaintiff under the power, but did not produce sufficient to discharge the debt. An account was then stated between the plaintiff and the defendant, charging the defendant with the full amount of the principal and interest, and giving him credit for the net proceeds of the sale. The defendant admitted the correctness of the amount and promised to pay the balance, to recover which the plaintiff brought an action of debt on simple contract for money lent, and on an account stated : — Held, that the debt having been secured by spe- cialty, the action could not be maintained. Middle- ditch v. Ellis, 17 Law J. Rep. (n.s.) Exch. 365 ; 2 Exch. Rep. 623. DEBTOR AND CREDITOR. [See Insolvent Debtor.} (A) Cbeditob, Rights of. (B) Composition Deeds. (a) When and how far binding, (i) What Creditors entitled to the Benefit of. (c) Order of Payment of Debts. (d) Favouring a particular Creditor. (C) Recovehy of small Debts under 8 & 9 ViCT.'c. 127. (D) Pkoceedings under 7 & 8 Vict. c. 70, consignments were made accordingly, and D & Co. for some time paid B's annuity, but afterwards re- fused to continue such payments. The bill- was filed by B against A and D & Co. for payment of the arrears of his annuity out of the consignments. On demurrer, by D & Co. for want of equity, held, that D St Co., by the subsequent payments of B's annuity on the footing of the agreement, had given him an interest in the deed, and a, right of suit, and the demurrer was overruled, with costs. Kirwan r. Daniel, 16 Law J. Rep. (n.s.) Chanc. 191; 5 Hare, 493. ,A creditor, whose debt is collaterally secured by a policy of insurance on the life of one of several debtors, under an agreement that the debt shall not be recoverable during the payment of the pre- mium by the debtors, has a right to enforce pay- ment of the debt upon forfeiture of the policy, notwithstanding his having, subsequently to the forfeiture, obtained a renewal of the policy. Win- throp V. Murray, 19 Law J. Rep. (N.s.) Chanc 547, (B) Composition Deeds. [See 13 & 14 Vict. c. 106. s. 230.] Bush V. Shipman, 5 Law J, Dig. 239; 14 Sim. (A) Ckeditok, Rights of. A, the owner of estates in the West Indies, upon which B had an annuity charged, empowered B to arrange with a firm in London, to receive the con- signments, and, in consideration thereof, to make the necessary remittances and to pay the charges upon the estates. B, as the agent of A, entered into an agreement with D & Co. that they should make such remittances and provide for the charges upon the estates (including B's annuity), and that the produce of the estates should be consigned to D & Co. in repayment of such advances. The 239. (a) When and how far binding. The agreement of any one creditor to take less than his debt is a sufficient consideration for a simi- lar agreement by any other creditor ; and the assent of all the creditors is not necessary, unless made a condition of the agreement. A plea, after stating that the defendant was in- debted to the plaintiff and divers other persons, aveired an agreement for composition between the defendant, the plaintiff and the said other creditors: — Held, that the plea was proved by proof that the plaintiff and all other creditors, except three, agreed to the composition. Norman v. Thompson, 19 Law J. Rep. (n.s.) Exch. 193; 4 Exch. Rep. 7S5. A conveyance for the benefit of creditors held not to be revocable by the author as against any cre- ditors with whom such communications had taken place as would give them an interest under the deed, but, at the utmost, to be revocable only as to the surplus proceeds of the estate after satisfying such creditors ; and whether the deed was revocable at the option of the author as to such surplus, qtusre. Griffith V. Ricketts, 7 Hare, 307. A person in pecuniary difficulties entered into a composition deed, by which he covenanted to pay 1,5002. to trustees, and to effect an insurance on his own life for that amount. He paid 5002., and then effected an insurance for 1,0002. only. One of the creditors who had signed the deed brought an action against the debtor for his debt, insisting that the deed was void, in consequence of the breach of cove- nant to insure for 1,5002. But it being shewn that the creditor was aware of the amount of the insur- ance soon after it was effected, and his conduct being considered by the Court as shewing acqui- escence in such breach of covenant, he was held not to be entitled to take advantage of it, and was re- strained by perpetual injunction fiom bringing any action against the debtor. Watts v. Hyde, 17 Law J. Rep. (n.s.) Chanc. 409. DEBTOR AND CREDITOR. 229 (6) What Creditors entitled to the Ben^t of,, Hop-mercliants sold a quantity of hops to a person, who paid a small part only of the purchase- money, and shortly afterwards entered into a com- position with his creditors. The creditors were to execute or assent to the compositionrdeed witMn three months, or he precluded from the benefit of it. The vendors retained a lien on the hops ac- cording to the custom of the trade, and afterwards sold them for much less than the original purchase- money, and then claimed to share in the dividend under the composition-deed, for the balance remain- ing due to them. They had not executed the deed, but had virtually assented to it: — Held, that the vendors were not entitled to receive any dividend under the deed. Bush v. SMpman, 15 Law J. Rep. (n.s.) Chanc. 356 ; {mm. Buck v. Shippam) 1 Ph. 694. By a deed by which A conveyed estates, in trust, for payment of his debts, it was provided that no creditor should be entitled to the benefit of the trust, unless the trustees having investigated and allowed his dfht, should give him a debenture for it. The trustees gave debentures to three creditors. In a suit by one of the trustees against his co- trustees, the Master was directed to take an account of all A's debts due at the date of the conveyance, and to advertise for his creditors to prove their debts by a day named or to be excluded from the benefit of the decree. The plaintiff and several other creditors proved their debts under the decree : — Held, never- theless, that only the plaintiff and the debenture creditors were entitled to the benefit of the trust. Drever v. Mawdesley, 16 Sim. 51h (c) Order of Payment of Debts. A debtor Conveyed real and personal estate to a trustee for sale, with a declaration that the proceeds of the sale should be applied by the trustee iiv discharge of the debts mentioned in the schedule, " and now remaining justly due and owing" by the debtor to the persons named in the schedule, " according to the priority, nature and specialty of such debts respectively :" — Held, upon the construction of the whole instrument, that a bond debt mentioned in the schedule with interest (the principal and interest not exceeding the penalty of the bond) was payable in priority to a simple contract debt. Passingham V. Selby, 2 Coll. C.C. 405. (d) Favouring a particular Creditor, The plaintiff being in insolvent circumstances, and indebted to several persons, in sums partly secured by outstanding bills, entered into a deed of composition, by which composition bills were agreed to be given to the respective creditors by the plain- tiff to the amount of 5s. in the pound, and guaranteed by one T M. The creditors severally covenanted not to sue while these composition hills were run- ning, and to release the plaintiff if the same were paid at maturity. They also covenanted severally to indemnify the plaintiff against and in respect of such bills as were outstanding in their hands as his creditors at the execution of the deed. H P and his partner J M were, at the time of the execution of the composition deed, creditors of the plaintiff, and holding acceptances of the plaintiff for part of their debt These bills were afterwards negotiated, and the plaintiff was sued upon them and compelled to pay the amount, with costs. He thereupon sued H P on the covenant for not indemnifying and holding him harmless. The defendant pleaded, that before the execution of the deed, it had been agreed between the plaintiff and himself and his partner, that in addition to the composition of 5s. in the pound, the plaintiff should pay in full a portion of his debt to them, and should pay the composition of 5s. in the pound in cash instead of by a bill ; and that this agreement was unknown to the other creditors ; and that he, the defendant, in part per- formance of the agreement, had executed the deed to induce the other creditors to believe that he and his partner had received the same composition as the rest : — Held, that the transaction was fraudu- ' lent; and that the plaintiff could not sue the defen- dant upon the covenant to indemnify. The declaration alleged that the defendant did, on &c. to wit, as such creditor, jointly with J M subscribe his, the defendant's, name and affix his seal to the indenture. The plea stated, that in part pursuance of the agreement stated therein, " he; the defendant, for himself and his partner, made and executed the indenture a^ in the declara- tion mentioned :"-^Held, that it sufficiently ap- peared that the defendant had himself executed the deed. The plea did not state in terms that the agree- ment was a &aud upon the other creditors : — Held, that the facts sufficiently shewed that the deed was fraudulent, and that it could not be enforced bjrany of the parties to the &aud. Higgins v. Pitts, 18 Law J. Rep. (nis.) Exch.488 ; 4 Exdh. Rep; 312. Whatever may be the general rule, if there 'be any, as to extending indulgence to a creditor under a composition deed, who does not claim the benefit of the deed within the time specifi§d in it, that rule does not apply to a creditor who actively refuses to come in under or assent to the deed within the time limited and who does not retract that refusal within the time. Johnson v. Kershaui, IDe Gex & S. 260. / (C) Recoveet of Small Debts) uhdbr 8 & 9 TicT. c. 127. The expression " costs remaining due at the time of the order of imprisonment being made," in the 8 & 9 Vict. c. 127. si 3, means the costs ordered by the Commissioner of Bankruptcy or other Court mentioned in the act to be paid by instalments or otherwise ; and the expression " all subsequent costs," in the same section, means the costs incurred by reason of the debtor's default in payment of the instalments. Ex parte Shuckard re Archer, 16 Law J. Rep. (n.s.) Bankr. 5 j 1 De Gex 454. (D) Pkooeedings under 7 & 8 Vict. c. 70. A certificate of protection duly granted by a Commissioner in Bankruptcy to apetitioning debtor, under the 6th section of the'7 & 8' Vict. c. 70. (for facilitating arrangements between debtors and cre- ditors), is no bar to » subsequent action against such debtor, brought by a creditor who had notice of all the proceedings under the act, for a debt in- serted in the debtor's petition. Such certificate amounts to no more than a pro- 230 DEBTOR AND CREDITOR—DEED. tection of the debtor from arrest. Blackford y. Hill, 19 Law J. Rep. (n.s.) a.B. 346 ; 15 Q.B. Rep. 116. A plea under the 7 & 8 Vict. c. 70. s. 8. must sheWf by express averment that the estate of the petitioHing debtor, or the particular debt sued for, vested in the trustee by the resolution in writing of the creditors ; for, unless it is otherwise provided for by such resolution, the petitioning debtor retains his right of action. Chilcote v. Kemp, 19 Law Jj Rep. (n.s.) Exch. 258; SExch. Rep. 514. DEED. [See Debtob and Ckeditoh, Composition Deed — Partners — Pbincipal and Agent — Waeeant OF Attoknet.] (A) Consteuction of. (B) Validity of. (C) Refoeming for Mistake. (D) Schedule. (E) Delivery of. , (F) Registration of. (A) Construction op. In searching for the intention of a donor, which is the standard to govern the construction of a deed of gift, the facts, first, that the gift is subject to the condition of making certain payments toothers; — secondly, that forfeiture will be incurred by non- performance of that condition, — and, thirdly^ that the donee may be subjected to loss by the perform- ance of that condition, are sufScient to raise the presumption that in case of the increase of the fund, the donor intended to give to the donee the benefit of that increase. A donor granted to the principal and professors Of a college certain lands, " upon the conditions hereinafter specified," to maintain three bursars, " according to the manner, measure, and quality, and as the rest of the bursars of philosophy, pre- sently in the said college already founded, are edu- cated and entertained," and imposed as a condition (the penalty for the breach of which was forfeiture), that the principal and professors should admit to the bnrsarships the presentees of the donor and his family. Held (reversing the judgment of the Court of Session), that this was a grant upon condition, and not a mere trustj and that the principal and pro- fessors were entitled, after satisfying the conditions of the deed of gift, to appropriate any surplus arising from the lands thus given. Jack v. Burnett, 12 CI. & F. 812. One only of the settlor's daughters had issue, four daughters and no son ; L E S, one of the four, in 1779, while her sisters, mother and aunts were living, executed a post-nuptial settlement, which recited a deed of 1752 — and another of 1749, under which she was entitled to a vested estate tail in lands called the B estate, on the death of her father— and that she was entitled in remainder or reversion expectant and to take effect in possession on the determination of certain prior estates, to several parts of lands in the deed of 1752 mention- ed. It also recited ' a post-nuptial settlement of 1776, in which were recited L E S's title to certain shares in remainder or reversion expectant, &c., and her desire to limit and assure the same, and that it was thereby witnessed, that in order to bar the estates in remainder or reversion expectant and to take effect in possession as aforesaid, then vested in her, but without prejudice to the prior estates, she and her husband covenanted to levy fines of her said undivided shares in remainder, to enure to these uses, namely, that the trustee should, out of the hereditaments comprised in the deeds of 1749 and 1752, first falling into possession, take an annuity of 3002., and out of those next falling into possession, a similar annuity, both being for L E S's separate use, and subject thereto, to the use of her husband for life, remainder to herself in fee. It -further recited that no fines were levied under the deed of 1776, and that L E S was de- sirous of securing payment of certain debts, and, subject thereto, of settling the said remainders and reversions expectant and to take effect as aforesaid for the benefit of her two children, and had agreed to settle the same, and all her right and interest in the premises to the uses thereinafter mentioned ; and it was, by the deed of 1779, witnessed that, in order to bar the estate tail in remainder or reversion expectant upon and to take effect as aforesaid, then vested in L E S in the hereditaments comprised in the deeds of 1749 and 1752, without prejudice to the prior estates, the said L E S and her husband covenanted to levy fines of all her undivided shares in remainder or reversion expectant and to take effect as aforesaid in the said hereditaments, to enure .to trustees for 1,000 years, to raise the amount of the aforesaid debts; remainder to other trustees for 1,500 years, to raise 5,0002. for L E S; remainder to other trustees for 2,000 years to raise an annuity of 1002. out of the ]andis first falling into possession, and a similar annuity out of those next falling into possession for maintenance of her only son i remainder to trustees for 3,000 years, to raise 3,0002. for her only daughter ; remainder to the use of the son and his issue, in strict settlement; remainder to the use of the daughter and her daughters in tail : — Held, that all the estates and interests, contingent as well as vested, in the lands to which L E S was entitled under the limitations of the deed of 1752, passed and were bound by the deed of 1779, and the fines that were levied in pur- suance thereof. The settlor's three daughters died, — one in 1784, s. p., another, the mother of L E S, in 1793, the third in 1799, s. p. — all intestate and without having disposed of the reversion vested in them by descent One of L E S's sisters died in 1788, intestate and without issue. In 1809 one-third of the lands comprised in the deed of 1752 was, on partition, allotted to L E S, and by a decree for sale made in 1820, in a suit instituted against her by the trustees of the term of 1,000 years com- prised in the deed of 1779, it was declared that the whole of the one-third so allotted was subject to the trusts of the term, and bound by that deed, and the fines levied in pursuance thereof. By a deed executed in 1825, it was witnessed that for barring all estates tail therein mentioned, and settling the lands therein comprised, L E S and her husband and a trustee of the deed of 1779, conveyed all the DEED ; (A) Construction op. 231 said one-third part, so allotted itt severalty to L E S as aforesaid, and also her undivided third part of the B estate (which ha:d then by the death of her father come into possession) to a trustee, that recoveries might be suffered of the said lands, and it was covenanted that they should enure, as to such of the said undivided parts as were com- prised in the deed of 1779, to the uses therein mentioned, and in confirmation thereof, and of the terra of 1,000 years j and — after reciting that three specified denominations of lands, of which L E S was stated to be seised in tail in remainder, at the date of the deed of 1 779, were not comprised therein or in the fines levied in pursuance thereof, and reciting the said suit and decree for sale therein made, and that L E S had agreed to make the said denominations subject to the said term — it was further agreed and declared that the said recoveries should enure to confirm the sale of the said three denominations for the said term, and to give validity to the said decree, and, subject to the said term, to such uses as L E S should appoint, and, as to the lands comprised in the deed of 1779, to such fur- ther uses as had not been thereby declared con- cerning the same, as L E S should by deed or will appoint. Held, that by this deed, and the recoveries suffered in pursuance thereof, the whole of the lands allotted in severalty to L E S on the partition, except the said three denominations, were made subject to the uses of the deed of 1779. Cole v. Sewell, 2 H. L. Cas. 187. An estate being limited to the use of A and his wife, and the heirs of their bodies, with remainder to A in fee, and A having died, leaving his widow, and G, an only son, and L and H, only daughters, the widow, in 1735, by deed-poll, in consideration of an annuity granted to her by G, and of natural affection, granted, surrendered, and yielded up thfe estate to him in fee; and he afterwards, during her life, suffered a recovery. She died in 1767. G died, without issue, in 1779, having devised the estate to trustees, to secure an annuity to B, only son of his sister L (then dead), and subject thereto, to W, eldest sou of B, for his life, with remainder to B's second son. In 1790, W, on his father's death, entered into possession of the whole estate, claiming under the will of G, and subsequently did various acts in the character of devisee for life. In 1814 he suffered a recovery of one moiety of the estate, and in 1816 conveyed the entirety to mortgagees in fee. In 1818, M, the descendantof H, the other coparcener, suffered a recovery of the other moiety, which, it was declared, should enure (subject to the trusts of a term) to the use of Ws mortgagees. Held, by the Lords — affirming a judgment of the Court of Exchequer Chamber,-^First, that the deed-poll of 1735 operated as a covenant to stand seised, and created a ba^e-fee, determinable by the entry of the issue in tail; second, that this base-fee did not, on the widow's death, become merged in the reversion in fee in G, as the estate tail subsisted as an intermediate estate ; third, that, although G, being estopped by the recovery suffered by him, was not remitted to the estate tail, no right of entry accrued to any one until his death, and therefore the period of twenty years, for the operation of the Statute of Limitations against the issue in tail, was to be calcalated from his death, and not from the death of his mother, and consequently W'a efttry (in 1790) was not barred by lapse of time; fourth, that although W entered under the will, and mani- fested an intention to take the estate under it for his life only, that was immaterial, and he was re- mitted as to his moiety to the original estate tail, which was barred by the recovery in 1814; and fifth, that the entry and remitter of W did not operate to remit his coparcener M to the i other moiety of the estate. Doe d. Daniel v. Woodroffe, 2 H. L. Cas. 811. Where the words in the operative part of a deed of conveyance are clear and unambiguous they can- not be pontrouled by the recitals or ptherj parts of the deed. But where, thqse words are of doubtful meaning, the recitals or other parts of the deed piay be used as a test to discover the intention of the parties and to fix the meaning of those words. A deed of Settlement^ after reciting that A had power to appoint the lands thereinafter appointed, &c., or expressed and intended so to be, with other hereditaments, and then reciting an indenture of mortgage of certain of the lands to secure 20,000/. at 42. per cent, interest, and that upon the treaty for an intended marriage it was agreed that such of the hereditaments subject to the appointment of A as were comprised in the said recited- indenture of mortgage (together with the lady's property) should be setfled to certain uses, proceeded : " Now for carrying into execution the said agreement as far as respects the said hereditaments subject to the ap- pointment of A as are hereinafter appointed, file, or expressed and intended so to be," it was witnessed that, in consideration of the said intended marriage, A directed, limited and appointed that the messuages, &c., thereinafter released, &c., should be and remain (but subject and charged as thereinbefore men- tioned) to certain uses, including, an annuity of ^2501., with powers of distress and entry; and it further witnessed that the said A granted, released, &c., " all and singular the messuages, &c. of him the said A situate in the several parishes of C, D, and E, and which are intended to be specified aqd described in the schedule hereunder written, but which schedule is not intended to abridge oj affect the generality of the description hereinbefore ex- pressed.and contained." The schedule comprised only the mortgaged hereditaments, the^rental of which was l,390fc A had other lands in the parishes of C, D, and E, besides those included in the, mort- gage : — Held, that, takingthe whole of the deed, of settlement together, a cleat intention was shewn that only the hereditaments included in the mort- gage should pass by it. , Held, also, that the powers of distress and entry being given in respect of an equity of redemption did not controul the intention to be collected from the whole deed. Walsh v. Trevanion, 1 9 Law J. Bep. (N.S.) as. 458; 15 O.B. B,ep,73.3. To an action of trespass quare cla/usum fregit, the defendant pleaded, that being seised of a, manor, of which the closes in question were part, Tiijjth the appurtenances, he demised the closes in question tOcC B (\yhose tenant the plaintiff wag), forninety- nine years, and that afterwards C B grantjij, to t^e defendant the sole and exclusive right to kill all birds of .warren upon the said closes, together with 232 DEED ; (A) Ck»irsTiiuCTioK op. free liberty to enter upon the closes, and kill, &c, and justified the trespasses ou that ground. The plaintiff set out the deed on oyer, which was a lease of the closes in question by the defendant to C B, and which contained the clause, except and always reserved unto the said Sir J B Mill, all timber trees, &c., " and also except and reserved all royal- ties whatsoever to the said premises belonging or in anywise appertaining." The leasealso contained a covenant by C B, to allow the defendant to pro- secute trespassers in pursuit of game, at his own expense : — Semble — that the clause operated as an exception, and not as a grant, and that the words were therefore the words of the grantor, Sir J B Mill. Whether the words amounted to an exception or a grant, held, that they did not shew, with sufficient clearness, an intention, on the part of C B, to grant unto Sir J B Mill, the liberty of entering upon the lands for the purpose of shooting. Pannell y. Mill, 16 Law J.Tlep. (n.s.) C.P. 91; 3 Com. B. Rep. 625. ^ H W being tenant in tail in possession of certain lands, with the reversion to the heirs of rher late hflsjband, executed a deed-poll in 1735, which operated as a covenant to stand seised to the use of her 9nly son, G W, in fee. G W aftepvards, and during the lifetime of his mother, suffered a reco- very of the same lauds to the use of himself in fee. He died, in 1779, without issue, having by his will devised the lands to trustees and their heirs, in trust to pay an annuity to his nephew, arid subject thereto to his great nephew W B, for life, with certain remainders over. The trustees entered into and continued in possession until the death of the annuitaut lU 1790, when, they gave possession to W B, who pontjnued in possession of the rents and profitsof.the, entirety up to the time of his death, in 1824, and did various acts shewing that he claimed and held under the will. On the death of G W without issue, the estate tail ,wo.ul(L have descended in moieties to two co- parceners; and at the tinie of the entry of W B, in 1790, was vested as to one mpiety in W B, and as to the other In A W : — Held (in error), that the base fee greated by the deed-poll did not upon H W's death become merged in the reversion in fee in G W, as the estate tail still subsisted as an inter.^ mediate estate. , Held, also, that G W was not remitted to his title under the estate tail, the recovery suffered by him having estopped him. Held, also, that W B, although taking by the Statute of Uses, was capable of being remitted, as the estate tail had not been discontinued. Held, also, that the acts done by W B did not amount to a disclaimer by him of the estate tail, as a party cannot waive an estate to which he would be remitted, where the remitter would enure to the benefit of others as well as himself. Held, also, that the right of entry first accrued on the death of G W in 1779, when there was first an available right of entry; and consequently that thje entry by TV B in 1790 was not too late. Held, also, reversing the judgment given below, that the entry and remitter of W B in 1790 did not operate to remit A W, his coparcener, to the other moiety of the estate. Held, also, that the continuance in possession of the whole of the estate by W B until the right of A W was barred, did not operate to give him a fee simple by wrong in the entirety to his own use. Woodroffe V. Doe d. Daniell, 15 Law J. Rep. (n.s.) Exch.356; 15 Mee. & W. 769. A deed, which may operate either at common law or under the. Statute of Uses, must, in plead- ing, be taken to operate at common law, unless there Is an express averment of an election that it shall operate under the statute. Qi«sre-r-Whetber an entry by a lessee under such a deed will not be conclusive of an election that it shall operate at common law. Semble — that, under a grant to A, Band C, their executors, &c. of liberty to get coals under certain closes until all the coals in the said closes should be gotten, an interest passes to the executors of the survivor if the deed operates nnder the Statute of Uses. Haigh v. Jagger, 17 Law J, Rep. (n.s.) Exch. 110; 16 Mee. & W. 525. A declaration recited that the defendant was possessed, for the residue of a term of years, of a certain messuage and premises, and also of certain fixtures annexed to the premises, and averred that the plaintiff agreed with the defendant to purchase of him the residue of the term of the said messuage and premises, with the appurtenances and the said fixtures, and the defendant, amongst other things, agreed to give up possession of the messuage, vritli the appurtenances and the said fixtures, on a certain day. , The declaration then averred that the plaintifi tendered to the defendant for execution an instru- ment, which, amongst other things, contained a recital that the plaintiff had lately contracted with the defendant for the sale to him of the residue of the term granted to him by one J P in the messuage <3r tenements and hereditaments, &c„ with their appurtenances, and also all and singular the fixtures belonging tathe said messuage or tenements and hereditaments for a certain sum.the receipt of which was thereby acknowledged: — Held, on motion in arrest of judgment, that as the agreement between the parties was for the assignment of the fixtures which belonged to the defendant, the recital in the instrument tendered to the defendant was too large, and that he was not bound to execute it; and the judgmentwas arrested. Manning v. Bailey, 18 Law J. Rep. (N.s.) Exch. 77; 2 Exch. Rep. 45. To a declaration on an indenture made between the plaintiff and the defendants, provisional direc- tors of a projected railway company, called the Direct Northern, after reciting that the plaintiff was owner of certain lands through which that railway and another, called the Great Northern, were in- tended to pass, and that the plaintiff would support the former and oppose the latter line, it was cove- ■ nanted that, if the Direct Northern's bill should pass before six months from the date of the deed, the company should pay the plaintiff certain large sums of money, in certain specified cases, for t£e injury done to and for the purchase of his land; that if the Great Northern's bill should pass within eighteen months from the same date the Direct Northern was to pay the plaintiff, within three months after that event, certain sums of money in certain specified cases, for compensation, &c. : pro- vided, that if no act authorizing the Great Northern DEED ; (A) CONSTKUCTION OF. 233 to make their line should be passed within six months from the date of the indenture, either party might put an end to the agreement by giving notice _ in writing ; and that, after the giving of such notice, the agreement and everything contained in it should be absolutely null and void, except the proviso and a covenant as to certain costs to be paid to the plain- tiff; and lastly, that if the companies should be amalgamated, then, three months after such event, the amalgamated companies should pay certain sums of money in certain events, one of these being the sum of 6,000/. if the line followed the course of the direct line without a branch to Stamford j and that in such case all the covenants applicable were to be performed by the amalgamated companies. The declaration, after alleging, that the companies were amalgamated, that the line took the course of the Direct Northern without a branch to Stamford, and that the period of three months had elapsed, concluded with laying as a breach the non-payment of the 6,000?. The defendants pleaded, thalt no act of parliament authorizing the Direct Northern to make their intended line was passed within six calendar months ; and that the defendants gave the plaintiff notice that they were desirous to put an end to the agreement; that no part of the line had passed through the plaintiffs estate, and that it had not been injured under the act: — Held, on error in the Exchequer Chamber (reversing the judgment of the Court of Exchequer) , that the plea was bad in substance, and afforded no answer to the action. Earl of Lindsey v. Capper, 2 Exch. Rep. 801. , Under the will of a testator who died in India, A was entitled during the life of his wife to the income of property in the course of being trans- mitted &om India, and B to the capital after her death. By a deed; reciting that certain arrears of interest were due to A in respect of monies remitted, and that certain sums (specifying them ) still re- mained due to the testator's estate in India, which were carrying interest, and also reciting that B had paid 2,000/. in discharge of A's debts ; and that A, in consideration thereof, had agreed absolutely to assign to B all his interest in the estate of the testator, it was witnessed that, in consideration of the premises, A absolutely assigned to B (in the most comprehensive terms) all his interest in the monies received or to be received in respect of the testator's estate, with a general release of all claims in respect of the same. At the date of the deed both parties were ignorant of the existence of a sum of 12,000/., part of the assets, which had been received and firaudulently retained by the executor. On a bill by the executors of A, praying a declara- tion that, upon the true construction of the deed, A's interest in the 12,000/. did not pass thereby, — Held, reversing the decree of the Court below, that the mutual ignorance of the existence of this sum was not sufficient ground for limiting the effect of the general words. Semble — If the bill had been to reform the deed the circumstances would not have raised an equity for relief. Hawkins V. Jachsim, 19 Law J. Rep. (N.s.) Chanc. 451; 2 Mac. & Gor. 372; 2 Hall & Tw. 301. By deeds of lease and release dated in 1779, being the settlement made on the marriage of A with B, Digest, 1845—1850. in consideration of 2,000/. paid to A by F, the father of B, as her marriage portion, A conveyed certain real estates to trustees, to the use of A for life, with remainder to B for life, with remainder to the children of the marriage, as A and B or the survivor should appoint, and in default of apjiointment to the use of the heirs of the body of B by A begotten ; and ' in default of such isslie, then the estates were to stand charged *ith the sum of 2,000/. to be paid to F, his heirs and assigns, within twelve months after the death of the survivor of A and B. By a deed of 1798, made between A and B of the first part, C and D (trusteed) Jof the second part, and E of the third part, reciting' the marriage settlement, and that there was no issue of the marriage, and that it was the intention of A and B not only to defeat and destroy the uses, estates and provisions' thereby limited, but to limit the estates to new uses, it was witnessed that as well for barring, docking and extinguishing' ill estates tail hnd reversions and remainders thereon expectant or depending, of and in the said estates, as for settling and assuring the same to new uses, A and B covenanted to levy a fine' of the settled estates, to enure to such uses as A and B should appoint; and in default of appointment to A for life, with remainder to trustees for 1,000 years, with rerhainder to B for life, with remainder to the right heirs of A for ever. It was then declared, that the-term of 1,000 years wais limited to the trustees upOn trust after the death of A' to raise by sale or.mortgage of the premises the sum of 2,000/., which A had received as the marriage portion of B, and to pay the same to B for her o^n use if she suirvived A, otherwise as B should by will' appoint, and in default of appointment to the next-of-kin of B. The fine was duly levied in accordance with the covenant. In 1821 B died without issue and without having made any appointment. In 1838 A died, having by his will devised the e^tat'e^ in question; In 1839, the plaintiff, as re'jiresent'afive of F, and as administrator and one 6f' the next-of- kin of B, filed his bill against the deviseesof A and the other next-of-kin of B, claiming to have two sums of 2,000/. each raised out of the estates under the- deeds of 1779 and 1798 -.—Held, first, that the first sum of 2,000/. was payable at all eVents, the fine levied not being effective to bar it. Secondly, that the Court could not, upon the construction of the deeds, refuse to decree the raising and payment of the second sum of 2,000/., notwithstanding upon the face of the deed this was contrary to the inten- tion of the parties, the trusts being executed, and valuable consideration moving from the wife, who took a less beneficial interest in the estates under the second deed; and that the Court could not reform the deed on the ground of mistake so as to avoid its legal effect without a bill filed by the devisees Of A for that purpose ; but the cause was ordered to stand over, with liberty to the devisees to file such bill. The devisees then filed their cross- bill to reform the deed upon the ground of mistake, but adducing no new question or fact. The Court held that the wife could not be deprived of the advantage for which she had stipulated by the lieed of 1798, merely because the husband had omitted to take the necessary steps to extinguish the first charge, and the cross-bill was dismissed, 2H 234 DEED. Parties in the sameinterest unnecessarily severing in their defence, allowed only one set of costs. Farr V. Sheriffe, Dykes v. Farr, 15 Law J. Rep. (n.s.) Chanc. 89; 4 Hare, 512. (B) Validity of. A bill by A P, as heiress-at-laW of J J aiid E J, to set aside conveyances made by them to W F, of real and persoiial- estates, on the ground of fraud, undue influence, and want of consideration, alleged that J J — who was deaf and dumb all his life — was \ncapable of executing or understanding any deed, ihd that E J was seduced by W F, and being sub- ject to his authority, executed the deeds' without professional advice, and for insufficient considera- tion, consisting only of a bond of W F for securing tlie price. There was not sufficient evidence of J'J's incapacity, nor did the deeds executed by him convey any property descendible to his heirs. The alleg'ations of the seduction of E J, and of im- proper influence over her, were not sustained by the evidence, although there was some evidence of an ' illicit connexion between her' and W F. It iippeared also that A F had the benefit of the bond given to E J, and had long acquiesced in and ad- mitted the validity of the transaction. Held, that the bill was properly dismissed for want of sufficient proof of the charges as alleged, so as to Justify the Court in setting aside concluded traMSactions'. ' * ■-.' Held also, that the want of parties to represent the personal estate comprised in the' impeached -donveyances was a fatal defect. '.-/SfemWe— that by an appointment duly made -of a whole estate to the uses of a marriage settlement by a party thereto, who thereby also granted and released a moiety only of the estate to the' same uses, the entirety of the estate passed. Farmer v. Parmer, 1 H. L. Gas. 724. - An assignment by a Puisne Judge of the Supreme Court at Madras, of the sum " equal to the amount of six months' salary," directed by the 6 Geo. 4. c. 85. to be paid to the "legal personal representa- tives" of such Judge, in case he shall die in and after six months' possession of office, is ** valid assigtirfient, beiug-'a vested contingent interest in such Judge : and not being payable during the life- time of the Judge, is not an assignment of salary within the 5 & 6 Edw. 3. c. 16. and 49 Geo. 3. c. 126, and, therefore, contrary to public policy. Arbuthnot v. Norton, 3 Moore, In. App. 435. The eight children of A being entitled to a fund equally in the event of their surviving B, seven of them, in pursuance of an arrangement entered into while the eighth was abroad, executed a deed by which they and he were made to covenant with each other reciprocally that in case any of them should die in B's lifetime leaving children, such children should be entitled to the parent's share, in the same manner as if such parent had survived B. The eighth child never executed the deed; but he and six others who did execute it survived B. The other left children, who claimed to be entitled to their parent's share under the deed : — Held, that the deed being made on the assumption that all the parties would execute it,- was not binding even upon those who had executed it. Peto v. Peto, 16 Sim. 590 (C) Refoeming fob Mistake. [See Walsh v. Trevannion, 16 Sim. 178. See also (A) Construction of Deed.] A party applied to the agent of an insurance oflBce to effect an insurance on the life of his son. The agent gave to him a printed form of application, which was filled up, as to the name, age, &c. of his son, and signed, but he did not fill up the declara- tion as to the nature of his pecuniary interest in his son's life. - The agent had inquired into these particulars, and filled them up after the insurer had left his office, with a statement which was in- correct. The insurance was effected; but, on the death of the nominee, the company refused to pay the amount of the policy, on the ground that the interest of the insurer was falsely described, and that the policy was therefore void. No evidence being produced as to the statements which were made to the agent respecting the matters inserted by him in the declaration, the Court refused to rectify it, or to grant an injunction to restrain the company from' setting up the declaration as a defence to an action at law. Parsons v. Bignold, 15 Law J. Rep. (xs.) Chanc. 379. A treaty was, in 1839, entered into with the plaintiff' for the purchase of an annuity for the life of P. In an interview between P's agent and the plaintiff it was agreed, subject to P's approval, that the plaintiff' should give \l. per cent, more on the purchase-mon^y (1,800Z.) than government would grant. On the same day the agent saw the defen- dant's solicitor, and' stated to him in the course of conversation on the subject of the intended annuity, that he would obtain from a friend of his in the National Debt Office a statement as to the amount of the annuity which would be obtained from government for 1,800^ on P's life. That statement was obtained, and therewith the plaintiff expressed his satisfaction. Four years afterwards the plaintiff discovered that the amount of the annuity granted by him was much too large in amount ; and that the computation of the annuity had been made on a male instead of a female life. The principle on which the amount of the annuity had been' calcu- lated was communicated to P previously to the completion of the grant of the annuity to her: — Held, that the Court could not rectify the deed granting the annuity; but on the plaintiff's waiving any account of the payments made in respect of the annuity previously to the filing of the bill to set aside the deed, the Court ordered the deed to be delivered up to the plaintiff' to be cancelled, and the proper accounts to be taken of principal and interest due to the defendant, P, and the balance thereof, after deducting the costs of the suit, to be paid to P. Carpmael v. Powis, 16 Law J. Rep. (M.S.) Chanc. 31; 10 Beav. 36. Previously to the marriage of the female plaintiff' with H, verbal instructions were given by her to A, a solicitor's clerk, for the settlement of her property. A, who resided at a distance from B, his principal, took down the instructions in writing and forwarded them to B to this effect : that the property 'K-as to be conveyed to trustees for the separate use of the lady for life, with remainder to H for life, with remainder to the children of the marriage, and in default of children, to 'W (the brother of the lady) DEED— DEODANDS. 235 and his cliildren. , B, who was then unacquainted with the plaintiffs, sent instructions to counsel to prepare the settlement accordingly, but directed that a general power of appointment should be limited to the lady in default of children,, The draft so settled by-counsel was, returned to A, who procured it to be engrossed, , On A tendering the engrossment to Wfor his execution, as a- trustee, W objected to the power of appointment, and there- upon A said that the power had. been inserted by mistake, and immediately drew, his pen through the clause, and so W executed it. On the foUowipg day the deed was executed by the plaintiffs and the other trustee in the presence of A, and was attested in the common form withput any notice of the erasure. Subsequently a second attestation clause had been added, referring to the erasure, and the the - estate in the -same hereditaments in such manner as given to them by the will of W. Where therei is a doubtful question as to the legal titleito an estate'on the: construction of a will,_the prabtideis,notto determine iton demurrer, although lhe;incliiTation of the Court may- be in favour of the defendant,- but to overrulethe demurrer without prejudice tO' the defendant, insisting on the same matters by way of answer. Mortimer v. Hartley, S.De Gex & S. 316, [And see this es,se,ipost, (C)r(rf).]i- .. _. _ . ' — A testjttor gave his residuary estate an trust to hiS'ibrothBr E, to assist him in bringing up his foTiiT nephews, the i children of his brbther J, and AMhen theyi}ui;gest nephew attained twenty-one, the property to beiequally divided amongst his nephews or their lawful issue, sh^e and share alike; the division, however, was not to take place, although the^youttgestnfephew had attained twenty-one, imtil the-tdfeceasebftihetestator'swife^ihis sister,'and his brother E. One of the nephews died under twenty- one, without issue, and before the testator's wife, sister, and brother ; ' — Held, that the testator's brother E took the legal estate in -fee, subject to the trust for the nephews ; that the nephews took an estate, tail ; and that the representatives of the deceased nephew took the share he was entitled to, and that the. purport of the will required the word "or"rshoul,dihe read "atfi" Parian Y. Knight, 15 i-aw J. Bep. -(n.s.) ChaB'c.|209 ( IS Sim. 83. ■■' Aitdstator gave to his wife theuse of all his pror perty, both real and personal ; and after her death his nephew was to 'be considered as heir to all his property not .otherwise disposed of ;, hut he directed that such , property should be secured by. his exeeuters for.: the benefit of his family: — Held, that the nephew Iwas entitled to a life estate only ; that his wife was not entitled to any interest in the property ; and that the real estate was to be settled after the death of the nephew upon his first and other'sons successively in tail male, with remainder toi his daughters as tenants in common in fee ; and that the personal estate was to be divided, on the death Of the nephew, among all his children as joint tenants who should attain the age of twenty- one or marry, and if they should all die under that age and unmarried (if daughters) or without issue (if sons) then to the nephew absolutelyj l^hite v. Briggs, 17 Law J. Rep. (n.s.) Chanc. 196 ; 15 Sim. 17. , Devise of lands of gavelkind tenure to trustees upon trust to sell a competent part for payment of debts, and subject thereto upon trust for P M for :life,iand. after his decease, for the first son of P M for life, and after his decease for the first son of snch first son, and the heirs male of his body,, and inidefault.of such issue for every other son of P M successively for the like interests and litnitations ; and in default of issue of the body of P M, or in case of his not leaving any at his decease, for T M for life, and after his decease for T G M, the eldest son of T M, for life, and after his decease for the first son of G T M.and the heirs male of his body; and in default of issue of the body of G T'M, for every other son of T M successively for the like estates and interests ; ' and in failure of all such issue of the body of- T M, in trust for him in fee, provided that if P M or T M, or any of their issue, should become entitled to the J estate, then upon trust for the next person entitled under the will, as if the person scsucoeeding to the J estate were dead:, , T M died after the date of the will, and the testator^bya codicil declared a trust of the devised estates for his wife for life, and after her death upon the trusts declared by his will, subject to the pro- viso as to the J estate: — Held, that P M took an estate I for life only : that T G.M took an estate for life in remainder after. P M's life estate contingent on P,M not leaving issue, and determinable on his. succeeding to the J estate: that the eldest son of X G M took a contingent, remainder in tail after the determination of *he life estate of his father. Monypenny the .children of the six younger children! after < the decease of the last -survivor of their respective" parents took the leasehold's absolutely. ' . i . ..''■■ j That the limitation to the unborn children of the testator's children was not void for remoteness. That the word " issue" might be lead "childfenU in the gift over after the testator's children.' ^ IVil- Warn,! V. Tea/e, 6 Hate, 239. . , i ] .; , (i) Period of Vesting. , , A testator, after devising real estates to trustees, to the use of J D P for life, remainder to his fii'st and other sons in tail male, with like remainders to J T P for life, and to his sons in tail male, and to several others, bequeathed real and personal chattels to the same trustees, upon trust to permit the said J D P to receive the profits for his life, and after his decease to permit each of the several other persons, to whom an estate for life in the real estates, was before limited, as each of them should' beconse seised of said real estates under the aforesaid limitations, to receive the rents and profits thereof jfor his and their life and lives respectively ; and: from' and after the decease of the last of the said tenants for life^as should become seised in manner aforesaid, or if none of them should so become seised, then from the decease of the said J D P, upon trust to assign and convey the chattels to such person or persons as should then become seised of 3the said' real estates under any of the limitations aforesaid :"-^Held, that the chattels vested in an infant, grandsaifi'of J D P, who was tenant in tail of the real estates 'at J D P's death, and not in his eldest son, a prior tenant in tail, who died in J D P's lifetime. PottS'V. Potts, I H.L. Cas. 671. A testatrix gave to the eldest son of her daughter Eliza and of her husband E L, who should be living at the time of her own decease, \0l. lOr., adding that she left him no larger sum, because he would have a handsome provision from the "estates of her late husband and of his own father (who was still alive) : and she gave the residue of her pro- perty to her executors, upon trust, as to one moiety thereof,, to pay and divide the same unto and amongst all the children of her daughter Eliza,' who were then in being or should be thereafter born, except her eldest son, or such of her sons as should, by the death of an elder brother, become an eldest son, equally to be divided amongst them, and the survivors or survivor, when the youngest Should arrive at the age of twenty-one years. At the death of the testatrix, her daughter Elizahad five children, and the eldest son was provided for from the estates in the will mentioned, and he received the Wl. 10s. but died, without issue, before the youngest child attained twenty-one. The second, who then became an eldest son, did not succeed to the provision which had been made for the eldest son : — Held, notwithstanding, that he, being' the eldest son at the time the youngest of the children attained twenty-one, was excluded from any share in the moiety of the residue. Livesey v. Li«ese!f, 1 H.L. Cas. 419. . Devise of r.eal estate td'A ftwlife, and after'her d^ath toiall theichiklreniof Aborii'-iat thetimeof her death. A had' two children, 'bot^' of whom died in her lifetime t — Held, that the sharete in the r«al estate vestedi'in.them: indefeasibiy at'ltheii: births. Paterson v. MWfe,rl8 Law JjiElep. (kJs.') Chanc. i'ig.' ,' '.. ' ' • -i-i i Deviseand'bequestof real and personal estate to trustees.upon trust)(subj£et to ceitainilegaoies and atjnuities) for A for life, and lafter hisideoeaseiiljion trlist to oohveyi! assure andpay thei wholeof the real and personal' estate.toi and amongst the children of'Aand theissue.of any such children. i'ButJn case A should die, without- issue,i't>hen' to 'pa.yian)d distribute the sarae-equally amoOgst^aU andl. every tjie children -of B and A and the 'survivors of them*, butiin. case any^ of such; children should he' then dead leaving issue of his, her or their body; ^r 'bodies; then such issue.tohave.as well sutths original share, as their father or mother would, halvjefbeeii entitled to if living, as also such other share as their father'might have been' entitled to by survdVorship or dtherwise. A survived the testator: and died without issue :— rHeld, that the- period of the) sur* vivorship of the children of B and C was not to* be referred to tbedeith of the testator, but to-the,deajft of A, that being theperiod of distribution. Buckle V. faweeM, ' 4' Hare, 536, ' '-"•''-: j ,' ' , ■ ' . . i " (h I , j'fftrfi O.J '.'irr/ --'ii'- (^fi), fiI^o,nmg of Ji[qr4^vi Ikh "•;-i? (I) •' Issue." '■'""' ' ;'"■' ' "," Testator 'devisedlands tohis grandson, -G'D, to hold the same unto and to the use ofthesiad G-D-, for the term-'of his natural life;, and ifrom '"'h-i's -decease unto and to the'useof all; and everythe lawful-isiue of the said G D, their heirs and afesignfe for ever, 'equally, as-'tenants in common'vian'dJhdt as jbint tenants, when and as 'he orJthey shftuld attain his, her, ontheir age or-iages'ofctwentj^-on^.yeare. And testator- devised all 'the residue and rema'indie.r ofi hisi real- and personal estate .'and' /^ffdtsts;^ whaki- soever ■ and' w!heresoeverj; ntft before 'otheiwise disposed* of, to his daughter S Ik absolutely 'fir her own sole and separate use : — peld,; tlsat' isstie. was to' be construed " children," i,alBd/; that G 'D took only an estate for' life, with remainder t6-his children as purchasers; 'Ithereforei that on"' his dying without issue, SjD toahiundeJ-.'thef'r^sidria'vy devise, although G D had in "his liifetimeieKeteUt^d a deed of ' disentailer ; inasmuch 4s 'Such deed, executed under the'3 & 4 Will. 4. c. 71; does not ha* future contingent estates,' unless-' executed-by a party who was in fact tenant in 'tail. Slater^v. Dangerfield, 16 Law J. Rep. (n.s.) Exch!-51 ; IS Mee. & W. 263. ■ '-. ■ I _: ... P J, by his will, dated in 1779, left large'real cstates'to'his' wife for life-; and after lier -dfeat'H, to his daughter D, wife of Sir J E, -for her life; and after her death, to-- her eldest' son R E; for'hisiliW; and after his death, to the- first^and other sons'of R E; severally and successively,"jand 'the h^iis 'df their respective bodies, and in default A testatrix, in 1786, devised her' real estate' to her brother-in-law T K and her sister A K, his wife, for their lives, and from and after- their decease to her nephew, J G K, son of the said T K and A K, his heirs and assigns for ever. But in case the said J G K should not survive T K and A K, and should die without an heir lawfully begotten, then and in such case the testatrix devised the same to the next heir of the said T and A K, Meir heirs and assigns for ever, J G K died an infant in the lifetime of his parents ; but soon after his death, another son of T and A K was born, who was also called J G K. A K died in 1795. The second J G E married, and hadissue'ason, J K, who died in 1823.' T K died in 1842: — Held, that the words " next heir" meant the person who should fill the character of true heir oi T and A K; and that, therefore, the executory devise over took effect only on the death of T K, the surviving devisee for life, when the estate vested in J K, the lessor of the plaintiff; who then filled' the character of heir of T and A K. JDoe d. Knight v. Ch^ey, 17 Law J. Rep; (n.s.) Exch. 154; 16 Mee. &W.656. , , ; . , ,: (7) "Wife." ,,',,;, A testator, by his will of November 1845, devised 21 242 DEVISE; (A) Construction of, in genekal. an estate to his " dear wife Caroline ;'' he had been twice married, — in 1834 to Mary, in 1840 to Caro- line ; they both survived him, and he lived with the latter up to the time of his death in November 1845 : — Held, that the words "dear wife" were not inap- plicable to Caroline, and that she was entitled as devisee. Doe d. Gains v. Roast or Rouse, 17 Law J. E«p. (n.s.) C.P. 108 ; 5 Com. B. Rep. 422. (8) "In Tail Male." A testator devised freehold estates to trustees in trust to settle and convey them to the use of G B. for life, with remainder to his issue in tail male in strict settlement, and in default of such issue the estates to go over. G R had no son, but had several daughters, all born after the testator's death : — Held, that the words "in tail male" were descrip- tive, not of the issue, but of the interest they were to take, and that the daughters were entitled to take, under tbe limitation in remainder, as tenants in common. Trevta- v. Trevor, 1 H. L. Gas. 239. (9) '• Younger Son." In construing a will, the words " younger son" used by the testator in a proviso for the shifting, in certain events, of an estate thereby devised, are to be taken in their plain and ordinary sense, as mean- ing "younger in order of birth," unless it satisfac- torily appears from other parts of the will that they were used by the testator in another sense. Wil- braham v. Scarisbrick, 1 H. L. Cas. 167. (10) " Eldest Son." A testator devised his real estate in these terms ; — " I give all my real estate to my eldest son John J L, as aforesaid, for hisSUe, and to his eldest legi- timate son, after his deathj; and, in default of such issue, I give it in like ma/iner to my son Richard ; and in case that he has no legitimate issue, I then give it in like manner to the offspring about to be born from my dearest wife B, and in default of such issue to my own right heirs for ever." " I have not provided for my son Richard, if his brother John lives, because I know he is otherwise provided for" : — Held, that the words " eldest son John" were words of limitation, and that John took an estate in tail male. Lewis v. Puxley, 16 Law J. Rep. (n.s.) Exch. 216 ; 16 Mee. & W. 733. (11) "Improvements." Testator devised his estates in trust, after deduct- ing out of the rents, taxes, repairs, improvements, &c. and all other necessary outgoings, to divide the surplus between A B ai^d other persons for life: — Held, that an expendituxe for new farm buildings not stated to be with a vie\»;,of improving the rents, or to secure the continuance of the old tenants, was not within the term " improv^ents." fValpole v. Bougliton, 12 Beav. 622. \ (12) "All." \ The Court will construe a will 8o\s to reconcile words which are primd facie repugnant, Therefore, where a testator devised a messuage and other freeholds by name to his wife iar life, re- mainder to A in fee ; and also devised to his wife in fee "all his real and personal estates both freehold and copyhold, and now surrendered to the uses of my will" : — Held, that the word " all" was to be read "all the residue," to satisfy the intention of the testator, apd that A on the death of the wife took the remainder in fee in the estates first devised. Doe d. Snape v. Nevell, 17 Law J. Rep. (N.s.) Q.B. 119; nom. Roe i. Snape v.Nevill, 11 a. B. Rep. 466. (d) Who take as Devisees. Testator devised " to the male heirs, if such there be, of William Angell, father of my great-grand- father John Angell, and their heirs male for ever; and if there be no male heir or descendants of the same William, then I give those estates, as specified, to the heirs male of the first William, of Northamp- tonshire; and if there be none of them, I then give all my estates, &c. to W B, grandson of Mrs. Frances, the wife of B B, Esq. who was an Angell, and his heirs male for ever; and if it should so fall out that the heirs of the B's should cease and fail, then my will is, that the male heir of my great aunt M, &c. shall successively take : — Held, that, under this devise a person who traced his descent from one of the younger sons of J. Angell, the eldest son of W. Angell, entirely through males, would be en- titled in preference to W B mentioned in the devise, and who, although the heir-general both of the tes- tator and of the first-mentioned W. Angell, traced his descent through the above-mentioned Mrs. Frances, a female. Doe d. Angell v. Angell, 15 Law J. R«p. (n.s.) Q-B. 193; 9 Q.B. Rep. 328. A testator devised lands upon trust for his son and daughter J and E and their respective assigns for the term of their respective natural lives, equally to be divided between them, share and share alike, with remainder to a trustee to preserve contingent re- mainders, and from and after the decease of his said son and daughter, or either cfihem, to the use of all and every the children of his said son and daughter respectively, and their several and respective heirs and assigns, to be equally divided among them, share and share alike, as tenants in common, and not as joint tenants ; and if there should be only one such child of his said son and daughter, to the use of such child, his or her heirs and assigns, and for default of such issue of his said son and daughter, the testator gave the premises to his son T and his heirs and assigns for ever. The testator's son J died, leaving issue born after the death of the testator, and leaving his sister E surviving : — Held, first, that J and E were tenants in common, and that on the death of J his moiety passed to his children and not to E either by survivorship or implied cross-re- mainder; secondly, that J's moiety wag, at his death, divisible among all his children, the shares of those who had pre-deceased him going to their proper representatives. Doe d. Patriclc v. Royle, 18 Law J. Rep. (N.s.) a.B. 145; 13 Q.B. Rep. 100. A testatrix devised her real estates as follows: — " I give and devise the same to my husband's nieces, Martha S and Jane S G, to hold to them and their heirs and assigns, for ever, but in case the said Martha S and Jane S G should both die without issue, then I give and devise the same premises to E H and A G, to hold to them their heirs and assigns for ever, as tenants in common : — Held, that Martha S and Jane S G were joint tenants for life, with several inheritances; that therefore on the death of Martha S, Jane S G became entitled to the DEVISE ; (B) What Property passes by. 243 property during her life, and that after her death without issue the plaintiffs, who were the' daughter and grandson of Martha S, became entitled. Forreii V. Wliiteway, 18 Law J. Rep. (n.s.) Exoh. 207 ; 3 Exoh. Rep. 367. Testator gave real and personal property to his wife for life, and at her death, if he left issue, to the child or children he might have at his decease ; but if he died without leaving issue, he gave all his property in equal proportions to his brothers and sister, Thomas, Anthony, John and Jane ; and if any of them should die without leaving issue, he gave their shares to the survivors, but if leaving issue, to their children. The tefetator died without issue. John died a bachelor in his lifetime. Jane died in the lifetime of the widow, leaving one child and several grandchildren, the issue of a deceased child. Thomas survived the widow, and died leav- ing children. Then Anthony died a bachelor. — Held, that John's share went absolutely to Thomas, Anthony and Jane ; that Jane's share went to her child; Thomas's to his cliildren;- and Anthony's to his real and personal representatives. Benn v. Dixon, 16 Sim. 21. - A testator directed all his real and, personal estate to be divided among his three sisters or their children, as his mother should appoint. The mother died without making any appointment : — Held, that the three sisters and their children were entitled to have the estates divided among thera per capita. Penny v. Turner, 17 Law J. Rep. (n.s.) Chanc. 133 ; 2 Ph. 493. Testator gave houses in trust for M for her sepa- rate use for life, and on her decease to apply the rents for the maintenance of her children then living, and when they should all attairi twenty-one in trust to sell and divide the proceeds among them equally j and, in case M should die without leaving issue, to divide the produce among such of the testa tor'sgrandchildren thereinafter named as should be living at her decease. The testator, by separate clauses, gave other houses in trust for his grand- daughters C S and H, for their separate use for their lives, and repeated after each clause, ^'ahd after her decease in trust for the issue of her body in the same manner and subject to the same con- ditions and limitations as hereinbefore expressed in the bequest to my grand-daughter M." He after- wards declared that if all his said grand-daughters should die without leaving issue all the houses should fall into the residue of his estate. C died leaving issue. H died without issue. Held, that the houses given in trust for H went over to M and S, as being the only grandchildren living at her death. Doughty v. Saltwell, 15 Sim. 640. (B) What Property passes by the Devise. (a) In general. Testator devised the messuage or dwelling-house with the outbuildings, orchard and appurtenances occupied by A B, situate on the west side of the town of M, and a close of land adjoining, being the close at the north corner of the town of Maforesaid, and opposite the pond, and containing, with the garden and orchard, 3 acres 5 perches, more or less, to C in fee. By a codicil, in which the testator recited that he had devised to C (amongst other hereditaments) " a close situate at M, being the close opposite the pond, and containing, &c., and now in ray own occu- pation," he declared that be " revoked the devise of the said close to C, and devised the same with the appurtenances to D," in fee. The quantity of land which, together with the garden and orchard, made up tlie 3 acres 5 perches, and which formed one purchase by the testator, included two pieces of land adjoining the close Opposite the pond, &c., but separated from it by posts and rails, hut' these two pieces of land were not in the occupation of the testator at the date of the will or codicil :— Heldj that they did not pass to D by»the codicil. Doe d. Renow v. Ashley, 16 Law J. Rep. (n.s.) a.B. 356 ; 10 Q.B. Rep. 663. . Devise of all that messuage and lands 1 noui live in : — Held, to pass land bought at the same time as the house, but which testator had ceased to occupy a year previous to date of will, he not occupying any other land. Nightingall v. Smith, 1 Exch. Rep. 879. A testator devised all ray five freehold messuages, tenements and dwelling-hoiises andipremises, with their appurtenances, in the occupation of J P and his undeT'-teilants. The estate consisted of five cottages, with gardens and outbuildings inclosed, and behind three acres of land. J P was tenant of the whole, hut occupied the land only: — Held, that the whole estate, both cottages and land, passed under the will. Doe d. Heming v. Wilhtts, 18 Law J. Rep. (n.s.) C.P. 240 ; 7 Com. B. Rep. 709. Devise (before the 7 Will. 4. & 1 Vict. c. 26.) of lands to certain persons, and of pits and veins of clay under the same lands to other persons, — the latter devise passed onl3' the pits and veins of clay open at the date of the will— Semite. ' Whether, since the statute, such a devise would pass pitsor veins open at the death of the testator — qutere. Brown v. IVhiteaay, 8 Hare, 150. The testator, a Scotchman, domiciled in England, by his will, gave all his real, personal and mixed estate, which he might be seised or possessed of, or entitled to at the time of his deceafie, upon trusts, under which his heir-at-law took a benefit. The testator, at the time of his death, v^as entitled to a sum of 6,000^., being a debt du^ in respect of mercantile dealings in England, arid secured by a heritable bond upon lands in Scotland, executed to the testator after the date of the will, The heir-at- law having recovered the money, held, that the bond did not pass by the will ; that the heir-at-law was not a trustee for the personal representatives of the testator; and that he was not put to his election. Allen V. Anderson, 15 Law J. Rep. (n;S.) Chano. 178; 5 Hare, 163. A library of books held to pass upon a general intention that the testator's house should not be dismantled, but kept up for his family. Oaseley v. Anstruther, 10 Beav. 462. A testator devised the residue of his estates " whereof I am now seised" to trustees upon certain trusts, and afterwards devised " all such trust estates, freehold, copyhold and leasehold, as are now vested in me, or as to the leasehold premises as shall be vested in me at the time of my death:" — Held, that the testator had himself put a construction upon the word "now," and that property contracted 244 DEVISE ; (B) What Pkopertt passes by. to be purchased by him after the date of his will did not pass by it Cole V. Scott, 17 Law J. Rep. (n.s.) Chanc. 423 ; 16 Sim. 259: affirmed, 19 Law J.Rep.{N.s.)Chanc63; 1 Hall &Tw. 477; 1 Mac & Gor. 518. (i) Trust Estate. A devise of all real estates whatsoever and wheresoever charged with 501. to J W, does not pass trust estates. Raekham v. Siddell, 1 6 Sim. 297. (c) Leaseholds. A, by his will, devised his freehold farm called Wick, in the occupation of W E, to two devisees in moieties. Two parcels of what was called Great Hill Ground were at the date of the will occupied as part of Wick farm, to which they had formerly belonged, but had been conveyed to the president and scholars of Magdalen College, who had re- demised them to the testator for twenty-one years. He further devised " all my leasehold farm-house, homestead, lands and tenements at HeddingtoD, containing about 179 acres, held under Magdalen College, Oxford, and now in the occupation of T B as tenant to me." T B held the farm at Heddington, which was leased to A from Magdalen College, Oxford, but had never occupied the two parcels of Great Hill Ground. It having been held by Vice Chancellor Knight Bruce (1 Coll. CO. 47), that the two parcels did not pass under the first devise, because they were leasehold, the Court of Exchequer held that they did not pass under the second devise, because they were not in the occupation of T B, and that devise would only include lands that were in Heddington, lease- hold under the college, (itad in the occupation of T B. Morrell v. Fisher, 'l9 Law J. Rep. (n.s.) Exch. 273; 4 Exch. Rep. 591. A testator, after charging his debts, funeral and testamentary expenses, and pecuniary legacies on his real and personal estate, but directing his per- sonal estate not specifically bequeathed to be the primary fund for payment, and charging the annui- ties given by his will on his real estates, and direct- ing certain charity legacies to be paid out of his personal estate only, and the duties payable on his legacies and annuities to be paid out of his per- sonal estate, gave the residue of his personal estate to his brother M J D absolutely. Then followed a devise of the testator's manors, lordships, rectories, advowsons, messuages, lands, tenements, tithes and hereditaments situate at A, B, C, and D, in the counties of Durham and York, and of his other real estates in those counties and elsewhere in Great Britain, upon certain trusts for the benefit of M J D and his issue, with remainder to W E in fee simple. The testator died seised of freehold estates and also possessed of considerable leasehold estates. The freeholds and leaseholds were not intermixed, but adjoined each other, and, in some instances, parts of the freehold and parts of the leasehold estates were let to the same tenant, at one undivided sum : — Held, that the leaseholds did not pass under the devise of the testator's manors, lands, &c., but belonged to the testator's next-of-kin as part of his personal estate. Held, also, that the devise was not affected by the Wills Act (7 Will. 4. & 1 Vict, c 26). WiUon V. Eden, 17 Law J. Rep. (n.s.) Chanc. 459 ; 11 Beav. 237. ((J) Tithes. Testator devised certain tithes to D W for life and at the expiration thereof to the uses after expressed concerning his real estates. He then devised aU his real estates of what kind or nature soever and wheresoever situate, subject to payment of his debts, to his niece and her sons in strict settlement. By a codicil made after the niece had a sou, he gave all his real estates of what nature or kind soever to that son for life, with limitations to his first and other sons in tail male, and on failure of such issue he devised all his said real estates in the manner mentioned in the will, and declared that the devisees thereinbefore made should take prece- dence of the devisees of his real estates contained in his will: — Held, that the words "real estates" in the will did not include the tithes, but that those words in the codicil did-include them. Evans y. Evans, 17 Sim. 86. (e) Growing Crops. A testator devised an estate of which he was in possession to B for life, with divers remainders over; he subsequently bequeathed to his executors all his live and dead stock, household furniture and effects, and all his personal estate whatsoever and wheresoever, upon various trusts : — Held, that the growing crops passed to the executors, and that they did not belong to the devisee of the estate. Rudge V. Winnall, 18 Law J. Rep. (n.s.) Chanc. 469 ; 12 Beav. 357. (/) Estate in Remainder. A testator entitled to a copyhold estate in re- mainder expectant on the determination of the life estate of his wife, by his will gave the income of all his property wherever situate or of whatsoever kind to his wife for her life, and at her decease he gave all the property then left by him, and of which she was to have the income for her life, to his children, and on his wife's death or second marriage he directed his trastees to receive the rents and divi- dends arising from the estate and effects he should die possessed of and to apply the same in the maintenance of his children until the youngest should attain twenty-one: — Held, that the interest of the testator in remainder in the copyhold estate passed by his will. Ford v. Ford, 6 Hare, 486. (C) Particulab Limitations. (a) Legal or Equitable Estate. A testator made and published a testamentary paper in- 1839 in the following words : — "This is the last will and testament of me, the undersigned, A B, relating to all my freehold and copyhold lands, tenements, hereditaments, and all my real estate whatsoever, which X hereby give, devise and bequeath to the intent that the rents, issues and profits thereof may be divided into three equal shares and proportions, one-third whereof I give and devise to Caroline, the daughter of C D, for her natural life, independent of any husband she may hereafter marry, and for which her receipts alone shall from time to time, notwithstanding her DEVISE ; (C) Paeticular Limitatiohs. 245 coverture, be a sufficient discharge, subject, never- theless, to an annuity of 501. per annum, payable to her mother, during her life, independent of her present or any other husband, payable quarterly, and for which her receipt alone, notwithstanding her coverture, shall from time to time he a suffi- cient discharge. Then, as to the other two-thirds of the said rents, issues and profits, I hereby direct the said annual rents ^nd profits to be paid to all the children of W "W, or that' he be permitted to receive the annual rents, issues and profits of my said freehold and copyhold estates for the use and maintenance, education and putting forth in the world of all his said children until their arrival at the age of twenty-one years. I appoint the said W W executor of this my will, so far as the same is necessary to the performance of the trusts relat- ing to my real estate." The testator died, leaving the persons named in this will and four children of W W surviving. He also left other instruments, prior in date to this will, duly executed and uncancelled, by which he devised the whole legal and beneficial interest in his estate : — Held, first, that the instrument of 1839 alone was valid as a disposition of the legal estate of the testator. Secondly, that it operated as a devise to W W of the legal estate in one undi- vided third of the real estate, and a devise to him of a chattel interest during the minority of his children in the other two-thirds, determinable as to the respective shares of his children in the said two-thirds on their respectively attaining the age of twenty-one years, and, subject thereto, a devise of the said two-thirds to his children as joint-tenants in fee. As to the beneficial interest in one-third after the decease of Caroline— -jM^sre. Plenty v. West, 17 Law J. Rep. (n.s.) C.P. 316 ; 6 Com. B. Rep. 201. A testator, by his will, directed his trustees to pay and discharge his debts, &c., and subject thereto gave and devised a freehold messuage, &c. to them, in trust to permit and sufier his wife to live and reside therein during her life free from rent, and after her decease he gave and devised the same unto his said executors and trustees, and the survivor of them, his executors and administrators, in trust to permit and suffer his daughter to receive and ta]£e the rents thereof for and during the term of her natural life, free from the debts, controul, or engagements of her then or any future husband. And after her decease he gave and devised the same unto his said executors and trustees, &c. upon trust to pay and apply the rents thereof to and for the use and benefit of his grandson I M, the eldest son of his said daughter, in the event of his not having attained the age of twenty-one at the time of her decease, and from and immediately after his attain- ing that age he gave and devised the same unto the said I IrJ for and during the term of his natural life. Then, after certain contingent devises to the trus- tees which never toot effect, he devised and be- queathed the residue of his property unto and between his said wife and his said daughter " in equal shares and proportions, share and share alike, the share of my said daughter also independent of the debts, controul or engagements of her present or any future husband in manner aforesaid" : — Held, that the co-heirs of the testator's daughter took a legal estate under the residuary devise. Doe d. Mutter v. Claridge, 18 Law J. Rep. (jf.s.) C.Pi 105; 6 Com. B. Rep. 611. Testator gave his real and personal estate to trustees, their heirs, executors, &c. for ever, upon trust, for his wife to receive the rents for life ; and after her decease upon trust to pay and divide the rents among his chiI4ren as they attained twenty- one, and after their decease to pay the principal of their respective shares to their legal representatives, their executors, Sic. He gave power to the trustees to sell, with power of maintenance out of the rents, and advancement out of the principal of their shares; and in case any of his freehold estates should not be sold by his trustees, then from and after the decease of his children he devised the same to their respective heirs and assigns, as tenants in common ; and he directed that the receipts and conveyances of his trustees should be good dis- charges and assurances to any purchaser ;— -Held, that the trustees took the legal fee, and that the children took equitable estates for life, with equit- able remainders to their heirs, which united gave the equitable estates in fee. Ueynell v. Beynell, 10 Beav. 21. A testator gave and bequeathed all his stock in trade, boot debts, securities for money, money in the funds, and all his household goods, &c. to his wife. He also gave and bequeathed whatever money he had in the Bank, or invested on any security, and also all the residue of his personal and testamentary estate, goods, chattels and credits to his trustees upon certain trusts therein mentioned : — Held, that the legal estate in certain messuages, which were conveyed to the testator upon trust to pay himself a sum of 3002., and to pay the surplus to the person conveying ithe same, did not pass by the will. In re GorfetPs trust, 19 Law J. Rep. (n.s.) Chanc. 173. | Devise to A and B and their heirs to the use of testator's son for life, reniainder in trust that the trustees or the survivor should pay and apply the rents, &o. or so much as they should think proper for the maintenance of his son's younger children during their minorities, and after they should all have attained twenty-one, to the use of them, their heirs and assigns :^Held, that A and B did not take the legal estate in fee ; but that the son took the legal estate for life with remainder to A and B for a chattel interest, with remainder to the younger children in fee. Tueher v. Johnson, 16 Sim. 341. A testator devised real estate unto and to the use of three trustees, their heirs and assigns, upon trust, to pay the rents to a married woman, for her separate use for her life, and, after her death, in trust for all her children who, being sons, should attain twenty- one, or being daughters should attain that age or marry, and their heirs and assigns for ever : — Held, that the trustees took the whole legal fee, and that all the children of the tenant for life living at Tier death, minors and not minors, took vested interests in equity in the estate, subject, as to the share of any minor, to he divested in the event of his or her dying under twenty-one. Riley V. Garnett, 19 Law J. Rep. (n.s.) Chanc. 146. Devise to trustees and their heirs upon divers trusts in succession, some requiring the legal estate to remain in the trustees, and others which in them- 246 DEVISE ; (C) Pabtioulab Limitations. selves would not do so, — tie whole legal fee remains in the trustees. Brown v. Whiteway, 8 Hare, 145. By the will ofW S real estate was devised unto and to the use of W. T, his heirs and assigns, for ever, upon trust, to pay M S an annuity during her life, and to apply the surplus during the life of 51 S for the testator's daughter C N ; and after the death of M S the testator directed that the premises should be and remain unto W T, his heirs and assigns, to the use of the said C N and her assigns for her life, with remainder to W T, to support contingent re- mainders ! and after the decease of C N to the use of B N and his assigns during his life, with re- mainder to W T to support contingent remainders ; and after the decease of B N, in case he should survive C N, to the use of all and every the child and children of C N, with cross-remainders between them, with the ultimate remainder to the testator's cousin in fee. The will contained a power to W T, his heirs and assigns, to sell the trust premises at the request of B N and C N, or the survivor of them, and directed the proceeds to he laid out in the purchase of other estates, to be settled to the same uses: — Held, taking into consideration the various duties prescribed by the will to be performed by W T, that the intention was manifest, and the words were large enough to give to W T a legal estate in fee. Rackham v. Siddall, 1 Mac. & Gror. 607; 2 Hall & Tw. 241. (6) Trust or beneficial Estate. A testator devised freehold and copyhold estates to trustees and their heirs, upon trust, for the use and benefit of his three natural boys. The rents, &c. to be paid for the maintenance and education of the said before-mentionad boys, or the survivors or survivor of them, share and share alike : — Held, that there was no resulting trust, and that the sons were entitled absolutely as joint tenants. Moore v. Cleghom, 16 Law J. Rep. (n.s.) Chanc. 469; 10 Beav. 423 : affirmed, 17 Law J. Rep. (n.s.) Chanc 400. A testator devised a share in the New River Com- pany to A, upon such trust as he should afterwards declare ; ' but never made any declaration of trust as to it The testator died without leaving any heir-at-law: — Held, that A, and not the Crown, was entitled to it. A testator fnade a general devise of all his pro- perty to A, upon trust, for purposes or legacies he should make in any codicil he might add to his will ; and afterwards made a codicil, which was unattested : —Held, that A was not entitled in his own right to the property, but was a trustee for the heir-at-law of the testator. Davall v. New River Co., 18 Law J. Rep. (n.s.) Chanc. 299. A testator directed that all his property should be at the disposal of his wife, for herself and her children : — Heild, that the wife was either a trustee with a large discretion as to the application of the fund, or had a power in favour of the children, sub- ject to the life estate in herself. Held, also, (reversing the decision, 16 Law J. Rep. (U.S.) Chanc. 214; 5 Hare, 326,) that the children were not entitled to a present interest in possession. The wife had executed a deed, by which she directed the income of the testator's property to be paid to herself for life, with certain trusts in re- mainder for the benefit of the children ; and by a decree made in a supplemental suit, the children had been declared entitled to the benefits of the deed, and that decree was not appealed from. The Lord Chancellor, therefore, refused to make any declaration as to the rights of the parties under the will, independently of the deed and the decision in the supplemental suit; their interests being in a great measure decided by that suit and the decision in it Crockett v. Crockett, 17 Law J. Rep. (N.s.) Chanc. 230. (c) Joint Tenancy or Tenancy in common. The words "share and share aHke'^ will he con- trouled by circumstences denoting that they are not used to create a tenancy in common. Estates vested in trustees for the benefit of three persons, with a direction to apply the income for the maintenance of the cestuis que trust, or the survivors or survivor, share and share alike, — Held, to create a joint tenancy. Moore v. Clegliam, 16 Law J. Rep. (n.s.) Chanc. 469; 10 Beav. 423: afErmed, 17 Law J. Rep. (n.s.) Chanc. 400. (d) Fee Simple. A testator devised as follows : — " I give and bequeath to my son R A my moiety of the house which he now lives in, and all my personal property now in his keeping" : — Held, that the above words carried the fee simple in the moiety of the house. Doe A. Atkinson v. Fawcett, 15 Law J. Rep. (n.s.) C.P. 244; 3 Com. B. Rep. 274. A testator devised as follows : — " I give, devise, and bequeath all my real and personal estate, monies, securities for money, and all other my real and personal estate, of what nature or kind soever, and wheresoever the samemay be, which I am now possessed of, or which at any time hereafter I may be possessed of, or entitled unto, subject to the pay- ment of all my just debts, funeral and testamentary expenses, and the expense of proving this my will, unto my dear wife, to and for her sole and separate use and benefit": — Held, that, under the above words, the devisee took an estate in fee in the lands of the testator. Doe d. Roberts v. Williams, 17 Law J. Rep. (n.s.) Exch. 51 ; 1 Exch. Rep. 414. A testator devised as follows : — " I give unto my wife E, to W H, and J C, their heirs, executors and administrators, all my real and personal estate, upon trust to pay the rents, interest and produce unto my said wife during her life, and afi«r her decease to pay and apply the rents, issues and profits towards the maintenance of my children during their lives, without benefit of survivorship, and after their decease I give and devise the share of her so dying unto the children of his or her heirs as tenants in common. I give, ordain, direct and appoint unto my said wife E, to "W H, and J C, their heirs, exe- cutors and administrators, power and authority to sell, dispose and mortgage, lease or otherwise in all manners manage my estate, both real and persona], as if I were living; I appoint my said wife E and the said W H and J C executors of this my will, and also guardians of my said children." The testator died in 1825, leaving his widow E (one of DEVISE ; (C) Paeticular Limitations. 247 the plaintiffs) and three unmarriefl daughters of the ages of seventeen, fourteen, and eleven; the youngest died in 1844, and the eldest in 1832 married,, and had several children living at the date of the here- inafter mentioned contract of sale, and still living. J C never acted under the will, but in 1S33 executed a deed disclaiming all interest under the will. The other trustee W H died in 1840. In 1845 the plaintiffs W and E contracted to sell to the defen- dant an estate, of one moiety of which the plaintiff W was seised in. fee, and of the pthei; moiety the testator at the date of his will and at the time of his death was also seised in fee : — Held, that the plaintiff E took an estate in fee simple in the moiety devised by the testator, and was capable of making a good title in fee.simple to a purch,aser. fVatsov y. Pearson, 18 Law J. Rep. (n.s.) Exch. 46; 2 Exch. Rep.SSl. J. Westerman bequeathed certain personal pro- perty and appointed trustees who were to deal with his real estate as directed until his son John attained twenty-five years : and proceeded thus : — " I will that my son John, having attained twenty-flve years of age, be let into possession of all my propertyj real and personal, which remains, on this express condition, that neither he nor his heirs to the third generation shall have power to sell or mortgage any part of the freehold estate now in my own occu- pation, or in the occupation of E ; bui; if the trustees do not sell or mortgage the estate, J einpower John or his heirs to sell it to pay off the mortgage, bi^t not otherwise; and in like manner I debar hinj and his heirs from selling or transferring those cottages, with cart-house, &c. now in the occupation of R. Metcalf and others, it being my desire that they should be kept in the Westermms' name. Twelfthly, if it should happen that my son John die without leaving lawful issue, it is my will that my daughter Ann have his share, subject to the same restrictions, limitations and exceptions under which he has it. Thirteenthly, if it should please God to take away both Ann and John under age or without leaving lawful issue, I give and bequeath to my brother Joseph and his heirs for ever all those cottages and cart-house, &c. occupied by R. Metcalf and others. Fourteenthly, all that is left to be imrnediately sold, &c. (the residue was then disposed of). Ann sur- vived her father and died unmarried, under twenty- one. John survived his father, attained twenty-five years of age and died, leaving two children who died in infancy. He left a will disposing of his real estates. Held, first, that the devisees of John took an estate in fee simple in all the hereditaments devised or affected by the will of his father ; secondly, that in the events that happened, Joseph, the testator's brother, took no estate under the 13th clause in the cottages, &c. therein mentioned ; and, thirdly, that in the events that happened, no person other than the devisees of John had any power of selling or appointing, or any estate in the hereditaments de- vised or affected by the will of his father. Mortimer V. Hartley, 19 Law J. Rep. (n.s.) C.P. 153 ; 3 De Gex & S. 316 ; 6 Com. B. Rep. 819. A devise was in these terms: — "I give to B and S, their hpirs, executors, &c., ray freehold and lease- hold estates at Reading, and give ful] power and authority to B and S, and their heirs, to accept sur- rendersof all presentan,dfuture leases, and grant new leases. I give to B and S all my other real estatej in trust, out of the rents and profits thereof to pay to my wife the jointure of 700^. settled by me on her ; and also to pay out of the rents and profits of my freehold estates unto F B during her life, an annuity of 1001., and thereout also to pay C during the joint lives other and F B an annuity of 300/. ; and after the decease of F B, if C should survive her, to pay C an annuity pf 4,00/. ; and after the decease ojT C, in case she shall have only one child, then in trust to p^y out of the rents and prpfits of my said estates the yearly sum ojf 2002. for the maintenance ofsiic)} child ;UUtil he or she shall attain the age of twentyr fiye years, and after that in trust to raise the sum of 1,000/. to pay to him, or her at ^hat age. And my \7ill is, that so much as my residuary personal estate shall fall short of paying my debts and legacies hereby given shall be, ,by my trustees raised apd paid out of the rents and profits of my several e^tatps, and by mortgage pf all or any part thereof; and after payment of the interest of the money so to he borrowed, and the expenses of keeping my estates in repair, and all such costs as my trustees shall expend by means of the trusts, in trust to pay put of the overplus rents and prpfits thereof, 60/. yearly for the maintenance of the eldest son of B until h,e shall have attained the age of twenty-three years; apd I hereby give full ppwpr to my said tru?,tee.s, and I do order and direct that they shall settle , a jointure on any woman such eldest son shall marry of 60/. per annum ; and in trust to apply the overplus rentsand profits of my estates in payingo^themqney so to be borrowed on mortgage ; apd after paytn^ent thprepf to pay the rent^ and profits of my said estates to B, during his life, to his own use ; an;! after his decease then my trustees shall stand seise4 of my real estates to, for, apd upon the uses fp^low- ing (that is to say), io the use of 3 B, the eldest, spn of B, during his life, and'after the dptprmination of that estate, to the use of I|I and his heirs during the life of J B, upon trust to preseive cpntingpnt, rer mainders ; and after his decease, to the use of , the son of J. B, and the heirs male pf his body ; and, in default of such issue, to the use pf ^le second, third, fourth, and all other sons of J B,) successively in reniainder, and the several heirs maile; pf the bpdips of such sons. There were other limitations oyerpf the same kind in default of issue, and a gift tp trus- tees to support contingent remainders followed each life estate. Held, that the trustees t,opk an estate in, fee siniple in the property devispd. Blag^ave , v. Blagrave, 19 Law J. Rep. (n.s.) Exch. 414 ; 4 Exch, Rep. 550. A devised to B, her heirs, executors an3 adminis- trators, all that dwellingrhouse,. No. 3, Tavistpck Street, in the borough of Plymouth, and further devised to B for her life other premises, describing them, and adding " the whole of which premises are in the bprough of Plymouth ;" and in esse B die.d without issue " thq said premises" were to go over to the children of C, There was algo a legacy of 100/, to be paid to JJ ppt of thp " before-meptionei premises." All the prepaises were in the borough of Plymouth : — Held, that IB took an estate in fee ip the first-mentioned house, and upon her death without issue the children of. C took pnly the other premises. 248 DEVISE; (C) PAKTiouia.E Limitations. Doe i. Bailey v. Sloggett, 19 Law J. Rep. (n.s.) Exch. 220 ; 5 Exch. Rep. 107. A testator devised real estate to A, his heirs, exe- cutors and administrators ; but directed that, if A should die without issue, the estate should go in the manner therein mentioned; and that, if A should die leaving issue, such issue should take the estate. A survived the testator: — Held, that the words "in the lifetime of the testator" were not to be supplied after the words " issue" and " issue," in the latter part of the will ; and, consequently, that A did not take the fee simple. Gee v. the Town Council of Man- chester, 19 Law J. Rep. (n.s.) Chanc. 151. A testator devised his estates to trustees, to pay the rents equally between his nephew James Wilson and other nephews and nieces for life, and upon the decease of the survivor he devised all his said estates "to a son of James Wilson in marriage, his heirs and assigns." All the tenants for life died. James Wilson had two sons by his first marriage, who died infants and unmarried, and a third son by a second marriage, who survived : — Held, that the devise was to the first son of James Wilson in fee simple, and his heirs were consequently entitled. Ashbt&ner v. Wilson, 19 Law J. Rep. (n.s.) Chanc. 330. («) Estate Tail. Devise before 1 Vict. c. 26, to A for life, and after his decease to his first scj|i lawfully issuing, and for default of such issue, over to the other sons in tail, and in default of such issue over: — Held, that the first son of A took an estate tail. Doe d. Harris v. Taylor, 10 aB. Rep. 718. A testator made his will as follows : — " 1 devise to my son Stephen a small field and all that dwell- ing-house, barn, and gra^jry, at, &c., to hold to my said son Stephen for ai£. during the term of his natural life ; and from a%i after his death I devise the same to the issue of his body, lawfully begotten; if more than one, equally amongst them ; and in case he shall not leave any issue of his body law- fully begotten at the time of his death, then I devise the same to my heir or heirs-at-law." The testator died in 1797, and Stephen, the son, enfeoffed certain persons of the premises named in the will (under whom the defendants claimed) in 1798, and died in 1831, leaving two sons (lessors of the plaintiff), the eldest of whom was bom in the lifetime of the tes- tator: — Held, that Stephen, the son, took an estate tail under the terms of the will of the testator ; that the feofibient operated as a discontinuance, and the lessors of the plaintiff could not maintain ejectment. Doe d. Cannon v. Rucastle, 19 Law J. Rep. (n.s.) C.P. 100; 8 Com. B. Rep. 876. A testator gave his residuary real and personal estate to his son H A for life, and to the heirs of his body lawfully begotten, for ever ; and in case his said son should be without children, then over : — Held, that H A took an estate tail in the premises. Abram v. Ward, 16 Law J. Rep. (n.s.) Chanc. 293 ; 6 Hare, 165. A testator bequeathed l,000t to trustees, upon trust for his son A for life, with remainder to the children of A. He then gave the residue of his estate and effects to his trustees, upon trust, for all his children in equal shares, and the heirs of their respective bodies. The following words were then added in a parenthesis : " except as to my son A and his children, whose share, in consequence of the l.OOOi. set apart for hira and them as aforesaid, shall be rated at 1,000/. less than that of any other child." The will then declared that in case of a failure of issue of any child, the share of him or her whose issue should faU should be held on the trusts therein mentioned. The testator left freehold estates and personalty applicable to the trusts declared of the residue : — Held, first, that the words in the pa- renthesis did not cut down A' s interest in the residue to a life estate; and, secondly, that the words " failure of issue" were not made by the 29th section of the Wills Act to mean failure of issue at the death of A. Green v. Green, 18 Law J. Rep. (n.s.) Chanc. 465. (/) EstaU for Life. A devised lands in trust for J B, a reputed son, for his life, and, after his decease, for and to his first and every other son successively in tail male, and in default of such issue to his daughter or daughters, to hold to them, if more than one, and their heirs, as tenants in common ; and, in default of issue of the said J B, to and for the testator's right heirs: — Held, that J B took only an estate for life, and that no remainder in tail to him could be implied after the limitation to the daughters. Baker v. Tucker, 3 H. L. Cas. 106. A testator after charging certain lands with an annuity to his wife for life, and giving them succes- sively to several persons for life, devised them in the following terms:— "I give and devise the same (but subject and charged as aforesaid) to such per- son or persons as at the time of my decease shall be the heir or heirs-at-law of W H, formerly of P, Esq., deceased": — Held, that the words "heir or heirs-at- law'* were a designatio persona, and not words of limitation ; and that the heir of W H took an estate for life only. A devise of an indefinite estate, without words of limitation, primd facie is a devise for life only ; and a previous charge on the estate vrithout any charge on the devisee in respect of it will not enlarge it into a devise of an estate in fee. Doe d. Sams v. Garlick, 15 Law J. Rep. (N.s.) Exch. 54; 14 Mee. & W. 698. A testator by his will devised certain lands to his son for life, with reminders in strict settlement to his issue, with remainder to the testator's grand- son Thomas for life, with remainder in strict settle- ment to his issue, and for default of such issue to the use of his grandchildren, W, S, A and H, if living at his decease, for their lives and the life of the sur- vivor, as tenants in common ; and after their several deceases and the decease of the survivor, to the use of the son and sons, &c of W, S, and H lawfully to be begotten severally and successively, and in remainder as they shall be in priority of birth and seniority of age, and of the several heirs of their body as tenants in common ; and in default of such issue to the daughters of the said grandchildren in like settlement " And in case either of my said grandchildren W, S, A, and H shall happen to die, leaving no issue behind him, her, or them, then my will and meaning is, that all and singular the pre- mises herein lastly devised shall go and remain to the survivor of them, and the heirs of his or her body lawfully to be begotten in manner aforesaid;" and in DEVISE ; (C) Paeticular Limitations. 249 failure of issue of either of their bodies, then over. S, one of the grandchildren, was the survivor : — Held, that the words "in manner aforesaid" imported a clear reference to a previous clause of the devise, and incorporated it with the second clause; and that as the previous clause gave only an estate for life to the grandchildren, the second clause was con- trouled by it, and*|je an estate for life only. Doe d. fVoodall V. WoodaM, 16 Law J. Rep. (n.s.) C.P. 28 ; 3 Com. B. Rep. 349. A testator, who died in 1 790, after giving his estate at S to John P in fee, devised as follows : — " I give to John P the meeting-house and appurtenances if it is not made freehold, to save the expense of so many fines, but my will is for John to let E and M have equal shares with him the same as if it was freehold and given amongst them. I give all the land I bought of B to John, E and M, as likewise the meeting-house, if it is made free, share and share equally amongst them ; if John refuse to let them have share of the meeting, he to forfeit all hfs estate to be divided amongst them": — Held, that the de- visees took only life estates in the lands bought of B, and that the clause of forfeiture of the S estate was not by way of equivalent for the meeting-house, but by way of penalty on John in the event of his disobeying the testator's expressed will as to the meeting-house. Doe d. Payne v. Plyer, 19 Law J, Rep. (U.S.) Q.B. 29. Real estates were devised to T B for life, re- mainder to his first and other sons in tail, remainder to his daughters in tail, and in default of all his issue to H D B for life, remainder to his first and other sons in tail, remainder to his daughters in tail, and in default of all such issue remainders over; and copyholds were devised to H D B for life, witli remainder to his first and other sons in tail, remainder to all the daughters in tail, and in default of such issue to R D in fee; and by a codicil the testator declared that after the several limitations of his real estate in favour of T B should be spent, he had limited the same in the same nianner to H D B, and declared that the said T B should, after the limitations in favour of H D B in the copyhold estate, have precisely the same estate therein before the limitation to R D as the said H D B had in the real estates :— Held, that T B had an estate for life in the copyholds, with re- mainder to his issue in tail. Grover v. Burningham, 5 Exch. Rep. 184. Testator gave his four daughters legacies after the death of his wife should she so long continue his widow. He then gave two estates at A and B to his sons, but they were not to be put in posses- sion as long as his wife continued his widow. He then gave his personal estate to his sons, to be divided between th'em at the death of his wife, or should she not continue his widow. Should his wife give up the farm at C then occupied by him, he directed that his sons should out of the estates at A and B allow her 25/. a year. In a suit to administer the real and personal estate of the testa- tor, — Held, that the widow, while she continued unmarried and in the possession of the farm at C, was entitled to a life estate in all the testator's pro- perty, by irnplication i without prejudice to any question as to the construction of the will in the Digest, 1845—1850. events of her giving up the farm at C, or marrying again. Cockshott v. Cocleshott, 15 Law J. Rep. (n.s.) Chanc. 131 ; 2 Coll. C.C. 432. S G granted and devised to trustees certain free- hold property for the term of ninety-nine years, at a peppercorn rent, upon trust, to permit his Wife and such persons as she should by will bequeath the same, to take to his, her, or their own use and benefit the rents, &c. of the said lands for the said terra ofninety-nine years, exclusively of any hus- band of his Said wife. The wife, after her husband's death, conveyed her interest in the property to certain persons represented by the defendant, and subsequently made her will, giving the property to the plaintiff: — Held, that the wife of S G took the property for the whole term of ninety-nine years, and not merely a life estate, with remainder to such persons as she should appoint by will; and that she had conveyed away all her interest to the defen- dant. Glover v. Hall, 18 Law J. Rep. (n.s.) Chanc. 305; 16 Sim. 568. A testator, by will, directed his debts, &c. to be paid, and then gave, devised, and bequeathed all and every his estate and effects, whatsoever and wheresoever, to his wife M A C for her sole sepa- rate use and benefit; and further gave, willed, and directed that, at her death, whatever remained of his said estate and effects should go to the persons therein named : — Held, that MAC was not abso- lutely entitled to the testator's property. Constable V. Bull, 18 Law J. Rep. (n.s.) Chanc. 302. (g) Vested or contingent Estate. The testator devised all his residuary property to his wife for life,' and then to such of the childreti of his sisters as might be living at the decease'of his wife, and the issue of such of therii as might be then dead, in equal shailes and proportions; such issue, however, only to t^ke the share which their parents would have been entitled to if living : — Held, that the issue of the childi-en of the testator's sisters who died after their parents, but before the widow, took vested interests in the property under this devise. Lyon v. Coward, 15 Law J. Rep. (n.s.) Chanc. 460; 15 Sim. 287. Testator gave the residue of his real and per- sonal estate to trustees in trust for his three ne- phews, their heirs, 8ie. as tenants in common, with cross- remainders and benefit of survivorship in case any of them should die before their shares should become vested, which he desired might not be shared until his youngest nephew attained twenty- four J and he directed his trustees to maintain and educate them out of the income of the property during their minorities. The nephews were infants at the testator's death: — Held, nevertheless, that they took vested interests under the will. Parkin V. Hodgkinson, 15 Sim. 293. (D) DiSCLAIMEK BY DeVISEE IN TKDST. A devisee in trust, on the reading of the will, after the testator's death, stated that he ought to have had 5/. for being trustee ; — Held, that these words were so ambiguous that they ought not to have been left to the jury as evidence of his assent to the devise. Qutsre — Whether a verbal assent to a devise is 2K 250 DEVISE ; (E) Charges— (F) Devise for Payment op Debts. sufficient to prevent the party from afterwards dis- claiming the devise. QiuBre — ^Whether a devisee in trust can disclaim hy deed after previous assent to the devise in words. Doe d. Chidgey v. Harris, 16 Law J. Rep. (n.s.) Exch. 190; 16 Mee. & W. 517. (E) Charges. A devise of an estate which was subject to a mortgage to A B, "he paying the mortgage, thereon," amounts to a direction that he should pay the mortgage, or take the estate subject to it. Lockhart v. Hardy, 9 Beav. 379. Testator devised freeholds and copyholds to his son for life, and after his decease to his first and Other sons, paying 101. a year to M C for life: — Held, that this created a charge, and not a trust. Hodge V. Churchyard, 16 Sim. 71. A testator devised a copyhold estate to trustees upon trust for A for life, and after his death to sell and divide the proceeds among the children of A. He also gave his residuary estate to the trustees upon other trusts, but charged with debts and the costs and charges of proving and executing his will : — Held, that the fines payable on the admis- sion of the devisees in trust to the copyhold estate were not "costs and charges of executing the will," and thit such expenses ought to be borne by the copyhold estate so devised. Cole v. Jealous, 5 Hare, 51. A, as surety for his sons B and C, mortgaged rekl estate to M, to secure to M the payment of 2,500?. due from B and C ; and B and C gave A a bond to indemnify him in respect of the mortgage. A, by willj devised the mortgaged estate to B, and gkvfe the residue of his estate to trustees, on trust to pay his funeral and testamentary expenses and all his debts, and in particular all sums which might be charged upon the property devised to B : — Held, that the testator took the debt on himself, and that the 2,500i, was payable out of his estate so as to exonerate the principal debtors. Musket or Muslcet V. Cliffe, 17 Law J. Rep. (n.s.) Chanc. 269 ; 2 De Gex & S. 243.- A testator having mortgaged an estate for 1,500?., for payment of which his eldest son was surety to the mortgagee, devised the estate to his eldest son in tail, with remainders over, under which the plaintiff became tenant in tail. The testator devised another ■ estate to trustees, upon trust to sell, and out of the proceeds to pay his mortgage and other debts, and gave the residue to his eldest son, whom he appointed executor and residuary legatee. The trustees did not act, but the son entered into pos- session of all the testator's estates and property. The mortgage was transferred, the son entering into a new covenant for payment of the l,500t and interest at a different rate, with a new proviso for redemption, and he covenanted for payment of the 1,500/. and interest accordingly: — Held, that the plaintiff was entitled to have the entailed estate exonerated from the mortgage out of the son's per- sonal estate. Bruce v. Morice, 2 De Gex & S. 389. By a marriage settlement an estate was settled on the husband for life, with remainder to his wife, for life. This estate was sold under a power, and the purchase-money lent to the husband on mort- gage of estates in M, belonging to him. By his will, he devised his estates in M to trustees, on trust, to pay the wife 600/. a year, until his son attained twenty-five, and then to pay her 200?. a year for her life. By a codicil, he directed that the interest of the mortgage debt should form a part of the annuities of 600?. and 200?.; and by another codicil directed that, when his wife should be en- titled to the 200?. a year, a part of his personal estate, which he had given to her by his will, should go to the possessor of his estates in M : — Held,- that during the life of the wife the estates at M ought to bear the mortgage debt ; but that, after her death, the devisees had a right to have it paid out of the general personal estate of the testator. Sargent V. Roberts, 17 Law J. Rep. (n.s.) Chanc. 117. [See Estate for Life. Doe d. Sams v. Garlick.} (F) Devise toe Payment of Debts. Testator gave all his real property to trustees, upon trust (subject to payment of debts and the annuities and legacies thereinafter bequeathed), to his son for life. After giving certain annuities and legacies, and an annuity out of his real and personal estate, he gave his son all his personal property after his mother's decease, except some plate: — Held, that the personal estate was not exonerated from the payment of debts, &c. Ouseley V. Anstruther, 10 Beav. 453. The testator in the cause having, under a power in his marriage settlement, granted a lease for lives of real estate comprised therein, with a covenant for quiet enjoyment, made his will, whereby he devised all his real estates, subject to the payment of his debts. The lessee being evicted after the death of the lessor, which took place in 1825, brought an action on the covenant against his executors, and recovered damages. The personal estate being in- solvent, it was held that the damages constituted a debt of the testator within the meaning of the charge in the will, and that such damages and costs were recoverable against the real estate in the hands of the devisees, with interest thereon from thetime of the judgment. Morse v. Tucker, 15 Law J. Rep. (N.s.) Chanc. 162; 5 Hare, 79. A testator directed payment of his debts, in the first place, out of his personal estate, exclusive of leaseholds; and if not sufiicient, he charged his real estates with the payment; he then gave divers specific articles to his son : — Held, that the specific legacies were liable for payment of the testator's debts before the real estates. Bateman v. Hotchkin, 16 Law J. Rep. (n.s.) Chanc. 514 ; 10 Beav. 426. A testator gave certain portions of his real and personal estate to trustees, for payment of his debts; and he specifically gave several portions of his real and personal estate to different parties " freed from his debts ;" and also bequeathed his residuary per- sonal estate " freed from his debts." One of the devised estates was subject to a mortgage. The funds primarily applicable being insufficient to dis- charge all the debts, the property which passed under the residuary clause was held to be the next fund which ought to be resorted to for that purpose ; and the devisee of the mortgaged estate was declared to be entitled to have the mortgage paid off out of the residuary estate. Brooke (Lord) v. Warwick DEVISE; (G) Trust por Sale— (H) Void Devise. 251 (Earl,) 18 Law J. Rep. (n.s.) Chano. 137 ; 2 De Gex & S. 425 ; 1 Hall & Tw. H.2. (G) Trust toe SXle. — [See Conversion and Reconversion.] (a) Power of Executors to sell. A testator, by his. .will, gave to his wife 2,000i. Bank stock to give by will among any of his cousins most agreeable to her, but, if not disposed of, it was to be added to the general fund, and as residue go, share and share alike, between all his first cousins. The testator then gave to his wife for her life all the rest and remainder of his " property," real and personal, and all the money he had in the public funds, &c. with power to vary the same ; and he gave his wife and executors power to renew or grant leases to the best advantage for herself and his heirs ; and he gave his executors power to sell any of his estates, and fund the money, with power to give receipts. The testator then gave to " each" of his twelve first cousins 100?. stock ; he named eleven, and said " as my cousin W A B has departed this life, I desire the same legacy may be transferred or paid between his children, share and share alike; hence I have allotted l,200t stock from my 51. per cents, to be paid to my twelve first cousins." The testator then gave several other legacies, and after the death of his wife, said, " 1 give full power to my executors, their heirs or assigns, to collect all my property together, and sell the houses and other estates, and to convert into money all my funded property," and then to pay some legacies to several persons named. " Then the whole of the remainder of my property is to be divided share and share alike to my aforesaid twelve first cousins and their children." The testator appointed his wife and C, and M executors of his will. He afterwards made a codicil to his will, and revoked the legacy given to Mrs. B, one of the first cousins, if she did not comply with a request he had made, but he declared that he did not thereby mean to exclude her children from the benefit she might thereafter possess in the final division of his property after the decease of his wife. At the decease of the tenant for life all the first cousins were dead, some had left children and others had died without having disposed of their interests : — Held, that the executors had power to sell the real estates, and that it was a conversion of the whole into personalty ; that the interest of the twelve first cousins, including the first cousin who had died, vested immediately on the death of the testator as if all had been named ; that the division was postponed till the death of the tenant for life ; that the interest of each first cousin who died in the lifetime of the tenant for life, leaving children, was divested, and , the children of such first cousin, including the children of the first cousin who had died in the lifetime of the testator, took their parent's share by way of substitution. Barrell v. Basker- feild, 18 Law J. Rep. (n.s.) Chanc. 422 j 11 Beav. 525. ,, (6) Application of Proceeds. A testator devised all his real estate to trustees in trust to sell ; and directed them to stand pos- sessed of the purchase monies, in the first place, to pay all debts due from him at his decease, and then to retain all costs, charges, and expenses attending the execution of the trusts, and then ta pay a legacy of 6001. to a daughter of his heir-at- law, and to invest 600/. for the benefit of C for life, and after her decease for D. And as to all his ready money and securities for money, and all other his personal estate, he gave the same to D. He de- clared that the trustees should be allowed to retain to themselves all charges and expenses they might be put unto in the execution of bis^will, orin rela- tion thereto; and appointed his trustees to b^. his, executors. He did not give any legacy, to his heir : — Held, first, that the produce of the real estate^ after paying the charges which ought to be imposed on it, was undisposed of and went to the heir : — and, secondly, that the testator's debts were not thrown on the real estate in, exoneration; of I the personal estate. Collis v. Robins, 16 Law J- Rep. (N.S.) Chanc. 251 ; 1 De Gex & S. 131. A testatrix by will gave real estate to trustees ill trust to sell, and to stand possessed of the proceeds as a fund of personal and not rea] estate, and de- clared that such proceeds, or any partthereof, shpu^d^ not in any event lapse for the benefit of her heir-at- law. After giving several legacies out of such pror, ceeds, the testatrix declared that the trustees should pay and apply the residue to such persons and foi) such uses as she should by any codicil direct. The testatrix died without making any codiciJito her will: — Held, in an administration suit by the next- of-kin^ that the -declaration that ,such_ proceeds should be personal estate, and the exolusipn of the heir-at-law, raised no gift by implication in favour of the next-of-kin; and, consequentJyt,that.the heir- at-law was entitled to the surplus proceeds as un- disposed of by the will. Fitch v. Weber, 1 7 Law J. Rep. (n-sI) Chanc. 361 ; fe Hare, 145. A testator gave all his real and personal estate to trustees, upon trust, to permit his wife to have the enjoyment of the rents, issues, and profits' thereof, for her life, or otherwise, with her consent and approbation in writing, to sell thsi real and personal estate, and invest the monies to arise from the sale of his real and personal esjtate on gtfvern- ment or real security, and pay thejimterest to her for her life, and after her decease to ]^ay two legacies' of 501. each, and divide the residue! of the monies to arise from his real and personal! estate between his nephews and nieces living at taie death of his, wife. The real estate was not sold during the life of the widow : — Held, that the nephews and nieces were entitled to the produce of; the real estate. Waddington v. Yates, 15 Law J. Rep. (n.s.) Chano. 223. (H) Void Devise. [See Thellusson Act.] : (a) Remoteness. , , , , [ Walker v. Petchell, 5 Law J. Dig. 237 ;' 1 Coiii. B. Rep. 652.] Devise of lands ta P M, testator's brother, for life, remainder to use of the first son of P M for life ; remainder to use Of the first son of the said first son and his heirs male ; and in default of such issue, to the use of all and every other the son and sons of P M severally and successively for the like interests and limitations as he had before 252 DISSENTERS— DISTRESS. directed with respect to the first son of P M and his issue ; and in default of issue of P M, or in case of his not leaving any at his decease, then over. P M never had issue : — Held, that all the limitations subsequent to that to the use of the first son of P M were void for remoteness ; and that if P M had had sons they would not hy the applica- tion of the doctrine oicy-jrres have taken an estate tail, inasmuch as by such a construction the estate would devolve in a line of succession different from that expressly designated by the testator. Many- penny v. Derivg, 17 Law J. Rep. (n.s.) Exch. 81 j 16 Mee. & W. 418. Devise of real estate to trustees, upon trust, to pay the rents and profits to the testator's daughter for life, and after her decease to convey the property unto and equally between and among all and every her children "who should live to attain twenty- three years of age," and to their heirs and assigns for ever; and if there should be but one such child, then to such only child, &c.; and in case there should be no such child or children, or being such, all of them should die under twenty-three, without lawful issue, then over ; with power to the trustees to ipply the interest of each child's share for his maintenance, notwithstanding such share should not then be absolutely vested : — Held, that the attainment of the age of twenty-three years was part of the description of the devisees; and the devise being to a class, after a life in being, the limitations over were too remote. Bull v. Pritchurd, 16 Law J. Rep. (N.s.) Chanc. 185 ; 5 Hare, 567. A testator devised his real estate to his executors, upon trust, to pay the rents for tl^e support of his wife, and his present or future grandchildren during the life of his wife, and^^pon her decease on trust to convey the propert^esto his present or future grandchildren, as theV Should attain the age of twenty-five, to hold the same unto his said grand- children, their heirs and assigns for ever, as tenants in common : — Held, that the devise was void for remoteness. Blagrove v. Hancock, 18 Law J. Rep. (n.s.) Chanc. 20; 16 Sim. 371. A testator gave his real and personal estate to trustees, on trust to pay the proceeds to his eldest grandson for life, with remainder to his children who should attain twenty- five, hut if he should die without having any children, then to his other grand- children. The eldest grandson died without issue : — Held, that although the gift to the children of tlie eldest grandson was void for remoteness, the sub- sequent limitation to the younger grandchildren was good. Goring v. Howard, 18 Law J. Rep. (n s.) Chanc. 105; 16 Sim. 395. (i) Failure of Object. Testator devised all his bouses to trustees, upon trust, after his wife's death to convey one of them whichever she might think proper, to M, and to convey all the others to C. M died in the testator's lifetime, but C survived him :— Held, that no choice having been made by M, the gift to C failed, and a general demurrer to a bill by the heir to have all the houses conveyed to him was overruled. Boyce v. Boyce, 16 Sim. 476. DISSENTERS. Penalties and disabilities in regard to religious opinions removed by 9 & 10 Vict. c. 59 ; 24 Law J. Stat. 161. DISTRESS. [See Dock Company — Fbiendly and Benefit Societies — Landlokd and Tenant — Rate-" Rent — Stamp, Agreement — Trespass — Tkovek.] (A) "Who may distrain. (B) What may be distrained. (C) Excessive Distress. (D) Damage Feasant. (A) Who may distrain. A tenant by elegit has a right to distrain without attornment. Lloyd w. Davies, 18 Law J. Rep. (n.s.) Exch. 80 i 2 Exch. Rep. 103. (B) What may be distrained. Perishable commodities, such as the flesh of animals, which are incapable of being restored in the same condition within a reasonable time, are not distrainable for rent at common law. Morley V. Pincombe, 18 Law J. Rep. (n.s.) Exch. 272. (C) Excessive Distress. In an action for an excessive distress for taking the goods of the plaintifi; it appeared tliat of the . goods taken part belonged to the plaintiff and part to a third party : — Held, that the declaration might be amended by stating the illegal distress to have taken place with respect to the goods of the plaintiff and of the third party, and that the plaintiff would be entitled to recover some amount of damages, and that the other party whose goods were taken would also be entitled to maintain an action and recover damages. Semble — that no joint action for excessive distress could be brought by the plaintiff and the third party. Bail V. Mellor, 19 Law J. Rep. (n.s.) Exch. 279. (D) Damage Feasant. To a declaration in trespass for seizing seven horses and selling two of them, the defendant pleaded that he distrained the seven horses damage feasant, and impounded them, that he supplied the seven horses so impounded with food, and that he sold the two horses under the authority of the statute 5 & 6 Will. 4. i;. 59, and applied the produce of the .«ale in discharge of the value of the food so supplied, and of the expenses attending the sale : — Held, after verdict for the defendant, that as the statute authorizes the party to sell only so many as may be necessary to indemnify himself, the plea was bad for not shewing that it was necessary to sell more than one horse. Layton v. Hurry, 15 Law J. Rep. (n.s.) Q,B. 244; 8 Q.B. Rep. 811. DIVORCE. 253 DIVORCE. [See Marriage.] (A) Grounds for. (B) When barred. (a) In general. (b) Condonation. (C) Pleading, Evidence, and Practice. (A) Grounds for. Extreme familiarities of a wife with an articled pupil of the husband, inconsistent with the relative position of each, coupled with con/ei«»oB*cfthe wife of her criminality,^Held, sufficient to found a sentence of divorce by reason of adultery. Noverre V. Noverre, 1 Robert 428. An allegation was admitted on behalf of a wife, responsive to a libel for a restitution of conjugal rights, pleading, in bar thereto, cruelty, and praying a divorce : — Held, reversing the decision of the Court of London, that the facts, as detailed in evi- dence on that allegation, did warrant the conclusion " that she could not return home with safety and without a reasonable appreliension of a repetition of the violence deposed to." In consequence, a sen- tence of divorce in favour of the wife was pronounced. Dysart v. Dysart, 1 Robert. 470. Answers to an allegation pleading in general terms a denial of acts of cruelty charged in a libel must, like the allegation, be general and not specific. Spitting in a wife's face, accompanied with pushing and dragging her about a room, and the admission by the husband that he had once slapped her face, — Held, to be sufficient for a divorce by reason of cruelty. Affectionate letters from a wife to her husband are not necessarily inconsistent with cruelty on his part. Saunders v. Saunders, 1 Robert. 549. An allegation " in part responsive" to a wife's libel for a divorce, by reason of the husband's adul- tery, pleading some contradictions to the libel, but not denying the adultery charged, was rejected, on the ground that it in substance admitted so much of the charge as, if proved by the wife, would en- title her to a divorce, and that nothing was pleaded which in law amounted to connivance or condonation on her part. Angle v. Angle, 1 Robert. 634. (B) When barred. (o) In general. A petitioner for a divorce bill held excused for not having brought an action for damages against the adulterer, upon the statement of his witnesses, that they did not find him until three years after the discovery. of the adultery, and that the petitioner was not able to pay the expenses of an action. A lapse of sixteen years from the adultery not made an objection to the application for divorce at the end of that time. In re Martin's Divorce Bill, 1 H.L. Cas. 79. The wife's general bad conduct was admitted as an excuse for the husband, omitting to bring an action against the adulterer. A lapse of eight years from the discovery of the wife's adultery till the petition for a divorce was presented, was held to be sufficiently accounted for by the husband's inability to bear the expenses of a divorce bill. In re Brofth's Divorce Bill, 1 H.L. Cas. 159. The acceptance, by the petitioner in a divorce bill, of an offer of a certain sum upon a writ of in- quiry to assess the .damages, after judgmept, by default in an action of crim. con. against the wife's paramour, — Held, under the circumstances, not to be a bar to the bill. In re Heneage's Diporce Bill, 1 H.L. Cas. 496. . (6) Condonation. Husband and wife separated by mutual consent, in consequence of the conduct of the husband towards the wife, which in itself amounted to legal cruelty. The wife afterwards sued in the Arches Court for restitution of conjugal rights, and by virtue of a decree of that Court, the parties again cohabited, when the husband renewed his acts of cruelty towards the wife, who continued to cohabit with him notwithstanding for six months. Upon a suit brought by the wife for a divorce, by reason of cruelty, such divorce decreed ; the Judicial Com- mittee, in affirming the sentence of the Arches Court, holding that the former cruelty was reyived by the subsequent acts, and was not condoned by the cohabitation enjoined by the sentence for re- stitution of conjugal rights. Wilson • v. Wilson, 6 Moore P.C. 484. (C) Pleading, Evidence, and Practice. The enforcement of the standing order of the House, requiring the petitioner in a divorce bill to present himself for examination at the bar, may be dispensed with on account of the state of bis health. In re Heneage' s Divorce Bill, 1 H.L. Cas. 496. In a suit for a divorce/a mensA et thoro, a decree of confrontation was issliied for the wife, who had eloped to America, to appear to be identified, when her proctor tendered a defensive allegation. The Arches Court of Canterbury rejected the allegation, as she was in contempt by reason of her non- appearance to this decree of confrontation. Such rejection affirmed, on appeal, by the Judicial Com- mittee of the Privy Council. A divorce a mensd et thoro, on the ground of adultery, pronounced for, upon the evidence of a single witness as to the cohabitation of the wife after her elopement, there being corroborating cir- cumstances. Curtis V. Curtis, 5 Moore P.C. 252. An interlocutory sentence of divorce was pro- nounced before the bond required by the 107th Canon was given, and there was an appeal from that sentence asserted apud acta ; but subsequently the bond was given. Before the inhibition was served, the Court was moved to sign the sentence in writing to remove the nullity by the 108th Canon of the former sentence j after argument, the Court, holding that it has power before the service of an inhibition to correct an error, signed the sentence. Dysart v. Dysart, 1 Robert. 543. An attempt was made upon the suit of a wife for a divorce, to serve the husband with a citation taken out in October 1848, at his last known place of re- sidence, which was within the jurisdiction of the Court. It subsequently appeared he hadleftthat resi- dence in March 1847. A decree by ways and means was, on the return of the citation, executed at that house, and at the parish church. On the 5th of 254 DOCK COMPANY— DOWEE. February 1849, he was personally served in the the West Indies. The Court on motion pronounced husband in contempt " for the purpose of carrying on thepruceedings,andp7a(nng the evidence on record." It was stated there was no jiijisdiction in the West Indies to enable the wife to institute a suit ; and eventually a sentence of divorce was pronounced. The proceedings throughout were in pcenam. Dasent T. Dasent, 1 Robert. 800. A party, in her personal answers to a libel, is not bound to answer to articles which, though not on the face of them criminatory, may, by possibility, furnish a link in the evidence against herself. King V. King, 2 Hubert. 153. DOCK COMPANY. [See Harbours.] By the 6 Will. 4. t. xxxi. the St. Katharine's Dock Company axe empowered to receive for all goods, &c. deposited on their premises, rates not exceeding those usually paid in the port of London for wharfage, &c. of such goods, &c., and in case default is made in payment of the said rates, or any part thereof, it shall be lawful to the collectors of the company to retain and sell all or any part of such goods, &c., and out of the monies thence arising to retain and pay the rates payable in respect of such goods, Sjc, returning the overplus, &c. to the party entitled ; and in case such goods, &c. shall be removed before the rates payable in respect of the same shall be fully paid, it shall be lawful for the said company to take and distrain or sell any goods, 8fc, of the owner, &e. thereof, in manner before mentioned. Certain rates payable in respect of goods belonging to A, which had previously been removed, from the premised of the company, being unpaid, the. company claimed to distrain certain other goods of A then on the premises until pay- ment of the rates due in respect of both those sets of goods. A had applied to have the goods then on the premises delivered up to him, and was in- formed by the company that no more goods would be delivered to his order until his debt was paid or reduced : — Held, that the statute enabled the com- pany to distrain and sell any goods in their pos- session for the recovery of rates payable in respect of other goods of the same owner. Held, also, that the above facts amounted to a distraining and detaining within the act. Queere — Whether evidence to prove a customary right of general lien in the company was inadmis- sible, by reason ofthe act having conferred a speci- fic remedy for the recovery of rates. Green v. the St. Katharine's Dock Co., 19 Law J. Rep. (n.s.) G.B. S3. DOMICILE. [See Practice, in Equity, Decrees and Orders.] Domicile must be defactonot dejure. Therefore the fact of a party resident in France, but repre- sented by an attorney in England, will not create a constructive domicile, so as to entitle a party to set up as a discharge to a mortgage, a plea of prescrip- tion of ten years entre presens. Beauce v. Muter, 5 Moore P.C. 69. DONATIO MORTIS CAUSA. F, about two years before his death, in the pre- sence of J C, deposited in a box a wrapper, inclosing a written paper, and ten Dutch bonds. The wrapper was indorsed, " Private, to J C. This parcel to be delivered as above, unopened, and with care." This paper stated that F had given to J C and his sisters various gifts by a will then void, and contained a partition of the bonds between J C and his sisters. It also contained a note by F to J C that F had adopted that procedure to avoid legacy duty, and recommended perfect silence on the sub- ject After this deposit J C kept the key, and F the box ; and the box was periodically opened, in order to cut off the coupons, for the payment ofthe dividends on the bonds, which were received by F. F, about a month before his death, sent the box to J C, with a message that the box and contents be- longed to J C : — Held, that, under these circum- stances, there was no effectual disposition of the bonds to J C and sisters during the life of the tes- tator. Farquharson v. Cave, \5 Law J. Rep. (n.s.) Chanc 137: 2 ColL C.C. 356. DOWER. The number of acres mentioned in a count in dower is not material ; and nnder a plea alleging the lands to be subject to a term it is enough to shew that all the defendant's lands in the parishes mentioned in the count are subject to the term, although such lands are not of the same extent as mentioned in the count The surrender of a term assigned to attend the inheritance ought not to be presumed except there has been a dealing with the estate in such a manner as reasonable men of business would not have dealt with it, unless the term had been put an end to. The owner of an estate, a term in which has been assigned to >l trustee to attend the inheritance, is, while in possession of the land, tenant at vrill to the trustee. It is only on the determination of a tenancy at will that there is such a vested right of entry as is contemplated by the 2nd section of the Statute of Limitations, 3 & 4 Will. 4. c. 27. The 3rd section of the statute does not apply to the case of a cestui que trust in possession under a trustee. Garrard v. Tuck, 18 Law J. Rep. (n.s.) C.P. 338; 8 Com. B. Rep. 231. To a bill for dower, the defendants in possession denied the widow's title, alleging that her husband had not been seised of an estate of inheritance in the premises ; the allegation being founded on in- formation as to the time of his death believed to be correct, but afterwards found to be erroneous, — The Court decreed the dower and arrears for six years before filing the bill, but without costs. Semble—li the defence to a bill for dower be groundless or founded on facts which the defendant knew, or with reasonable dUigence might have known, to be untrue, the decree would be with costs. Bamford v. Bamford, 5 Hare, 203. ECCLESIASTICAL COURTS. 255 DRAINAGE. [See Rate; Retkospective Rate.] Advances of public money, to promote drainage of lands, authorized, 9 & 10 Vicit u. 101 ; 24 Law J. Stat. 267. The 9 & 10 Vict c. 101, altered and amended by 10 Vict. c. 11 ; 25 Law J. Stat. 22. Draiilage of lands facilitated hy 10 & 11 Vict. o. 38 ; 25 Law J. "Stat. 148. The 9 & 10 Vict. c. i. extended and amended by 10 & 11 Vict. c. 80; 25 Law J. Stat 232. The form of ceitificates authorizing the advance of money for drainage simplified by 11 & 12 Vict, c. 119; 26 Law J. Stat 310. • Further provisions as to drainage made by 12 & 13 Vict c. 100; 27 Law J. Stat 201. Further provisions made hy 13 & 14 Vict c. 31 ; 28 Law J. Stat 41. Order of Court, regulating applications under 8 & 9 Vict. c. 56 ; 15 Law J. Rep. (n.s.) Chanc. 119. By an act for the drainage of certain lands in Lincolnshire, it was provided that the lords or ladies of three manors for the time being, or in their ab- sence their respective agents ■■ appointed in writing, according to a specified form, should be commis- .sioner* for«xecuting the act; that no person should act as a commissioner or agent of a comtnissioner until he had made and subscribed a declaration in the form given by the act ; and that no act of the commissioners should be valid, unless done at soine public meetingi The three lords of the manors never made or subscribed the declaration, and a few days after the statute passed (being all then in Eng- land, but absent from Lincolnshire), they by sepa- rate instruments in the form given by the act, and executed by them apart from each other, appointed the defendants their respective agents. The defen- dants respectively made and subscribed the decla- ration before they did any act as commissioners: — Held, that the effect of the act was to make the agents duly appointed themselves commissioners during the absence of the lords ; and that such appointment, when once made, continued in force till superseded by theactual presence of the respective lords. That the lords not being themselves com- missioners, it was not necessary for them to make the declaration, or to appoint the defendants at a public meeting. By the statute it was provided that if the com- missioners required land for the purposes of the act, they should give a notice of their intention, stating the particulars of the land required, and if the amount of compensation were disputed the commis- sioners were to issue their warrant to the sheriff to summon a jury to assess compensation, and the sheriff was to give judgment for the sum so assessed: — Held, that the warrant and inquisition need not refer to the notice, or give any particulars of the land required, in order to give the sheriff and jury jurisdiction to inquire into the question of compen- sation. Ostler V. Cooke, 18 Law J. Rep. (n.s.) as. 185 ; 13 a.B. Rep. 143. ECCLESIASTICAL COMMISSIONERS. The acts relating to the Ecclesiastical Commis- sioners for England amended by 13 & 14Vict. t. 94; 28 Law J. Stat 26 L Previously to the paslsing of the act S & 4 Vict. 0. 113. an ex officio information had been filed by the' Attorney General, at the suggestiftn of the Charity Commissioners for the admiiiistration of the projierty vested in the governors of the revenues, &c. of Wimborne Minster Grammar School. By that act it was enacted (amongst other things) that so much of the prbpertjr belonging to the collegiate church of Wimborne Minstei: as should, upon due inquiry, be found legally applicable thereto, should, by the like authority (j. e. the ratification of a scheme by the Queen in Council) be applied for the purpose of making a better provision for the cure of souls in the parish of Wimborne Minster. A portion of the property so vested in the governors, who were defendants to the informatibri, was alleged to belong to the collegiate church arid to be appli- cable to the cure of souls within the parish of Wimborne Minster. The Ecclesiastical' Cominis- sioners appointed under the act presented a petition in the suit, seeking liberty to attend^ before the Master under a decree touching the settlement of 'a scheme for the disposition of the charity funds : — Held, that the Ecclesiastical Commissioners hid ho special jurisdiction in the cha'rity in question, anS could not sustain such a petition, nor could they be deemed to be parties to the suit; but permission was given them to attend the Master at their own costs, the Attorney General consenting thereto : — Held, that the Ecclesiastical Commissioners acting under the act 3 p 4 Vict. c. 113. have no jurisdiction whatever ove ■ or in conflict with this oif any other Court, nor h'av s they vested in theni any such trust as can be recbg lized in this court ; having no estate or interest in the matters in question, the subject of the suit. Attorney General v. Wimborrie School, 16 Law J. Rep. (N.s.) Chanc. 313 ; 10 Beav. 209. ' ■ / )|UI ECCLESIASTICAL COiURTS. The law as to ecclesiastical jurisdiction amended by 10 & 11 Vict c. 98; 25 Law J. Stat 270. ', The remedies of sequestrators of ecclesiastical benefices extended by 12 & 13 Vict c. 67 ; 27 Law J. Stat 93. Admission of Proctors. , , , The lawful admission of. proctors depends upon the usage and practice of the court into which they are admitted. A decree of a Judge of a diocesan court for the admission of proctors, contrary to the usage and practice of his court, reversed, on appeal. Fell v. Bond, 1 Robert. 740. Jurisdiction, Conclusiveness of Sentence. A marriage between A and B was'declared void by the ecclesiastical court Some years afterwards a child of A arid B en ventre sa mire at the date of t|hp sentence claimed pi:operty as heir of A : — Held, that he was bound by the sentence, though he might 256 ECCLESIASTICAL DISTRICTS— EJECTMENT. avoid its effect by shewing fraud and collusion be- tween the parties to the proceedings ; and that proof that the costs of the unsuccessful party had been agreed to be paid, and that some witnesses were not examined, and that difficulties were not interposed which might have been, did not amount to proof of such fraud and collusion. Semble — the child could not by any means shew that the sentence was erroneous. Perry v. Meddovi- croft, 10 Beav. 122. ECCLESIASTICAL DISTRICTS. The law relative to the assignment of ecclesias- tical districts amended by 11 & 12 Vict. c. 37; 26 Law J. Stat. 71. EJECTMENT. [See Evidence — Landlord and Tenant.] . (A) When maintainable. (a) Right of Re-entry under i Geo. 2. u. 28. (J) Title by Possession. (c) Attendant and Outstanding Terms. (rf) Notice to quit and Demand of Possession. (e) Against Married Women. (f) By one Executor. (g) By Tenants in Common. (h) Confession of Entry in Consent Rule. [See (d) Notice to quit."] (i) Disclaimer qf Title [See {d) Notice to quit.1 (A) Surrender, when not presumed. [See (c) Outstanjfing Terms.1 (B) Declaration and Notice. (o) Form of. (i) Amendment of. (c) Service of. (1) In general. (2) Constructive Service. .(3) When Notice without Date. (4) On one Executor. (5) On Tenant in Possession. (6) On Wife of Tenant. (7) On Servant of Tenant. (8) On Manager of a Firm. (9) On Railway Company. (C) Consent Rule. (a) Effect of Delivery of without Attorney's Signature, {b) Amendment of when Title adverse. (c) Administrator''s Right to Costs upon. (D) Staying Proceedinos. (E) Particulars. (F) Right to begin. (G) Judgment. (a) Against the Casual Ejector. [See (B), (6) Setting aside. (c) Motion for, under 4 Geo. 2. c. 28. (H) Recognizance. ( I ) Trespass for Mesne Profits. (A) When maintainable. (a) Right of Re-entry, under 4 Geo. 2. c. 28. In ejectment brought upon a right of re-entry, under the 4 Geo. 2. c. 28. s. 2, it must appear that the landlord had a power to re-enter, in respect of the non-payment of half a year's rent, at the time of affixing the declaration and notice upon the premises. Doe i. Dixon v. Roe, 7 Com. B. Rep. 134. (ft) Title by Possession, B having entered into possession of premises as tenant at will to his father in 1815, continued to hold them till 1834, when lie died, leaving his widow, the lessor of the ■plaintiff, in possession, and a son and other children. The widow continued to hold them till 1847, when she was turned out of possession by the defendant, who claimed under a mortgage made in 1829: — Held, first, that the possession of the lessor of the plaintiff, in connexion with that of the husband, though a defence to an action of eject- ment by virtue of stat. 2 & 3 Will. 4. c. 27, was not a title to recover in such an action. Secondly, that the possession of the husband of the lessor of the plaintiff vras primd facie evidence as against her of title in his heir-at-law. Doe d. Carter y. Barnard, 18 Law J. Rep. (n.s.) O.B. 306. By the statute 32 Geo. 2. c. 2. s. 1, the Duke of B was authorized and empowered to supply a certain canal with water, and for that purpose, in, upon, or through the lands, &c. of the King's Majesty, his heirs or successors, or of any other person or persons, bodies politic or corporate, to dig, cut, trench, &c. for the making, using, main- taining and repairing the said canal. By section 3. he was empowered to enter upon the lands, &c. of the said several persons, bodies politic, &c. through which the said canal was intended to be made, in order to survey and set out the same : making satisfaction for damage. By section 4. bodies politic, corporate, &c. were empowered to convey to the Duke the lands so set out ; and it was provided, that all contracts should be enrolled by the clerk of the peace for the county. Sect 6. provided, that in certain cases the sums to be paid for the absolute purchase of such lands, &c., or the reeompence to be made for damages, should be assessed by juries, whose verdicts, and the judg- ment thereupon pronounced, should be binding and conclusive against the King's Majesty, his heirs, &c., and. against all bodies politic, corporate, &c., and all persons whatsoever, and should be recorded with the clerk of the peace. The powers given by this statute to the Duke of B were continued and extended by subsequent statutes, namely, the 33 Geo. 2. c. 2, the 2 Geo. 3. c. 11. and the 6 Geo. 3. c. 96, none of which, however, conferred on the Duke of B any further rights to the ownership of the soil of such lands, &c. Thp canal was made seventy years ago, and forty-three years ago an opening was made from a certain pool, called the Big Pool : by means of which the Big Pool com- municated with and fed the canal. About ten years before the trial the defendants, who claimed under the Duke of B, erected some lime-kilns, some of which stood on the water-way, over which the water of the Big Pool flowed over, into, and fed EJECTMENT; (A) When maintainable. 257 the canal. At the time of the passing of the statutes the whole of the land was the property of the Crown. Xu ejectment by the lessee of the Crown to recover the land covered with the water of the Big Pool, and also, that on which the lime- kilns stood, there- being no evidence of any convey- ance from the Crown to the Duke of B, made and enrolled, under the power of the statute or other- wise, — Held, that as the statute gave him no more than such user of the soil as was necessary for the purposes of the canal, and which user was con- sistent with the Crown's retaining the freehold in the soil, he would not be considered as having acquired the right to the soil of so much of the land sought to be recovered in the action, as had been taken and used for the purposes of the canal. And, therefore, secondly, that there had been no adverse occupation on the part of the defendants as against the Crown. And, lastly, assuming the erection of the lime- kilns to be a user of the land by the defendants which cannot be considered to have been for the purpose of the canal, that such erection having taken place within ten years, no title could be considered as having been acquired as to them by adverse possession. Doe d. Regina v. the Jrchbisliop of York, 19 Law J. Rep. (n.s.) G.B. 242. The defendant being in adverse possession of a hut and piece of land, the lord of the manor entered in the absence of the defendant^ but in the presence of his family said he took possession in his own right, and he caused a stone to be taken from the hut, and a portion of the fence to be re- moved : — Held, that these acts were not sufficient to disturb the defendant's possession, under the 3 & 4 Will. 4. c. 27. s. 10. Doe d. Baker v. Combes, 19 Law J. Rep. (n.s.) C.P. 306. (c) Attendant and Outstanding Terms. Where a term has been assigned to a trustee to attend the inheritance more than twenty years before action brought, and no possession has ac- companied the legal estate, the right to recover, in respect of that term, is barred by 3 & 4 Will. 4. c. 27. ss. 2, 3, Doe d. Jacobs v. Phillips, 16 Law J. Rep. (N.s.) Q.B. 269 ; 8 ft.B. Rep. 158. A, being tenant for life, under a power of leasing created in 1763, demised to the defendant in 1826. The lease was not a good execution of the power, and in 1844, after the death of A, B the reversioner brought an ejectment against the defendant, the demise being laid by B only. It appeared at the trial that in 1708 a term of a thousand years was created in the property in question for certain purposes, and to attend the inheritance, and that in an indenture of the 1st of March 1757, the inden- ture creating the term was recited, and the executor of the surviving trustee of the term was required to assign it to attend the inheritance : — Held, that the action being brought and tried before the 31st of December 1845, when the 9 & 10 Vict. o. 112. came into operation, the term could not be pre- sumed to be surrendered; and that B could not recover on his own demise. — Held, secondly, that the defendant was not estopped from setting up the Digest, 1845—1850. term, as he did not thereby deny the general title of B, but protected his own lease which was con- sistent with such title. At the trial, neither the deed creating the term nor the inden'ture reciting it was produced after notice, but an abstract, which had been compared with the deeds, was in court in the hands of the solicitor of a person who had lately negotiated with B for an exchange of the property, such treaty having gone off. This solicitor stated that he had not received permission from his client to produce them, but that be was ready to do so. The Judge decided that the abstract ought to be received in evidence : — Held, that he was right. Doe d. Earl of Egremont v. Langdon, 18 Law J. Rep. (n.s.) Q.B. 17; 12 Q.B. Rep.711. (d) Notice to quit and Demand of Possession. A (tenant in tail) made a lease for years to B not conformable to the provisions of 32 Hen.8. o.'28. A died, andC, the nex't tenant in tail in remainder, applied to B to attorn, and demanded rent from hira. B did not attorn, and after some negotiation, refused to pay any rent, on the ground that D was entitled to the estate : — Held, that B did not become tenant to C, and that C could maintain ejectment against B without serving him with any previous notice to quit ; that the confession of entry in the consent rule was sufficient foundation to support the ejectment ; and that setting up the title of D amounted to a disclaimer of the title of C. Doe d. Phillips V. Rollings, 17 Law J. Rep. (N.s.) C.P. 268 ; 4 Com. B. Rep. 188. H T, being seised in fee of certain premises, devised the same to his son W T for life, with remainder to the issue of W T as tenants in com- mon in fee. In Apiil 1845 W T died, having by will appointed executors, who managed the estate for the infant children of W T, and, in the years 1845 and 1846, received rent from the defendant, who had been in possession prior to the death of W T : — Held, that the acts of the executors did not bind the infant children, and that the latter might maintain ejectment against the defendant without any previous notice to quit or demand of possession. Doe d. Thomas v. Roberts, 16 Mee. & W. 778. Several brothers and sisters divided certain pro- perty between them at their mother's death, sup- posing it to have been hers, and verbally allotted a house to a sister. The property really had been their deceased father's; — Held, in ejectment by the father's devisee (one of those brothers), that he could not recover without a demand of possession ; and the demand of possession being after the day of the demise, the Judge would not allow an amend- ment by altering the day of the demise, as the arrangement was equitable. In ejectment, evidence that the shutters of the house claimed were repaired, and a washhouse built on the premises, and that this was paid for by W L, is evidence to go to the jury of the seisin of W L. Doe A. Loscombe v. Clifford, 2 Car. & K. 448. (e) Against married Women. The nominal plaintiff in ejectment may recover against a married woman who has entered into the common consent rule, though it appear on the trial 2L 258 EJECTMENT ; (B) Declaration akd Notice. that the lessor of the plaintifFis, and was atthe time of the demise laid in the declaration, the defendant's husband. Doe d. Merigan v. Daly, 8 Q..B. Rep. 934. (J) By one Eiecutor, Two of three co-executors may recover in eject- ment on a demise in the names of both. Doe d. Stace V. Wheeler, 16 Law J. Rep. (N.s.) Exch. 312; 15 Mee. & W. 623. {g) By Tenants in Common. A, seised in fee of a moiety of certain premises, and entitled to the equity of redemption in the other moiety, of which B was mortgagee, joined with B in demising the entirety of the premises to the defendant, by a lease which stated that B was mortgagee of one moiety, and that he demised by the direction of A ; the rent was reserved to A and B jointly, anda joint right of re-entry by them was provided for breach of the covenants. In ejectment, on the joint demise of A and B, — Held, by Coleridge, J. and Wightman, J,, that being tenants in common the legal effect of the lease was to pass several in- terests, and that the lessors of the plaintiff should have severed in their demises. By Lord Denman, C.J. and Erie, J., that the lessors of the plaintiff were entitled to recover against the defendant who took under the deed containing a joint demise, and providing for a joint right of re-entry by them. By Erie, J., that a tenant in common claiming by a several title, as where he separately demised his portion, ought to declare in ejectment on his own demise; but if tenants in common claim upon a joint right of re-entry reserved to them, they ought to join in their demise&^ And, semble, that in^ther cases tenants in com- mon may join or sever at their option. Doe d. Campbell v. Hamillon, 19 Law J. Rep. (n.s.) Q.B. 99. (A) Confession of Entry in Consent Rule. [See (d) Notice to quit.'] {i) Disclaimer of Title. [See (d) Notice to quit.] (/c) Surrender, when not presumed. [See (c) Outstanding Terms.] (B) Declaeation AND Notice. (o) Form of. Where a declaration in ejectment was entitled of " Trinity term, 9th (instead of 8th) Vict., and the notice, was not dated, but called on the tenant to appear in "next Michaelmas term," the Court granted a rule for judgment. Doe d. Gyde v. Roe, 15 Law J. Rep. (n.s.) Exch. 8 ; 14 Mee. & W. 788; 3 Dowl. & L. P.C. 309. The Court will not grant a rule nisi for judgment against the casual ejector in a country cause, where the notice required the defendant to appear on " the first day of the term," instead of in " the term." Doe d. Burton v. Roe, 16 Law J. Rep. (N.s.) C.P. 86 ; 3 Com. B. Rep. 607. A notice in ejectment to a tenant in possession to appear in the next term but one is insufficient. Doe d. Love V. Roe, 17 Law J. Rep. (n.s.) C.P. 176; 5 Cora. B. Rep. 512. The notice served with the declaration upon the tenant in possession in a country ejectment, required him to appear on the first day of the fol- lowing term, and not generally during the term : — Held, Coleridge, J. dubitante, that the notice was bad, and a good ground for discharging a rule nisi for judgment against the casual ejector. Doe d. Toddv. Roe, 19 Law J. Rep. (n.s.) aB. 204. (b) Amendment of. "Where ejectment was brought by the representa- tives of a mortgagee against the heir-at-law of a mortgagor, to recover the mortgaged premises, and in consequence of negotiations for a settlement having taken place, the cause was not taken down to trial until after the term of years laid in the declaration had expired, the Court amended the declaration and issue, by extending the term in the declaration, although twenty years had elapsed from the original mortgage. Doe d. Rabbits v. Welsh, 15 Law J. Rep. (n.s.) Q.B. 312; 4 Dowl. & L. P.C. 115. (c) Service of. {\) In general. Where a subsequent acknowledgment by the attorney of the tenant is relied on to aid an insuffi- cient service of the declaration and notice in eject- ment, the affidavit must distinctly shew that the party is the tenant's attorney in the matter. Doe d. Reynolds v. Roe, 1 Com. B. Rep. 711. Where several houses were comprised in one lease, service as to some of them, by affixing copies on the outer doors, the premises being unoccupied, and by serving two persons claiming to be assignees respectively of part, and the attorney of one of them, held sufficient. Doe d. Chippendale V. Roe, 7 Com. B. Rep. 125. To a rule calling on the tenant in possession to shew cause why service of a declaration and notice in ejectment on his daughter, on the premises, should not be deemed good service, it is no answer that the notice was not read over or explained to the party served, and that the service took place at- 10 o'clock of the night preceding the first day of term ; unless it is sworn that the tenant was not acquainted with the nature and meaning of the pro- ceedings before the first day of term. Doe d. Ken- rick V. Roe, 5 Dowl. & L. P.C. 578. (2) Constructive Service. In motions for judgment against the casual ejector where a constructive service of the declara- tion and notice on the tenant in possession is relied upon, the affidavit must state that the deponent served the tenant in possession, by delivering or leaving a copy of the declaration and notice with the persons upon whom the service was actually made, and under the circumstances which occurred. Doe d. Piggott V. Roe, 15 Law J. Rep. (n.s.) Q.B. 311 ; 4 Dowl. 8j L. P.C. 88. (3) When Notice without Date. A party is entitled to a rule for judgment against the casual ejector where the notice to appear is properly served, although it bears no date. Doe d. Woodhouse v. Roe, 18 Law J. Rep. (n.s.) Exch. 73 ■ 3 Exch. Rep. 131. EJECTMENT; (F; RiGtM to begin. 259 (4') On one Executor, Service on one of two co-executors who were in possession, of the premises, — Held, sufficient for judgment against the casual ejector. Doe d. Strick- land V. Roe, 4 Dowl. & L. P.O. 431. (5) On Tenant in Possession. The Court requires the same strictness of service of a declaration in ejectment, where the tenant in possession is an attorney, as in the case of any ordinary tenant. Doe d. Fowler v. Roe, 4 Dowl.& L. P.C. 639. Service of a declaration and notice upon the tenant, by shewing him the same off the premises, and attempting to serve him with a copy, and to explain the same to him, and subsequently leaving a copy with a servant of the tenant on the premises, and explaining it to him, — Held, suiGcient. Doe d. Hope V. Roe, S Com. B. Rep. 770. (6) On Wife of Tenant. In ejectment, service of the declaration on the wife of the tenant in possession is not sufficient un- less it appear that she is on the premises at the time she receives it. Doe d. Royle v. Roe, 16 Law J. Rep. (n.s.) C.P. 249; 4 Com. B. Rep. 256. On motion for judgment against the casual ejector, service on the wife of the tenant in possession, by delivering » copy of the declaration and notice to her,, and reading the same over to her, is sufficient. Doe V. Roe, 17 Law J. Rep. (n.s.) Exch. 176. (7) On Servant of Tenant. The Court refused to grant a rule nisi for judg- ment against the casual ejector, upon an affidavit stating a service on a servant of the tenant upon the premises on the 8th of Jaimary, and an acknow- ledgment stated to be made by the tenant " a few days afterwards," that the declaration, &c. had reached him. Doe d. Watson v. Roe, 5 Com. B. Rep. 521. (8) On Manager of a Firm. Where the premises were held on lease by several persons trading as a firm, service upon the manager of the works upon the premises, and personal ser- vice on one of the firm, held sufficient, the affidavit stating them to be joint tenants of the premises. Doe d. Bennett v. Roe, 7 Com. B. Rep. 127. (9) On Railway' Company. In ejectment against a railway company, per- sonal service of the declaration upon the secretary of the company is good, under 8 & 9 Vict. c. 16. s. 135. Doe d. Bayes v. Roe, 16 Law J. Rep. (n.s.) Exch. 273 ; 16 Mee. & W. 98. (C) Consent Rule. (o) Effect of Delivery of without Attorney's Signature. A consent rule delivered without the signature of the defendant's attorney is a nullity, and the lessor of the plaintiif may sign judgment against the casual ejector, notwithstanding an appearance has been in fact entered at the Master's office. Doe d. Poole V. Willes, 18 Law J. Rep. (n.s.) Q.B. 24. (6) Amendment of, when Title adverse. Where two parties delivered separate consent rules claiming to defend, the one for the whole of the premises in the declaration and the other for part, the Court directed the consent rules to be amended by confining them respectively to such part of the premises as each party really defended for. Doe d. Lloyd v. Roe, 15 Law J. Rep. (N.s.) Exch. 283 ; 15 Mee. & W. 431. (c) Administrator's Right to Costs upon. In an action of ejectment, in which the ordinary consent rule had been entered into, the defendant obtained a verdict. In March 1846, a rule nisi for a new trial was obtained, and discharged in January 1847. The defendant died intestate in November 1846, and C. H, the defendant's son, was appointed administrator in March 1847. Afterwards, in the same month, judgment in the action was ordered by a Judge at chambers to be signed as of the 21st of April 1846, and on the 24th of April 1847, a rule nisi was obtained, calling upon the lessor of the plaintiff to pay to C. H, the defendant's adminis- trator, the taxed costs of the action : — Held, that the consent rule in ejectment is a personal undertaking only; that the statute 1 & 2 Vict. c. 110. s. 18. d'oes not alter its personal character, and therefore the right to costs upon such rule does not survive to the personal representatives of the successful party. Doe d. Harrison v. Hampson, 17 Law J. Rep. (n.s.) C.P. 147 ; 5 Dowl. & L. P.C. 484; 4 Com. B. Rep. 745. (D) Staying Proceedinos. IDoe d. Wyatt v. Byron, 5 Law J. Dig. 271; 1 Com. B. Rep. 623.] , In ejectment brought f>y A and his wife, claim- ing as devisees ^^nder a subsequent will of J S, against B, who claimed as devisee under a prior will of J S, the Court stayed the proceedings until the costs were paid in a former ejectment brought by C (brother of B and claiming under the same prior will) against A and a third party, who claimed under the same subsequent will, and in which judgment had been entered for the plaintiffs ; the validity of the same wills being the questioH in both actions. Doe d. Brayne v. Bather, 18 Law J. Rep. (n.s.) Q.B. 2; 12 Q.B. Rep. 941. (E) Particulars. In ejectment brought by remainderman against lessee of the late tenant for life, on the ground that the lease was gratitted under a power not pro- perly executed, the Court will, on motion, order the lessor of the plaintiff to give particulars of the alleged defects in the execution. Doe d. Earl ofEgremontv. Williams, 7 Q,.B. Rep. 686. (F) Right to begin. r In ejectment the lessor of the plaintiff claimed under a will of the testator, dated the 23rd of Sep- tember 1844. The defendant claimed under a sub- sequent will of the same testator, dated the 30th of December 1844. The defendant admitted that the will of the 23rd of September was a perfect will in every respect, and upon that admission claimed the right, and was allowed by the Judge, to begin at 2eo ELECTION— ELEGIT. the trial : — Held, that the admission of the defen- diiiit was not an admission of the whole of the plain- tiff's case, and therefore the right to hegin had been improperly conceded to the defendant. If it appears to the Court that the party entitled to begin at the trial has been deprived of that right, and that his cause has been thereby substantially prejudiced, a new trial will be granted. Doe d. Bather v. Brayve, 17 Law J. Rep. (n.s.) C.P. 127 i 5 Com. B. Rep. 655. (G) Judgment. (a) Against the casual Ejector. [See ante, (B) Declaration and Notice, (c) Service q/l] (i) Setting aside. [Doe d. the Trustees of Bedford Charity v. Payne, 5 Law J. Dig. 269 ; 7 Q.B. Rep. 287.] The Court will not, before appearance by the tenant in an action of ejectment, entertain an appli- cation to set aside the judgment signed against the casual ejector on the ground of irregularity. Doe d. Williamsons. Roe, 15 Law J. Rep. (n.s.) CI.B. 39 i 3 Dowl. & L. P.C. 328. (c) Motion for, under 4 Geo. 2. c. 28. Qucere — Whether upon a motion for judgment against the casual ejector, under 4 Geo. 2. c. 28. s. 2, an affidavit stating that an amount exceeding half a year's rent was in arrear, and that there was " no sufficient distress to be found upon the premises, countervailing the said arrears of rent then due,'"* is sufficient; or whether the affidavit should state that the property upon the premises was insufficient to countervail half a year's rent. Where judgment had- been obtained upon an affidavit which the party) was apprehensive might be held to be defective in this respect, the Coiirt allowed such judgment to be superseded, and another judgment to be signed upon an amended affidavit. Semble — that no special ground for setting aside the first judgment was necessary. Doe d. Gretton V. Roe, i Cora. B. Rep. 576. In an ejectment under the 4 Geo. 2. c. 28, where the premises are Itept locked, and access refused by the parties in possession, so that it cannot be ascer- tained whether there is a sufficient distress thereon or not, the affidavit stating those facts is sufficiently positive, if it state a belief only that there is no sufficient distress on the premises. Doe d. Cox v. Roe,o Dowl. & L. P.C. 272. (H) Recognizance. The recognizance in ejectment under the 1 Geo. 4. u. 87. s. 1, is to be taken for one year's value of the premises, and a reasonable sum, to be settled by the Master, for the costs of the action. Doe d. Levi V. Roe, 6 Com. B. Rep. 272. (I) Trespass for Mesne Profits. A declaration in trespass for mesne profits stated the entry and expulsion to have taken place on the \Qth, of December 1844, and the expulsion and taking of the profits to have continued till the 10th of March 1846. Plea, that the closes in which, &c., were not nor were any part of them the plaintiff''s modo et formi. Replication to the whole plea by way of estoppel, a recovery by the plaintiff against the casual ejector on a declaration in ejectment alleging the demise to have been on the 14th of October 1 845 for a term of twenty years, concluding with a prayer of judgment if the defendant during that term ought to be admitted against the said recovery, record, and proceeding, to plead that plea : — Held, on special demurrer, that the replication was bad, as applying only to a portion of the time of the trespass. Qucere — Whether judgment by default against the casual ejector can be pleaded by way of estoppel ; and if it can, whether such a replication to a plea like the above, containing no new matter, is good. Doe v. Wellsman, 18 Law J. Rep. (n.s.) Exch. 277 ; 2 Exch. Rep. 368. ELECTION [See Parliament.] Under a marriage settlement. See Davies v. Ashford, 14 Law J. Rep. (n.s.) Chanc. 473 ; 5 Law J. Dig. 709. ELEGIT. [See Distress ; Who may distrain.] (A) Must follow the Judgment. (B) Metes and Bounds. (C) Effect of as an Eviction. (A) Must follow the Judgment. A writ of elegit cannot be sued out for part only of the sum recovered by a judgment, unless it shews on the face of it that the residue of the judgment has been satisfied or otherwise disposed of. Sherwood v. Clarlc, 15 Mee. & W. 764. Where one of the plaintiffs, the official assignee, in a personal action, died after judgment: — Held, that awrit of e/e^ii might issue without a scire facias or suggestion of the death or of the appointment of a successor ; but that the affidavit was bad in not shewing in precise terms that the appointment took place before the issuing of the elegit. Rolt v. tlie Mayor, Sfc. of Gravesend, 7 Com. B. Rep. 777. (B) Metes and Bounds. Since the 1 & 2 Vict. o. 110. b. 11. an elegit need not describe the lands to be extended by metes and bounds; it is sufficient to describe them in any manner by which they may be identified. Sherwood V. Clark, 15 Mee. & W. 764. (C) Effect of as an Eviction. In an action of covenant, on a lease, the defen- dant pleaded, that before the making of the lease one P impleaded the plaintiffs, and had judgment -oi elegit of the plaintiffs' lands; that the plaintifi^s were found by the inquisition to be seised of the demised premises, which were then leased to T B for seven years, subject to two mortgages ; that the sheriff delivered the premises aforesaid to P to hold until the damages should be fully levied ; that before EMBEZZLEMENT— ERROR. 261 any rent became due, P, by virtue of tbe said deli- very to him, ejected, expelled, and put out the de- fendant therefrom. The plaintiffs traversed the eviction in the words of the plea. It was proved at the trial that P demanded rent of the defendant, and threatened if he did not pay, to turn him out, whereupon the defendant paid P three-quarters of a year's rent and attorned to him without the plain- tiffs' knowledge : — Held, that P, having merely a reversion expectant on the determination of the mortgage terms, had no title to evict the defendant ; that the attornment was immaterial, and the plain- tiffs were entitled to succeed on that issue; the expulsion, as pleaded, not having been established by the evidence. Semble — that where a party, being entitled to evict another in occupation of premises, proceeds to exercise his right, upon which the tenant con- sents to change the title under which he holds, and attorns to the claimant, that is equivalent to an ex- pulsion. Mayor, S;c. of Poole v. Whilt, 16 Law J. Bep. (n.s.) Exch. 229 ; s. c. 15 Mee. & W. 571. EMBEZZLEMENT. [See Labcehy.] A, an assistant overseer of the Preston Union, in- dicted as servant to the guardians of the union, for embezzling the monies of the guardians, — Held, under the circumstances, not liable under stat, 7 & 8 Geo. 4. c. 29. s. 47, it not appearing that he received the monies " for, or in the name, or on the account of" the guardians, but of the overseers. R. v. Toumsend, 1 Den. C.C. 167 ; 2 Car. & K. 168. A prisonerwas indicted as servant to theguardians,_ &c. — Held, first, that the admission by him contained in the condition of hisbondforthe performance ofhis duties as treasurer, coupled with an act of parlia- ment specifying those duties, was sufficient evidence of the nature of his appointment, viz. that he was to receive money for the guardians, and account to them for his receipts. Secondly, that the not ac- counting for a portion of such receipts was an embezzlement, although no precise time could be fixed at which it was the prisoner's duty to pay over the money alleged to be embezzled. R. v. Welch, 1 Den. C.C. 199; 2 Car. & K. 296. In a parish in which there were two overseers and two churchwardens, the prisoner was employed by the two overseers as their servant to collect the poor-rates. As such collector, he demanded from the landlord of certain premises the amount of the rate which was assessed in the rate-book on his tenant the occupier. The landlord, who was in the habit of paying his tenants' poor-rates, paid the amount to the prisoner, who embezzled it; — Held, that although the overseers could not have enforced this payment from the landlord, the money was received by the prisoner by virtue of his employ- ment, and on account of his masters ; and that being so received by him, it was sufficient to describe it in an indictment for embezzlement as tlie property of the two overseers ; and that it was not necessary to allege it to be the property of the overseers and churchwardens jointly. Reginav. Adeij, 19 Law 3. Bep. (n.s.) M.C. 149; 1 Den. C.C. 571. ' The prisoner had, as a servant, in the course of his duty , received from a fellow-servant money paid to that servant for his master, by another servant who had received it from the customers. It was the duty of the prisoner, after such receipt, to hand the money to another servant (the cashier) of his master ; but instead of handing it over, he fraudu- lently retained it: — Held, that this was embezzle- ment. Regina v. Masters, 18 Law J. Rep. (n.s.) M.C. 2; 1 Den. C.C. 332. A, a brewer, sent his drayman, B, out with porter, with authority to sell it at fixed prices only. B sold some of it to C at an under price, and did not receive the money at the time. A heard of this, and, unknown to B, told C to pay B the amount, which C did, and C, when asked for it by A, denied the receipt of the money : — Held, to be sufficient evidence of embezzlement. R. v. Aston, 2 Car. & K. 413. An indictment which contains three charges of embezzlement should not only aver that the monies which are the subject of the charges were received within six months, but should also aver that they were embexxled within six months. R. v. Noake, 2 Car. & K. 620. ERROR. (A) When and by whom it lies. (B) Peoceedings AND Practice. (o) Quasldtig and setting aside the Writ. (6) Death of Parties. (c) Where Ground of Error a Mistake. (d) Effect of Plea, In Nulla est Erratum. (e) Where Writ allowed after Execution. (/) Striking out Pleas, Certificate of recognizance to prosecute writ of error in misdemeanours to be a warrant for defen- dant's discharge, 9 & 10 Vict. c. 24; 24 Law J. Stat. 70. (A) When and by whom ii lies. A writ of error will not lie on a judgment on a feigned issue directed under the Interpleader Act w—per Lord Brougham. King v. Simmonds, 1 H.L. Cas. 754. No writ of error lies upon a judgment of a supe- rior court upon a feigned issue brought under the provisions of the statute 6 & 7 Will. 4. c. 71. s. 46. (the Tithe Commutation Act). And a, writ of error having been brought upon such judgment, the Court of Exchequer Chamber ordered ^he writ to be quashed. Thorpe v. Plowden, 1 7 Law J. Rep.(N.s.) Exch. 235 ; 2 Exch. Rep. 387, However desirous the Court may be of enabling the parties to take the opinion of a court of error," they will not give judgment against their own opinion because there is no other mode of raising the question on tbe record. Semble — There is no mode by which the defen- dant can take the opinion of a court of error as to his right to costs under 43 Geo. 3. c. 46. Riclteiis v. Noble, 18 Law J. Rep. (n.s.) Exch. 408; 4 Exch. Rep. 260. 262 ERROR; (B) Pkoceedings and Practice. A writ of error may be brought by one of several defendants in an indictment. Wright v. Regina, 16 Law J.Rep. (n.s.)Q.B. 10. Tlie administrator of the suppliant in a petition of right may bring error on a judgment given against his testator. Error on a judgment for the Crown in a petition of right may be brought in the Exchequer Chamber, the Crown being bound in this respect by stat. 1 1 Geo. 4. & I Will. 4. c. 70. b. 8. Baron De Bode ,. Regina, 13 aB. Rep. 364. (B) Peoceedisgs and Practice. (a) Quashing and setting aside the Writ. If a writ of error does not lie in a particular case, the Court of error may properly, upon a rule obtained for that purpose, order the writ to be quashed. A writ of error alleged error in the judgment in "an action on promises." The transcript of the record shewed that the judgment was given, not in an action on promises, but on a feigned issue : — Held, that this was a fatal variance, and that the court of error was warranted in quashing the writ. King V. Simmonds, 1 H.L. Cas. 754. Under 8 & 9 Vict. t. 68. s. 5. it is not necessary to rule the defendants to assign errors, previous to a motion to quash the writ of error for delay in the prosecution thereof. The affidavit on which such a motion was made stated, that since the filing of the writ of error "no process or other proceeding has been had or taken by or on behalf of the said defendants to prosecute the same" : — Held, a sufficient statement that error had not been assigned. Regina v. Broome, 17 Law J. Rep. (n.s.) a.B. 208 ; 5 Dowl. & L. P.C. 607. ( The Court of Exchequer Chamber has no juris- diction to set aside a writ of error upon a judgment of the Court of Common Pleas, on the ground that it has issued contrary to good faith. The power to set aside the writ belonged to the Court of Chancery previous to the statute 12 & 13 Vict. c. 109, and is by section 39. of that act conferred upon the Courts of Queen's Bench, Exchequer and Common Pleas, and the Judges thereof respectively. Garrard v. Tuck, 19 Law J. Rep. (n.s.) C.P. 232; 8 Com. B. Rep. 258. [See Thorpe v. Plowden, (A) When it lies.] (i) Death of Parties. On the 4th of June the Court gave judgment for the defendant, who died on the 12th. In August an order to enter up judgment nunc pro tunc was obtained; and on the 9th the defendant's attorney communicated the name of the executor, io order to bring a writ of error, but the death of the defendant was not suggested on the record. The writ of error was allowed, and served on the 13th of October; the return was made on the 3rd of November; and the following day the writ and transcript were lodged with the clerk of the errors of the court of error. On the 22nd of November notice oi a. scire facias quare executionem non was sued out in the name of the executors, returnable on the I3th of January. On the 12th of December judgment of lion pros, was signed under the rule of Hilary term, 4 Will. 4. pi. 10, 11, no assignment of errors having been delivered :— The Court of Exchequer Chamber considered that as a writ of error does not abate by the death of the defendant below, the judgment signed was irregular, and they allowed the judgment to be set aside, and the plaintifi' to assign error, only on payment of costs. St. Katherine's Dock Co. v. Higgs, 16 Law J. Rep. (n.s.) Q.B. 390; 10 Q.B. Rep. 641. (e) Where Ground of Error a Mistake. Where it appeared to the House that a mistake, committed by an officer of the Court below, in entering the judgment of that court, was made the ground of a writ of error, the arguments on the writ of error brought on such judgment were stopped, and the case was ordered to stand over, to allow the parties to apply to the Court below to amend the error. The House made this order after referring to the report of the opinions of the Judges of the Court below, as stated in the printed reports of the deci- sions of that Court. Gregory v. the Duke of Bruns- wick, 2 H.L. Cas. 415. (d) Effect of Plea, In Nulla est Erratum. By a Court of Requests Act it was provided that a plaintiff suing in any of the courts at West- minster, for a cause of action recoverable in tlie court of requests, should not be entitled to any costs if he succeeded : — Held, on error brought on a judgment in the Court of Queen's Bench for debt and costs, the fact of the defendant being resident within the jurisdiction of, and liable to he sued in the court of requests being assigned as error, and the plea being i^i nullo est erratum, that the judg- ment, so far as regarded the costs, was erroneous. Newton v. Banks or Banks v. Newton, 17 Law J. Rep. (n.s.) Q.B. 137 ; 11 aB. Rep. 340. (e) Where Writ allowed after Execution. On writ of error on a judgment in an inferior court, where the execution has been levied before the allowance of the writ, but not paid over till after, — this Court has no power to order the sum levied to be paid into court, to abide the result of the writ of error. Spencer v. Haggiadur, 5 Dowl. & L. P.C. 66. (/) Striking out Pleas. In assumpsit upon articles of agreement, and a memorandum of the same date indorsed thereon, explaining and varying the terms of the agreement, and expressly referring to it, the consideration for the defendant's promise was alleged to be the making of the articles and memorandum, and the under- taking by the plaintiffs that they would perform everything in the articles and memorandum con- tained on their part to be performed. The agree- ments were in two parts. To prove the promise, and that it was made upon the consideration alleged, the plaintiffs called for and proved the part signed by them and produced by the defendants. They then offered in evidence their part signed by the defendants and their agent respectively; and having proved the memorandum indorsed, by proof of the signature and agency, the memorandum was read. They then proposed to read the "within-mentioned ESCHEAT— ESTOPPEL. 2G3 agreement," referred to by the memorandum, with- out calling or accounting for the absence of a witness who had attested it; but the evidence was rejected: — Held, upon bill of exceptions that the agreement was admissible upon proof of the execution of the memorandum indorsed thereon, and referring to it. Where defendants in error severed in pleading, and pleaded in addition to the joinder in error, respectively, that there was no record of the bill of exceptions, that the Chief Justice did not seal the bill of exceptions, and that he did not acknowledge his seal, — The Court, on motion, ordered the re- spective pleas pleaded by each, except the joinder in error, to be struck out with costs. The Wardens and Commonalty of Fishmongers v. Boberison, 18 Law J. Rep. (n.s.) C.P. 55 ; 6 Com. B. Rep. 896. ESCHEAT. A party, seised in fee simple of freeholds, en- tered into a contract for sale, and died, lyithout having performed the contract, intestate, and with- out an heir, so that the estate escheated to the Crown :— Held, that the case was within the 4 & 5 Will. 4. c. 23, and that the Court could, upon a petition, appoint a person to convey to the pur- chaser, without directing a suit to be instituted, as required by 1 Will. 4. c. 60. Ex parte Lowe, 17 Law J. Rep. (n.s.) Chanc. 430. ESTOPPEL. [See Deed — E.rECTMENT, Trespass for Mesne Profits — Evidence, Admissions — Paktneks — Lease — Use and Occupation.] In Pais. An estoppel in pais in general need not be pleaded to make it obligatory, and it binds the jury as well as the parties, whatever be the form of plead- ing. Where a person wilfully makes a representation intended to indiice another to act upon the faith of it, or where (whatever be his intention) a reasonable man, in the situation of that other, would believe that it was meant that he should act upon it ; and, in either case, that other does act upon it as true and alters his position, there is an estoppel in pais, to conclude the former from averring against the latter a different state of things as existing at the same time ; and conduct by negligence or omission, where there is a duty cast upon the person to dis- close the truth, may often have the same effect. But unless the statement was intended to induce the other to act on the faith of it, or was such that a reasonable person would act on the faith of it, there is no estoppel, although the other did in fact believe the statement, and was in fact induced to alter his position accordingly. The language used by the Court of Queen's Bench in Pickard v. Sears and Gregg v. Wells must be understood with this qualification. Freeman v. Cooke, 18 Law J. Rep. (N.s.) Exch. 114; 2 Exch. Rep. 664; 6 Dowl. & L. P.C. 191. By Recital in Deed. Where a recital in a deed is a statement which all the parties have mutually agreed to admit as true, it is an estoppel upon all ; but where it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the I instrument. An indenture made between the defendant of the first part, R B of the second part, and the plaintiff of the third part, recited a bond conditioned for the payment by O to R B of such sums as he should from time to time advance for certain specified purposes, with interest, and also a warrant of attorney to secure payment of the same sums; that by certain articles of agreement between O, R B, and the defendant, reciting that the defendant had agreed to advance certain sums to R B, to be by him applied to the said purposes, O and R B agreed not to do any act in reference to the said purposes without the consent of the defendant; that by an indenture made between R B and the defen- dant (reciting the bond, warrant of attorney, and articles of agreement) R B assigned to the defen- dant the said bond and warrant of attorney, and judgment entered thereon, upon trust out of the monies thereby received to retain all sums advanced by him to R B as aforesaid, together with interest, and to pay any surplus to R B ; that the defendant had since the date of the said indenture of assign- ment advanced for the purposes therein recited various sums amounting to 2S91., which were still owing to the defendant, with interest, and that the defendant was still interested in the said bond to the extent of the said amount; that the plaintiff had advanced 2002. to O, and that it was agreed that the defendant should assign to the plaintiff, 'for the purpose of securing such advance, all his interest in the said bond, Src, which had been so assigned to the defendant. It then witnessed, that in consi- deration of the said agreement, Src, the defendant bargained and assigned, &c. to the plaintiff the said bond, &c. and all monies thereby secured, and all his interest, &c , to hold the same to the plain- tiff, in trust out of the monies thereby realized to retain the said sum of 2001. and interest, and to pay to the defendant such sums as he had advanced to the said R B, and to pay the surplus to the said R B and the defendant, according to their respec- tive interests. And the defendant thereby cove- nanted with the plaintiff that he (the defendant) had done no act to impeach or charge the said several securities, or any estate or interest therein, and that the said sum of 2691. then was and remained due and owing and unsatisfied and payable, on arid by virtue of the said thereinbefore recited securities. In an action of covenant on the above indenturei the breach assigned was, that the defendant had not advanced the said sum of 2691. or any pact thereof, nor was such sum or any part thereof at the time of making the said indenture owing to the defendant; nor was the defendant ever interested in the said bond, &o. to the said amount or any part thereof; — Held, that the plaintiff was not estopped from denying that the defendant had made any advances, as the recital on which the breach was founded was intended to be the statement of the 2G4 ESTOPPEL— EVIDENCE ; (A) General Points. covenantor (the defendant) only, to whom the estoppel would be confined. Slroughill v. Buck, 19 LawJ. Rep.(N.s.)Q.B. 209. By Payment into Court. To an action against the defendants for unskil- fully erecting a kitchen range in the plaintiff's house, they pleaded that the plaintiff ought not to be admitted to allege that they did not use due skill in constructing the range, because, after the supposedgrievances, the now defendants commenced an action against the now plaintiff^ for work and labour in constructing the range and for the price thereof, and that the now plaintiff pleaded payment into court of 42^., which the now defendants took out of court in full satisfaction : — Held, on de- murrer, that the plea did not amount to an estoppel, and afrbrded no answer to the action. Rigge v. Burhidge, 15 Law J. Rep. (n.s.) Exch. 309 ; 15 Mee. & W. 598 ; 4 Dowl. & L. P.C. 1. EVIDENCE. [Proof of Postmark, see Bill op Exchakge, Notice of Dishonour — And see Infokmation — Libel — Payment — Practice, in EauiTY, Ac- counts — Production and Inspection of Docu- ments — Slander — Witness.] (A) General Points. (a) Construction of written Documents, (b) Identity of Persons. (c) Foreign Law. (d) Existence of /Agreement in Writing. (e) Necessary and admissible Evidence, (/) fVaiver of Objections to Evidence. Ig) Proof of Handwriting. (B) Records and Legal Proceedings. (C) Public Documents. (D) Private Writings. (a) Deeds. (b) Entries. (c) /Agreements, {d) Bills of Sale. (c) Bills of Exchange. (E) Secondary Evidence. (a) Copies and Duplicates. (b) /Ifter Notice and Subpoena to produce. (c) Where Original lost of destroyed. (F) Parol Evidence. (G) Hearsay Evidence and Declarations. (a) In general. {b) In Cases of Pedigree. (c) Entries in the Course of Business, (d) In Proof of Manorial Boundaries. (H) Privileged Communications. ( I) Prima Facie AND Presumptive Evidence. (K) Admissions. (L) Depositions AND former Evidence. (M) Confessions. (N) Practice, in Equity. (A) General Points. (a) Construction of written Documents. The plaintiff was engaged by the defendant, who lived in London, as managing clerk at Southampton, by the year, and the business was conducted by correspondence. In July 1847 the plaintiff wrote to the defendant for 140Z., to pay certain debts in- curred in the business, including 30/. the amount of the plaintiffs salary then due. The defendant inclosed him in a letter 100/. for "business pur- poses." The plaintiff retained 30/. for his salary, contending that that was a business purpose, and expended the remainder in paying some of the debts. The defendant dismissed him, upon which the plaintiff brought an actfon of assumpsit. The defendant pleaded a justification of the dismissal, on the ground that the plaintiff wrongfully misap- propriated money, and acted contrary to orders. There were many letters between the parties put in as evidence in the cause. The learned Judge left it to the jury to say upon all the documents and evidence before them, whether the plaintiff misap- propriated the money, and whether he wilfully dis- obeyed the orders of the defendant: — Held, that the jury were rightly directed on both points. Where a document produced in evidence is ambiguous on the face of it, the ambiguity is to be explained by the Judge. But where an expression in a document produced in evidence becomes ambiguous by reason of extrinsic evidence, it is for the jury to construe that ambiguity. Smith v. Thompson, 18 Law J. Rep. (n.s.) C.P. 314 ; 8 Com. B. Rep. 44. (6) Identity of Persons. In support of a plea of coverture, alleging the marriage of the defendant with one J G, a copy of the marriage register was put in evidence, and a witness was called who stated that he was acquainted with one J G, that he had inspected the original register, and that one of the signatures to it was in the handwriting of the J G whom he knew : — Held, that this was evidence of the identity of J G, with- out the original register being produced. Sayer v. Glossop, 17 Law J. Rep. (n.s.) Exch. 300 j 2 Exch. Rep. 409. In an action against S it was proved that a wit- ness went to a tavern and asked a waiter If S was there j and on a person coming out to the witness, the latter asked him who he was, and he said his name was S. The witness had not known the de- fendant before, and had never seen him since : — Held, that this was some proof that this person was S, and that the conversation between the witness and this person was receivable in evidence. Rey- nolds V. Staines, 2 Car. & K. 745. (c) Foreign Law. In order to prove the foreign law at Cologne, a witness was called, who stated that he was a juris- consult, and adviser to the Prussian consul in England ; that he had studied law at the Univer- sity of Leipsic, and knew from his studies there that the Code Napolfon was in force at Cologne; — Held, that he was incompetent to prove the law at Cologne. EVIDENCE; (A) General Points. 205 The Courts in this country do not take notiee of the revenue laws of another country, unless where the contract itself is made void by them. In order to prove that a certain company for working mines in Westphalia had never been finally constituted, the plaintiff gave general evidence that nothing had been done in this country towards such final constitution : — Held, that in the absence of any evidence on the part of the defendant to the contrary, the jury were warranted in finding that the company never was finally constituted. Bristow v. Sacqueville, 19 Law J. Rep. (N.s.) Exch. 289; 5 Exch. Rep. 275. {d) Existence of Agreement in Writing. In debt for use and occupation, one of the plain- tifi''s witnesses on cross-examination stated that he had heard from the plaintiff''s attorney, that there was an agreement in writing : — Held, that this was no evidence of the existence of an agreement, so as to render its production by the plaintifi" necessary. Watsm V. King, 3 Com. B. Rep. 608. (e) Necessary and admissible Evidence. Where a paper purports to be a receipt, and, as such, requires a stamp, but also purports to be an agreed statement of accounts, which does not re- quire a stamp, it may be given in evidence to shew the agreed state of accounts only, though it has not been previously stamped. Its admissibility under such circumstances is restricted to this extent : — so far as it relates simply to proving the statement of account, and is not pro- duced for the purpose of proving the receipt of money. It cannot be used for the purpose of proving the receipt of money in any way. If a document which is unstamped, but requiresa stamp, is ofiered in evidence, and, if stamped, would be evidence to establish any point litigated between the parties, it cannot be received. If it would be of no benefit when stamped, it may, thongh un- stamped, he received in evidence. In an action for work and labour, there was ten- dered in evidence a paper containing a statement of accounts, which declared a balance of 68/. 9s. id., and at the end was an acknowledgment of the pay- ment of that sum. In an action for work and labour this paper was offered in evidence by the defendant, not for the purpose of proving that the sum of 68i. 9«. id. had been paid, for that was not in con- test between the parties, but in order to shew what was the admitted state of accounts at a particular time : — Held, (reversing an interlocutor of the Coiirt of Session), that it was admissible for that purpose. Matheson v. Ross, 2 H.L. Cas. 286. The law of the country where a contract is to be enforced, not that of the country in which it is made, governs the question of admissibility of evi- dence on a trial arising out of such contract. Bain V. the Whitehaven and Furness Junction Rail. Co., 3 H.L. Cas. 1. Whether conditions precedent to the admissibility of evidence have been fulfilled is a question for the Judge. Doe d. Jenkins v. Davies, 16 Law J. Rep. (n.s.) a.B. 218 ; 10 as. Rep. 314. To prove whaV passed by a deed of conveyance, a preliminary agreement made four years before, in which the locus in quo was expressly named as Di(JEST,'181'5— 1850. part to he sold : — Held, not admissible. Williams v. Morgan, IS Q.B. Rep. 782. The proper proof that a prisoner was in lawful custody under a sentence of imprisonment passed at the assizes is by the proof of the record of his con- viction; and neither the production of the calendar of the sentences, signed by the clerk of assize, and by him delivered to the governor of the prison, nor the evidence of a person who heard sentence passed, is sufficient for this purpose. Regina v. Bourdon, 2 Car. & K. 366. In an action on a bond, the defendant pleaded that he was induced to execute it by the fraud, covin, and misrepresentation of A and B, the plain- tiffs, and D, in collusion with them. It appeared that the money for which the bond was given was part of the property included in the marriage set- tlement of H, the defendant's brother, which was advanced to H by the plaintiffs, the trustees. For the defendant, it was proposed to put in the answer of A in Chancery, to shew that D had committed a breach of trust with respect to some other of the trust money : — Held, that the answer could not be given in evidence for this purpose. Courtenay v. Haworth, 2 Car. & K. 1018. Adulterine bastardy — evidence necessary and admissible. Hargrave v. Hargrave, 9 Beav. 552. Evidence as to heirship of daughter. Heming v. Spiers, 15 Sim. 550. Proof of a negative. Stiles v. Guy, 16 Sim. 230. (/) Waiver of Objections to Evidence. Under the usual notice and order to admit, an objection to the reception in evidence of a deed, because of an interlineation appearing in it, is waived. Therefore, a deed of transfer of a mortgage term, containing an interlineation in the power of sale, was held to have been properly received in evidence, although in the attestation clause no notice was taken of the interlineation, and there was no evi- dence to shew that it had been made before the execution of the deed. Freeman v. Steggal, 19 IjfLvr J. Rep. (n.s.) aB. 18. (g) Proof of Handwriting. A document purported to be a certificate of a marriage at Bristol, in 1761, written and signed by W D, curate of St. James's : — Held, that the hand- writing of W D might be proved by the opinion of a witness, formed by comparing it with various signatures of W D, in the original register of St. James's, by which he appeared to have been the officiating curate in 1761, without any proof of his death, or of search for witnesses who might have seen him write. Doe d. Jenkins v. Davies, 16 Law J. Rep. (n.s.) aB. 218 ; 10 Q.B. Rep. 314. To prove the handwriting of a defendant, named F W, to a letter, a clerk of a banker stated that a person of that name kept an account with the banker, and had signed his name in a book and drawn cheques, which the witness had paid, and that he believed the letter to be of the handwriting of that person. The defendant's attorney proved that the defendant had desired him to address him at No. 12, Tower Streets; and another witness proved that he had written two letters to " Mr. F W, 12, Tower Street," and had received answers, 2M 266 EVIDENCE; (C) Public Dootments. and that he believed the letter offered in evidence to be of the same handwriting as the answers he had received to his letters : — Held, suiBcient proof that the letter offered in evidence was in the defen- dant's handwriting. Murieta v. Wolfhagen, 2 Car. &K:.744. (B) Recobds AND Legal Pkoceedings. Where a patent of peerage cannot be found, en- tries on the Journals of the House of Lords, shewing the limitations of the patent, may be referred to for that purpose ; or an examined copy of the record of the patent will be received. The Barony qfSaye and Sele, 1 H.L. Cas. 507. Copy of the record of a patent of peerage ad- mitted in evidence. Entry of grant to licence received in place of the missing register. Earl of Lanesborough's claim, 1 H.L. Cas. 510, n. In a claim to an ancient Scotch dignity, if no patent or other instrument of creation can be pro- duced, it may he presumed that the dignity was created by patent or charter, limiting it in the manner in which it has been actually enjoyed. And if that enjoyment be shewn to have been confined to heirs male, in exclusion of nearer heirs female, the dignity must be held to be a male honour, always descendible to the heirs male of the body of the first grantee. Ancient documents of a public character, brought from the proper repository, are, in the absence of patents or parliamentary records, admissible as evidence of the creation and existence of peerages : And, semble, that, by the law of Scotland, contem- poraneous history is admissible for the same pur- pose. An ancient patent without the seal, but with the attestation thereof duly verified, is admissible evi- dence. An ancient Scotch dignity might, before the Union, be conveyed by the possessor, together with the territory thereto annexed, to another branch of the family, or even to a stranger, with the king's authority ; or it might be resigned to the king, to be re-granted by a new patent, with different desti- nations and with its old precedency. A witness, brought to prove a copy of an old document, should be able to read and understand the original when he compared the copy with it. The Crawford and Lindsay Peerages, 2 H.L. Cas. 534. A was indicted for perjury, on occasion of making an affidavit to hold C to hail for SO;. At the trial of the indictment it was proved that A had prose- cuted the action against C ; that, at the trial, a verdict was taken for A, subject to a reference ; and that the arbitrator awarded in favour of C ; — Held, that the award was not admissible against A on the trial of the indictment. Regina v. Fontaine Moreau, 17 Law J. Rep. (n.s.) tt.B. 187; 11 a.B. Rep. 1028. An insolvent's schedule which was offered in evidence as containing an admission by the insol- vent of a debt, consisted of several sheets, each of which was signed by the insolvent, and the first one only (which was not the sheet containing the ad- mission) was also signed by an attesting witness : — Held, that the attestation applied to the signature of all the sheets, and that the schedule was not admissible without the evidence of the attesting witness. Streeier v. Bartlelt, 17 Law J. Rep. (n.s.) C.P. 140 ; 5 Com. B. Rep. 562. Under 7 Geo. 4. c. 57. s. 19, the production of a certified copy of the assignment is sufficient evi- dence of the title of the assignee. Doe A. Heming V. Willetts, 18 Law J. Rep. (n.s.) C.P. 240 ; 7 Com. B. Rep. 709. A bill in Chancery is not evidence of the truth of the facts stated in it, as against the party in whose name it is filed, even though his privity be shewn, but is only admissible to prove that a suit was insti- tuted, and the subject-matter of it. Boileau v. Rutlin, Exch. Rep. 665. An averment in a bill that a defendant had obtained a grant of letters of administration of the estate, and was the legal personal representative of the author of a trust, is sufficiently proved by pro- duction of such letters of administration, although they appear to have been granted on a date subse- quent to the institution of the suit. Bateman v. Margerison, 6 Hare, 496. (C) Public Documents. A witness on a trial stated that he went to K for the purpose of comparing a certificate of burial with the parish register, and was directed to the clerk's house, and there saw a person who said he was parish clerk, and who produced to him a hook containing entries of burials with which he com- pared the certificate : — Held, that as statute 52 Geo. 3. c. 150. directs the parish registers to be kept by the clergyman, and as no explanation was given of the hook being in the possession of the clerk, it had not been produced from the proper custody, and that the evidence was inadmissible. Doe d. Arundel v. Fowler, 19 Law J, Rep, (n.s.) as. 151. The master of a foreign vessel arriving in the port of London delivered to the Custom House officers a report of the burthen of his ship, and the number of his crew ; and it was filed at the Custom House : — Held, that the provisions of stat. 8 & 9 Vict c. 86. ss. 2, 7, 18. did not give this the charac- ter of a public document so as to make it evidence of the burthen of the ship. A certificate was produced from the Custom House, where it had been filed, signed by a party who certified that he had measured the vessel, and stated the amount of the tonnage : — Held, (it not being shewn that this was an act prescribed by statute) that the certificate could not be received in evidence as a public document to prove the burthen of the ship. Huntley v. Donovan, IS ft.B. Rep. 96. A certified copy of the register of a death under the seal of the General Registry Office, accom- panied by an affidavit of identity is sufficient evi- dence of the death. Parkinson v. Francis, 15 Sim. 160. (D) Peivate Writings. (a) Deeds. [See Fines and Recovekies.] Documents more than thirty years old are ad- missible in evidence without proof of execution, if produced from custody which may be reasonably EVIDENCE ; (D) Pkivate Wriwhgs. 267 accounted for, though not the strictly proper legal custody. A in 1767 assigned a term of years in lands to H in trust to attend the inheritance. A afterwards devised the lands to £ for life, and after her death to her children. In 1843, the administrator of H brought ejectment on behalf of B, who claimed to be a child of £, against the defendants who claimed to be the only children of E. The clerk to the attorney for the lessor of the plaintiff produced the deed of assignment of 1767, from the office of his master, and stated, that from correspondence which he had seen in the office, he believed his master to be the attorney of B : — Held, that this was primd Jacie proof that the deed came from proper and reasonable custody, and that it was receivable in evidence accordingly. Doe d. Jacobs v. Phillips, 15 Law J. Rep. (n.s.) Q.B. 47 ; 8 Q.B. Rep. 158. On trial of an issue, a bond to indemnify parish officers against the charge of a bastard was offered in evidence. It was dated in 1716, and was brought from a chest, kept in the workhouse of an union comprehending the parish, in vrhich chest were kept muniments belonging to the union. There was no direct evidence how it was placed in the chest; but it was proved that in 1842 several docu- ments were brought in a cart to the workhouse by a pauper and placed in a chest: — Held, that enough appeared to satisfy the rule of proving deeds to be brought from a proper depository, and that the evidence was admissible. Slater v. Hodgson, 9 Q.B. Rep. 727. The agent of the lessor of the plaintiff not being in the assize town when a deed was required mate- rial to the proof of his title, his carpet bag, which was identified, was cut open in court, and the deed produced from it by the attorney for the- lessor of the plaintiff, who also identified the deed : — Held, that there was sufficient primd facie evidence of proper custody. Doe d. the Earl of Shrewsbury v. Keeling, 17 Law J. Rep.(N.S,) aB. 199 ; 11 Q.B. Rep. 884. The following memorandum signed by the plaintiff, was indorsed upon the registered copy of a deed of settlement produced by the defendant: " We do hereby certify that the within written deed is the deed of settlement of the Universal Gas-light Company, and that, to the best of our knowledge, the particulars therein contained are correctly set forth": — Held, that the copy was primary evidence against the plaintiff of the contents of the deed. Boulter v. Peplow and Boulter v. Brooke, 19 Law J. Rep. (n.s.) C.P. 190. Evidence that a week before the trial, the parents of an attesting witness to a deed were asked where he was, and stated that he was in America, is rea- sonable evidence that he is without the jurisdiction of the Court, so as to let in proof of his handwriting to the attestation of the deed. Austin v. Rumsey, 2 Car. & K. 736. (4) Entries. A paper, signed by a deceased steward, charged him with the receipt of a gross sum. In the same box was found an ancient rental, in the same hand- writing, but unsigned, containing an account of items which, added together, made up the gross sum with which the deceased steward so debited himself: — Held, admissible in evidence. Musgraoe- V. Emmerson, 16 Law J. Rep. (n.s.) Q.B. 174 j 10 Q.B. Rep. 326. Where claims to allotments which were by the act directed to be in writing, were entered by B. 236. {d) ji^ils of Sale. A bill of sale trans\t"!red to the plaintiff "all the goods, fixtures, housAold furniture, plate, china, and effects of whatever kind belonging to us, and in and about the messuage, tenement, or premises, where he now resides, and being No. 2, Park Road, Old Kent Road, in the county of Surrey, and the chief articles whereof are particularly enumerated and described in a certain schedule hereunto annexed." The schedule being inadmissible in evidence, by reason of its not being annexed, — Held, ^at the bill of sale was admissible without the schedule. Dyerv. Green, 16 Law J. Rep. (n.s.) Exch. 239; 1 Exch. Rep. 71. (e) Bills of Exchange. Where, in order to prove that a former bill had been made payable at a particular place, a banker's clerk was called, who, without producing the bank book, stated he had ascertained the fact from an entry therein in bis own writing ; but independently of that he had no recollection of the fact: — Held, that this was not evidence of such fact. Beech v. Jones, 5 Com. B. Rep. 696. (E) Secohdaey Evidence. [ Waite v. Gale, 5 Law J. Dig. 286 ; 2 Dowl. & L. P.C. 925.] (a) Copies and Duplicates. A copy of an entry made from a certificate of baptism by a chaplain of a British minister at a foreign court, is not sufficient evidence of birth and parentage. Lord Dufferin and Claneboye's Claim, 2 H.L. Cas. 47. By a joint and several bond, A and B became sureties for the payment of any balance, not exceed- ing a given amount, due from C. The defeasance provided that it should be void if A and B, or either of them, should pay such balance within one calen. dar month next after notice in writing, requiring payment, should have been given to A and B, or their representatives : — Held, in an action against the executors of A, upon a replication denying notice to them and B, that a duplicate of the notice served upon B was not admissible, and that B should have been subpoenaed to produce the original he received, or it should have been shewn to have been lost or destroyed. Robinson v. Brawn, 16 Law J. Rep. (n.s.) C.P. 46 ; 3 Com. B. Rep. 754. (J) After Notice and Subpoena to produce. In covenant upon a lease, executed on behalf of the lessor under power of attorney, there being notice to the defendant to produce the power, but no subpoena duces tecum to the party who executed the lease, — Held, that the power of attorney was the property of the party who executed the lease under its authority, and that secondary evidence of its contents was not admissible. An attorney, who has been served with a subpoena duces tecum to produce a title-deed, being privileged from producing it, secondary evidence of its con- tents is receivable. Though he is not compellable to state its con- tents, yet if he willingly does so, his evidence is admissible. Hibberd v. Knight, 17 Law J. Rep. (n.s.) Exch. 119 ; 2 Exch. Rep. 11. The plaintiff, on the 25th of March 1846, wrote and sent to the defendant's house at Bombay, a letter, which arrived in that country whilst the defendant was there : — Held, that a notice to pro- duce that letter at the Spring Assizes, 1848, served on the 28th of January 1848 upon the defendant, who had come to this country in 1847, leaving his partners at Bombay, did not entitle the plaintiff to give secondary evidence of its contents. Ehren- sperger v. Anderson, 18 Law J. Rep. (n.s.) Exch. 132 ; 3 Exch. Rep. 148. Where the attorney of a person not a party to the action, brought a book into court in obedience to a subpoena duces tecum, but refused to produce it on the ground of his client's privilege, and the client being present as a witness under a common sub- poena, also objected to its production, — Held, that secondary evidence might be given of the contents of the book, although the client had not been served with a subpoena duces tecum. Per Maule, J. — Where an attorney holds a docu- ment for a client, he cannot be compelled to produce it by a person who has an equal interest in it with his client. Newton v. Chaplin, 1 9 Law J. Rep. (n.s.) C.P. 374. Where notice to produce a document had been given to the defendant, and there was merely evidence to go to the jury that such document was in his possession : — Held, that the document not having been produced when called for, the plaintiff might give secondary evidence thereof Hobb v. Starkey, 2 Car. & K, 1-13. EVIDENCE; (G) Hearsay Evidence and Deolabations. 269 A, a plaintiff in a cause in the county court, was indicted for perjury there, in respect of a paper which was produced on the trial there. Mr. M, his then attorney, was suhpoenaed to produce this paper on the present trial; he stated that he had received it from A, for the purpose of conducting that cause as A's attorney, hut that he claimed a lien on it : — Held, that he ought not to produce it, and that his possession of it was the possession of A. A, and Mr. C, his present attorney, both lived at a distance from H, the assize town. At noon, on the commission day, Mr. C was served at H with notice to produce this paper. The trial came on the next morning; but in the notice to produce, further notice was given, (as the fact was) that the paper was then in H, in the possession of Mr. M, who was then at the G Hotel, in H : — Held, that sufficient notice to produce had been given, and secondary evidence of the paper was received Regina v. Hankins, 2 Car. & K. 823. (c) Where Original lost or destroyed. Upon a plea of rum acceptavit, in an action by in- dorsee against acceptor of a hill of exchange, the plaintiff having proved that the bill was destroyed, — Held, that secondary evidence of its contents was admissible. Blackie v. Pidding, 6 Com. B. Kep. 196. Where proof is given of the loss of a written instrument by a document which itself shews that such instrument was originally insufficiently stamped, the Court will not presume that the in- strument was ever properly stamped, nor admit secondary evidence of its contents. But the Court received as secondary evidence the draft of such written instrument produced at the hearing, with such a stamp as the instrument itself required, although the instrument appeared to have been only lost by the party sought to be charged, and was not proved to have been fraudulently destroyed. Blair V. Ormond, 1 De Gex & S. 428. Evidence of the loss of a deed. Green v. Bailey, 15 Sim. 542. (F) Pakol Evidence. [See Guakantie.] In an action on a written contract for the delivery of " ware potatoes," it appearing that the term " ware" applied equally to all kinds of potatoes, and meant the best or largest of any kind, — Held, that evidence to shew that a particular sort called " Re- gent's wares" were intended, was not admissible. Smith V. Jeffryes, 15 Law J. E,ep. (h.s.) Exch. 325 ; 15 Mee. & W. 561. The plaintiflF, an actress, having been engaged by the defendant, the manager of a theatre, for " three years at a salaiy of 51., 61., and 11. per week in those years respectively:" — Held, that this contract being ambiguous, parol evidence was admissible to shew that under such a contract it was the theatrical usage to pay a proportion of salary for those nights only during which the theatre was open for perform- ance. Grant V. Maddox, 16 Law J. Rep. (n.s.) Exch. 227 ; 15 Mee. & W. 737. In an action against the defendant for not accept- ing linseed bought by him of the plaintiff, under a contract which stipulated that fourteen days were to be allowed for the delivery of the linseed from the time of the ship being ready, to discharge, — Held, that the contract not being ambiguous In Its terms, the Judge was right in rejecting evidence of its meaning. Sotilichosv. Kemp, 18 Law J. Rep. (n.s.) Exch. 36 ; 3 Exch. Rep. 105. Plaintiff sold wool to defendant " to be paid for by cash in one month, less 51. per cent discount" : — Held, first, that the vendee was entitled to a delivery of the wool within the month without payment of the price. Secondly, that evidence was inadmissible to shew that, by the usage of the trade, vendors were not bound under similar contracts to deliver wool without payment; for that such evidence sought to annex to the contract an incident inconsistent with its terms. Spartali v. Benecke, 19 Law J. Rep. (n.s.) C.P. 293. The defendant having ordered goods by letter which did not mention any time for payment, the plaintiffs sent the goods and an invoice : — Held, that evidence to shew that the order was given on the terms of six months' credit was admissible, the letter not being a Valid contract within the Statute of Frauds. Lockett v. Nicklin, 19 Law J. Rep. (n.s.) Exch. 403 ; 2 Exch. Rep. 93. In an action for the price of tobacco sold, evidence is admissible to shew that by the established usage of the tobacco trade, all sales are by sample, although not so expressed in the bought and sold notes. Syers v. Jonas, 2 Exch. Rep. 111. (G) Hearsay Evidence and Declarations, (o) In general. To support a claim for payment of id. a wey for all coals gotten within a manor and seignory and exported to sea, a book was produced from the custody of the plaintiff, purporting to be a survey taken in the year 1650, after the manor and seignory had been granted to Oliver Cromwell by the autho- rity of parliament, and purporting to be taken by virtue of a commission to certain persons named in the survey, given bythe Right Honourable Oliver Cromwell, Lord General of the Parliament Forces. After specifying certain rents, it stated " that the jury present," &o., inter alia, id. due unto the lord for every wey of coals that is transported out of the lordship. No commission was proved, nor was it signed by the jury : — Held, that this survey was inadmissible either as a public document or as evidence of reputation. Qtuere — as to the correctness of Evans v. Taylor, 7 Ad. & E. 617; s. c. 7 Law J. Rep. (w.s.) Q.B. 73, upon the inadmissibility of a presentment of a jury as matter of reputation. Certain variations in old entries of accounts as to a manorial customary payment, extending over three centuries, and uniform in amount, — Held, to be no objection to the validity of the claim. The 34 & 35 Hen. 8. o. 26. s. 101. did not inter- fere with the private rights claimed by the lords marchers of Wales, as lords of manors or owners of the land. Duke of Beaufort v. Smith, 19 Law J. Rep. (N.s.) Exch. 97: 4 Exch. Rep. 450. Where the legitimacy of a party was the question in dispute, and a witness deposed to certain ex- pressions of the mother, tending to bastardize the child, — Held, that the evidence was admissible. Hargrave v. Hargrave, 2 Car. & K. 701. 270 EVIDENCE; (H) Peivileqed Commumicatiom. The deposition of an accountant containing a statement of the result of his examination of part- nership account books, refused to be received at the hearing where the books were not in evidence ; but, semble, if the books had been in evidence it would have been receivable as the evidence of a person of skill, Johnson v. Kershaw, 1 De Gex & S. 260. (i) In Cases of Pedigree. Whether conditions precedent to the admissibility of evidence have been fulfilled, is a question for the Judge who tries the cause. Thus, where declarations on the question of pedigree by a deceased member of the family are tendered in evidence, itjs for the Judge to decide whether the declarant has been proved to be a member of the family ; and it makes no difference that the legitimacy of the declarant happens to be, also, the only question in Issue for the jury. Where the declaration was, that the declarant had received a document from her mother, who had told her it was her marriage certificate, — Held, that this declaration was admissible. Declarations of relationship are not inadmissible, on the ground that the parties have an interest in establishing the relationship, there being no lis mota at the time. Doe d. Jenkins v. Davies, 16 Law J, Kep. (k.s.) as. 218 J 10 aB. Bep. 314. Discussion of the principles on which hearsay evidence is admissible in cases of pedigree. Queere — Whether the reasons and grounds on which births and times of births, marriages, deaths, legitimacy, &c. are allowed to be proved by hearsay in a controversy merely genealogical are not appli- cable to declarations made by a deceased person as to where his family came from, where he came from, or of what place his fatherwas designated. Shields 1. Boucher, 1 De Gex & S. 40. (c) Entries in the Course of Business. [See Company, Calls.] An entry in the diary of a solicitor's clerk, who had become lunatic, not allowed to he read in evi- dence of a matter concerning which it was not the duty of the clerk to have made such entry. Coleman V. Mellersh, 2 Mac. & G. 309. (d) In Proof of Manorial Boundaries. Evidence of reputation is admissible to prove the line of boundary of a reputed manor. Doe d. Moles- worth V. Sleeman, 15 Law J. Rep. (n.s.) Q.B. 338 ; 9 as. Rep. 298. The sea shore between high and low water may he part of the adjoining manor; and where by an ancient grant of the manor its limits were not defined, — Held, that modem usage was admissible to shew that such sea shore was part of the manor. Duke of Beaufort v. the Mayor of Swansea, 3 Exch. Rep. 413. On a question between the lord of the manor of O and the owner of a freehold estate within the manor, whether a certain close was part of the lord's waste or part of the adjoining estate of the defendant, after proof having been given that there were very many lands and tenements held of the manor, the tenants whereof in respect of those lands had always exercised rights of common for all their commonable cattle on the waste of the manor, evi- dence was offered, on the part of the lord, of decla- rations ante litem motam of deceased persons who had been such tenants and had exercised such rights, that the close was parcel of the waste. Similar declarations made by deceased residents within the manor not being tenants were also tendered. No evidence was given of any exercise of any rights of common on the close: — Held, that the want of evidence of acts of enjoyment would not affect the admissibility of evidence of reputation; and that declarations by residents within a manor were as receivable as declarations by tenants of the manor ; hut that these declarations were not admissible in evidence, since there is no common law right for all tenants of a manor to have common on the waste of the manor, but that each tenant who has the right of common appendant, has it as an incident by law attached to his particular grant, and that the numerous private rights of common of the several tenants do not compose one public right so as to render evidence of reputation as to the boundary of the waste admissible. Earl of Dunraven v. Llewel- lyn, 19 Law J. Bep. (n.s.) Q.B. 388. (H) Privileged Communications. [See Ejectment ; When Maintainable, Atten- dant and outstanding Terms.] Where an agreement is made by two parties, in the presence of their respective attornies, the com- munications made by one party to his attorney, in the hearing of the others, are not privileged. Weekt V. Argent, 16 Law J. Bep. (k.s.) Exch. 209; 16 Mee. & W. 817. At the trial of an ejectment to recover land claimed as parcel of the glebe of a rectory, a book describing the lands, subject to tithes, and a map stating the glebe lands, were produced by an attor- ney, who stated that he had received them from a former rector, who was also owner of the advowson. The book being given to him for the purpose of collecting the tithes, and the map with a view to the sale of the advowson, which was afterwards effected, and the lessor of the plaintiff appointed to the rectory by the purchaser, — Held, that the map was not a privileged communication ; and semble that the book was not. The heir and executors of the deceased rector having authorized the production of these docu- ments, — Held, by Erie, J. that they were competent parties to waive the privilege if any existed. Doe d. Marriott v. Marquess of Hertford, 19 Law J. Bep. (N.s.)a.B. 526. Where the clerk of plaintiff's attorney went to defendant's attorney for the object'of effecting a compromise, and what he. said was said with the wish of effecting it, — Held, that all that passed was privileged as being a negotiation to bring about a compromise. Jardine v. Sheridan, 2 Car. & K. 24. A prisoner was indicted for forging a will. The forged instrument had been given by the prisoner to his attorney, ostensibly for professional purposes, but in the opinion of the Judge, with some very different object. An objection that it was a pri- vileged communication, and therefore could not be read, — Held, invalid. Regina v. Jones, 1 Den. CO. 166 ; nom. Regina v. Hayward, 2 Car. & K. 234. EVIDENCE ; (I) Prima Facie and Peesumptive Evidence. 271 A took a forged will to B, a solicitor, and asked him to advance money op a mortgage of the pro- perty mentioned in the will. B made no charge for the interview, and did not advance the money: — Held, not a privileged communication. Regina ,. Farley, 1 Den. C.C. 197; 2 Car. & K. 313. Quare, — whether aperson, notunderany fiduciary relation to, or having any community of interest with, any other person, who has made a communi- cation to a solicitor or counsel professionally on his own hehalf alone, relating to property which is not the subject of any suit or dispute at the time, can be compelled to disclose such communication. An estate was settled on A for life, with remainder to his children as he should appoint A appointed to B, the eldest of several children, in IBS* ; and in 1836 A and B, who was only just of age, in con- sideration of money stated to he paid to A and B, mortgaged the estate. B made a devise of the pro- , perty to A, and afterwards died. A entered into an agreement to sell the property to trustees of the will of P, subject to the approbation of the Court in a suit instituted to administer the estate of P. By an order, made at the instance of A, A was per- mitted to attend the Master on the inquiries as to the title ; and all parties were to produce before the Master all books, &c., and to be examined on in- terrogatories. Interrogatories were allowed by the Master for the examination of A ; in which, first, his communications with B respecting the appoint- ment and mortgage were inquired after; and secondly, his communications with his solicitor respecting them. A excepted to the certificate of allowance : — Held, that A was compellable to answer the first class of inquiries ; but was not compellable, in that stage, to answer the second class — without prejudice, however, to raising the question in a subsequent stage. Pearce v. Pearce, 16 Law J. Rep. (n.s.) Chanc. 153 ; 1 De Gex & S. 12. Confidential communications made by a party to his attorney or counsel, do not cease to be pri- vileged by the fact that the attorney or counsel afterwards becomes interested as devisee of the pro- perty to the title of which such communications related. Chant v. Brovm, 7 Hare, 79. Privilege of cases and opinions anterior to any litigation. iJeecc v. Try^, 9 Beav. 316; Penruddocli V. Hammond^ 11 Beav. 59. A party entered into an agreement for the sale of some houses for a sum of money ; instead of which it was afterwards agreed that the purchaser should pay an annuity to the vendor during her life. A bill being afterwards filed for the purpose of having the amount of the annuity reduced, inter- rogatories were exhibited to the solicitor of the vendor, inquiring into the particulars of conversa- tions which took place between him and the vendor, and him and a brother of the vendor, respecting the price at which the houses should be sold, and the amount of the annuity which should be required. The solicitor demurred to these interrogatories : — Held, that the business was strictly within the pro- fession of a solicitor, and that the communications were necessary and confidential, and were entitled to be privileged, notwithstanding they related to matters which were not then in litigation, and were made not to the vendor, hut to an agent. Carpmael v. Powis, 15 Law J. Rep. (n.s.) Chanc. 275; 1 Phill. 687 ; 9 Beav. 16. G, a solicitor, who was a trustee under a deed of settlement, in which M and H were respectively interested, was ordered, on bill filed by M against H and G, to produce letters admitted by G's answer to be in his possession, and which were written by him whilst acting as H's solicitor, during the negor tiations touching the settlement, and subsequently to the execution thereof ; notwithstanding the alle- gation of G, that most of the letters were written by him, and signed with the name of himself and part- ner in business, as the solicitor to H, and that the same were not written by him as trustee under the settlement. Tugwell v. Hooper, 16 Law J. Rep. (n.s.) Chanc. 171 ; 10 Beav. 348. An attorney is bound to discover when and to whom he parted with documents of title of his client, and in whose possession the same were. Ban- ner V. Jackson, 1 De Gex & S. 472. A witness in demurring to certain interrogatories as to the production of letters, stated that they did not refer to any particular estates to be settled, and were received in his character of confidential soli- citor, and contained particulars of confidential matters between himself and his clients: — Held, that the witness had not sufficiently shewn what was the subject of the communications, or that they were actually of a confidential character. Walsh V. Tremnion, 16 Law J. Rep. (n.s.) Chanc. 330; 15 Sim. 577. (I) Pkima Facie and Pkesumptive Evidence. [See Lease.] The question of the validity of a marriage cannot be tried like any other question of fact which is independent of presumption-, for the law will pre- sume in favour of marriage. There is a strong legal presumption in favour of marriage, particularly a^ter the lapse of a great length of time, and this 'presumption must be met by strong, distinct, and satisfactory disproof. Where, therefore, two persons had shewn a dis- tinct intention to marry, and a marriage had been^ in form, celebrated between them, by a regularly ordained clergyman, in a private house, as if by special licence, and the parties, by their acts at the time, shewed that they believed such marriage to be a real and valid marriage, the rule of presump- tion was applied in favour of its validity, though no licence could be found, nor any entry, of the granting of it, or of the marriage itself, could be discovered ; and though the bishop of the diocese (during whose episcopacy the matter occurred), when examined many years afterwards on the sub- ject, deposed to his belief that he had never granted any licence for such marriage. Piers v. Piers, 2 H.L. Cas. 331. Where entries purported to be made by Commis- sioners of the Land Tax in 1827, and evidence was given that the persons making them had acted as such Commissioners in 1828,— Held, that this was properly left as evidence to go to the jury that they were also Commissioners in 1827. Doe d. Hopley V. Young, 15 Law J. Rep. (n.s.) 0.3. 9 ; 8 Q.B. Rep. 63. In ejectment for leasehold property, the plaintiff. 272 EVIDENCE; (K) Admissions. after proving the creation of the term in 1730, shewed it to he vested in E, in 17C0. He then proved a deed-poll, executed by W in 1784, by which (after reciting the deed of 1 760, the death of E, and that E had duly published her will in 1778, and that under the will the premises had vested in M) W released to M. No probate of E's will, nor any letters of administration, were produced, nor was any excuse given for their non-production. The plaintiff then deduced title from M, and shewed the enjoyment of the property since 1784 to have been consistent with the documentary title: — Held, that neither probate of E's will nor letters of ad- ministration could be presumed, and that the plain- tiff had failed to shew himself possessed of the term. Doe d. Woodhouse v. Powell, 15 Law J. Rep. (n.s.) Q.B. 189; 8 Q.B. Rep. 576. Where, under a plea of not possessed in an action for obstnioting thq plaintiff's wharf, the plaintiff gave general evidence of user for a long period, — Held, that the jury were properly directed to find for the plaintiff on such evidence, though the de- fendant put in the lease under which the plaintiff claimed, and which granted to the lessees the use of the locus in quo, " for a sawpit, and for laying timber upon." Page v. Hatchett, 15 Law J. Rep. (N.s.) as. 281 ; 8 as. Rep. 593. The defendant having refused to produce the original of an agreement on which the plaintiff relied, one of the plaintiff's witnesses produced a counterpart, and, on cross-examination, stated that the original was not stamped when it was given to the defendant : — Held, that this evidence of want of the stamp was admissible, and that the counter- part was properly rejected. Crowther v. Solomons, 18 Law J. Rep. (n.s.) C.P. 92 j 6 Com. B. Rep. 758. It is not necessary to prove strictly the identity of the defendant with a person of the same name, concerning whom a witness gives evidence. The similarity of the names is sufficient to put the de- fendant to the proof that he is not the person spoken of. Hamher v. Roberts, 18 Law J. Rep. (N.s.) C.P. 250; 7 Com. B. Rep. 861. On the trial of an action of trover for a bill of exchange, it was proved that the defendants, who were bankers, had discounted the bill for a cus- tomer for whom they were in the habit of discount- ing bills, and that the bill had been brought to them by the customer's clerk, who was directed to inquire whether they would discount it, and to state to the defendants the particulars of an arrangement between the holder of the bill and the customer. Neither party called the clerk as a witness: — Held, that the jury ought not to have- been directed to presume that the clerk delivered the message ; hut that in the absence of evidence to the contrary, the presumption was, that the defendants had bond fide discounted the bill without notice of the circum- stances which the clerk had been directed to tell them. Middletonv. Earned, 18 Law J. Rep. (n.s.) Exch. 433; 4 Exch. Rep. 241. W H died intestate in 1798, seised of a house and land, leaving a widow and an only son (by her) J H, fifteen years old. The widow continued to reside on the property, and about a year after the death of W H married the defendant, and resided with him on the premises, J H also remaining with them till 1805, when he went away, hut occasionally returned for about a fortnight at a time till 1842. About that time the defendant applied to the lessor of the plaintiff to advance lOOi. on mortgage of the property, and on that occasion the title-deeds being produced, the solicitor stated that it was necessary that J H, being the heir-at-law of W H, should execute the conveyance. The defendant accordingly brought J H, who executed the mortgage and signed the receipt for the lOOi. which was received by the defendant : — Held, that a jury might well presume, on this state of facts, that the defendant was tenant at will to J H, and that the defendant, by his conduct, had waived all right to set up the Statute of Limitations, 3 & 4 "Will. 4. o. 27, to defeat the right of entry of J. H. Doe d. Groves v. Groves, 16 Law J. Rep. (n.s.) aB. 297 ; 10 Q.B. Rep. 486. The date a letter bears iaprimi facie its true date. Potez v. Glossop, 2 Exch. Rep. 191. The date which appears on the face of a document is primd facie its true date. Malpas v. Clements^ 19 Law J. Rep. (n.s.) Q.B. 435. In ejectment under stat. 59 Geo. 3. c. 12. s. 17, for a parish house, on the demise of A and B, stated in the declaration to be the churchwardens and overseers of a parish, the fact that they acted as churchwardens and overseers at the time of the alleged demise is sufficient primd facie proof, for the purposes of the action, that they held the offices at that time. Doe d. Bowley v. Barnes, 8 ft.B. Rep. 1037. The occupation of a tenement by a public com- pany in September is not to be inferred from the payment of rates in respect thereof by the company in the April previous, coupled with the fact of the same business being continuously carried on there. Gauntlett v. Wkitworth, 2 Car. & K. 720. In pedigree cases, an oldwill by which the testator purports to leave all his property to collateral rela- tions or friends is very strong evidence of his having died without children. Hungate v. Gascoigne, 15 Law J. Rep. (n.s.) Chanc. 382; 2 Ph. 25. Presumption of death. See Cuthbert v. Furrier, 2 Phill. 199. (K) Admissions. [Of Official Character. — See Turnpike, and see Pleading.] Where a statement was made by the plaintiff's attorney to the defendant's attorney, in conversation during the assizes, with respect to the nature of the claim in the action, such statement not being ex- pressly made for the purpose of being used as evi- dence, — Held, that it was not admissible. Fetch v. Lym, 15 Law J. Rep. (n.s.) G.B. 393. A plaintiff in ejectment claiming under a mort- gagee gave in evidence the mortgage deed executed by the mortgagor and mortgagee, which recited that the mortgagor was seised in fee. The defendant was no party to this deed, but had subsequently indorsed upon it this memorandum — " The within premises were charged by me, W. Stone (the defen- dant), the purchaser of the equity of redemption thereof, with the payment of the further sum of 325^. :" — Held, that the memorandum was evidence for the jury that the defendant came in under the mortgagor, and that, if so, he was estopped from EVIDENCE; (M) Conpessions. 273 setting up an adverse title prior to the date of the mortgage deed. Doe d. Gaisford v. Stone, 15 Law J. Rep. (n.s.) C.P. 234i; 3 Com. B. Rep. 176. Where an admission is relied upon against a party, the jury, in estimating the effect due to it, are justified in considering the circumstances under which it was made, and whether the defendant made it under an erroneous notion as to his legal liability. A provisional committeeman of a railway was sued for work done by the plaintiff, on behalf of the company, in 1845, for a portion only of which he had given any authority to pledge his credit. In 1846 the committee circulated a letter which ope- rated as an admission of the whole of the plaintiff's claim against the company : — Held, that the Judge was right in directing the jury to consider the cir- cumstances under which the admission was made, and the mistaken view which was at that time en- tertained of the liability of members of provisional committees, and to qualify the effect of the admis- sion accordingly. Newton v. Belcher, and Newton v. Liddiard, 18 Law J. Rep. (n.s ) a.B. 53 j 12 Q.B. Rep. 921, 925. The admission of a document described in the usual notice to admit, is not the admission of a fact stated in the description : it may be some evidence of the fact which may be rebutted by evidence to the contrary. Pilgrim v. the Southampton . and Dorchester Rail. Co., 18 Law J. Rep. (n.s.) C.P. 330 j 8 Com. B. Rep. 25. On an interpleader issue between the plaintiff, the claimant of certain goods, and the execution creditor, the plaintiff claiming the goods under an assignment made to him by the debtor as a security for previous advances, an admission of th^ debt made by the debtor before the assignment in the absence of the defendant is not receivable in evi- dence for the plaintiff. Coole v. Braham, 18 Law J. Rep. (n.s.) Exoh. 105 j 3 Exch. Rep. 183. To a certificate that A B had transferred to the defendant certain shares in a mine, was added a statement signed by the defendant, that he agreed to accept and take the same : — Held, in an action of debt for goods supplied to the mine, that the cer- tificate was evidence against the defendant as an admission by him that he was a shareholder in the mine, and that it did not require a transfer stamp. Toll V. Lee, 18 Law J. Rep. (n.s.) Exch. 364; 4 Exch. Rep. 230. 'In an action for wages, a statement by the plain- tiff that the claim which formed the subject-mat- ter of the action had been referred, and that the arbi- trator had made an award against him, is receivable on behalf of the defendant under the issue of non assumpsit. Murray v. Gregory, 19 Law J. Rep. (n.s.) Exch. 355 ; 5 Exch. Rep. 468. (L) Depositions and former Evidence. Where a commission issued on a petition of right in Chancery, and inquisition returned thereon, a bill was filed for perpetuating testimony, reciting the petition : — Held, that upon a traverse of the in- quisition by the Crown, and the record sent for trial into the Queen's Bench, the depositions of witnesses taken under the bill, but beyond the jurisdiction, were admissible, the parties being sub- stantially the same, and the commission to examine Digest, 1845—1850. witnesses having issued in the same proceeding. Barm de Bode's case, 8 Q.B. Rep. 245. Where a witness, examined upon interrogatories, refers in the course of his deposition to a document which he describes as a " legalized copy" of aformer deposition made by him, and which he states that he confirms, but which is not authenticated in any way, such document is not admissible in evidence. Alcock V. the Royal Exchange Insurance Co., 18 Law J. Rep. (n.s.) aB. 121 j 13 a.B. Rep. 292. Upon the trial of a prisoner for unlawfully ob- taining a promissory note by false pretences, the deposition of the prosecutrix, proved to have been regularly taken before the committing magistrate, stated by way of caption or title that it had been taken in the presence and hearing of Harriet Lang- ridge (the prisoner), late of, &c., wife of John Langridge of the same place, labourer, who is now charged before me this day for obtaining money and other valuable security for money from the said Mary Rowe (the prosecutrix), then and there being the money of, &c." :-— Held, that such title or caption charged an offence against the prisoner with sufficient distinctness, and that the deposition had been properly received in evidence at the trial, after due proof of the absence of the prosecutrix through illness. The title or caption of the written deposition of a witness, taken before a committing magistrate, need state no more than that it is the deposition of the witness, and that the examination had reference to the particular charge upon which the prisoner is being tried. Regina v. Langridge, or Langbridge, 18 Law J. Rep. (n.s.) M.C. 198 ; 1 Den. C.C. 448 i 2 Car. & K. 975. The prisoners being charged with felony before a magistrate, minutes of the examination and cross- examination of the witnesses were taken in writing under the inspection of (Ihe magistrate. These minutes were taken to the magistrate's office to a clerk named T, who proceeded to draw up the depositions. The witnesses attended at the office, and T, in order to make the depositions complete, put questions to the witnesses, and inserted their answers in the depositions. Neither the magistrate nor the prisoners were present at the office. The depositions having been so written out, the witnesses again appeared before the magistrate, and in the presence of the prisoners were re-sworn, and the depositions were read over to them, and a full opportunity was given for cross-examination before the depositions were signed by the witnesses: — Held, that the counsel for the prisoner was entitled, without putting in the depositions, to ask a witness whether he had not made a certain statement to T, in answer to a question put by the latter in the course of writing the depositions, although, ac- cording to the evidence, the answer would have appeared in the depositions. Regina v. Christopher, 19 Law J. Rep. (n.s.) M.C. 103 j 1 Den. C.C. 536 j 2 Car. & K. 994. (M) Confessions. At the trial of a servant for attempting to poison her mistress, a medical man, having denied that he had held out any inducement to the prisoner to confess, gave evidence of a confession, without which the prisoner could not have been convicted. 2N 274 EVIDENCE— EXCHEQUER, COURT OF. Eyidence was then given tliat before she made her confession he had said to her in the presence of her mistress, " it will be better for you to tell the truth." The medical man was re-called, but did not admit this, and the Judge left the evidence, including the confession, to the jury j but reported that if the evidence had been given in the first instance, he should have excluded the confession : — Held, that the confession ought to have been struck out, and that the conviction was wrong. Per Erie, J. — Whether an exhortation to tell the truth is a mere exhortation or an inducement to confess, is a question for the Judge at the trial. Regina v. Garner, 18 Law J. Rep. (n.s.) M.C. I ; 1 Den. C.C. 329 ; 2 Car. & K. 920. After talcing the examination of the witnesses on a charge of felony against the prisoner, the magis- trate cautioned the prisoner in the language pre- scribed by section 18. of the statute 11 & 12 Vict, c. 42, but did not, as the proviso to that section requires, tell the prisoner that he had nothing to hope from any promise of favour, or to fear from any threat. The prisoner then made a statement, which was taken down, but was not signed by the prisoner or the magistrate. The prisoner, after a remand, being brought again before the magistrate, some questions were put to the witnesses by the prisoner's attorney, who then objected to the statement being treated as the prisoner's statement, as an addition had been made to the evidence ; and the prisoner being then asked if he wished to make any statement declined doing so : — Held, that the prisoner's state- ment was admissible in evidence against him at his trial. Regina v. Bond, 19 Law J. Rep. (n.s.) M.C. 138 ; 1 Den. C.C. 517. When a party charged with an indictable offence before a magistrate, ' asked by the magistrate, pursuant to the statui,; 11 & 12 Vict. c. 42. s. 18, whether he wishes to say anything in answer to the charge, and is told by the magistrate that he is not obliged to say anything, unless he desires to do so, but that whatever he says will be taken down in writing, and may be given in evidence against him upon his trial, and the prisoner thereupon makes a statement which is taken down, and the deposi- tion containing it is duly returned, and bears upon its face that such caution has been given, and pur- ports to be signed by the magistrate, and there is no evidence that any threat or promise has been held out to induce a confession from the prisoner, the deposition may, without further proof, be read in evidence against him on his trial, although the magistrate did not comply with the direction in the first proviso to the above-mentioned section, and give the prisoner to understand before he made his statement that he had nothing to hope from any promise of favour, and nothing to fear from any threat which might have been held out, but that what he should then say might be given in evidence against him, notwithstanding such promise or threat. Semhle — that the last proviso to the same section overrides the whole section, and renders admissible in evidence against a prisoner any statement made by him either before a magistrate or on any other occasion, which independently of the statute would by law be admissible as evidence against him. Regina v. Sansome, 19 Law J. Rep. (n.s.) M.C. 143 j 1 Den. C.C. 545. (N) Practice, in Equity. A party had power to appoint by will executed without any particular formality. Upon a petition to obtain the fund out of court, — Held, that evi- dence of the probate was sufficient without producing the original will. Ward v. Ward, U Beav. 377. A creditors' suit was instituted against the execu- tors of a person, who, upon the marriage of A, had covenanted (as was alleged) to settle a sum of stock upon certain trusts, under which A had become absolutely entitled. No stock was settled according to the agreement The deed was not produced ; and in order to obtain the benefit of A's evidence respecting it, he assigned all his interest to the plaintiff without consideration. The attesting wit- ness to the deed was not produced, nor was any satisfactory proof of his death given. The Court refused to grant any reference respecting the exe- cution of the alleged deed ; but retained the bill for a year, with liberty to proceed at law. The evidence of A was rejected by the Court below, but admitted de bene esse by the Lord Chan- cellor. Mode of referring, in a decree, to evidence which has been rejected, or admitted de bene esse. Watson V. Parker, 15 Law J. Rep. (n.s.) Chanc. 400 ; 2 Ph. 5. If an heir files a bill stating that his ancestor's will was duly executed and attested, but dies before the cause is heard, leaving an infant heir, the will must be proved. Boilings v. Kirkbi/, 15 Sim. 183. A person in possession of documents may be served with, and examined at the hearing upon a subpoena duces tecum under the 24th Order of May 1845, but— Semhle — the examination must be confined to questions relating to the mere purpose of produc- tion of the document. If the possession of the document is admitted, but production of it is refused on the ground of a lien upon it, an order'for its production will not be made. Griffith v. Lunell, and Griffith v. Ricketts, 19 Law J. Rep. (n.s.) Chanc. 399. EXCHEQUER, COURT OF. [See Witness.] QuiBre — Whether an application by bill, on the equity side of the Court of Exchequer, can now be sustained. Attorney General v. Bovet, 15 Law J. Rep. (n.s.) Exch. 155 ; 15 Mee. & W. 60 ; 3 Dowl. & L. P.C. 492. The Court of Exchequer has, notwithstanding the 5 Vict. c. 5, retained all its actual and incidental jurisdiction, equitable as well as legal, which it has as a court of common law j also all its proper juris- diction as a court of revenue, for the collection of the revenues of the Crown, whether the jurisdiction be exercised after the forms of common law or equity j but it has lost all jurisdiction as a court of equity between its officers and Crown debtors and other subjects of the realm, before 'incident to it as a court of revenue, and exercised by it as a mere court of equity ; also all its usurped jurisdiction as a court of equity between subject and subject, which it exercised de facto as a mere court of equity in EXCISE— EXECUTOR AND ADMINISTRATOR. 275 the court of revenue, Attorney General v. Hailing, 16 Law J. Rep. (n.s.) Exch. 303; 15 Mee. & W. 687. EXCISE. [See Revekue.] ,♦ EXECUTION. [See Baron and Feme — Practice at Law — Sheriff.] EXECUTOR AND ADMINISTRATOR. [See Administration — Ejectment.] (A) Executor de son tort. (B) Rights, Duties, and Disabilities. (a) Indemnity against Covenants. (ft) Setting off Debts due to Deceased. (c) Carrying on Trade. (d) Allowances to, (C) Liabilities. (o) For Sums improperly dealt with. (&) As Assignee of a Lease. (c) As to Value of Testator's Property. Id) To Costs. (D) Assets. (a) What constitute. (b) Admission of. (c) Administration of, (E) Return of Duty. (F) Actions and Suits. (a) When maintainable, {b) Pleading. (c) Practice. (d) Decrees and Costs, (A) Executor de son tort. Where a lessee died intestate during the term, and his widow entered and paid rent, and after- wards the defendant, her son-in-law, took the pre- mises, with the assent of the landlord, and paid rent and continued to occupy during the remainder of the term, — Held, first, that there heing no as- signment in writing, he was not chargeable as assignee in fact ; and, secondly, that he could not be considered assignee in law, for, though the widow might have been chargeable as executrix de son tort, the defendant had notmade himself executor de son tort by taking the premises after her. Paull v. Simpson, 15 Law J. Rep. (n.s.) Q.B. 382; 9 a.B. Rep. 365. The agent of an executor de son tort, collecting the assets, knowing them to belong to the testator's estate, and that his principal is not the legal per- sonal representative, njakes himself liable to account as executor deson to^t, notwithstanding he has duly accounted for his receipts to his principal; on the ground that the doctrine, that the receipt of the agent is the receipt of the principal, does not apply to the acts of a wrong-doer. Sharland v. Mildon, 15 Law J. Rep. (n.s.) Chanc. 434 ; 5 Hare, 469. An executor de son tort is subject to all the liabilities, but entitled to none of the privileges of a rightful executor. Carmichael v. Carmichael, 2 Ph. 101. (B) Rights, Duties, and Disabilities. [See Conversion and Re-conversion.] (a) Indemnity against Covenants. A testator held long leaseholds, some as original lessee and others as assignee. They were sold in a suit : — Held, that the executors were entitled to be indemnified against the eventual breaches of the covenants, either by a retainer in court of part of the assets, or by a security of the legatees to refund. Reference directed to ascertain the liabilities in respect of the covenants and what amount should be set apart, with liberty to the legatees to propose a proper security. Dobson v. Carpenter, 12 Beav. 370. (6) Setting off Debts due to Deceased. To assumpsit for money received to the use of plaintiff as administrator, and on an account stated with him as administrator, with promises to him as administrator, defendant cannot plead a set-off for money due from the intestate in his lifetime. Schofieldv. Corbett, 11 Q.B. Rep. 779. An executor is entitled to set off against a legacy a debt due from the legatee to the testator, though such debt may have been barred by the statute before the testator's death. Courtnay v. Williams, 15 Law J. Rep. (n.s.) Chanc. 204. One of the creditors of an insolvent died intestate, leaving the insolvent one of liis next-of-kin : — Held, that the administrators of ithe creditor were not entitled to retain the debt out of the insolvent's distributive share of the creditor's estate. Bell v. Bell, 17 Sim. 127. (c) Carrying on Trade. To authorize executors to carry on or to permit to be carried on a trade, the property of a testator which they- hold in trust, there ought to be the most distinct and positive authority and direction given by the will for that purpose. Kirkman v. Booth, 18 Law J. Rep. (N.s.) Chanc. 25 ; 1 1 Beav. 273. (d) Allowances to. A bill instituted by a testator was revived by his executors, and was afterwards dismissed, with costs, to be paid by the executors and retained out of the assets. The state of the assets required the execu- tors to pay a considerable sum out of their own monies : — Held, that they were not entitled to in- terest thereon. Lewis v. Lewis, 13 Beav. 82. F B died at the house of H, of a contagious disease,, and, under the advice of medical men, H removed from his house with his family while it was cleansed, and the room where F B died fumi- gated. H, also, to prevent infection, destroyed all the furniture in the room where F B died ; and his executor paid to H 1601. as a compensation for his loss, 8zc. ; and upon exceptions to the Master's report disallowing the payment, — Held, it heing both necessary to remove and a duty to destroy the 276 EXECUTOR AND ADMINISTRATOR. furniture, that an implied contract existed, and that the executor was entitled to be allowed the pay- ment, but that the parties were entitled to further inquiry; and the exception was allowed, with costs. A physician attended F B during several of the last years of his life without any payment being made to him, but upon some understanding that remuneration was to be made by a legacy, which was not done. The executor paid to the phy- sician 100^. as a remuneration for the services performed, which the Master disallowed. Upon exceptions to the report, — Held, that there was nothing to raise an implied contract ; that the exe- cutor had placed himself in the situation of the physician, and was not entitled to have the payment allowed ; and the exception was overruled, with costs. Shallcross v. Wright, 19 Law J. Rep. (n.s.) Chanc. 413; 12 Beav. 558. A sum of '111. for wages due to the servants of a testator at his death, and another sum of \6l. for keeping a house for the repairs of which the testa- tor's estate was liable, were allowed to an executor in passing his accounts (under the circumstances of the case) on his own affidavit and without vouchers. Caton V. Rideout, 19 Law J. Rep. (n.s.) Chanc. 408. (C) Liabilities. (o) For Sums improperly dealt with. An executor held chargeable with interest on sums retained by him and mixed with his own monies at his hankers; the sums being retained out of the income of the testator's residuary estate, in order to satisfy a debt which there was probable ground to believe due to the testator's estate from a person entitled to a shareof such income, but which turned out not to be due to the extent supposed. Mellandv. Gray, 2 Coll. C.C. 295. A, on behalf of the Crown, took out administra- tion to the estate of B, who, it was alleged, had died without leaving any next-of kin ; and, as such ad- ministrator, sold out a sum of stock belonging to B, and paid the proceeds into the Treasury. Some years after a suit was instituted by the next-of-kin of B against A, and a decree obtained in his favour: — Held, that interest was payable on the proceeds of the sale of the stock since the time of the sale. Turner v. Maule, 18 Law J. Rep. (N.s.) Chanc. 454. Executors by proving the will take upon them- selves the obligation of seeing that the assets are got in and properly invested ; and it is the duty of each to watch over, and, if necessary, to correct the conduct of the other; and therefore it is no ground of immunity to an executor that he has been passive in permitting a debt due from his co-executor to the testator's estate, or a balance in his hands, to remain outstanding or uninvested, whereby the same has been eventually lost Two of three executors who had allowed their co-executor to retainin his hands for a period of six years a sum of money due by him to the testator, and which was afterwards lost to the estate by the bankruptcy of such co-executor, were held liable to make good that sum to the estate. A direction in a will that executors shall call in securities not approved by them will not authorize a continuance of that kind of investment which a court of equity would not sanction. Sliles or Styles V. Guy, 19 Law J. Rep. (n.s.) Chanc. 185; 1 Mac. Sc G. 422 ; 1 Hall & Tw. 523. (i) ^s Assignee of a Lease. When a lease for years, by which the rent reserved is more than the value of the premises, vests in an executor, the executor is liable as assignee for the amount of rent which the premises could have been let for. To a declaration in debt on a lease, for rent at 90/. a-year for two years and three quarters, due from defendant as assignee, the defendant pleaded "that he ought not to be charged with the said rent other- wise than as executor of W, who died possessed of the term ; that he, the defendant, entered upon the said premises as such executor, and that he had not at any time since the death of the said "W derived any profit or advantage as such executor or otherwise, by or from the said premises ; that the said premises had not since the death of the said W yielded any profit whatever; that the said premises did not vest in the defendant by assignment or otherwise than as such executor, and that he has no assets to be ad- ministered." Replication, " that the defendant did after his entry upon the said premises derive great profit and advantage by and from the said premises, which have yielded to him profit (to wit) to the amount of the said rent sought to be recovered." It was proved that the premises could have been let for 60/. a-year, and the jury found a verdict for the plain- tiff for 165/. (being rent at 60/. a-year for two years and three quarters) : — Held, that after verdict the plea must be taken to contain the allegation, that the defendant could not have derived any profit whatever from the premises, and that the verdict was properly found for the plaintiff for 165/. Held also, that the plea was to be construed as applicable distributively to each part of the sum demanded in the first count of the declaration ; and thus, though the action was debt and the only plea to the first count was found for the plaintiff, yet he was only entitled to a verdict for so much of the sum claimed in the first count as could have been derived from the premises. Hopwood v. Whaley, 18 Law J. Rep. (N.s.) C.P. 43 ; 6 Com. B. Rep. 744. (c) As to Value of Testator's Property. Executors are not chargeable with the value of their testator's property, as stated by himself and others in deeds to which the executors are not par- ties. Rowley v. Adams, 2 H.L. Cas. 725. {d) To Costs. Executors who are plaintiffs will not be exempted from paying the costs of issues on which they have failed, unless the defendant has been guilty of de- ception or misrepresentation. It is not enough that the conduct of the defendant has been such as to induce the executors to go on. Birkhead v. North, 16 Law J. Rep. (n.s.) aB. 284; 4 Dowl. & L.P.C. 732. (D) Assets. (a) What constitute. A testator, by his will, after devising his real estate to his executors for the benefit of his wife and children, expressed himself as follows: — "My executors are charged with the payment of my just EXECUTOR AND ADMINISTRATOR. 277 debts, of which I shall leave an account with the letter named above to my dear wife:" — Held, that all the testator's real estates were equitable assets for the payment of his debts. Dormayv. Borradaile, 16 Law J. Rep.(N.s.) Chauc. 337; 10 Beav. 263. (6) Admissim. of. Suit by a bond creditor for the administration of the testator's estate, praying the usual accounts and payment. The executor, by his answer, admitted payment of certain legacies under a mistaken notion that the assets were sufficient : — Held, that such payment was not an admission of assets, entitling the plaintiff to an immediate decree personally against the executor, no such case being made by the bill, and the relief prayed being inconsistent therewith. Savage v. Lane, 17 Law J. Rep. (n.s.) Chanc. 89; 6 Hare, 32. Payment of a legacy on an erroneous construc- tion of a will not maid fide is not an admission of assets on the true construction. Clark v. Bates, 2 De Gex & S. 203. (c) Administration of. In an action by a purchaser of leaseholds against the vendor, who sold as executor, to recover his deposit on the ground of no title being made out, it appeared that prior to the sale a bill had been filed against the defendant, as executor, by a legatee for a general administration of the testator's estate, to which the defendant had appeared, but that no decree had been made : — Held, that the executor had power to make a valid sale of any part of the assets pending the suit. Held, also, that the rule of equity by which the defendant is enabled to sell pending the suit is not a mere rule of practice, but one of which this Court takes judicial cognizance, and that evidence of the invalidity of the sale on that account was not ad- missible. Neeves v. Burrage, 19 Law J. Rep. (n.s.) Q.B. 68. In an action by the plaintiff, as executor of an original lessee, against the executor of the assignee of the lease, upon a covenant by the assignee to indemnify the lessee against breaches of the cove- nants ih the original lease, the defendant, under plene administravit, is protected by proof that he sold the lease in question, and had exhausted all the assets in his hands by payment of simple con- tract debts before the breaches of covenant declared on were committed. Collins v. Crouch, 18 Law J. Rep. (n.s.) a.B. 209; 13 aB. Rep. 542. (E) Return of Duty. Where the effects of a testator were situate in two provinces, and the executors were obliged to take out two probates, — Held, that they were not entitled to a return of probate duty, upon shewing that they had paid debts out of the general effects of the testator, by which the effects were reduced to an amount upon which, if one probate only had been necessary, a less duty would have been payable than had been paid. Semble — that the rule of the Commissioners of Stamps, in such cases, to apportion the debts rate- ably to the personal estate in each province is a fair and equitable one, and warranted by the statute 5 & 6 Vict. li. 89. s. 23. Regina v. the Commissioners of Stamps and Taxes, 16 Law J. Rep. (n.s.) ft.B. 75; 9 Q.B. Rep. 637. When a testator or intestate dies possessed of personal estate both in England and India, and indebted to English creditors in respect of debts contracted in England, the amount of assets in India cannot be taken into consideration in esti- mating the amount of duty to be returned to the executor or administrator, under the 5 & 6 Vict; c. 79. s. 23; India being for this purpose to be con- sidered as a foreign country. A died intestate in England possessed of personal estate in England to the amount of 5,858?. 16s. Id., in respect of which a duty of ISO/, was paid on the letters of administration. His administratrix paid debts due to creditors resident in England and con- tracted in England to the amount of 4,890<. Os. \0d., leaving a balance of 968i. 15*. 3d., on which the duty would only be 30/. A, at the time of his death, was also possessed of personal property in the East Indies to the amount of 12,118/. 16s. id., which had been received by his administratrix by means of letters of administration granted to an agent in India, and there were no other debts due from the intestate : — Held, that the administratrix was entitled to a return of 120/. of the duty. Regina V. the Commissioners of Stamps and Taxes, \^ Law J. Rep. (N.s.)Q.B. 201. (F) Actions and Suits. (a) When maintainable. Leasehold property was bequeathed to the tes- tator's wife for life, and afterwards to the defendant for the residue of the term. The wife entered with the assent of the executor (the plaintiff), and after her death the defendant entered and continued in possession for fifteen years, when the leaseholds were sold. No duty was ever paid on the legacy till after the sale, when 10 per cent, on the value of the leaseholds, and 10 per cent, on the amount of profits received by the defendant were paid by the plaintiff, the executor : — Held, that the plaintiff was entitled torecoverfrora the defendant, as money paid, the whole duty paid. Bate v. Pane, 18 Law J. Rep. (n.s.) as. 273. Where a party is abroad at the time of the accrual of a right of action, and dies without returning to this country, his executors may sue although six years have elapjed from the time of its accrual. Quiere — whether, under such circumstances, the executors would be hound to sue within six years of the testator's death. Townsend v. Deacon, 18 Law J. Rep. (n.s.) Exch. 298 ; 3 Exch. Rep. 706. (i) Pleading, A set-off for money due from the plaintiff to a testator in his lifetime may be pleaded in answer to a declaration on a cause of action, which accrued to the plaintiff, from the defendants, as executors, after the death of the testator. A declaration in assumpsit contained counts for goods sold, and on an account stated between the plaintiff and B, and a count on an account stated between the plaintiff and the defendants, as exe- cutors of B, assigning a general breach. Plea, to the whole declaration, a set-off for money due on an account stated between the plaintiff and B, payable 278 EXECUTOR AND ADMINISTRATOR ; (F) Actions and Suits. on request, and remaining unpaid to B, and to the defendants, as executors, at the commencement of the suit Replication, as to parcel of the causes of set-off, the Statute of Limitations, and as to the residue, that the plaintiff was not indebted to B, nor is indebted to the defendants, as executors. Veri- fication : — Held, on special demurrer to the repli- cation, that the latter part of itwas had, and should have concluded to the country. Qucere — whether the replication was not also bad for duplicity. Held, also, that the plea was a good answer to the action. Blakesley v. Smallwood, 15 Law J. Rep. (N.S.) Q.B. 185; 8 aB. Rep. 538. In an action against A and B as executors, A cannot plead that B is not an executor. In an action for use and occupation against de- fendants as executors, declaration that defendants, as executors, were indebted to the plaintiff for the use and occupation of certain premises held of the plaintiff by the defendants, as executors, under a demise thereof to the testator, and thereupon de- fendants, as executors, promised to pay: — Held, upon demurrer to a plea, that the declaration was good under the statute 11 Geo. 2. c. 19, and suffi- ciently charged the defendants de bonis testatoris. Atkins V. Humphrey, 1 5 Law J. Rep. (n.s.) C.P. 120 ; 3 Dowl. & L. P.C. 612 ; 2 Com. B. Rep. 654. To a declaration charging the defendant as exe- cutor, a plea, that the defendant never was executor, nor ever administered any of the goods or chattels of the deceased, may conclude to the country. Wood V. Kerry, 15 Law J. Rep. (n.s.) C.P. 122 ; 3 DowL & L. P.C. 642; 2 Com. B.Rep. 515. A judgment of assets quando aceiderinf affects all assets which at the time of such judgment are in the hands of the executor not administered, as well as those which may come into his hands subse- quently. Where, therefore; in an action against an exe- cutor, the defendant pleaded plene administravit prteter, and the plaintiff replied that assets had come to the defendant's hands since plea pleaded, — Held, that such replication was unnecessary and bad. Smithy. Tateham, 17 Law J. Rep. (n.s.) Exch. 198; 2 Exch. Rep. 205 ; 5 Dowl. & L. P.C. 732. In debt on bond against the defendant as execu- trix of S, who was executrix of the obligor, the defendant pleaded that S died intestate, absque hoc, that the defendant was the rightful executrix of S. On demurrer, held, that the plea was good in form, but that it afforded no answer to the action, as it ad- mitted that the defendant as executrix de son tort had received all the assets not administered by S, but did not shew that the defendant had no assets in her hands unadministered of the original testator, either independent or in consequence of a devastavit by S, out of which she could satisfy the debt. Meyrich v. Anderson, 19 Law J. Rep. (n.s.) Q.B. 231. The first two counts of the declaration charged the defendant as executor of J H in respect of prin- cipal and interest due from the testator to the plaintiff. The third count stated that the defendant as such executor as aforesaid was indebted to the plaintiff in 2001. for interest for the forbearance at interest by the plaintiff to the defendant as such executor as aforesaid at his request of monies owing from the defendant as such executor as aforesaid to the plaintiff: — Held, that the declaration was bad on the ground of misjoinder, and that the words " at his request" in the third count could not be rejected as surplusage. Bignell v. Harpur, 19 Law J. Rep. (n.s.) Exch. 168 ; 4 Exch. Rep. 773. (c) Practice. In 1825 Henry Wyatt and his son Henry E, who had previously carried on business as brewers, ad- mitted another son, Georgq, into partnership. By the partnership deed, it was agreed that the plant, &c., which was stated to have been valued at 63,000/., exclusive of the stock and debts, should he the capital, to a moiety of which the father was to be enttiled. His surplus monies in the business were stated to amount to 48,91 Si, on which he was to receive interest He died in July 1826, having, by his will, given his surplus capital to his execu- tors, in trust to invest the same in government or other security, and pay the income to his wife, and after her death to set apart two legacies of I2,000<, each for his two daughters and their children. He gave his interest in the business and the stipulated ordinary capital to his sons Henry E, George, and William, who was a minor, and he directed his executors to carry on the business, in conjunction with his two sons, until William attained twenty- one, and he empowered them to sell his share in the brewery during his minority. He charged his freehold and other property with the payment of his surplus capital, and directed mortgages of his real estate for securing the legacies. The will was not proved till December 1827, the executors having in the mean time left the surviving partners in the undisturbed possession of the partnership property ; and the business, although they did not take any active part in it, was carried on with their concurrence. Disputes having arisen between the surviving partners, the adult legatees filed a bill in 1827 for administration, which, through the inter- ference of the executors, was abandoned. In 1828 the executors joined in deeds whereby the partner- ship was dissolved, and Henry E assigned his interest to George, in consideration of 20,000i, and the executors released Henry E from all claims in respect of any surplus capital. The business, which was afterwards sold with the sanction of the Court, was found to be insolvent, and the partnership pro- perty turned out to be wholly unproductive to the testator's estate. The executors then filed a bill for administration of the estate; and in January 1831, a hill was filed by the children of the tes- tator's two daughters, seeking to charge the exe- cutors with wilful default in not having obtained payment of the legacies out of the surplus capital. By several decretal orders, made in both causes, accounts were directed to be taken as to the accuracy of the recitals in the partnership deed, the value of the plant, and the surplus money due to the testa- tor at his death ; and accounts were directed to be taken of the partnership dealings and transactions; and if the Master should find that he was unable to take such accounts, by reason of the non-production of books of account, he was to state the circum- stances. The Master, having reported that he could not take the accounts for non-production of books, he was, by another order, directed further to inquire by whom the partnership property was pos- EXECUTOR AND ADMINISTRATOR ; (F) Actions and Suits. 279 sessed at the death of the testator, and how disposed of, and whether the executors, with due diligence, and without their wilful default, might have pos- sessed themselves, out of the partnership property, of sufficient to pay the two legacies of 12,000?. The Master again reported that he was unable to take the accounts, by reason of the non-production of the books ; he found, however, on the evidence before him, .large sums to have been due to the tes- tator at his death, and large partnership assets, and that the executors might, with due diligence, and without their wilful default, have possessed them- selves out of the partnership property of a suffi- cient sum to pay the two legacies. The Court, upon exceptions, negatived the finding of wilful default: — Held, by the House of Lords, that there was no just ground of appeal against the order directing further inquiries as to sufficiency of assets and wilful default of the executors. If an order directing inquiries be deemed unne- cessary, the party objecting should promptly apply to the Court to discharge it ; as a Court of appeal would not listen to objections taken after the delay and expense of the inquiries were incurred ; and if it did, it would reject the information so obtained. Held, also, by their Lordships, affirming the order of the Court below upon the exceptions, that the Master's findings of the sufficiency of assets and wilful default, were displaced by his former findings, confirmed by the Court, of the impos- sibility of ascertaining the testator's surplus capital ; that there was no reason for thinking that the sur- plus capital could, if at all,' have been realized, without putting an end to the business, which the executors could not do without breach of their duty ; that though the executors had not properly per- formed their duty, still, as it had not been satis- factorily made out that there ever were partnership assets out of which the legacies could have been recovered or secured, the executors ought not to be charged with wilful default. Rowley v. Jdams, Adams v. Rowley, Wyatt v. Adams, 2 H.L. Cas. 725. If a trustee be sued for an account in the Court of Chancery, and it should appear that he had propetly expendedsums of money for the protection and safety, or for the maintenance of his cestui que trust, at a time when the cestui que trust was incapable of taking care of himself, the Court will allow him credit for such sums. A party had exhibited violent conduct as well during the lifetime of his mother as subsequently, and was considered to be of unsound mind, and, upon the proper medical certificates, was removed from prison (where he had been confined by order of a magistrate on account of a threat to murder a person,) to a lunatic asylum. He escaped from the asylum, and was afterwards, on an inquisi- tion, found by a jury to be of sound mind. In a suit, afterwards instituted by the party, and pray- ing the usual executorship accounts, against the executor of the will of the party's late mtother, under which the party took beneficially, it was held that the executor was entitled to an inquiry before the Master, under what circumstances the executor interfered to take care of the party, and to place him in an asylum, and how long the party was maintained in such asylum, and what sums were properly expended by the executor for the protection and support of the party whilst he remained in such asylum, and under what circum- stances the commission of lunacy was sued out and prosecuted. Held, also, that where facts have occurred after filing the answer to an original bill against an exe- cutor for an account, the defendant is justified in filing a cross-hill to put those facts in issue. Nelson V. Duncombe and Buncombe v. Nelson, , IS Law J. Rep. (U.S.) Chanc. 296; 9 Beav. 211. An executor having a promissory note for iOOl. as part of the assets, retained it in his possession with- out taking any proceedings to recover the amount or interest for seven years ; and at the end of that time, when the sole residuary legatee came of age, the executor delivered the note to him. The residuary legatee, ten years afterwards, filed his bill against the executor, charging him with breaches of trust in the administration of the estate. The Court under such circumstances refused to charge the executor- with the amount of the promissory note, or to direct an inquiry whether any loss had resulted to the estate by reason of the executor not having taken proceedings to enforce payment of the note. In such a case the executor would only be chargeable if the amount of the note could have been recovered during the seven years between the death of the testator and the time when the plaintiff attained his majority ; and in case it were found to have been recoverable during that time, still the executor would not be chargeable unless it could not be recovered during the ten years which elapsed after the note was delivered to the plaiutifil East V. East, 5 Hare, 348. In a creditors' suit to administer the estate of an insolvent testator, his executor and son claimed to be allowed the amount of principal and interest due on a bond alleged by him, and admitted by the tes- tator (as proved by a single witness) to have been given to the former for arrears of salary j and also the amount of principal due on two other bonds for valuable consideration from the testator to two cre- ditors, which amount they had lent, after the tes- tator's death and before the institution of the suit, to the executor personally, and from which they had released the testator's estate, but for which no part of the testator's assets had been paid or deli- vered to them by the executor : — Held, on excep- tions to the Master's report, that on such evidence as the above an issue ought to be directed to try the consideration of the bond given by the testator to his son: and it being admitted that the executor had at the time of the transactions between himself and the bond creditors sufficient assets of the testa- tor in his hands to satisfy the amount of those debts, that the executor was entitled to prefer them to others of equal degree, and to be allowed the pay- ment of them in passing his accounts. Also, that it was immaterial to consider whether the assets had been converted into cash for the purposes of those transactions j and that they were not invali- dated by the omission of an actual payment of cash or delivery of goods of equivalent value by the executor to those creditors. The executor, who was the defendant in the suit, was ordered to be the plaintiflf at law in the trial of the issue. A motion by him that he might be 280 EXTENT— EXTORTION. examined and cross-examined as a witness at the trial was refused. Such a motion as the above should be made, if at all, at the time when the issue is directed. Hep- worth T. Heslop, 18 Law J. Rep. (n.s.) Chanc. 352 ; 6 Hare, 561, 622. A testator who was carrying on the business of a brewer, made his will, and thereby gave all his real and personal estate to his son J K and three other persons, upon trust to raise an annuity and portions, and subject thereto, the testator directed that the trus- tees should permit the son during his life, to receive the annual produce and income of the testator's real and personal estate for his own use. The testator also appointed his four trustees and his wife his executors and executrix : — Held,' on bill iiled after a great lapse of time, and after the death of all the^ trustees and executors, against the personal repre- sentatives of the deceased executors, that the plain- tiffs were entitled to an account and inquiry as to all the property which the testator possessed at his death, and what had become thereof, and what steps the executors took for the purpose of recovering or receiving any part of the property which without their wilful default they might have received. Held, also, that, as to the furniture and converted debt, the Master ought to have liberty to state spe- cial circumstances, and that there ought to be a direction that if the Master could not satisfactorily take the inquiry, he should be at liberty to state the circumstances that created the difficulty. Kirk- man v. Booth, 18 Law J. Rep. (n.s.) Chanc. 25 ; II Beav. 273. (d) Decrees and Costs. A party sued as executor de son tort jointly with a rightful executor stated by his answer that he had before bill filed accounted with his co-defendant, and paid over to him the balance: — Held, that such settlement did not bind the plaintiff, who was beneficially interested in the estate ; and the Court refused to make the usual decree as to not dis- turbing the accounts. Carmichael v. Carmichael, 2 Ph. 101. Proof of improper expenditure by executors will not support a decree against them on a bill for an account on the footing of wilful neglect or default, and the executors are entitled to the costs of depo- sitions taken relative to that proof. Smith v. Cham- bers, 2 Ph. 221. The Court will give to the administrators of a defaulting executor their costs of suit out of the assets of the executor that have been received by them. Haldenty v. Spofforth, 15 Law J. Rep. (n.s.) Chanc. 328: 9 Beav. 195. EXTENT. A writ of extent may be made returnable in vacation. If a defendant in prison under a writ of extent be taken out of the precincts of the prison for a time, by order of the Commissioners of Excise, but with- out a writ, for the purpose of giving evidence, and be afterwards brought back and detained in the same custody, such custody is lawfuL Regina v. Renton, 17 Law J. Rep. (n.s.) Exch. 204 ; 2 Exch. Rep. 216; 3 Dowl. & L. P.C. 750. Upon an inquiry under a writ of extent, it appeared that the defendant had assigned all his property two days before the teste of the writ, by a deed which was an act of bankruptcy, and upon which a fiat was issued before the teste of the writ. The sheriff returned that to the knowledge of the jurors the defendant had no goods, &c. : — Upon an application by the Attorney General, the Court ordered a writ ad melius inquirendum to issue, that the facts as to the assignment might appear upon the inquisition, it being suggested that the Crown would be entitled to the goods as against the assig- nees. Regina v. Jobling, 19 Law J. Rep. (n.s.) Exch. 14 ; 4 Exch. Rep. 483. A bond given to the Crown under the 33 Hen. 8. c. 39. may be made payable to the king, his heirs or successors. By a bond given to the Crown under that statute all the lands of the obligor are bound from its date ; and as such bond is a voluntary act, the obligor cannot by mortgaging any portion of his lands, even under a power of appointment contained in a deed prior to the bond, render them free from liability under an extent subsequently issued on the bond. Upon a proceeding of amoveaf manus the Court may take notice of the bond upon which the extent has issued. Regina v. Ellis, 19 Law J. Rep. (n.s.) Exch. 77 ; 4 Exch. Rep. 652. EXTORTION. An information under the 33 Geo. 3. c. 52. s. 62, alleged that the defendant being a British subject, and exercising an office in the East Indies, and residing there, unlawfully did receive from a certain person called Sevajee Rajah a certain sum of money, to wit, &c., as a gift and present : — Held, affirming the judgment of the Court of Queen's Bench (16 Law J. Rep. (n.s.) M.C. 117 ; 13 aB. Rep. 42), first, that the offence was sufficiently de- scribed, as the statute prohibited a receipt of any gifts whatever. Secondly, that it was not necessary to allege for whose use the money was received (Piatt, B. dubitante). Thirdly, that it was not necessary to aver that the money was received ex- tionately, or under colour of the defendant's office. Held, also, that the provisions of the 7 & 8 Geo. 4. c. 64. a. 21. curing" defects by verdict, apply to all informations and indictments triable in England whether the offences were committed abroad or not. The information charged the receipt of a certain number of rupees. The jury found the value of each rupee at the time of the receipt. The Court passed judgment, imposing a fine upon each count, and a forfeiture of the value of the gift, adopting the value of a rupee as found ^ly the jury, and sentence of imprisonment until ths fine and forfeiture were paid: — Held, that under the 33 Geo. 3. o. 52. s. 63, where money was received, it was not necessary to give the defendant the option of returning the gift or the vat^ue ; and that the information and judg- ment were therefore right. Held, also, that the proper time to estimate the value was at the time of the receipt, and not of the conviction. FACTOR-FALSE IMPRISONMENT. 281 Held, also, that the Court had power to pass sen- tence of imprisonment until the forfeiture was paid. Douglas V. Regiiia,17 Law J. Rep. (n.s.) M.C. 176 ; 13 Q.B. Rep. 74. FACTOR. Meaning of " intrusted" in statute 6 Geo. 4. c. 94. s. 2. Ha^ld V. Phillips, 14 Mee. & W. 665 j 5 Law J. Dig. 296. Plaintiffs not intrusted with the bill of lading as agents by the true owners, but claiming to hold in their own right, have no title under the Factors Acts (see title . Stoppage in Transitu). Fan Costeel v. Boolcer, 18 Law J. Rep. (n.s.) Exch. 9 ; 2 Exch. Rep. 691. Principal and factor — accounts. Clarice v. Tip- piiig, 9 Beav. 284. The Factors Act (5 & 6 Vict. c. 39.) applies to mercantile transactions only, and not to advances made on the security of furniture, used in a furnished house, to the apparent owner of the furniture, who afterwards turns out to be merely an agent intrusted with the custody of the furniture by the true owner. Woodv. Rowcliffe, 6 Hare, 191. A Calcutta firm, by a letter dated in January and received in London onthellth of March 1841, directed their London correspondents to hold a sum of money (equal to a lac of rupees at the current rate of exchange), payable on the 19th of November following, out of remittances and consignments on the general account, at the JL':posal of a creditor of the Calcutta firm in Liverpool. The Calcutta house at the same time acquainted the Liverpool house of the directions which had been given. The London house informed the Liverpool house that they had received and registered the order ; and, after stating that they were in advance of the Calcutta house, and declining to accept bills for any part of the amount, -said, that if remittances should come for- ward to enable them to meet the wishes of the Calcutta house, they would lose no time in advising the Liverpool house. The London house, also, in acknowledging to the Calcutta house the receipt of the order, said, that the state of their account did not then warrant them in meeting the requisition, but they would meet it if in a position to do so before November. The Calcutta house revoked the order by a letter of January 1842, received by the London house on the 12th of March 1842. The Court below having directed an account to be taken in favour of the Liverpool house as against the London house, the Lord Chancellor, on appeal, directed the cause to stand over, with liberty to the plaintiff to bring such action as he might be advised, to esta- blish his right at law ; and the plaintiff subse- quently failing in an action at law, the bill was dismissed. When mercantile correspondence respecting the appropriation of funds in the hands of a consignee belonging to the debtor, does not constitute a legal contract on the part of the consignee to apply the funds in payment of debt of the creditor, qunere, whether the creditor may still support a claim to the funds on the ^ound of there being an equitable assignment. Malcolm v. Scott, 2 Hall & Tw. 440 ; 3 Mac. & G. 49. Digest, 1845— 1850. FACTORY. The provisions as to print works in 8 & 9 Vict. 0. 29. amended by 9 Vict. c. IS ; 24 Law J. Stat. 59. Ropeworks exempted from the Factory Acts by 9 & 10 Vict. c. 40 J 24 Law J. Stat. 119. Hours of labour in mills and factories limited by 10 Vict, c, 29 J 25 Law J. Stat. 95. School attendance of children in print works re- gulated by 10 8e 11 Vict. c. 70i 25 Law J. Stat. 219. The laws relating to labour in factories amended by 13 & 14 Vict. c. 64 ; 28 Law J. Stat. 106.- It is no offence against the Factory Acts to employ a young person, or female, for ten hours in any one day, such ten hours ending at a period which is more tlian ten hours (in addition to the hour and a half allowed for meal-times) from the period another child or young person or female began to work. Those acts limit the periods between which young persons and women are to work, and the number of hours, and also require the same hour and a half to be allotted to all for meal-times, but do not enact that all shall work during the same ten hours ; so that, subject to the above limitations, working by relays is legal. All children, young persons, and females must be taken to have commenced work when any one child, young person, or female commenced work. Ryder v. Mills, 19 Law J. Rep. (n.s.) M.C. 82; 3 Exch. Rep. 853. FAIRS AND MARKETS. The exception in 27 Hen. 6, c. 5. as to holding fairs and markets on the four Sundays in harvest repealed by 13 & 14 Vict. C. 23 ; 28 Law J. Stat. 32. ' The provisions usually inserted in acts for con- structing or regulating markets and fairs consoli- dated by 10 Vict. 0. 14; 25 Law J. Stat. 29. FALSE ANSWER. [See Municipal Cokpoeation.] FALSE IMPRISONMENT. [Under Speaker's Warrant See Parliament.] (A) What is an Imprisonment. (B) Action fok, and Damages. (C) Justification of the Impeisonment. (a) On Suspicion of Felony. (6) Under the Metropolitan Police Act. (c) Reasonable and proiable Cause. (A) What is an Impeisonment. The forcibly preventing a party from proceeding in a particular direction, e. g. along a public foot- way, is not an imprisonment in law. Per Patteson, J., Williams, J. and Coleridge, J. ; dissentiente Lord Denman, C.J. Bird v. Jones, 16 Law J. Rep. (n.s.) Q-B. 82; 7a.B. Rep.742. 20 282 FALSE IMPRISONMENT. (B) Action fob, and Damages. B voluntarily attended before a magistrate to answer a charge of embezzlement, wliich C then preferred against him. Before talcing the deposi- tions formally, the magistrate said, " Do you intend giving him into custody for it?" C replied, " I do give him into custody." B was then told by one of the constables to go into the dock : — Held, that the act of C amounted to no more than calling on the magistrate to exercise his jurisdiction; and that the placing B in the dock must be referred to the authority of the magistrate, and that C was not liable in trespass for the consequent imprisonment. Brown v. Chapman, 17 Law J. Rep. (n.?.) C.P. 329 ; 6 Com. B. Rep. 365. In trespass for false imprisonment, the defendant pleaded that under the 9 & 10 Vict. c. 95. the defen- dant issued a summons in the county court against the plaintiflF, which was duly served upon the plain- tiff; that the plaintiff did not appear to the sum- mons, and that judgment was given against him by default for payment of the debt by instalments ; that a minute of such judgment was served on the plaintiff, and that default being made in payment of the instalments, the defendant obtained a summons to the plaintiff to be examined touching his circum- stances, &c. ; that the last-mentioned summons was served on the plaintiff, who did not appear thereto, whereupon the Judge ordered him to be committed for fourteen days to the house of correction, and a warrant of commitment under the seal of the court was duly issued, under which the plaintiff was seized. Replication de injurid, and issue. It was proved that the defenflant entered a plaint in the county court against otae I, and had issued a sum- mons against Mm, and had served it on the plain- tiff^ who said it was a mistake, and that he was not I. The defendant, however, persisted in leaving the summons with him. The plaintiff did not appear, and judgment for payment of the debt by instalments was given against I, which was served on the plaintiff^ who still protested against it, and default being made in payment the defendant sued out against I a fraud- summons, under 9 & 10 Vict, c. 95. s. 98, which was served on the plaintiff, and on the day for appearance thereto the defendant, on proof of the service, obtained an order for the com- mitment of I, and a warrant was accordingly made out. The defendant went together with the officer, and, disregarding the plaintiff's protest, directed him to be apprehended, and he was accordingly taken to prison. The jury found that the plaintiff had not specifically or by his acts represented himself to be I : — Held, that the plea was not supported by the evidence, and that the plaintiff was entitled to the verdict. (Valley v. M'Connell, 19 Law J. Rep. (n.s.) Q-B. 162. The defendant gave the plaintiff into custody on a charge of felony, and he was taken before a magis- trate, who remanded him ; and on his again being brought up he was discharged. In trespass for the false imprisonment, the Judge told the jury that the plaintiff was entitled to damages for the whole time he was in custody : — Held, to be wrong, as the damages ought to be limited to what occurred prior to the remand, which was the act of the magistrate. and not of the defendant. Lock v. Ashton, 18 Law J. Rep. (N.s.) as. 76; 12 aB. Rep. 871. (C) Justification op the Impeisonment. (a) On Suspicion of Felony. To trespass, first, for breaking and entering a dwelling-house; secondly, for false imprisonment; the defendant pleaded setting out grounds of sus- picion of felony against the plaintiff, and then stated, "wherefore the defendant, suspecting the plaintiff" to have been guilty of feloniously stealin'g the said goods, did peaceably enter the said dwelling-house of the plaintiff, the outer door being opened to him by the plaintiff's mother, in company with one B, a constable, and did then give the plaintiff into the custody of B, and then, in a reasonable time from entering the said dwelling-house, left the same, and then conveyed the plaintiff therefrom to the police station : — Held bad, on special demurrer, for not shewing, with sufficient certainty, for what purpose the defendant entered into the dwelling-house, nor whether he found the plaintiff there. Smith v. Shirley, 15 Law J. Rep. (n.s.) C.P. 230 ; 3 Com. B. Rep. 142. In an action for false imprisonment, the defen- dant pleaded that his goods had been stolen, and having cause to suspect the plaintiff of the felony, he gave her into custody, the plea stating several grounds of suspicion. The plaintiff called a police- man to prove that the defendant directed him to take the plaintiff into custody; and in his cross- examination the policeman said, that, at the same time, and in the presence of the plaintiff, the defen- dant stated that the goods had been stolen, and also stated some of the grounds of suspicion mentioned in the plea: — Held, that this was evidence for the jury to consider, and from which they might find that the felony had been committed ; and that the defendant had good cause to suspect the plaintiff, if this evidence satisfied them that the facts really were so. Held also, that, although in this plea the defen- dant ought to set out his grounds of suspicion, yet that he would be entitled to a verdict without proof of the whole of them, if he proved that a felony was in fact committed, and proved so much of the grounds of suspicion as satisfied the jury that he had reasonable cause to suspect the plaintiff. Williams v. Crosswell, 2 Car. & K. 422. (i) Under the Metropolitan Police Act. The 54th and 63rd sections of 2 & 3 Vict. t. 47. (the Metropolitan Police Act) empowers a police constable to take into custody, without warrant, persons who " within view" of the constable, com- mit certain offences therein made punishable by summary conviction. The 66th section enacts, that any person "found committing" any offence pun- ishable, either upon indictment, or as a misde- meanour, upon summary conviction, by virtue of the act, may be apprehended by the owner of the property, on or with respect to which the offence shall be committed, or by his servant, or any person authorized by him, and may be detained, &c. A plea, justifying an imprisonment of the plaintiff, on the ground of her having committed one of the offences mentioned in the 54th section, stated, that FALSE IMPRISONMENT— FALSE PRETENCES. 283 it was committed "in view of the constable" ; this allegation having been disproved at the trial, — Held, that the allegation was material, and that the justification, therefore, failed. Held, also, that the plea was not a justification under the 66th section, because there was no allega- tion that the plaintiff was " found committing the offence," and that if the words " in view of the con- stable" were equivalent, they were not proved. Per Maule, J. and Erie, J. — The words " in view of the constable" are not equivalent to the words " found committing." Semble — that the 66th section points to a differ- ent class of offences from those mentioned in sections 54. and 63. Simmons v. Millingen, 15 Law J. Rep. (n.s.) C.P..102i 2 Com. B. Rep. 524. (c) Reasonable and probable Cause. ■ Upon a plea of justification to an action for false imprisonment, the jury are to find what facts are proved, and the question of reasonable and probable cause on those facts is to be determined by the Judge. A statement alleged in the plea of justification to have been made to O, but proved to have been made to H, may be admissible in evidence to shew that the defendant acted with proper motives. West V. Saxendale, 19 Law J. Rep. (n.s.) C.P. 149. [See ante, (a), and title Leave and Licence.] FALSE PRETENCES. [See Indictment.] (A) What is a false Pretence under the Statute. (B) Indictment for. (a) Venue. (6) Allegation of Intent. • (c) Allegation of Scienter. (d) Allegation of the false Pretence. (A) What is a false Pretence under the Statute. A false pretence, knowingly made to obtain money, is indictable, though the money be obtained by means of a contract which the prosecutor was in- duced to make by the false pretence of the prisoner. Regina v. Abbott, 1 Den. C.C. 273 ; 2 Car. & K. 630. If a party by means of a false pretence obtain a voluntary charitable gift of money, he may be in- dicted for obtaining money by false pretences under the statute 7 & 8 Geo. 4. c. 29. s. 53. Regina v. Jones, 19 Law J. Rep. (n.s.) M.C. 162; 1 Den. C.C. 551. The prisoner, who was the secretary of a lodge of Odd Fellows, came to the prosecutor, who was a member of the same lodge, and told the latter that he owed a sum of money to the society, and he at the same time produced a paper purporting to be a summons signed by himself, giving notice to the prosecutor that he owed the money to the lodge. The prosecutor, believing the statement, then paid the prisoner the amount: — Held, that the prisoner was properly convicted under the statute for obtaining the money by false pretences, although the paper was not set out in the indictment ; and although by the rules of the society the secretary had no autho- rity to receive money out of the lodge, and although the fact of what was due was as much within the knowledge of the prosecutor as of the prisoner. Regina v. Woolley, 19 Law J. Rep. (n.s.) M.C. 165; 1 Den. C.C. 559. A party, by a false pretence, obtained from a railway company a ticket, which entitled him to travel without payment from one place to another place on the railway in one of the company's car- riages, but which ticket was to be delivered up to the company at the end of the journey : — Held, that the obtaining by a false pretence such ticket was obtaining by a false pretence a chattel of the com- pany with intent to cheat and defraud them of the same, within the- meaning of the 7 & 8 Geo. 4. c. 29. s. 53. Regina v. Boulton, 19 Law . I. Rep. (n.s.) M.C. 67; 1 Den. C.C. 508; 2 Car. & K. 917. (B) Indictment for. (o) Venue. The prisoner, in a begging letter containing a false tale of pretended distress, requested the prose- cutor, who resided in Middlesex, to forward by post to an address in Kent a sum of money by way of charity. Theprosecutor,believing the story, obtained a post-office money-order, inclosed it in an envelope, which he addressed as requested by the prisoner, and put the letter into a post-office in Middlesex : — Held, that the prisoner might be indicted in Middlesex for having obtained the post-office order by false pretences in that county, since by directing the prosecutor to send the money by post he con- stituted the postmaster in Middlesex his agent to receive the post-office order there for him. Regina V. Janes, 19 Law J. Rep. (n'js.) M.C. 162 j 1 Den. C.C. 551. (&) Allegation of Intent. An indictment which alleged that A R H, in- tending to defraud J W, falsely pretended that he was a captain in the 5th Dragoons, by means of which false pretence he obtained from J W a valu- able security, &c., whereas the said A R H was not, at the time of the making such false pretence, a captain in the 5th Dragoons, — Held, good on writ of error. Hamilton v. Regina,l6 Law J. Rep. (n.s.) M.C. 9; 9 Q.B. Rep. 271. (c) Allegation of Scienter. In an indictment for obtaining money by false pretences, under 7 & 8 Geo. 4. e. 29, it was alleged that the defendant" did unlawfully falsely pretend," &c. — Held, that the omission of the word " know- ingly" was no ground for arresting the judgment. Regina V. Bowen, 19 Law J. Rep. (n.s.) M.C. 65. [See next case.] (d) ^Allegation of the false Pretence. An indictment for obtaining money and goods under false pretences stated that the prisoners un- lawfully (not saying "knowingly") did falsely pretend that a certain printed paper produced to the prosecutor was a good and valid promissory note for the payment of 51., and that by means of such pretence they obtained the money and goods from 284 FALSE REPRESENTATION— FERRY. the prosecutor, and then alleged that such printed paper was not a good and valid promissory note : — Held, that the false pretence was sufficiently alleged, and that it was not necessary to set out the terms of the printed paper in the indictment, as nothing turned upon the nature or character of the document. Regina T. Coulson, 19 Law J. Rep. (n.s.) M.C. 182; 1 Den. C.C. 592. FALSE REPRESENTATION. [See Contract, Rescission of.] A party is not liable for a false representation made by him without knowledge of its being false and without &aud. Ormrod v. Huth, !■$ Law J. Rep. (n.s.) Exch. 366 ; H Mee. & W. 651 ; 5 Law J. Dig. 7. If A knowingly utter a falsehood to B, with intent to defraud B, and with a view to his own profit, and B, giving credit to the falsehood, is in- jured thereby, he may maintain an action against A for the false representation. 'Where, therefore, a declaration alleged that B had sent to A certain handkerchiefs, printed by B with a certain pattern, and that he was about to print others of the same pattern for profit, and that A, in order to defraud B, and to induce him to desist from printing the same, and to deprive him of the profits, and to acquire the same for his own use, falsely repre- sented to B that the pattern was a registered pat- tern, and that the parties intended to proceed against B for pirating the design, — all which was untrue, to the knowledge of A ; in consequence of which, B was induced to take a journey for the pur- pose of inquiring into the matter, and was mean- while prevented from printing or selling other goods of the same pattern, — Held, on general de- murrer, that the declaration disclosed a good cause of action, and that the special damage naturally flowed from the wrongful act of the defendant. Barley v. Walford, 15 Law J.R«p. (n.s.) Q.B. 369 j 9 aB. Rep. 197. Where the plaintiff made a purchase under the influence of the misrepresentations of the defendant, although a considerable time had elapsed between the misrepresentations and the sale, — Held, that the plaintifi^ was entitled to recover from the defen- dant, and that it madeTio difference that the sale was made by auction. Bardell v. Spinks, 2 Car. & K. 646. Where the declaration alleged that the defendant had falsely represented himself as an agent of the master of a vessel, and so entered into a charter- party with the plaintiffs, — Held, that, under the plea of "not guilty," the contract must be proved by the plaintiffs, and not the misrepresentation only ; and, secondly, that the charter-party being un- stamped could not be read in evidence, though the defendant was not an agent of any *' master, or cap- tain, or owner' of a vessel. Brink v. Winguard, 2 Car. & K. 656. rendered illegal by the statute against wagers, 8 & 9 Vict. c. 109 ; s. 19. of which gives a new form for the issue ; but either form of issue may be used. Luard v. Butcher, 15 Law J. Rep. (n.s.) C.P. 187 ; 3 Dowl. & L. P.C. 815 ; 2 Com. B. Rep. 858. Under a feigned issue, brought to try the right of property in certain goods which had been seised under an execution against A, — Held, that the question for the jury was, not whether the goods were the property of the plaintiff in the feigned issue, or of A, but" merely whether they were or were not the property of the former. Green v. Rogers, 2 Car. &. K. 148. Where goods have been taken under a fi. fa., and an issue is directed to try whether the goods were those of a third person, and on that issue the jury at the assizes find for such person who is plaintiffin the issue, the practice is for the associate to keep the Nisi Prius record till after the fourth day of the next term, unless the Judge orders it to be imme- diately delivered up to the plaintiff's attorney upon an application in the nature of an application for speedy execution. Abbott v. Clarke, 2 Car. & K.. 209. FELLOWSHIP. Motion by an incumbrancer on a fellowship for a receiver and injunction refused, with costs. Berkeley Y.Kirtg's College, Cambridge, 10 Beav. 602. FELONY, MISPRISION OF. Upon the trial of an indictment under the 7 & 8 Geo. 4. c. 29. s. 58. for corruptly receiving money to recover stolen goods, and not causing the thieves tobe apprehended and brought to trial, it was proved that the prisoner brought certain suspected persons to the bouse of the prosecutrix, whom she recog- nized as having been implicated in breaking into her house and stealing some cheese, and then re- ceived from her 31. for the purpose, as he promised, of obtaining from such persons a part of the stolen cheese. The prisoner never did obtain any part of the cheese; and the jury having found expressly that he knew the thieves, and assisted in endea- vouring to purchase the stolen cheese from them, not meaning to bring them to justice, he was con- victed : — Held, that such conviction was proper. Regina v. Pascoe, 18 Law J. Rep. (n.s.) M.C. 186 ; 1 Den. C.C. 456 ; 2 Car. & K. 927. FERRY. FEIGNED ISSUE. [See Erkor, When it lies.] A feigned issue alleging a pretended wager is not [See Pi,eadin&.] The second count alleged that the defendant, contriving to disturb the plaintiffs in the enjoyment of their ferry, carried divers passengers for hire over the river, near to the plaintiffs' ferry, whereby the plaintiff, were disturbed in the possession thereof: — Held, on motion in arrest of jndgment, afterverdictfoT the plaintifis, that the count disclosed a good cause of action. Blacketer v. Gillett, 19 Law J. Rep. (n.s.) C.P. 307 ; 1 L. M. & P. 88. Upon the construction of the act for establishing FERRY— FINES AND RECOVERIES. 285 a ferry across the Tyne : — Held, that the word " burthen," in the 85th section, meant capacity for carrying, not " register admeasurement," and that the latter part of the section did not limit the gene- ral right of ferry, but only added a cumulative penalty, and that the mere act of ferrying passengers was a disturbance of the franchise, and that on the purchase of the old ferry and the completion of the new one, the former became extinct. North Shields Ferry Co. v. Barker, 2 Excb. Rep! 1S6, FIERI FACIAS. [See PKA.CTICE.] FINES AND RECOVERIES. [See Protectoe.] (A) Fine, Proof of. (B) Amendment of Exemplification. (C) DisEBTAiLiNG Deed, Proof of. (D) Conveyance by Married Women under 3 & 4 Will. 4. c. 74. s. 91. (a) Jurisdiction of Court of Chancery, (fc) Form of Conveyance, (c) Wife's Provisitm, (d) Husband's Concurrence, {e) Certijicate and Affidavit, (1) Dispensation of Notarial Certificate, (2) Description of Party, - (3) -Amendment of Certijicate, (4) Form and Requisites of the Affidavit, The evidence of proclamations on fines dispensed with by 11 & 12 Vict c. 70; 26 Law J. Stat. 207. (A) Fine, Proof of. To prove that a fine was properly levied in a Court of Great Session in Wales, the defendant produced the chirograph of the fine, with only one proclama- tion indorsed, and the plea-roll of the eonrt con- taining an entry only of a licentia coneardandi be- tween the same parties and respecting the same premises as those mentioned in the chirograph : — Held, thattljis was sufficient proofof the fine under the 5 Vict. c. 32. s. 2. Doe d. Cadwalder v. Price, 16 Law J. Rep. (n.s.) Excb. 159 ; 16 Mee. & W. 603. (B) Amendment of Exemplification. Where in the exemplification of a recovery the name of demandant had been inserted'by mistake as that of tenant, and vice versd, and the deed leading the uses being produced in court shewed this, the Court declined to amend, holding that the defect was cured by the 3 & 4 Will. 4. c. 74. s. 8. Wiclcens v. Shelley, 19 Law J. Rep. (n.s.) C.P. 329. (C) Disentailing Deed, Proof of. A being entitled as quasi tenant in tail to a sum of stock, executed a disentailing deed, which was duly enrolled in Chancery, and presented a petition for the transfer of the stock. This deed was produced at the hearing of the petition, with the certificate' of the clerk of enrolments indorsed, but no evidence was given of the execution of the deed : — Held, that the petitioner's title was not made out by the pro- duction of the deed, and that evidence of his execu- tion of the deed ought to be given. Bishop v. De Burgh, 15 Law J. Rep. (n.s.) Chanc. 35. (D) Conveyance by Married Women under 3 & 4 Will. 4. c. 74. s. 91. (a) Jurisdiction of Court of Chancery, Where the Court has ordered a conveyance of a mortgaged estate to be executed by all necessary parties, and one of those parties is a married woman, the Court has no jurisdiction to compel her to exe- cute the conveyance or to acknowledge it. Jordan v. Jones, 16 Law J. Rep. (n.s.) Chanc. 93 ; 2 Ph. 170. (i) Form of Conveyance, The Court will not sanction a particular form of conveyance by a married woman, under the 3 & 4 Will. 4. c. 74. -s. 91. In re Woodall, 3 Com. B. Rep. 639. (c) Wife's Provision, Where the certificate of the acknq,wledgment of a married woman, under the 3 & 4 Will. 4. e. 74, stated that "she freely and voluntarily consented" to a deed, and the affidavit of the commissioner stated that she consented to it, on condition of a pro- vision being made for her by her husband's will, and which had been made, and which, she stated, she knew to be revocable, the Court, considering the certificate and affidavit to be contradictory, refused to order the officer to file them. In re Dixon, 16 Law J. Rep. (n.s.) C.P. 231 j 4 Com. B. Rep. 631. Where the amount of the consideration which forms the inducement for a married woman to give up her interest in an estate was too small (40?.) to form the subject of a settlement, and the arrange- ment was that the amount should Idb paid to the wife, the Court allowed her acknowledgment to be regis- tered. Ex parte Webber, 5 Com. B. Rep. 179. Where property is sold under the compulsory provisions of an act, no inquiry as to whether any provision has been made in lieu of the interest given up, need be made. In re Foster, 7 Com. B. Rep. 120. (d) Husband's Concurrence. A married woman, one of the trustees for sale of freehold property, made application, under the 91st section of the 3 & 4 Will. 4. c. 74, that the concur- rence of her husband to the conveyance might be dispensed with. The husband was a seaman in the British navy, on a foreign station ; she had not heard from him for two years, and the affidavits stated that she believed he would never return : — Held, that the facts were insufficient to warrant the application. In re Smith, 16 Law J, Rep. (n.s.) C.P. 168. Upon a motion on the part of a married woman, under the 3 & 4 Will. 4. c. 74. s. 91, to convey her interest in property without the concurrence of her husband, on the ground that he is of unsound mind, the affidavit must shew in distinct terms, or by necessary inference, that the husband is lunatic at 286 FINES AND RECOVERIES ; (D) Conveyance by Married Women. the time of the application. In re Turner, 3 Com. B. Rep. 166. The Court refused, in 1847, to dispense with the concurrence of a husband, under the 3 & 4 Will. 4. c. 74. s. 91, upon an affidavit merely stating that he entered a government steamer in January 1844, and that the last the wife had heard of him was, that in January 1845 he was on board another government steamer at New Zealand. Ex parte Gilmore, 3 Com. B. B-ep. 967. (e) Certificate and Afidavit. (1) Dispensation of Notarial Certificate. The Court allowed an acknowledgment to be re- ceived and filed under the 3 & 4 Will. 4. c. 74. s. 85, where the affidavit verifying the same was sworn before " The Provisional British Consul for the Society Islands," it appearing that there was no notary, or any other official person before whom it could have been sworn, within many hundred miles. In re Darling, 2 Com. B. E.ep. 347. An acknowledgment by a married woman was taken before Commissioners in India, pursuant to the provisions of the 3 & 4 Will. 4. u. 74, and an affidavit to that efiFect was sworrv before a magistrate having competent authority. A person describing himself as " Major General" certified that the affidavit had been so sworn, and that the authority was compe- tent, and stated that there was no notary at the place. On affidavits of the general's handwriting and rank, the Court held the certificate sufficient In re Daly or Daley, 17 Law J. Rep. (n.s.) C.P. 1 ; 5 Dowl. & L. P.C. 333; 5 Com. B. Rep. 128. (2) Description of Party. The certificate of acknowledgment by a deed by a married woman, described her as Mary, the reputed wife of A, otherwise Mary , spinster; she was similarly described in the deed. The Court directed their officer to receive and file the certificate and affidavit. In re , 17 Law J. Rep. (n.s.) C.P. 110; nom. Ex parte Francis, 5 Com. B. Rep. 498. (3) Amendment of Certificate. Amendment of the certificate not allowed where the commission issued in January 1848, and the certificate stated the acknowledgment to have been taken in February 1847. In re Millard, 5 Com. B. Rep. 753. (4) Form and Requisites of Affidavit. The Court refused to allow an affidavit and notarial certificate of an acknowledgment to be filed, imder the 3 & 4 Will. 4. c. 71. s. 85; the affidavit purporting to be sworn before one " G, a Commis- sioner for taking affidavits in the Court of Queen's Bench, Canada, "\^"est," and the notary certifying him to he a Commissioner of that court, and, as such, qualified to administer oaths. In re Street, 2 Com. B. Rep. 364. In the jurat of an affidavit of the due taking of an acknowledgment at Calcutta, the name of one of the deponents was interlined: — Held, that the affi- davit could not be received. In re Fagan, 5 Com. B. Rep. 436. It is not necessary to state in a certifieate, under 3 & 4 Will. 4. c. 74. s. 83, the specific place at which the acknowledgment of a married woman has been taken ; it is enough if the deed appear to have been executed within the terms of the com- mission. A British consul abroad has no authority per se to administer oaths verifying the documents re- quired by this act; but if a public notary of the foreign country certify that by the laws of that country the British consul is competent to admin- ister oaths, the certificate and other documents sworn before him will be received by the Court. Ex parte Hutchinson, 17 Lavr J. Rep. (n.s.) C.P. Ill ; S Dowl. & L. P.C. 523; 5 Com. B. Rep. 499. The certificate of acknowledgment of a married woman to bar her dower, taken under a special commission, was verified by an affidavit written on paper, contrary to the usual practice of the Court, by which such documents are required to be on parchment: — Held, that the affidavit and other documents might be received and filed. Ex parte Carr, 17 Law J. Rep. (n.s.) C.P. 107 ; 5 Dowl. & L. P.C. 488 ; 5 Com. B. Rep. 496. The Court refused to direct the officer to receive a certificate and affidavit of an acknowledgment under the 3 & 4 Will. 4. c. 74, the affidavit having an interlineation in an important part, without any- thing to denote that the interlineation had been made before the affidavit was sworn. In re Worthington, 5 Com. B. Rep. 511. No rule granted upon a mere statement of the husband, a seaman, being abroad, and not heard of for some years, and that the wife had been informed he was dead. In re Taylor, 7 Com. B. Rep. 1. The Court refused to direct the proper officer under the 3 & 4 Will. 4. c. 74. to receive and file an acknowledgment where the affidavit of verifica- tion was sworn before the British minister at Flo- rence, it not appearing that there was any difficulty in getting it sworn before some properly constituted authority at that place. In re Baroness Dunsany, 7 Com. B. Rep. 119. In the case of an acknowledgment taken abroad, the Court will not dispense with an affidavit of v&ification, sworn and authenticated according to the local law, unless it be distinctly shewn that great inconvenience would result from a strict ad- herence to the ordinary rule. In re Crawford, 4 Com. B. Rep. 626. FIRE. Malicious injuries by fire or by explosive sub- stances made punishable as felonies or misde- meanours. 9 & 10 Vict. c. 25 ; 24 Law J. Stat. 71. Liability for Consequences of negligent Fire. The declaration alleged that the plaintiff was possessed of close A, and the defendant of close B ; and that the defendant wrongfully lighted a fire in close B at a time when by reason of the state of the wind and weather it was dangerous to do so, and that through the negligence of the defendant the fire extended itself from close B to close A and destroyed the hedges, gates, &c. : — Held, on motion in arrest of judgment, that the action would well lie ; and that the defendant was not relieved from liability by stat. 6 Ann. c. 31. and 14 Geo. 3. c. 78, FIRE— FISH AND FISHERY— FIXTURES. 287 which must be taken to apply to fires which are the result of cliance or are incapable of being traced to any cause, but not to flres which, though they may be accidental, as contradistinguished from wilful, are occasioned by negligence or want of reasonable care. FilUter v. Phippard, 17 Law J. Rep. (n.s.) Q.B. 89; llQ.B.Rep. 347. Reward to Engine-man, By 14 Geo. 3. u. 78. o. 76. it is enacted, that the keeper of the second large engine which shall be brought in good order to help to extinguish any fire, shall be paid a sum not exceeding 20s. by the churchwardens of the parish in which the fire occurs ; and by section 77. no such reward is to be paid without the approbation and consent of a Justice of the Feace : — Held, that if the church- wardens refuse to name any sum to be given by way of reward, the engine-keeper may do so him- self, and may ask the consent of the magistrate to the sum so named by him. "Where a local act had taken away from the churchwardens of a parish the power of making poor-rates, it was held that they might still lay a special rate under the 14 Geo. 3. c. 78. s. 81. Ex parte Loader, 18 Law J. Rep. (n.s.) Q.B. 94. FISH AND FISHERY. In trespass for taking the plaintiff's fish, it ap- peared that they had been nearly surrounded by seins of the plaintiff, and of which, but for the wrongful intrusion of the defendant's boats through the aperture, the possession would have been com- plete, — Held, that not having been so completed the action could not 'be maintained. Young v. Hicliens, 6 as. Rep. 606. A navigable river is a public highway for vessels, at all times and states of the tide, and the right to pass and repass is not destroyed or abridged by the circumstance that at particular states of the tide a vessel cannot pass along without grounding, and thereby injuring oyster-beds therein. The rights of the Crown are subject to this public right of passage, and the Crown, therefore, cannot, irrespectively of any ownership in the adjoining lands, make a grant inconsistent with it. To a declaration charging the defendant with navigating his vessel unskilfully, and at improper states of the tide of a navigable river, and thereby injuring oysters of the plaintiffs lying in the bed of a river, a plea that the river is a public navigable river, at all times and states of the tide, is good, after verdict, the declaration not charging, a wilful injury. A plea that the oysters were an impediment to the navigation, and a common nuisance, but not stating that the defendant might not have avoided them by using reasonable care, is a bad plea; but the plaintiffs cannot have judgment on it non obstante veredicto, there being other material issues found for the defendant. The Mayor, 8fc. of Colchester v. Brooke, 15 Lnvi J. Rep.(N.s.)a.B.59; 7 Q.B. Rep. 339. A right of free fishery was granted to the bu rgesses of the borough of C, by a charter of Ric. 1. which recited a previous enjoyment of the franchise by the borough. In the year 1740, by reason of judgments of ouster against all the existing members of the corporation,it became incapable of continuing itself; and there were no mayor or aldermen till 1763, when a new charter of incorporation was granted to the borough, by which all the former rights, liberties, and " fisheries" were ratified, confirmed, and restored to the new corporation : — Held, that the corporation were, under the new charter, entitled to the fishery. The corporation exercised their right by granting to persons called dredgermen, not being members of the corporation, licences to dredge and take oysters within the limits of the fishery : — Held, in an action on the case for injury to the fishery, the declaration stating the possession of the fishery, oyster-beds, and oyster-grounds, which was traversed by the third and seventh pleas, and the jury having found for the plaintiffs on these issues, that the above licences did not operate as demises of the fishery, so as to - entitle the defendant to a verdict on these issues. The Mayor, ^c. of Colchester v. Brooke, 15 Law J, Rep. (n.s.) Q.B. 173; 7 Q.B. Rep. 339. A declaration stated that the defendant had been summoned to answer the plaintiff in an action of trespass, and charged that the defendant vi et armis broke and entered a fishery, to wit, the sole and exclusive fishery of the plaintiff, in a certain part of a river then flowing and being over the soil of one P F, and then fished for fish in the said fishery of the plaintiff, and the fish of the said fishery of the plaintiff there found and being in the said fishery chased and disturbed. Conclusion contra paeem: — Held, first, affirming the judgment of the Court of Queen's Bench (16 Law J. R,ep. (n.s.) Q.B. 68 ; 8 Q.B. Rep. lOOO) that trespass lies for breaking and entering a several fishery, though, no fish are taken. Secondly, that the plaintiff, was not bound to state any further title, although \the declaration stated the several fishery to be in alieno solo, as there was no averment upon the record to shew that the de- fendant claimed title or authority under the owner of the soih Thirdly, reversing the judgment of the Court below, that after verdict the words " sole and ex- clusive fishery" were equivalent to "several fishery," as under such description the plaintiff must have proved the incorporeal right usually described as a several fishery. Semble — that the declaration must be considered as a declaration in trespass, and not in case. Hol- ford V. BaiUy, 18 Law J. Rep. (n.s.) Q.B. 109; 13 Q.B. Rep. 426. FIXTURES. [See Landlobd and Tenant — Teover.] A chattel placed by the owner upon the freehold of another, but severable from it, e. g, a door which may be lifted from its hinges, or a sliding fender used to prevent the escape of water from a mill stream, does not necessarily become part of the freehold. It is matter of evidence whether by agreement it does not remain the property of the original owner. Wood v. Hewitt, 15 Law J. Rep. (N.s.) Q.B. 247; 8 Q.B. Rep. 913. 288 FOREIGN ATTACHMENT— FOREST LAWS. FOREIGN ATTACHMENT. Where a foreign attachment had been sued by the plaintiff out of the Lord Mayor's Court, to seize money in the hands of bankers to a railway com- pany only provisionally registered, but no further steps had been there taken against the garnishee, the Court refused to stay proceedings in an action subsequently brought in this court against three of the provisional committee of the railway company, in which the same debt was sought to be recovered as for work and labour done for the company. Denton v. Maitland, 15 Law J. Rep. (n.s.) CI.B. 332. The customary process of foreign attachment in the city of London is not equivalent to an arrest on mesne process, though the attachment can only be dissolved by the defendant putting in bail or render- ing himself to prison, and the 1 & 2 Vict. c. 110. does not affect the custom. Where a suit in the Lord Mayor's Court, and a foreign attachment, issued according to the custom of the city of London, is removed into a superior court by certiorari, the plaintiff is entitled to a procedendo, unless the defendant puts in special bail in the court above. Day v. Paupierre, 18 Law J. Rep. (U.S.) Q.B. 270. FOREIGN LAW. [See Pleading.] A person residing in England who is a member of a company carrying on business in a colony must be taken to know the law of the colony. Where a colonial act enabled the chairman of a company to sue and- be sued for the company, he is to be taken as agent for the members; and, therefore, a member resident in England and sued on a judgment recovered in the colony in an action against the chairman, cannot avail himself of the fact that he had no notice of the process in that action, as a plea to an action brought in this coun- try on the judgment Where an act providing for proceedings by and against a company contained provisions for charg- ing the property of members for the time being on a judgment obtained against the chairman, but in other respects reserved the rights and liabilities of parties as they were before, — Held, that the remedy was cumulative, and that a member might be sued on the judgment recovered. A foreign judgment, though conclusive where it was given, is only primd facie evidence of a debt here. Therefore, where the defendant, a member of a colonial company, in an action brought against him in this country on a contract entered into by the company, pleaded a judgment recovered in the colony against the chairman of the company as conclusive, the plea was held bad. The Bank of Australasia v. Harding, 19 Law J. Rep. (n.s.) C.P. 345. A witness expert in the law of a foreign country was called to prove what that law was: — Held, that he should state on his responsibility what the law is, and not read any fragments of a code. Codes V. Purday, 2 Car. & K. 269. By the Canadian Act, 25 Geo. 3. c. 2, passed by the Legislature of Lower Canada, for regulating proceedings in the courts of justice in Canada, it is enacted, that in proof of all facts concerning com- mercial matters, recourse should be had by the courts of civil jurisprudence in the Provinces, to the rules of evidence laid down by the laws of Eng- land: — Held, by the Judicial Committee, affirming the judgment of the Court of Appeals for Lower Canada, that this' Colonial Act revoked so much of the old French law, which formerly prevailed in Canada, and was laid down in the Ordonnance de Moulens, passed in the year 1566, and subsequently altered by the Ordonnance of ] 667, whereby parol evidence was excluded from the proof of all controls, or matters, exceeding the sum of 100 livres, except in the case of accident, or where there was a com- mencement in writing ; and that the English law, as to the admission of parol evideflce in commercial matters, was substituted. A contract entered into by persons in Canada with the Government Commissioner, to supply stone for making a canal, is a commercial matter, and is to be proved by the English law. M'Kay v. Ruther- ford, 6 Uooie,P.C. US. FOREIGN PRINCE. During the rebellion in Sicily, agents were sent to England by the usurping government, who con- tracted with the Peninsular and Oriental Steam Packet Company for the purchase of two vessels and paid the purchase-money. One was transferred to the agents, and was taken away from this coun- try. The other vessel was registered in the names of two English subjects, who were alleged to be trustees for the agents of the usurping government, and it had not yet been removed from England. The plaintiff, the King of the Two Sicilies, upon being restored to his government, filed a bill praying that he might be declared entitled to the second vessel, and for an injunction to restrain the com- pany from parting with it An injunction ex parte having been obtained against the company, it was dissolved, with costs, upon the ground that they had parted with all interest prior to the bill being filed. Upon demurrer, by the defendants, in whose name the vessel was registered, it was held, that the plaintiff had a right to follow to this country pro- perty which had been abstracted from the public treasury by his rebellious subjects, and that it was not necessary to make the members of the usurping government parties. The King of Two Sicilies v. the Peninsular and Oriental Steam Packet Co., 19 Law J. Rep. (n.s.) Chanc. 202. FOREST LAWS. [See Mandamus.] An information, at the suit of the Attorney Gen- eral, stated, that the ftueen was and still is seised in her demesne as of fee in right of her Crown of and in Waltham Forest, and that she and all her ances- tors, kings, &c. have continually held and enjoyed the said forest, and the game of wild beasts and fowls of chase and warren coming and arising of and from the said forest, and all rights, &c., without any disturbance, &c. ; that the defendant unlawfully FOREST LAWS— FORGERY AND UTTERING. 289 erected a high fence, and dug a deep ditch in and upon the soil of the said forest, to wit, upon and around 100 acres of land, being parcel of and within the said forest, and therewith inclosed the said 100 acres of the said forest, and encroached and usurped thereon, and separated the same from the residue of the said forest, and kept and continued the same, &o., and by reason of the premises the Queen could not have and enjoy the said forest, and the said game, and the said rights, profits, Sic, in as full and ample a manner, &c., to the great injury and disturbance of the Queen in the .said forest, to the great damage and destruction of the vert and venison of and in the said forest, and to the disinherison of the Queen, &c. Plea, that the same place in which, &c. was not now, nor was any part thereof, parcel of and within the said supposed forest modo etformd: — Held, on demurrer, that this was not an information of intrusion into the lands of the Crown ; that it was an information in the nature of an action of trespass on the case for the injury to the incorporeal right of forest by interfering with the game, and that the defendant was not bound to plead title to the land inclosed by him. The At- torney General v. Hallett, 16 Law J. Rep. (u.s.) Exch. 262; i Exch. Rep. 21 1 ; 5 Dowl. & L. P.O. 87. FORGERY AND UTTERING. (A) What constitutes the Offence. (B) Jurisdiction to try. (C) Bills, Notes, and Cheques. (D) Orders, Warrants, and Undertakings. (E) Receipts. (F) Indictment — ^Variance. [See (C).] (G) Evidence. (A) What constitutes the Offence. In an indictment for forging a will, an intent to defraud the heir-at-law was charged in one count, and in another an intent to defraud certain persons to the jurors unknown. The only prisoner found guilty was the son of the testator whose will was alleged to he forged. No evidence was given that the testator had been previously married or left any other children, but one of the witnesses stated that he had heard a report that the deceased had left another son by a former wife :— Held, that there was no evidence of an intention to defraud any one, to justify a conviction. Regina v, Tylney, 18 Law J. Rep. (Vs.) M.C. 36; 1 Den. C.C. 319. Indictment in seventh count charged that F. E. Toshack unlawfully, knowingly, &c. did forge a certain writing to the likeness of, and as and for a true and genuine writing of and under the hand of one W. Neilson, as master of a vessel called the Ruokers, certifying that he the said F. E. Toshack had served with the said W. Neilson as able seaman on board the said vessel from the 4th of November 184'2, till the 1st of January 1845, and during such time conducted himself in a sober and orderly man- ner, with intent thereby, &c. to deceive, injure, &o. A, B, C and D, to the great injury, &c. of the said A, B, C and D, to the evil, Sfc. example of all other persons in the like case offending, and against the peace, &c. Eighth count. Same as above, with in- Digest, 1845—1850. tent to deceive, 8jc. the Corporation of the Trinity House. Both counts held good at common law. Regiiia v. Toshack, 1 Den. C.C. 492. If A give to B a forged certificate of a pretended marriage between himself and B, in order that B may give it to a third party, A is not guilty of an "uttering" within the 11 Geo. 4. & 1 Will. 4. c. 66. s. 20. Regina v. Bei/wood, 2 Car. & K. 352. In a case of forgery it is not required, in order to constitute, in point of law, an intent to defraud, that the party committing the offence should have had pi-esent in his mind an intention to defraud a particular person, if the consequences of his act would necessarily or possibly be to defraud any person, but there must at all events be a possibi- lity of some person being defrauded by the forgery. A was indicted for forging and uttering a deed of transfer of ten shares in the London and Croy- don Railway Company, with three intents, viz., to defraud that company, — D L, — and W B. It appeared, that, in July 1845, E R transferred, by two deeds of transfer, 100 shares in this company to D L, and that these deeds purported to be exe- cuted by D L as transferree ; but the signatures, D L, were, in fact, written by A, without the authority or knowledge of D L. On the 2nd of August 1845, by seven deeds of transfer, which purported to be executed by D L as transferror, these shares were transferred to five different per- sons, and by one of them ten of the shares pur- ported to be transferred to W B. The name of D L was signed to all these deeds hy A, without the authority or knowledge of D L. On those seven transfers there was a profit, which D L refused to receive from A, and it did not appear that any further call on these sha'res could be made : — Held, that on these facts A. was entitled to be acquitted, as neither the company, nor D L nor W B could be defrauded. Regina v. Mahus, 2 Car. & K. 356. The forgery of a railway passy to allow the bearer to pass free on a railway, is a forgery at common law ; but the uttering of it per se is riot a misde- meanour. ' The uttering of a forged instrument, the forgery of which is only a forgery at common law, is no offence, unless some fraud was actually perpetrated by it ; and where, in such a case, the indictment contained some counts for the forging the instru- ment and others for uttering it, and the dcTendant was acquitted on the counts for the forgery, and convicted on the counts for the uttering, the judg- ment was arrested. Regina v. Boult, 2 Car. & K. 604. A, a sharehroker, had bought twenty shares in the Eastern Counties Railway Company, of L, a broker, which stood in the name of R A P ; but L did not send A the deed of transfer, as A was in embarrassed circumstances, and owed L money. A procured a boy to execute a deed of transfer of the shares in the name of R A P. ' All the calls on the shares had been paid up ; — Held, a forgery, and that A could be convicted on counts laying an intent to defraud R A P and the Eastern Counties Railway Company. Regina v. Hoatson, 2 Car. & K. 777. The practice was, for the majority of the oflSoers of a parish to draw cheques on the treasurer of a union ; and one of their blank cheques, filled up for 2P 290 FORGERY AND UTTERING. 1/. 3s. 6d. had a note at the bottom — " Unless this cheque is signed by a inajority of the parish oiBcers, it will not be cashed." This cheque was signed by one of the officers while it was for 11. 3s. 6d. It was altered to 3^ 3s. 6d., and when cashed by the treasurer bad the signatures of a majority of the officers to it: — Held, that if the cheque was fraudu- lently altered when it had only one signature to it, this was no forgery, as it was then an incomplete instrument. Regina y. Turpin, 2 Car. & K. 820. (B) Jurisdiction to try. On the trial of an indictment for forgery, the jury found that the prisoner was guilty of forgery, but that there was no evidence of the forgery having been committed within the jurisdiction of the Court. The prisoner was not shewn to have been in custody till the time when the trial began : — Held, that as the prisoner was in custody before the Court at the time of the trial, the indictment and conviction were good under the 11 Geo. 4. & I "Will. 4. c. 66. s. 24. Hegina v. Smythies, 19 Law J. Rep. (n.s.) M.C. 31 ; 1 Den. C.C. 498 ; 2 Car. & K. 878. (C) Bills, Notes, and CHEaoEs. After an acceptance in blank, the drawer of a bill of exchange, whilst the same was in the course of completion, wrote in the corner of the bill the drawee's name, with a false address, with the intent of making the acceptance appear to he that of a different existing person : — Held, that tliis was a forgery by the drawer. Regina v. BlenJcinsop, 17 Law J. Rep. (n.s.) M.C. 62; 1 Den. C.C. 276; 2 Car. & K. 531. A bill of exchange was made payable to A, B, C, D, or order, executrixes. The indictment charged that the prisoner forged on the back of the said bill a certain forged indorsement, which said forged indorsement was as follows — (naming one of tlie executrixes);. — Held, a forged indorsement within the statute 1 Geo. 4. c. 66. s. 3. Regina v. Winter- lottom, 1 Den. C.C. 41 ; 2 Car. & K. 37. Prisoner falsely averring an authority to indorse a bill of exchange for T. Tomlinson, writes on the back of the bill " per procuration, Thomas Tom- linson, Emanuel White." The bill is thereupon discounted, and the prisoner goes off with the money : — Held, no forgery. Regina v. White, 1 Den. C.C. 208 ; 2 Car. & K. 404. The prosecutor having signed a blank cheque, authorized the prisoner to fill it up with a certain sum, who, with the intention of defrauding the pro- secutor, inserted therein a larger sum ; — Held, to be forgery. The prosecutor's name, and as it appeared upon the cheque, was M'Nicoll; it was written M'Nicole in the indictment : — Held, to be no variance. Regina v. Wilson, 17 Law J. Rep. (N.s.) M.C. 82 ; 1 Den. C.C. 284; 2 Car. & K. 527. In debt by payee against makers of a banker's cheque, in which the defendants pleaded that they did not make the cheque, the defendants' signatures were admitted, but it was opened for the defendants, that the defendants, who were directors of a com- pany, of which the plaintiff was secretary, kept blank cheques, with their signatures to them, in a book, and that this cheque was one of those filled up by the plaintiff without authority. The Judge intimated that this would be a forgery, even though the whole sum the cheque was drawn for was due to the plaintiff The plaintiff elected to be non- suited, and the Judge ordered the cheque to be im- pounded in the hands of the Associate, but would not order the plaintiff to be taken into custody, as no evidence of any forgery had been given, and the matter rested on the statement of counsel only. Flower v. Shaw, 2 Car. & K. 703. (D) Orders, Warrants, and Undertakings. An order of wine-merchants, purporting to direct a cooper of the London Docks to permit " self and company to taste wines, ex Traveller," &c. which belonged to them, is an order for the delivery of goods. And where a prisoner was con- vicled of uttering such order with the wine-mer- chant and owner's signature to it forged, — Held, that the conviction was right, although the prisoner had failed to obtain the signature of the dock com- pany's clerk to the order, without which the cooper addressed was not authorized to act upon it. Regina V. Illic^e, 18 Law J. Rep. (N.s.) M.C. 179 ; 1 Den. C.C. 404; 2 Car. h K. 871. An indictment for forging " a certain warrant and order for the payment of money "is not supported by proof of the forgery of an instrument which is a warrant for the payment of money, but which is not an order. A kept a deposit account, but not a drawing ac- count, with B, a banker, and A was not entitled to draw cheques on B, C presented a forged cheque of A on B, which B paid : — Held, that this was a forged warrant for the payment of money, but not a forged order, as A had, by the course of dealing between him and B, no right to draw cheques on B. Regina v. Williams, 2 Car. & K. 51. Upon an indictment under Stat. 11 Geo. 4. & 1 Will. 4. u. 66. s. 3, for uttering a forged under- taking for the payment of money, — Held, that the statute applies as well to a written promise for the payment of money by a third person, as to a like promise for payment by the supposed party to the instrument. Regina v. Stone, 1 Den. C.C. 181 ; 2 Car. & K. 364. (E) Receipts. A railway scrip certificate in the following form is not an " accountable receipt" within the 11 Geo. 4. & 1 Will. 4. c. 66. s. 10, and the forgery of it does not amount to felony: — "1845. Scrip. Bucking- hamshire Railway (and Oxford and Bletchley Junction). Provisionally registered. Capital 2,250,000?., in shares of 20/. each. No. 101,801 to 101,850. Deposit, 2i. 2s. per share. The holder of this voucher is entitled to fifty shares in the above undertaking, he having signed the subscribers' agreement and parliamentary contract, paid the deposit as above, and agreed to pay all calls in re- spect of the said shares. By order of the provisional committee of management, W H, secretary." Clark V. Newsam, 16 Law J. Rep. (N.s.) Exch.296 ; 1 Exch. Rep. 131. If A, by letter, desire B, an innocent agent, to write the name of "W S" to a receipt on a post- office order, and the innocent agent do it, believing that he is authorized so to do, A is a principal in this forgery, and it makes no difference that by the FORGERY AND UTTERING— FRAUD. 291 letter A says to B that he is " at liherty" to sign the name of W S, and does not in express words direct him to do so. But if A before the date of the letter sent to B, received by post a letter of an earlier date purporting to have come from W S, and bearing post-marks of earlier date, from which it may be inferred that he was authorized to make use of the name of W S, the counsel of A, on his trial for the forgery, is entitled to state the contents of that letter, and to give it in evidence, with a view of shewing that A bond fide believed that he-had the authority of W S for directing B to sign the name of W S to the receipt. Regina v. Clifford, 2 Car. & K. 202. An instrument professing to be a scrip certificate of the London and South- Western Railway Com- pany, is not a receipt and acquittance, nor a re- ceipt, nor an undertaking, for the payment of money within the stat. 11 Geo. 4. & 1 Will. 4. c. 66. Regina v. West, 1 Den. C.C. 258 ; 2 Car. & K. 496. It was the practice of the treasurer of the county of S, when an order had been made on him for the payment of the expenses of a prosecution, to pay the whole amount to the attorney for the proseeution or his clerk, and to require the signature of every person named in the order to be written on the back of it, and opposite to each name the sum ordered to be paid to each person respectively : -^ Held, that such a signature is not a receipt, the forg- ing of which is an offence against the stat. 1 Will, 4. e. 66. s. 10, and that it is merely an authority to the treasurer to pay the amount. Regina v. Cooper, 2 Car. & K. 586. An unsigned forged paper, " Received from Mr. Bendon, due to Mr. Warmen, 17s. Settelled," is a forged receipt within the stat. 1 Will. 4. c. 66. s. 10. Regina v. Inder, 2 Car. & K. 635. (F) Indictment — Vauiahce. [See (C) Cheques.] (G) Evidence. Quaire — Whether a forged document intrusted by the prisoner to an attorney as an attorney can be produced on the trial for the forgery. Regina v. Tylney, 18 Law J. Rep, (h.s.) M.C. 36 ; 1 Den. C.C. 319. FRAUD. 1. INLAW. 2. RELIEF AGAINST. 1. IN LAW. Any false statement knowingly made for the purpose of inducing a party to enter into a contract is fraud in law. Fraud in one contracting party does not render the contract void, but only defeasible at the option of the other contracting party. Money had and received by an agent under such a defeasible contract, ceases to be had and received to the use of the principal when the contract is de- feated ; and the agent may shew this as a defence against the principal, though the fraud was entirely his, and the principal was innocent of it. Murray V. Mann, 17 Law J. Rep. (n.s.) Exoh. 256 j 2 Exch. Rep. 538. A sale of property for good consideration is not, either at common law or under the stat. 13 Eliz. c. 5, fraudulent and void, merely because it is made with the intention to defeat the expected execution of a judgment creditor. Wood v. Dixie, 7 Q.B. Rep. 892. 2. RELIEF AGAINST. [See Pleading, in Equity, Bill.] A bill filed by a purchaser to set aside a purchase and conveyance of an estate, on the ground of fraudu- lent concealment "of aright of way, dismissed with costs, there being no proof of concealment by the vendor, although the dealings were inconsistent with any right of way. To set aside a purchase, perfected by, conveyance and payment of the purchase-money, for fraudulent concealment by the vendor of a defect in the title, where there was no warranty or statement that there was no defect, proof of concealment by the vendor's agent is not sufficient, there must be proof of direct personal knowledge and concealment by the prin- cipal. A purchaser of an estate, having made no inquiry respecting the title from an agent for the sale, is not entitled to any relief for non-communication of any defect by him. Constructive knowledge of an agent, or knowledge acquired by him otherwise than as an agent for the sale, of a ifact, the non-communication of which, is made the ground for relief against the purchase, does not at all affect the contrapt. Constructive notice, is resoxted, to, from the, neces- sity of finding ..a ground, of^ preference between equities otherwise equal, "but cannot be applied, in support of a charge of direct personal fraud. , , Where a purchaser seeks to , be, relieved against the purchase on the ground of personal fraud by the vendor, and the alleged fraud is not proved, he is not entitled to relief on any other ground. Wildp v. Gibson, 1 H.L. Cas. 605. Upon a bill filed by. a remainderman in tail, to set aside a sale of lands, made nearly fifty years before under a decree — in a suit by a judgment creditor; to carry the trusts of a will into execution, and for the administration of the testator's estate — on the ground of irregularities and error in the proceedings, and fraud in the sale: — Held, by the Lords, affirming the decree complained of, that, iri the absence of proof of fraud on the part of the purchaser, or that the estate was sold under the value by reason of any corrupt bargain, the sale was not impeachable. A purchase under a decree, not impeachable when made, cannot become so from any irregularities in the subsequent conduct of the cause, or errors in dealing with the purphas,e-raoney. After a long lapse of time since the transactions complained of, there having been parties in esse competent to impeach them, fraud is not to be assumed on doubtful evidences butiif it be clearly proved, no lapse of time will protect the parties to it, or those, who. claim, through them, against the jurisdiction of a court of equity, and in that case it is immaterial by what machinery or contrivance tlie 292 FRAUD. fraudulent transactions may. have been effected, whether hy a decree in equity, or judgment at law, or otherwise. But in proportion as such jurisdiction is powerful, so ought the caution of the Court to be anxiously exercised, lest, in its zeal to do equity, the reverse may be effected. Bnwen v. Evans, 2 H.L. Cas. 257. B L became en titled in fee as heir-at-law to certain real estates by virtue of limitations contained in an indenture of marriage settlement ; G D F, who was one of the releasees to uses named in the settlement, entered into possession of the estates (as alleged) under colour of an appointment executed in his favour by a party to the settlement; G D F had the custody of the indenture of settlement, and after- wards and whilst B L was in this country on a.visit from the Cape of Good Hope, through the instru- mentality of P, who was his solicitor and sonin-law, and also stood in a fiduciary situation towards B L and acted as his solicitor, levied a fine with procla- mations, and no adverse claim was made by 13 L to the estates until after the fine had taken full effect, when B L filed a bill against the parties claiming beneficially the estates under the will of G D F and certain mortgagees thereof, seeking that the fine might be decreed to accrue for his benefit, on the ground that P, in a conversation which he had with T L, the younger brother of B L, and who acted as B L's agent, fraudulently misrepresented to T L tliat B L had no claim to the estates. In support of the plaintiffs claim certain correspondence was produced, by which it appeared that previously to the levying the fine, P had stated to T L (since deceased) that he was gratified to find that B L was convinced he had no just claim to the estates, and it was also proved by X, the solicitor of the plaintiff, that in a conversation which he had with P after the plaintiff's claim had been effectually barred by the fine, P admitted to the witness that he had for- merly stated to T L that B L had no title to the estates. The bill, however, contained no statement or charge of any such conversation having taken place. The bill was dismissed, with costs, against all the defendants, no case of fraud having been made out on the part of the plaintiff against the defendant's testator. Langley v. Fisher, 15 Law J. Rep. (n.s.) Chanc. 73 ; 9 Beav. 90. The plaintiffs, in 1829, employed A & B, a firm of solicitors, to procure an investment for them. A wrote to the plaintiffs, naming S as a proposed mortgajior, for 4,500/., whereupon the plaintiffs forwarded to A a cheque for 4,500/. to be so invested, w'hich cheque was paid into a bank to the partnership account. The necessary mortgage deeds were pre- pared, but S afterwards declined to complete the transaction, but A untruly represented to the plaintiffs that the mortgage had been effected and continued to pay interest on the 4,5(10/. to the plaintiffs until 1841. In 1834 A & B dis- solved partnership, but the plaintiffs continued to enip'oy A as their solicitor. A became bankrupt in 1S44, and the plaintiffs then first discovered that the mortgage to S had never been effected. On a bill by the plaintiffs against B to recover this sum, — ■ Held, that the fraudulent representation of A njust be taken to be the act of the firm ; and the money being received by the partnership and lost to the plaintiffs in consequence of the fraud, which was first discovered within six years before the filing of the bill, the plaintiffs were entitled in equity to recover the money from B, the innocent partner, notwithstanding the dissolution of the partnership in 1834, and the subsequent adoption of A by the plaintiffs as their solicitor, the plaintiffs being with- out remedv at law by reason of theStatute of Limit- ations. Blair v. Bromley, 16 Law J. Rep. (h.s.) Chanc. 105 ; 5 Hare 542 j aflfirmed 16 Law J. Rep. (N.s.) Chanc. 495 ; 2 Ph. 354. A man who is in distress may nevertheless con- tract, and if he procures others to consent to an agreement which he would not have requested or consented to if he had not been in distress, and afterwards obtains performance of that agreement and receives the money secured by it, and after that acquiesces for a length of time in the performance without notice of dissatisfaction, he is not entitled to set aside the transaction on the mere ground of poverty and distress in the absence of proof of de- ception or fraud practised on him. Knight v. Mar- joribanffs, 1 1 Beav. 322. About six months after a lady came of age a creditor of her father obtained from her securities for his debt. The Court was of opinion that the credi- tor had not used any undue or fraudulent means, or availed himself of the fraud of any other party to procure payment, and held that the mere fact of a daughter voluntarily paying the debt of her father who was in difficulties was not of itself ground for imputing undue influence to the father, or even if such influence had been exerted, for imputing knowledge of it to the creditor. An agreement to release executors, entered into about three months after an infant came of age, and carried into effect about three months subsequently by deed, set aside, — the agreement having been entered into in the absence of proper independent advice and assistance, and without a proper oppor- tunity of examining the accounts, and the deed having been executed under the same influence and without a proper and necessary examination and verification of the accounts. Thornber V. Sheard, 12 Beav. 589. A deed obtained from a tenant in tail by his brothers, without adequate consideration, and when he was in want of money, and either without legal advice or with legal advice meant to promote the wishes and interest of those with whom he was dealing, was set aside, on the ground that the plain- tiff did not know that he was entitled to the whole estate, and because the deed was executed without disclosing to him all the material facts, which were known to his brothers, and because there was reason to suppose that the plaintiff was actually misled. Sturge V. Sturge, 19 Law J. Rep. (n.s.) Chanc. 17 ; 12 Beav. 229. Pending proceedings before the Judicial Commit- tee of the Privy Council, upon an appeal from the ecclesiastical courts "in a suit by H B against her husband G T L B, for a divorce for cruelty and adultery, the defendant G T L B executed a deed conveying all his real and personal estates and effects to trustees, upon trust for the benefit of cre- ditors, and for other purposes; various monitions were made against G T L 13 for the payment of costs, and for the payment of the alimony of his wife, but none of them were obeyed. During the progress of FRAUD-FRAUDS, STATUTE OF. 293 the proceedings vavious acts of parliament were passed, and those in force at the oominencement were either repealed or extensively varied at the termination of the proceedings before the Judicial Committee of the Privy Council ; that Court issued a sequestration under the statutes then in force. Upon the sequestrators going down they were in- formed that the property was no longer vested in the defendant, hut in F and T as trustees, and that they refused to give possession to the sequestrators. A return to that effect was. made to the Judicial Committee of the Privy Council ; another seques- tration was issued, but no attempt was made to enforce it. Upon a bill by the plaintiff in this court, asking that the deed might be declared fraudulent and void, and to have full benefit of all the proceed- ings before the Judicial Committee of the Privy Council, and if it was not void asking that the bene- ficial interest of G T L B might be made liable to the several sums of money due for costs and alimony, — Held, that under the last statute the surrogates had authority to issue a sequestration to compel obedience to all the orders of the Judi- cial Committee of the Privy Council ; that under the writs of sequestration issued the Commis- sioners were authorized to take possession of the real and personal estates of G TLB; that powers given to the Judicial Committee of the Privy Council to direct issues, &c., make inquiries, &c., do not extend to cases like the present; and though the deed was executed before any right declared, yet as it was to defeat a right which the plaintiff was entitled to establish, it was considered as exe- cuted to defraud the plaintiff, and ought not to prevail, and that the deed was fraudulent and void, except as to creditors bond jide^ whose debts were provided for; and that the plaintiff was entitled to payment of the sums of money directed by the pro- ceedings in the Judicial Committee of the Privy Council, with costs, but that she was entitled to no relief against the creditors, against whom the bill was dismissed, with costs, to be paid by the plaintiff and recovered over against the defendant G T L B. Held, also, that letters of the defendant written to bis solicitors before the deed was executed were ad- missible in evidence ; but, qutsre, whether letters written after the deed can be received as evidence of fraud in the execution. Blenkinsopp v. Blenkinsopp, 19 Law J. Rep.(N.s.) Chanc. 425 ; 12 Beav. 568. Where the case made by a bill was that a trust deed (which it sought to set aside) was the produce of sheer imposture and plain cheating, and was ob- tained by a conspiracy between the defendant and his solicitor, whereby the plaintiff was entrapped into the execution of the deed under the fiction that it was an instrument of a different kind, and the evidence was only adduced to prove that the plain- tiff was a very ignorant and illiterate person easily imposed upon, and that she executed the deed in question without distinct explanation, and without the advice of her own solicitor who resided near, and whom she expressed a desire to consult, — Held, that the case proved was not sufficiently put in issue by the bill to enable the Court to set aside the deed; but an issue was offered to try whether the execu- tion had been fraudulently obtained, and that being declined by the plaintiff, the bill was dismissed. An improvident, settlement of a large part of a woman's property wa^ made by her shortly before her marriage. The husband and wife filed a bill to set it aside as a fraud on the marital right. Semble — that relief might be given notwithstanding the wife being a co-plaintiff, ifan engagement to marry preceding the transaction, and a subsequent mar- riage without notice to the husband wore proved, and an issue to try the fact was offered. Griggs v. Staples, 2 De Gex & S. 572. A and B entered into a joint adventure for the purchase of goods to be shipped to China, to be there sold, and the proceeds to be invested in a homeward cargo. A was to render himself liable for the payment of the goods, and B was to supply A with a share of the money by a fixed time, so as to enable A to meet this liability. At the time fixed A applied to B for the money but B failed to supply it. In consequence, after some negotiation, A offered to allow B to withdraw from the adven- ture altogether, and this offer was accepted. Down to the time when A applied to B for the money, A had communicated to B all the information he pos- sessed relative to the adventure and its chances of success which then appeared very doubtful:' but while the negotiation was going on, A received two letters from his correspondents in China through whom the business was managed, which he did not communicate to B : — Held, in a suit impeaching the arrangement by which B gave up his share in the adventure, that considering the relative situation of the parties there' was no obligation on A to communicate to B the letters in question ; and that there being no proof of misrepresentation by A, the arrangement could not be set aside merely on the ground of the non-communication of the letters. M'Lure v. Ripley, 1 Mac. & ^. 274. FRAUDS, STATUTE OF. [SUREENJ)EB BY OPEBATION OF LaW. See LAND- LORD AND Tenant. And see Guaeahtie.] , (A) CONTKACTS REQUIRED TO BE IN WRITING. (B) Agreement to answer for the Debt of ANOTHER. , (C) Note or Memorandum in Writing. (D) Acceptance and Receipt. (E) Part Payment. (A) Contracts REauiBED to be in Writing. An agreement entered into by a contractor to share in the profits of the undertaking, although the contract was not capable of being completed within a year, is not such an agreement as by the Statute of Frauds, 29 Car. 2. c. 3. ». 4, is required to be in writing, but may be proved by parol evidence. M'Kay v. Rutherford, 6 Moore, P.C. 413. An agreement to take a messuage and pay for alterations in it is an agreement relating to an interest in land, and is required to be in writing by the Statute of Frauds ; and the part of the agreement as to the alterations cannot be severed from the other part. Vaughan v. Hancock, 16 Law J. Rep. (n.s.) C.P. 1 ; 3 Com. B. Rep. 766. An agreement between plaintiff and defendant, that if plaintiff, the tenant of a farm, would surren- 294 FRAUDS, STATUTE OF. der her tenancy to the landlord, and would prevail on her hushand to accept the defendant as his tenant in the place of the plaintiff, he, the defendant, would pay the plaintiff 1001 as soon as he should become tenant of the land, is a contract relating to an interest in land within the meaning of the 4th sec- tion of the Statute of Frauds, and cannot be enforced unless in writing, even where the contract is exe- cuted. ■ Cocking V. Ward, la Law J. Rep. (n.s.) C.P. 245 ; 1 Com. B. Rep. 858. S proposed to B to support his (S's) illegitimate child at U.\s. per month, and it was then suggested by B that this should continue for the first year, to which S ohjected, on the ground that the expense would be light during that year, whereupon it was ultimately agreed that B should maintain it at that rate so long as S should think proper. The child having been supported for several years, B brought his action for goods sold and delivered, and for necessaries supplied for the maintenance of the child: — Held, that this contract was not a. con- tract not to he performed within the space of one year under the ith section of 29 Car. 2. c. 3 ; and also that, even if it were, the present action, being founded on the executed and not the executory con- tract, was maintainable. Souch v. Strawbridge, 15 Law J. Rep. (h.s.) C.P. 170; 2 Com. B. Rep. 808. A agreed by writing to receive B as clerk, &c., in consideration of B paying him a premium of SOOl., "and to pay him a salary at the following rates, viz. for the first year, 701. ; for the second, 901. ; for the third, llOi; for the fourth, 130?.; for the fifth and following years, 150/. ;" and in the case of the death of either to return 150/. At or just before the exe- cution of this agreement, B said to A that it would be convenient for him to receive his salary quarterly, and during the first three years the salary was so paid: — Held, in an action for work and labour and wages for the first quarter's salary in the fourth year, that this was an agreement within the 4th section of the Statute of Frauds, and could not be varied by the conversations or acts of the parties ; that under it the salary was payable at the end of every year, and that A could not recover pro raid befere the expiration of the year. Giraud v. Rich- mond, 15 Law J. Rep. (n.s.) C.P. 180; 2 Com. B. Rep. 835. By an indenture made between E C of the first part, G W of the second part, J R of the third part, and D H and J S N" of the fourth part, E C assigned a patent to D H and J S N, to be paid for by instalments extending beyond a year from the execution of the deed. The deed was duly signed and executed by all the parties except D H. There was a seal in the usual way for him, but no signa- ture. It was proved that he had, together witli J S K, attempted to work the patent, and sent a notice to the plaintiff, pursuant to a certain proviso in the deed, in which the deed was recited as made be- tween the several parties thereto, and their names were correctly stated. This notice was signed by D H. In an action of covenant against D H and J S N, they severally pleaded non est factum. At the trial D H produced the deed : — Held, first, that there was evidence to go to the jury that he had adopted and delivered the deed. Secondly, that as all that was to be doire by E C was to be done within a year, the 4th section of the Statute of Frauds did not apply. Semble — that the word "agreement" in the statute does not include deeds. Semble, also, that if it did, the notice above men- tioned would have been a sufficient memorandum within the statute. Cherry v. Heming, 19 Law J. Rep. (n.s.) Exch. 63 ; 4 Exch. Rep. 631. (B) Agbeement to answer fok the Debt of ANOTHEB. A declaration stated that the plaintiff, a ship- broker, was retained by the shipowner to procure a charter for a ship, on the terms that the plaintiff should collect the freight and thereout retain his commission ; that the plaintiff did procure a charter- party; that the defendants, in consideration of the plaintiff's abandoning his right of collecting the freight, promised to pay him his commission. The facts were, that the plaintiff agreed with the shipowner to procure a charter for the ship, and that he should be authorized to collect the freight on the proposed voyage as a security for his com- mission. The ship having sailed and returned, the defendants, as brokers of the then owners, put a stop on the freight. A written agreement, on which the action was brought, was afterwards made and signed by the plaintiff, the defendants and the charterers, that the stop should be taken off the freight ; that the commission on the charter-party, payable to the plaintiff, should be paid to him by the defendants ; and that no person signing that agreement should put any stop on the freight: — Held, first, that there was a variance between the agreement declared upon and the one proved, and that no amendment ought to he made; secondly, that the agreement was an agreement to answer for the debt of another within the Statute of Frauds. Gull V. Lindsay, 18 Law J. Rep. (N.s.) Exch. 354 ; 4 Exch. Rep. 45. (C) Note or Memorandum in Writing. A father having agreed to settle a certain sum for the benefit of his daughter and the children of her intended marriage with Lord G, a memorandum of the terms of the settlement was by his direction written by his solicitor, and approved of by him and Lord G, and he gave the solicitor instructi(Jns to prepare such settlement, but died before the same was ready for execution, having by his will given the daughter real estates and a moiety of the resi- due of his personal estate. Lord G married the daughter, and performed his part of the settlement in conformity to the written memorandum : — Held, that the memorandum was not a complete agree- ment, binding within the Statute of Frauds ; and of an incomplete agreement there cannot be part per- formance. Thymic v. Glengall and Glengall v. Thynne, 2 H.L. Cas. 131. In 1843 the plaintiff and A entered into a parol contract to become jointly concerned in a specula- tion for buying, improving, and selling land at B ; A to find the necessary capital, and the plaintiff (a land-agent) to select, purchase, lay out, and re-sell the same, without charge ; the advances made by A, with interest, to he the first charge upon the pro- ceeds of the re-sales, and the surplus profits to go, two-thirds to A, and one-third to the plaintiff. FRAUDS, STATUTE OF. 295 Land at B was selected and purchased by the plain- tiff accordingly, and A afterwards made over a moiety of his interest in the specnlation to C. The purchase-money was provided by A and C, and the conveyance taken in their joint names. On the plain- tiff repeatedly pressing, by letters to A, for some aclinowledgmentin writing of his interest, A handed over to him a copy of an agreement, dated the 27th of October 1843, and made between A and C, to the effect that A and C were interested in two-tliirds of the surplus profits, and that the remaining one- third was to be reserved for the plaintiff; but that the plaintiff should have no power to determine when any re-sale should take place. In 1 844 A died, having devised the property by his will. To ^bill by the plaintiff against C and the devisees of A for an account, a sale of the land, and application of the pro/jeeds, according to the agreement, all the defendants by their answer insisted on the Statute of Frauds, C by his answer, admitting that, pre- viously to his joining in the speculation, A had in- formed him that the plaintiff was to have one-third of the surplus profits : — Held, that this was a part- nership ; and that, the fact of the partnership being established by general evidence, the land would be dealt with in equity as the stock of the partnership, and that the statute was no bar to the plaintiff's claim. Secondly, that the memorandum of October 1 843, coupled with the previous assertions in writing of the plaintiff's right, which was never denied by A, was a sufficient manifestation in writing, within the statute, of the pre-existing interest of the plain- tiffin the lands. The Court directed two issues: first, whether it was agreed between the plaintiff and A that they should be jointly interested in pur- chasing, &c.land at B; and, secondly, (if the verdict on the first issue should be in the plaintiff's favour) whether it was a term in such agreement that the plaintiff should have no power of determining the period of the re-sales of the land. Dale v. Hamilton, 16 Law J. Rep. (n.s.) Chanc. 126; 5 Hare, 369 ; affirmed 16 Law J. Rep. (n.s.) Chanc. 397 ; 2 Ph. 266— when the Court declared the plaintiff entitled to one-third, and referred it to the Master to inquire whether it was expedient that the property should be sold immediately. (D) Acceptance and Receipt. The defendant having ordered of the plaintiff two dozen of port and the same quantity of sherry, to be returned if not approved of, the plaintiff sent him four dozen of each. The defendant returned all but thirteen bottles, objecting to the quality : — Held, that more wine having been sent than was ordered, the defendant was entitled to return the whole, and was not bound to pay for more than he retained. Hart V. Mills, 15 Law J. Rep. (n.s.) Exoh. 200 ; 15 Mee. & W. 85. A bought a certain quantity of wheat, in value above 10^., which wheat was to be reduced to a cer- tain standard by dressing. After the making of the contract, A sent for a small portion of the wheat, which was then sent to him, hut not dressed, whereby it fell short of the standard agreed upon, but he "retained it, without objecting to it : — Held, that this was a part acceptance within the Statute of Frauds ; and that retaining the portion so sent amounted to a waiji^r of the full performance of the contract by the .plaintiff as to that portion. Gilliat v. Roberts, 19 Law J. Rep. (N.s.) Exch. 410: Where goods have been sent on a contract for sale, and the jury find they did not correspond with the sample contracted for, semble, that the mere un- packing of them by the vendee will not, under any circumstances, amount to an acceptance. — fitter, if the goods are kept by the vendee an unreasonable time. Curtis v. Pugh, 16 Law J. Rep. (n.s.) a.B. 199; 10 aB. Rep. 111. The defendant verbally ordered goods of the plaintiff's agent in London, the price of which was 15/. The goods were accordingly sent from abroad to the agent, who warehoused them with a wharf- inger, and received from him a warrant, by which the goods were made deliverable to the agent or his assignees, by indorsement, on payment of rent and charges from a certain day. This warrant the agent indorsed to and sent to the defendant. The defen- dant kept the warrant for ten months, and was re- peatedly applied to for the charges and the price of the goods, which he did not pay, nor did he return the warrant, hut said he had sent it to his solicitor, and meant to defend the action, as he had not or- dered the goods, and the goods would remain at present in bond: — Held, that although there was sufficient evidence of the acceptance of the goods, if they had been delivered to the defendant, there was no evidence of the receipt of the goods suffi- cient to satisfy the Statute of Frauds. Farina v. Home, 16 Law' J. Rep. (n.s.) Exch. 73 ; 16 Mee. &W. 119. ,. A, being himself yearly tenant of a house to B, underlet the housei and furniture at' a weekly rent to C. A being desirous of getting rid of his tenancy at the end of the current year, offered to sell the furniture to C for 501. ; which C thought too much, but verbally agreed to have it valued, and to pay so much as it should be found worth, on B's agree- ing to accept him as his tenant instead of A. The furniture was valued at SOI., which he refused to give, but he offered the 501. Before the expiration of the year an agent of A took the key out of th^ door and gave it to C, telling him that he must settle with A himself about the furniture. B re- fused to accept C as his tenant, and he continued to occupy the house and use the furniture as before, hut continually giving notice to A to take away the furniture, which he refused to do ; and after the lapse of three months, C sent it to a broker's : — Held, that, upon these facts, there was no evidence to go to the jury of an acceptance by C of the furniture, under a contract of sale, to satisfy the Statute of Frauds. Lilbjuihite v. Devereux, 15 Mee. & W. 285. A agreed to purchase of B a carriage, then stand- ing in the shop of B, A at the same time desiring that certain alterations might he made in it. The alterations having been made, the carriage was, at A's request, placed in the back shop. On Saturday, the 14th of November, A called at the shop, and requested B to hire a horse and man for him, and to send the carriage to his house on the following day, in order that he might take a drive in it, — A having previously intimated his intention to take the carriage out a few times, in order that, as he wis going to take it abroad, it might pass the Custom House as a second-hand carriage. The carriage was accordingly sent to and used by A on the Sun- 290 FRAUDS, STATUTE OF— FRIENDLY AND BENEFIT SOCIETIES. day, A paying for the hire of ttiejiorse and man. A afterwards refused to take or pay for the carriage : — Held, that there was a sufficient acceptance of the carriage by A before Sunday, the 15th of No- vember, within the 17th section of the 22 Car. 2. c. 3, to entitle tlie plaintiff to recover upon a count for goods bargained and sold, Quccre — Whether the statute 29 Car. 2. c. 7. avoids a previous parol contract for the sale of goods, where the delivery and acceptance take place on a Sunday. Beaumont v. Brengeri, 5 Com. B. Rep. 301. There may be a sufficient acceptance and receipt of goods to constitute a binding contract within the 17th section of the Statute of Frauds, although the right of the buyer to object that the goods do not comply with the terms of the contract of sale still remains. A verbal contract was entered into for the pur- chase of fifty quarters of wheat, according to sample, each quarter to be of a certain weight. The next day the wheat was delivered by the plaintiff, the vendor, on board the lighter of a general carrier by canal, sent for that purpose by the defendant, the buyer, without being weighed ; the same day the defendant sold the wheat by the same sample, and upon the same terms as to the weight, to H. The wheat immediately upon its arrival was found by H not to be of the weight stipulated for, and tlie same day H gave notice of his rejection of the con- tract to the defendant, who thereupon communicated with the plaintiff, and declined to receive the wheat: — Held, in an action for the price of the goods, that, although the defendant had done nothing to pre- clude him from objecting that the wheat was not according to the terms of the contract of sale, the jury were justified in finding, as they had done, a sufficient acceptance and receipt to render such contract good within the meaning of the Statute of Frauds. Morton v. Tibbett, 19 Law J. Rep. (n.s.) a.B. 382 ; IS Q.B. Rep. 428 : s.p. Bushelv. Wheeler, 15 Q.B. Rep. 442, n. Where the defendant selected some sheep from the plaintifi's flock, and verbally agreed to purchase them, and the plaintiff by the defendant's orders afterwards delivered the sheep at a field of the de- fendant's, whence the defendant had them removed by his own man to his farm, and on their arrival at the farm the defendant saw them and counted them over and said they were all right, — Held, that this was evidence for the jury that he had accepted the sheep so as to satisfy the Statute of Frauds, although the next day after seeing them the defendant wrote to the plaintiff repudiating the sheep as not being those he had purchased, and, the plaintiff refusing to make an abatement in the price, sent them back to the plaintiff. QutBre — Whether there can be an acceptance before delivery, under the Statute of Frauds. Saunders v. Topp, 18 Law J. Rep. (n.s.) Exch. 374; 4 Exch. Rep. 390. The defendant contracted with S for certain quan- tities of timber. The defendant's agent was to select the timber from felled trees, and to mark out the portions of the trunks which were to be delivered to the defendant ; and it was then the duty of S to sever the timber, and convey the marked portions to the defendant's wharf, and deliver them there. The defendant's agent having selected certain trees and marked out the required portions, S became bankrupt before the timber was severed, and the messenger of the Court of Bankruptcy took posses- sion of it. The defendant afterwards seized the timber, severed it, and carried away the marked portions: — Held, that he was liable in trover, the property in the timber not having passed by the marking out of the parts required ; and that there was no delivery or acceptance under the Statute of ■* Frauds. Acraman v. Morrice, 19 Law J. Rep, (n.s.) C.P. 57; 8 Com. B. Rep. 449. (E) Part Payment. The plaintiff" being indebted to the defendant in 4/., it was verbally agreed between them that the plaiiitiflf should sell to the defendant, by sample, certain goods, above the value of \0l., and that the il. should go in part payment. The goods were delivered, l)ut refused acceptance : — Held, that the contract was void under the 17th section of the Statute of Frauds. Semble — that if there bad been an express agree- ment that the plaintiff should pay to the defendant the 4/., and take it back again as earnest or part payment, the statute would have been satisfied, without proof that the money actually passed. rVallrer v. Nusseii, 16 Law J. Rep. (k.s.) Exch. 120; 16 Mee. & W. 302. FRIENDLY AND BENEFIT SOCIETIES. [Vesting of Estate in Members. See Poor, Settlement.] (A) Shareholders. (B) Deeds, Construction of. (C) Rules, Construction of. (D) Proceedings before Jdstices. (E) Reference to Arbitration. (F) Other RsiaEDiES and Powers of the Trustees. [See (A) Deeds, and (D) Reference to Arbitration.] (G) Stamp. [See (A) Deeds.] (H) Election of Officers. ( I ) Jurisdiction of County Court. Acts relating to, amended by 9 & 10 Vict, c, 27; 24 Law J. Stat. 74. The laws relating to friendly societies consolidated and amended by 13 & 14 Vict, c, 115 ; 28 Law J. Stat. 327. (A) Shareholders. A joint-stock company cannot hold shares in a benefit building society established under the 6 & 7 Will. 4. c, 32. Dobinson v. Hawks, 16 Sim. 407. (B) Deeds, Construction of. Securities given to the trustees of benefit build- ing societies, established under the 6 & 7 Will. 4. c. 32, are exempt from stamp duty under the pro- visions of the 10 Geo. 4. c. 56. s. 37, incorporated and re-enacted in the 6 S: 7 Will. 4. c. 32. s. 4. The 3 & 4 Vict. c. 73. s. 1, which limits the exemptions contained in the 10 Geo. 4. c, 56, in FRIENDLY AND BENEFIT SOCIETIES. 297 respect of friendly societies, to cases where the sum assured does not exceed 2001., does not affect the exemptions re-enacted as to building societies by the 6 & 7 Will. 4. Where a document has several objects, of which some are merely ancillary to the main one, the amount of stamp duty is to be measured by the principal object. Where a document has a double object, and has an unappropriated stamp on it large enough for it in either sense, it is admissible when offered to establish one of its objects. When different parts of a deed are inconsistent with each other, effect ought to be given to that part which is calculated to carry out the real inten- tion of the parties, and the other parts should be rejected. An indenture recited the formation of a benefit building society, and that A and B, parties to the deed,,were entitled to a certain sum out of the funds in respect of shares, and that for securing all pay- ments to be made in respect of such shares they had agreed to execute the assurance thereby made. A and B then conveyed premises to C and D, the trustees of the society, upon trust to permit A and B to receive the rents until default in payment of their contributions, with powers to the trustees to appoint a receiver, or to sell on default. The deed contained a further clause, by which A and B agreed to become tenants to C and D, and the trustees for the time being of the premises " hereby demised henceforth during their will," at a certain rent: — Held, that the evident object of the deed being to secure the payment of the contributions, and the last clause being inconsistent with the rest, that clause did not operate as a demise. Qaiere — Whether the rules of a building society we^ properly proved by the production of the printed book used by the society, containing a cer- tificate by the proper officer under the 10 Geo. 4. c. 56, the 6 Will. 4. c. 32, and the 9 & 10 Vict. c. 27, Walker v. Giles, 18 Law J. Rep. (n.s.) C.P. 323. The plaintiff was a member of a building society constituted under the 6 & 7 Will. 4. c. 32, and which by its rules was to continue till each share had realized 120/. The plaintiff became the purchaser of twelve and a half shares, that is, discounted his shares, receiving the present, value ; and in con- sideration of 750/. advanced to him in respect of such shares, he executed to the trustees of the society a mortgage of real property for securing his monthly subscriptions and other payments. This deed contained a power of sale, in case the plaintiff made default in his payments ; and the trusts of the proceeds of the sale were, to retain thereout all pay- ments due and which should afterwards become due Ixom the plaintiff to the society up to its ter- mination, which was to be calculated by the trustees ; and it was declared, that all sums afterwards be- coming due should be treated as due at the time of the sale. The 62nd rule, relating to the redemption of a mortgage to the society, though not in the same terms, was not inconsistent with these trusts. Upon bill by the mortgagor to redeem, — Held, that the Master, in talking the account of what was due upon the mortgage, was to calculate the probable duration of the society, and to treat the future accruing sub- scriptions and other payments until that period as Digest, fsiS— 1850. immediately due. Mosley v. Baher, 17 Law J. Rep. (n.s.) Chanc. 257 j 6 Hare, 87 ; affirmed, 18 Law J. Rep. (n.s.) Chano. 457 ; 1 Hall & Tw. 301. (C) Rules, Constkuotion of. The rules and practice of a society, held not to contravene the 6 & 7 Will. 4. c. 32, or to deprive the society of the protection against the usury laws given by section 2, and that whether the rules were a mere colour for usury would be a question for a jury. By one of the rules, no action was to be commenced by the trustees without the consent of the directors : — Held, that the defendant, though a member, could not allege that they were suing without such consent. Doe d. Morrison v. Glover, 15 Q.B. Rep. 103. [See (B) Deeds, and (E) Reference to Arbitra- tion.] (D) Pbocebdings befoke Justices. By the. Friendly Societies Act, 10 Geo. 4. c. 56. s. 27, it is enacted, that on a reference of disputes between members of the society to arbitrators, if either of the parties refuse to comply with the award of the arbitrators, a Justice of the Peace may, on proof thereof, and on complaint of the party aggrieved, sujnmon the party complained against to appear before him, and on appearance, &c. two Justices may make such order as shall seem just j and if the sum awarded, with costs not exceeding 10s., shall not be immediately paid, then such Jus- tices may issue a distress warrant to levy such sum and costs. By section 28, if the reference shall be to Justices, such Justices may, on complaint of a refusal to comply with the rules by any member or officer, summon the party complained against to appear at a time named, and upon appearance or default two Justices may hear the complaint, and in case they shall adjudge any sum of money to be paid by the person complained against, and such person shall not pay such sum to the person and at the time specified by such Justices, they shall proceed to enforce their award in the manner hereinbefore directed to be used in case of neglect to comply with the decision of arbitrators : — Held, that where Justices have made an order for payment of money under section 28, a distress warrant cannot issue to enforce compliance with such order, without a previous summons on the party against whom the order is made. Hammond V. Bendyshe, 18 Law J. Rep. (n.s.) M.C. 219. By general consent of the members of a friendly society, certain alterations were from time to time made in the original rules of the society, which had been regularly enrolled under the provisions of the 33 Geo. 3. c. 54. The alterations affected the rates of contribution and relief amongst the members, and had been acted upon j but they were made without the formalities required by the act, and had never been inrolled. A member of the society who had received relief in accordance with the alterations made in the rules, but was afterwards refused the same, summoned the stewards of the society before the defendants, and sought to compel payment of the allowance prescribed by the original enrolled rules, abandoning all claim under the subsequent alterations. The defendants, however, decided that the alteration in the rules took away their jurisdic- 2 a 298 FRIENDLY AND BENEFIT SOCIETIES. tion, and refused to hear the complaint; — Held, that they were bound to hear and determine the matter of the complaint. Regina v. Cotton, 19 Law J. R«p. (n.s.) M.C. 233; 15 Q.B. Rep. 569. (E) Reference to Arbitration. The Metropolitan Building Association is a society established to enable parties to purchase freehold or leasehold property within twenty-five miles of London; and by rule 3. actions and suits are to be brought and defended in the names of the trustees, but no such proceedings are to be taken or defended until " the approbation of a majority of the members present at a special meeting of the association shall have been obtained." The pre- sident has power to call a " special meeting" of the committee; and on receiving a written request, signed by twelve of the members, to convene a " special general meeting," he is within three days after to convene such meeting: — Held, that an action brought with the approbation of the majority of the members present at a special genera? meeting was well brought within the meaning of the rule. By the 28th rule, the committee are to determine " all disputes which may arise respecting the con- struction of these rules or any of the clauses, mat- ters or things herein contained," the decision to be conclusive if satisfactory, but if not satisfactory, reference is to be made to arbitration, pursuant to the 10 Geo. 4. c. 56. s. 27 :— Held, that this rule referred only to disputes respecting the construc- tion of the rules, and did not prevent the trustees suing for the recovery of subscriptions and fines. By the 11th rule, if the committee are satisfied that the premises offered by any member to whom shares have been awarded are a sufficient security, they are to direct the trustees to pay to such mem- ber the money he is entitled to receive, on his executing a deed in trust to sell, or other valid conveyance, mortgage, or assurance: — Held, that the society might lend money on niortgage to its own members as well as to strangers. By the 8th rule, as often as the funds amounted to a share or sum of 120?., the share is to be awarded to the highest bidder, the purchaser to have the privilege of taking as many additional shares at the same rate as be might choose, Quisre — Whether, as the society enabled its members to hold an unlimited number of shares, each of which might be the maximum share, it was within the act 6 & 7 Will. 4. c. 32. s. 2. Cutbill v. Kingdom, 17 Law J. Rep. (n.s.) Exch. 177 ; 1 Exch. Rep. 494. A rule of a building society which requires that all disputes which may arise between the society and any member thereof, shall be referred to arbi- tration, pursuant to the 10 Geo. 4. o. 56. s. 27, relates only to disputes between the society and a member as member. Therefore, where the trustees of a building society lent money on a mortgage of leasehold property to one of the members, who covenanted to observe and fulfil the rules of the society, and also to pay certain rent due to the superior landlord, and the trustees sued for breaches of both these covenants, a plea that the claims and demands of the plaintiffs were matters in dispute between the society and the defendant, within the meaning of the rules, was held bad. A building society may lend money upon mort- gage security to one of its own members, and such security will be within the 2 1st section of 10 Geo. 4. c. 56, and therefore vested in the trustees or trea- surer for the time being. A declaration upon such deed by the trustees for the time being, need not negative that there is a. treasurer. The rules of the society provided for the transfer In certain cases of securities taken by the trustees of the society to other trustees : — Held, that a de- claration in covenant stating that the plaintiffs were trustees for the time being, and sued as such trus- tees, was good on general demurrer, although it shewed they were not the covenantees, and no assignment to them was stated. A member of a building society may hold shares exceeding 1501. in value. Morrison v. Glover, 19 Law J. Rep. (n.s.) Exch. 20 ; 4 Exch. Rep. 430. By another rule, disputes between the associa- tion and any of its members were to be referred to arbitration, according to statute 10 Geo. 4. c. 56. (Friendly Societies Act) s. 27. A member, bor- rowing the amount of his share from the association, gave the trustees a mortgage of premises held by him on lease, which contained a clause of forfeiture on non-payment of rent ; and he covenanted, by the mortgage deed, to pay his dues to the association, and to pay his landlord the rent reserved by his lease :— Held, that on default by the mortgagor in payment of the society's dues, and also in payment of the rent, the trustees might proceed at law, and were not bound by the arbitration clause. Doe d. Morrison v. Glover, 15 G.B. Rep. 103. (F ) Other Remedies and Powers of the Trustees. [See (B) Deeds, and (E) Reference to Arbitration.] (G) Stamp. [See (B) Deeds.] (H) Election of Officers. The committee, consisting of eleven persons, of a friendly society were, by the rules of the society, from time to time to elect a treasurer : — Held, that a meeting of the committee, at which ten only of the members were present, the eleventh not having received any notice of the meeting, was not pro- perly constituted, and the election of the plaintiflT as treasurer in the place of the defendant was invalid, though made by a majority of the members of the committee, and though the absent member had some time previously expressed his intention not to take any part in the affairs of the society, and the defendant was present at the meeting, and had himself demanded a poll. Roberts v. Price, 16 Law J. Rep. (n.s.) C.P. 169 ; 4 Com. B. Rep. 231. (I) Jurisdiction of County Court. The rules of a building society, duly enrolled under 6 & 7 Will. 4. c. 32, provided that all dis- putes be referred to two Justices, pursuant to the 10 Geo. 4. c. 56. s. 27: — Held, on motion for a mandamus, that the jurisdiction of the county courts did not extend to any disputes between the members of such society. £x parte Payne, 18 Law J. Rep. (n.s.) Q.B. 197 ; 5 Dowl. & L. P.C. 679. GAME— GAMING AND WAGERING. 299 GAME. (A) NiQHT Poaching. (B) Lawful Apprehension. the poachers : — Held, that if the gamekeepers were then endeavouring to apprehend the poachers they were not justified in so doing. Regina v. Meadham, 2 Car. & K. 633. - Owners and occupiers of land authorized to kill hares without a game certificate hy 11 & 12 Vict. c. 29 ; 26 Law J. Stat. 54. (A) Night Poachino. Indictment under statute 9 Geo. 4. c. 69. s. 9. (against night poaching) charged A B and six others, "that they heing respectively armed with guns, and other offensive weapons, entered, &c." A and B were each proved to he armed with a gun, the other six with bludgeons. Objection: that the averment " other offensive weapons" (not spe- cifying what) made the arming of the other six only constructive ; which was not sufBcient to bring them within the statute. ■Indictment held good. Regina v. Goodfellow, 1 Den. C.C. 81. Uiider the 9 Geo. 4. c. 69, the Night Poaching Act, it is not essential that all the prisoners charged should actually enter the inclosed places, hut if they are associated together for the common purpose of taking game contrary to the statute, and some of the party actually enter such place to effect that purpose, while the others remain near enough to aid and assist, they may all be convicted under an indictment, charging them with being in such place for such purpose. So held (upon a case reserved) by Lord Denman, C.J., Wilde, C.J., Pollocit, C.B., Coltman, J., Rolf e, B., Wightman, J., and Erie, J.: dissentientibus Parke, B., Patteson, J., Cresswell, J., Plait, B., and Williams, J. Regina v. Whittaker, 17 Law J. Rep. (n s.) M.C. 127; 1 Den. C.C. 310 ; 2 Car. & K. 636. Offence of night poaching committed by A and B on the 4th of December 1845. Information and warrant for their apprehension, 19th of December 1845. A committed for trial 5th of September 1846. B on 21st of October 1846. Indictment preferred, 5th of April 1847 : — Held, under statute 9 Geo. 4. c. 69. s. 4, that the prosecution was com- menced within twelve calendar months after the commission of the offence. Regina v. Brooks, 1 Den. C.C. 217; 2 Car. &K. 402. (B) Lavtpul Apprehension. On an indictment for wounding with intent to prevent lawful apprehension, it was proved that the prisoners were found poaching in the night, armed, in a preserve which had belonged to the Earl of L, and then was in the possession of the Earl's trustees. The person trying to apprehend was a watcher employed by the head keeper, the latter having been appointed by the Earl twenty years before, and paid by his agent down to the time of the trial, but the head keeper had never had any direct communication with the trustees : — Held, sufficient proof of an authority to apprehend. Regina v. Fielding, 2 Car. & K. 621. Gamekeepers who were out watching in the night heard firing of guns in the preserves of their em- ployer, and they waited in a turnpike-road, expect- ing the poachers to come there, which they did, and an affray ensued between the gamekeepers and GAMING AND WAGERING. (A) Lavtpul and unlawful Games. (a) Foot-race, (6) Lottery. (B) Wagers. (a) What Wagers are legal. (fc) Recovery of Money deposited with Stake- holder: (c) Construction of Statutes against wager- ing. (A) Lawful and unlawful Games. [Thorpe v. Coleman, 5 Law J, Dig. 311 ; 1 Com. B. Rep. 990.] • (a) Foot-race, Since the passing of the 8 & 9 Vict. c. 109. a foot-race is a lawful exercise. Two persons deposited 101. each with a stake- holder, to abide the event of a foot-race to he run between them : — Held, that the money deposited was " a subscription" for a sum of money to be awarded to the winner of " a lawful game," within the 8 & 9 Vict. c. 109. s. 18. Batty v. Marriott, 17 Law J. Rep. (n.s.) C.P. 215; 5 Com. B. Rep. 818. (6) Lottery, A declaration in debt contained two counts : the first for 2il, money had and received ; the last, for the like sum, on an account stated. Plea to the whole declaration, after averring that the account so stated was concerning the sum of money and the causes of action in the first count mentioned, that a horse-race being about to be run, an illegal lottery was set up, upon the terms that the adventurers therein should consist of seventy members, who should pay 15s. each ; that Mr. R should be trea- surer, and Mr. S the secretary ; that the names of the horses should be put on separate cards, in one box, and the names of the adventurers, on separate cards, in another box, and that two disinterested persons should draw these cards by chance, one from each box alternately, and that the person whose name was drawn next after the name of the winning horse should be paid out of the subscrip- tions 24?. ; that the plaintiff, the defendants, and others became adventurers, and paid the same sum each to Mr. S and the defendants, and that the plaintiffbecame the winner, &c. : — Held, first, that this was an illegal lottery; secondly, that the plea was a good answer to the whole declaration, as well to the recovery of the plaintiff's own stake, as of the 24Z. ; thirdly, that the plea was not double, nor did it amount to the general issue ; and, lastly, upon special demurrer, that the plea was defective for not stating the christian names of the persons therein mentioned, no reason heing assigned for the omission. Gatty v. Field, 15 Law J. Rep. (n.s.) CI.E. 408; 9Q.B. Rep. 431. 300 GAMING AND WAGERING— GOODS SOLD AND DELIVERED. (B) Wageks. (a) What Wagers are legal. Before the 8 & 9 Vict. c. 109. s. 18, where the sum of 10s., betted by the plaintiff, upon a foot- race, was deposited with the defendant as the stake- holder, to abide the event of the race, — Held, that the wager was legal, as it did not amount to 10/., within the statute of 9 Anne, c. 14, nor was made upon credit contrary to the statute 16 Car. 2. c. 7, and therefore that the plaintiiF could not, before the determination of the race, recover the amount of his deposit from the stakeholder. Emery v. Richards, 15 Law J. Rep. (n.s.) Exch. 49 j 14 Mee. & W. 728. (6) Recovery of Money deposited with Stakeholder, The plaintiff and others having each deposited 21. with the defendant, in a lottery, upon the Derby, the plaintiff brought an action for the whole amount, claiming to be the drawer of the winning horse. The particulars of demand stated that the action was brought to recover the amount of 13^ 16s., being money received by the defen^^nt to the use of the plaintiff: — Held, that the plaintiff, under his particulars of demand, was not entitled to re- cover his stake of 21. Qutsre — Whether, where aparty claims, as winner, the whole of the stakes deposited on an illegal wager he can recover back his own stake as money received to his use by the stakeholder. Mearivg v. Uellings, 15 Law J. Rep. (n.s.) Exch. 168 ; 14 Mee. &W. 711. After the passing of the 8 & 9 Vict. c. 109, a sum of money was deposited by two persons respectively with a stakeholder, to abide the event of a wager on a trotting match. Before the time fixed for its deter- mination, one of the depositors repudiated the wager and demanded his money, which the stakeholder refused to return. In an action for money had and received, held, that the deposit was recoverable from the stakeholder, notwithstanding the 18th section of that act. &mi/c— that if the 8 & 9 Vict. c. 109. s. 18. be a bar to such an action, it must be specially pleaded. Varney v. Hickman, 17 Law J. Rep. (n.s.) C.P. 102; 5 Dowl. & L. P.C. 364 ; 5 Com. B. Rep. 271. (c) Construction of Statutes against wagering.- The 8 8i 9 Vict. c. 109. does not apply to an action for a wager commenced before the passing of that act. The general rule in construing recent statutes is, '^ Nova constitutio futuris formam debet imponere,non preeteritis,*' but this rule will yield to a sufficiently expressed intention that the enactment shall have a retrospective operation. Moon v. Burden, 2 Exch. Kep. 22. GAOL. [Delivery. See Pkisoneb, Discharge of.] Appointment of Surgeon to Borough Gaol. The 2 & 3 Vict. c. 56. s. 1, which enacts that the 4 Geo. 4. c. 64. shall extend to all gaols ex- cept, &c., io to be construed with reference to the 7 Will. 4. & 1 Vict, c. 78, ai.a itz effect is to put all borough gaols, with reference to the 4 Geo. 4. c. 64. on the same footing with the gaols of the boroughs enumerated in Schedule A. of that act, so as to affect them by the provisions of that act, and by all sub- sequent enactments relative thereto. The appoint- ment, therefore, of a surgeon of a gaol of a corpora- tion is vested in the Justices of a borough, and not in the recorder or town council ; and they are to make the appointment at a quarter sessions, and at a subsequent sessions to direct a reasonable sum to be paid to him as salary, and also sums of money for medicines and other articles. Semble — the appointment is not within the terms of the proviso in the 38th section of the 7 Will. 4.&1 Vict. c. 78. s. 38, and, therefore, does not require the confirmation of the town council. Hammond v. Peacock, 16 Law J. Rep. (n.s.)M.C. 154; 1 Exch. Rep. 41. Contribution by Borough to Purchase of County Gaol. Under the provisions of the 5 & 6 Will. 4. c. 76. s. 1 1 7, a borough having a separate court of Quarter Sessions is not exempt from contributing a propor- tion of the money expended by the county in the purchase of a gaol, pursuant to the provisions of a particular statute : — Held, therefore, that the bo- rough of Birmingham was bound to contribute towards the purchase of the gaol of Coventry, made out of the county rate of Warwickshire, under the provisions of the 5 & 6 Vict. c. 110. The Mayor, ^c. of Birmingham v. Regina, 18 Law J. Rep. (n.s.) M.C. 176. GAS WORKS. Provisions usually contained in acts authorizing the construction of gas works consolidated by the 10 Vict. c. 15; 25 Law J. Stat. 36. GIFT. A mere verbal gift of a chattel to a person in whose possession it is, does not pass the property to the donee. Sharr v. Pilch, 19 Law J. Rep. (n.s.) Exch. 113 ; or Shower v. Pilch, 4 Exch. Rep. 478. GIFTS IN INDIA. [See Extortion.] GOODS SOLD AND DELIVERED AND BARGAINED AND SOLD. [See Coal Acts — Frauds, Statute of — Lien — Stoppage in Transitu — Trovek.] (A) When maintainable generally. (a) Contract for specific Chattel. (b) Unexpired Credit. (c) Specific Appropriation. (d) Evidence of the Contract. (B) When the Property passes. (C) Pleading and Evidence. GOODS SOLD AND DELIVERED. 301 (A) When maintainable geneeally. (o) Contract fm specific Chattel. " I, J Parsons, do hereby agree to provide a fourteen-horse engine and sixteen-horse boiler with fittings and everything complete for the sum of 260i., and to deliver and erect the same at the mill of Sexton & Co., and to set the same to work ; to be completed in a workmanlike manner on or before the 1st of October next, and if not completed by the 10th of October to forfeit Ws. a day for every day's delay." " In consideration of your supply- ing us with a certain fourteen-horse engine, which our foreman has inspected, and putting the same in thorough repair, and supplying a new sixteen-horse boiler, commonly called a Cornish boiler, with fire- place, valves, steam-cocks, and gauges complete, and delivering and erecting the whole, and setting the whole at work, according to the undertaking signed by you, and left with us, we engage to pay for the same 260?." [Two instalments were then provided for, and the letter proceeded], " and will, on being satisfied with the work, as per your agree- ment, pay you the remainder within two months of its completion" : — Held, to he a contract for the specific engine, and that the breach of the war- ranty, as to its power, assuming that there was one, was no answer to an action for the price, but might be given in evidence in reduction of it. Held, also, that the stipulation as to payment re- ferred to the work of the plaintiflT in erecting the engine, and not to the engine itself j and that it ought to have been left to the jury whether the work was such as ought reasonably to have satis- fied the defendants. Parsons v. Sexton, 16 Law J. Rep, (n.s.) C.P. 181 ; 4 Com. B. Rep. 899. (6) Unexpired Credit. Goods were sold, and work was done, the price of which amounted to 244Z., upon an agreement that 30A should be paid in ready money, and the resi- due by bills of SGI. each, payable in succession every three months : — Held, that until the expira- tion of the period at which the last bill would become due, the vendor could not recover in an action for goods sold and delivered and work done, although the defendant had omitted to pay the SOI. or to give the bills, and that the proper remedy was by a special count for not paying that sum and giving the bills. Paulv.Dod, ISLaw J. Rep. (n.s.) C.P. 177 ; 2 Com. B. Rep. 800. (c) Specific Appropriation. In assumpsit for goods bargained, &c., the con- tract being, that if not required to be delivered on or before a day fixed, they were to be paid for on that day, — Held, that upon the averment of being ready and willing, &c., it was unnecessary for the plaintifi to shew a specific appropriation of goods for the purpose, and that the plaintiffs were entitled to re- cover the full price of the goods, and not merely damages sustained by breach of the contract, i V. Grote, 2 Car. & K. 153. (d) Evidence of the Contract. Two parcels of goods, differing in quality only, were intrusted by Y & Co. to the plaintiff (a carrier) to deliver to the defendant and A respectively. The plaintiff, by mistake, delivered the goods of A (being the best quality) to the defendant. The defendant used the goods, and when the plaintiff applied to him for them the defendant agreed to pay for the same he had ordered of Y S; Co. : — Held, sufficient evidence of a verbal agreement to support a count for goods sold and delivered. Coles v. Bul- m»n, 17 Law J. Rep. (n.s.) C.P. 302; 6 Com. B. Rep. 184. (B) When the Phopehty passes. The giving of a delivery order does not, without some positive act done under it, operate as a con- structive delivery of the goods to which it relates, nor deprive the owner of the goods, who gave it, of his right of lien for their price, even as against the claims of a third person who has bond fide pur- chased them from the original vendee. S, the owner of sugars, sold them to B, to whom he gave a delivery order addressed to his agent A, and took a bill of exchange in payment of the price. B sold the sugars to M, and transferred to him the delivery order. The sugars were in the warehouse of L, in whose books they were entered as received by him "from A, on account of S." The sugars were weighed and invoiced by A upon the order of S. ."Neither B nor M took any steps to act upon the delivery order, till a rumour arose of B's insolvency, when M presented the order to A, and received from him a fresh order, addressed to L, the warehouse-keeper. Before the sugars could be actually delivered under this order, A removed them under the direction of S :> — Held, affirming the judgment of the Court below, that the posses- sion of the goods had never been changed, and that S might still enforce upon them his lien as vendor. M'Ewan v. Smith, 2 H.L. Cas. 309. Messrs. H L & Co. of Montreal, entered into a written contract with Messrs. L & Co., for the sale of a quantity of red pine timber, then lying above the Rapids, Ottawa River, stated to consist of 1,391 pieces, measuring 50,000 feet, more or less, to be deliverable at a certain boom at Quebec, on or before the 15th of June, then next, and to be paid for by the purchaser's promissory notes of ninety days from that date, at the rate of S^d. per foot, measured off: if the quantity turned out more than above stated, the surplus was to be paid for by the purchasers at 9id. per foot, on delivery : and if it fell short, the difference was to be refunded by the sellers. The price of the 50,000 feet at the agreed rate was paid by Messrs. L & Co. according to the terras of the contract. The timber was not deli- vered on the day prescribed in the contract of sale, and when it arrived at Quebec, and before it was measured and delivered, the raft was broken up by a storm, whereby the greater part of the timber was dispersed and lost. Messrs. L & Co., after the storm, collected such of the timber as could be saved, paid salvage for it, and applied the timber saved to their own use. . In an action brought by Messrs. L & Co. against Messrs. H L & Co., to recover the amount paid on their promissory notes, and for a breach of the contract, and for the differ- ence between the contract price of 9irf. per foot and lO^d. per foot, the market price when the timber was to have been delivered, — Held, by the Judicial Committee, affirming the judgment of the Court of 302 GOODS SOLD AND DELIVERED— GRANT. Appeals in Lower Canada, first, that tlie action ■was maintainable; secondly, that by the terms of the contract, until the measurement and delivery of the timber was made, the sale was not complete ; and that the transfer of the property was postponed until the measurement at the delivery; and that the risk remained with the sellers ; thirdly, that the taking possession of part of the timber by Messrs. L & Co., after the day mentioned for the delivery thereof, in the contract, and not at the place, could not be considered as an acceptance of the whole ; nor could- it be considered as an admission that the property in the timber passed to them before the storm broke up the raft. The old French law in force in Lower Canada, grounded on the civil law, is in substance the same as the law of England upon this point. Logan v. Mesurier, 6 Moore, P.C. 116. The plaintiff, a merchant at Sunderland, having given an order to B & Co., at Dantzic, for a cargo of wheat, wrote to request that B & Co. would hold it at the disposal of the defendants, merchants at Liverpool, who would lodge the necessary credits for the remaining balance, and communicated this to the defendants. A few days afterwards, and before the wheat was shipped from Dantzic, the plaintiff wrote to the defendants as follows : — " We request you will account to Mr. J S, of Newcastle, for the proceeds of the wheat we have consigned to you, lying at Dantzic, in Messrs. B's possession, which we wrote about to you a few days ago." The defen- dants assented to this order, and informed S (who Wti!.'-.argely indebted to them) that they held the wheat to his account; and on its arrival they ren- dered accounts of the sale of it to S, and placed the balance of the proceeds to the credit of his account with them :- — Held, that the plaintiff's order to ac- count to S was an order transferring the proceeds to him, and not a mere order to pay to him, and was not revocable after the defendants had acted upon it. Diclcinson v. Marrow, 14 Mee. & W. 713. An " appropriation" of goods under a contract of sale may mean a mere election by the vendor, where he has the right himself to choose what articles he will supply in performance of his contract, in which case the property does not pass ; or it may mean that both parties to the contract have agreed that particular goods shall be the articles to be supplied, and yet the appropriation may not operate so as to pass the property. But where both parties have agreed that particular goods shall be the article con- tracted for, and shall become the property of the vendee, and nothing further remains to he done in order to transfer the goods, that is an appropriation which operates in law so as to vest the property in the vendee. Under a contract for the sale of goods, to be selected by the vendor, a selection and a delivery to a common carrier for the vendee is a delivery to the vendee, whose agent the carrier becomes; and if there is a binding contract, and the article agrees with it, such delivery is such an appropriation as leaves nothing more to be done in order to transfer the goods, and therefore the property passes. But in the case of a delivery on board a ship under a bill of lading, the captain is in possession of the goods, and carries for and on behalf of the vendor, and the delivery does not operate as in the case of a common carrier, though the ship he expressly hired for the vendee : it is an appropriation only in the sense of an election, and does not vest the goods in the vendee. Under a contract for the sale and delivery of barley, to be according to sample, for cash on re- ceipt of bill of lading, the vendor at the request of the vendee procured a ship for him, and sent him the charter-party, and he insured the ship. The vessel was loaded and the captain gave a bill of lading to the vendor, who had written to the vendee — " I hope to be able to send you the invoice and hill of lading on Wednesday." A day or two after, the vendor called and left the invoice and unindorsed hill of lading with the vendee ; but afterwards, upon the vendee expressing himself dissatisfied with the samples from the cargo, though he did not refuse to accept it, and tendered the price, the vendor took away the bill of lading and indorsed it to other parties. The vendee having on the arrival of the ship obtained part of the cargo, — Held, that the property in the barley had not passed to the vendee, and that the indorsees of the bill of lading .were entitled to recover the value in an actionof trover against the vendee. Wait v. Baker, 17 Law J. Rep. (N.s.) Exch. 307; 2 Exch. Rep. 1. A sold to B, by sample, twenty-four sacks of flour, part of a lot of 217 sacks belonging to A, which were lying at the warehouse of one M, and he also gave Ba delivery-order on M, in pursuance of which M transferred twenty- four sacks of flour to B's name in his books ; and afterwards delivered twelve sacks of the flour to B, which B paid for. No appropriation of any particular twenty-four sacks was ever made for B. The flour contained in the twelve sacks delivered was found, on exa- mination, not to correspond with the sample, and B consequently refused to accept or pay for the re- maining twelve : — Held, that A could not recover the price of these twelve sacks in an action for goods sold and delivered. Whether, in such a case, goods bargained and sold would }ie—quare. Elliott v. Heginbotham, 2 Car. & K. 545. (C) Pleading and Evidence. In indebitatus assumpsit for goods sold and deli- . vered, the defendant cannot, under non assumpsit, shew that the plaintiff had no legal title to the goods at the time of sale. Walker v. Mellor, 17 Law J. Rep. (n.s.) Q.B. 103 ; 11 aB. Rep. 478 ; 2 Car. & K.. 346. GRANT. Trespass for breaking and entering the close of the plaintiff. Pleas, first, right of way under the Prescription Act; second, a user of the way for forty years. Replication to the first plea, that the corporation of L being seised in fee of the locus in quo, demised it to H for a term of lives and years ; that the corporation delivered seisin of the same to H, who became seised of the said term, and that the said term so demised was existing in full force. Replication to the second plea stated, as in the former replication, the seisin and possession of H for the said term, and that H being so seised of the locus in quo, and during the continuance of the seisin. GR A NT^GU ARANTIE. 303 by indenture between C of the first part, H of the second part, and M and W of the third part, granted to M and W a right of way over the said close. Re- joinder to first replication traversed the existence of . the terra during the period of twenty years in the plea mentioned. Rejoinder to second replication, that H did not grant to M & W the right of way modo et formd. At the trial, it appeared that the corporation of L, being seised in fee of the locus in quo, by indenture of the 17th of February 1800, demised the same to H for a term of lives and years. By indenture of the 23rd of July 1803, H assigned to C his interest in the demised premises, to secure payment of 1,200J. lent by C to H. By indenture of the 9th of February 1804, reciting the two former indentures, and also that H had agreed to sell part of the land to M & W for a sum, out of which the sum due from H should be paid to C, C bargained, sold, assigned,and transferred, and H granted, bargained, sold, assigned, and transferred to M & W part of the demised premises, together with the right of way in question. In 1812 H died, having made his will, whereby, after bequeathing his estates to his wife for life, he devised the same, after her death, to J & M in manner ftfllowing, "upon trust to pay and apply the rents, issues, and profits of the same to and for the life and benefit of my daughter Mary and her assigns during her life, and independent of her presenter any future husband; and from and after the decease of my said daughter, I give, devise, and bequeath my real and leasehold estates as afore- saidunto and equally among all andeverythechildren of my said daughter Mary, share and share alike, as tenants in common." In 1816 the wife of H died. By indenture of the 11th of December 1817, the corporation of L assigned to the trustees the rever- sion in fee simple of the locus in quo : — Held, that as the trustees took only an estate during the life of Mary, the lease for lives did not merge in the grant of the reversion ; secondly, that the rejoinder to the second replication only put in issue the fact of a grant, and that the seisin of H was admitted. Cooke V. Blake, 17 Law J. Rep. (n.s.) Exch. 370 j 1 Exch. Rep. 220. Plea in trespass, that the defendant, being seised in fee of a manor, the closes in which, &c., and p parcel thereof, demised the closes to C for ninety- nine years, and that afterwards C, by indenture, granted to the defendant the exclusive right to kill game and birds of warren in and upon the said closes during the term, and justified, &c. ; and upon the latter indenture being set out on oyer, it ap- peared to be a demise of the closes by the defendant to C, " except and always reserved out of that demise unto the defendant, &c. all timber trees, &c., and also except, &c., all royalties whatsoever to the premises belonging or in anywise appertain- ing:" — Held, on demurrer, that such claim created an exception or reservation, and was not pleadable as a grant; but, at all events, it did not amount to a grant by C of a liberty to the defendant to enter upon the closes for the purpose of pursuing and killing birds of warren. Pannell v. Mill, 3 Com. B. Rep. 625. A rent-charge, with a power of distress, cannot be created except by a grant binding some legal interest in the land, and''ceases to exist when the same person who is owner of the rent becomes en- titled to the whole legal estate in the land out of which it issues. The interest of a mortgagor in possession is not a legal estate at all, and consequently cannot sup- port a rent-charge with powers of distress. A grant, purporting to be the grant of a rent- charge, with powers to distrain, made by a person having no legal estate in the land, may operate as an irrevocable licence by the grantor to seize such goods as may he on the land at the time the grantee seizes, and to treat them as a distress, and may therefore justify the seizure of the goods of the grantor himself, and give the grantee an interest in them after seizure ; but it does not give any interest in the goods of the grantor before seizure, and does not justify the seizure of the goods of third persons at all. Therefore, in an action of trespass de bonis aspor- tatis by the assignees of a bankrupt, a plea setting forth an indenture of mortgage of copyholds in fee, by which the mortgagor granted that the mortgagee might distrain for the arrears of interest ; and aver- ring a surrender and admission of the mortgagee in pursuance of it, and justifying the seizure of the goods on the premises, whilst still in the possession of the bankrupt, but after bankruptcy as a distress, was held bad after verdict ; and the plaintifls had judgment non obstante veredicto. Freeman v. Ed- wards, 17 Law J. Rep. (n.s.) Exch. 258; 2 Exch. Rep. 732. - Acts of ownership exercised by the lord of a manor upon the sea shore adjoining, between high and low water mark, such as the exclusive taking of sand, stones, and seaweed, may be called in aid, to shew thatthe shore isparcelof the manor, although an ancient grant under which the manor was held, professing to grant wreck of the sea, &c. did not grant littus maris. Calmady v. Rome, 6 Com. B. Rep. 861. GREENWICH AND CHELSEA PEN- SIONERS. Services of out-pensioners rendered eflTective by 9 Vict. c. 9 ; 24 Law J. Stat. 51. Payment of out-pensioners regulated by the 9 Vict. u. 10; 24 Law J. Stat. 51. GUARANTIE. [See Stamp.] (A) Construction of. (B) Statement of Considekation. (C) Liability upon. (D) Evidence to explain. (A) Construction of. A, by a trust settlement, gave to his son " a like sum of 5,000;. sterling, payable, &e., after my de- cease, from which provision shall be deducted any sum that 1 have already advanced, or may still advance for him, to enable him to carry on his business." A entered into a guarantie for 2,000/'. for the firm of which his son was partner. A was 304 GUARANTIE. compelled to pay that snm, and the firm afterwards becoming bankrupt, he obtained from its assets a small dividend : — Held, that this was an advance to the son, which came within the description of money advanced to the son to enable him to carry on his business, and that the son could only claim the balance of the 5,O0OL, after deducting the sum thus advanced. The practice of allowing the costs in such a case to be paid out of the estate, was disregarded. Berry V. Morse, 1 H.L. Cas. 71. Declaration in assumpsit, that in consideration that the plaintifis, at the request of the defendant, would sell and deliver to, and supply one S on credit, with goods, of the price to an extent of not exceeding 100/., she, the defendant, promised the plaintifis if S did not pay the same, she, the defen- dant would do so, upon the defendant's receiving from the plaintifis three months' notice requiring payment of the same. Plea, non assumpsit, and issue thereon. At the trial, the following guarantie was proved : " In consideration of your supplying Mr. S, of, &e., with goods to the extent of 100/., I undertake to pay you for the same, if he does not, upon receiving from you three months' notice:" — Semble — that there was no variance between the de- claration and the guarantie proved ; but assuming the true meaning of the guarantie to be that the defendant should not be liable until one hundred pounds worth of goods had been supplied, the de- claration might he amended accordingly. Dimmock V. Sturla, 15 Law J. Rep. (N.s.)Exeh. 65 : 14 Mee. & W. 758. Where one count in a declaration on a guarantie .stated, that in consideration that the plaintifi'at the request of the defendant would sell and deliver to, &c., the defendant promised to guarantee the due payment of any goods then or thereafter to be sold and delivered to one C, and the whole of any money lent or to be, &c., to the amount of — I., — Held, to disclose a sufficient consideration depending on the future sale or advances of some amount. The guarantie being in the form of a letter ad- dressed to Messrs. A, B, & C, " or the person or per- sons for the time being carrying on the business at," &c., and the consideration stated being confined to the supply of goods by A (the other partners being dead) : — Held, that whether a variance or not, it might have been amended at the trial under 3 & 4 Will. 4. c. 42. s. 23.— Held, also, that upon the issue taken on a traverse that the defendant had not guaranteed, &c., the word was to be taken in the sense used in the instrument itself, viz., a payment of the debt for C, and not to be confined to the merely giving thepaper, the instrument of guarantie. Boyd v. Moyle, 2 Com. B. Rep. 644. The defendant signed an instrument, addressed to the plaintiff in the following terms : — " In con- sideration of your having, by indenture, agreed to accept payment of the debt owing to you by A B, by the following instalments, that is to say, 1 0*. in the pound, on the 18th day of August next, &c., I promise to guarantee th? payment of the instal- ments ;" and delivered it to the plaintiif in exchange for an indenture executed by the plaintiff: — Held, that the true construction of the instrument was, that the defendant made his promise in consideration that the plaintiff would execute an indenture, and release A B ; and, consequently, that the execution of the instrument was not an admission by the de- fendant that the plaintiff had released A B, and furnished no evidence in support of an issue taken on an allegation in the declaration that the plaintiff had released A B. King v. Cole, 17 Law J. Rep. (n.s.) Exch. 283 ; 2 Exch. Rep. 628. A declaration, after stating that the plaintiff had been a member and deacon of the Baptist Church at Clapham, and an agreement of the 25th of Sep- tember 1840, by which the plaintiff and P M, as deacons, had agreed to he responsible for the pay- ment by the said church of 700t to the Rev. J E, in consideration of his having resigned tjipjpastoral oflSce over the said church, and the si^b^equent payment of 550t, part of the said sum of 700/., and that at the time of the promise thereinafter alleged, the defendant was the pastor and minister of the said church, alleged that theretofore, to wit, on &c. in consideration that the plaintiff at the request of the defendant, would resign the said office of deacon and his connexion with the said Baptist church and congregation at Clapham, the defendant then promised the plaintiff to hold himself respon- sible to the plaintiff for the payment of the said sum of 150/. so due to J E by the said Baptist church, and also the interest for the same at, &c., for which the plaintiff and P M had become re- sponsible to the said J E. It then averred that the plaintiff' did then, to wit, on the day and year last aforesaid resign the said office of deacoq and his connexion with the said Baptist churcjij that the said Baptist church had the means and power of paying, to wit, out of the funds of the same church, and but for their neglect and default might have paid ; and that a reasonable time for payment had elapsed. Breach, that the church had not paid, and in default thereof the plaintiff had been forced to pay, and that the defendant had not since paid. Pleas, traversing, first, the making of the agree- ment; secondly, the promise ; thirdly, the power and means of the church to pay ; fourthly, that a reason- able time to pay the whole had not elapsed. The agreement, signed by the defendant, as it appeared in evidence, was, " in consideration of your having resigned the office of deacon and your con- nexion with the Baptist church and congregation at - Clapham, I hereby agree to hold myself responsible to you for the payment of the sum of 150/. due to the Rev. J E, by the Baptist church at Clapham, and also the interest for the same at, &c., being the residue of the sum of 700/. principal and interest remaining unpaid, for which you and Mr. P M, deacons of the said church, became responsible to the Rev. J E, by an instrument bearing date the 25th of September 1840." It appeared also that the debt of 700/. had been reduced in March 1845 to 150/.; that the defendant had, in July 1842, agreed to become pastor upon condition of his being responsible to the plaintiff for the debt to J E ; agreeing that 50/. half-yearly should be paid in liquidation thereof out of a trust fund distributed at the discretion of the trustees, for the support of the poor of the congregation and the maintenance of the niini.ster, and that the intL-rcst thereon should be paid half-yearly from the church funds. Out of the said trust fund the defendant had, from 1842 to lb47, received annual payments of different amounts GUARANTIE. 305 expressly for the minister's income only, and also two additional small annual sums from other trust funds, part by way of salary and part as a gift : — Held, first, that the agreement alleged in the de- claration was, in effect, proved by that produced in evidence. Secondly, that the terms of the agree- ment were capable of expressing either a past or a concurrent consideration, and as upon the former construction the instrument was void, the latter construction, which made it valid, was to be adopted, and that the agreement appeared to be a binding guarantie, without too the aid of any extrinsic evi- dence. Thirdly, that there appeared to be sufficient funds for payment, and therefore, fourthly, that a reasonable time for such payment had arrived. SteeU V. Hoe, 19 Law J. Rep. (n.s.) ft.B. 89. The plaintiff, a merchant at Dublin, contracted with L, a ship-builder at Quebec (for whom the defendant was London agent), for a ship, particu- larly described in the contract, to be paid for by accepting a hill at six months ; " and should the vessel, on her arrival at Dublin, exhibit any defect which shall be so declared by two competent per- sons, L agrees to put it to rights at his own expense on her second voyage." The hill was sent for the plaintiff to accept, which he declined to do, having heard from Quebec that the vessel was defective ; and he wrote to the defendant, " I only want your guarantie that L shall perform his contract to the full extent. If you agree to appoint one merchant, I will another. Let them agree to an umpire, and give me a letter of guarantie that L will abide by the award and perform his part without delay." The defendant answered, " If you will accept L's bill for the price, and return it to us forthwith, we hereby agree to become personally responsible to you for the due fulfilment of L's contract; and as C & F have the confidence of both parties we sug- gest that they should be appointed to decide what should be done in case you have cause to complain." The plaintiff replied, " Relying on the guarantie you give me, I send inclosed the bill accepted for the full amount of the new ship." The bill was paid at maturity. The vessel arrived in Dublin, and was defective. A surveyor was appointed by the plaintiff and another by Messrs. C & F to survey the vessel, who reported it would take 376i. to make her equal to the contract j and C & F thereupon made their award, whereby they ordered the defen- dant to pay that sum, which he refused to do. On a special case stating the above facts for the opinion of the Court, — Held, that the plaintiff never ac- quiesced in the defendant's proposal to relex the matter to C & F ; that C & F never professed to act under any authority derived from the plaintiff; and, consequently, that the plaintiff was not entitled to recover in respect of the award. Fagan v. Har- rison, 19 Law J. Rep. (n.s.) C.P. 105; 8 Com. B. Rep. 388. Under a guarantie given to a banking-house con- sisting of several partners for the repayment of such bills drawn upon them by one of their customers as the bank might honour, and any advances they might make to the same customer, — Held, that the guarantie ceased on the death of one of the partners in the bank before the expiration of the time to which the guarantie was expressed to extend. That bills accepted before the death of the part- DiGEST, 1845—1850. ner and payable afterwards, were within the gua- rantie. That the amount guaranteed could not be in- creased by any act of the continuing firm and the customer after the death of the partner, although it might be diminished by such act. That the amount guaranteed in respect of bills honoured at the bank was not to be reduced by the amount of a balance owing from the bank to the customer when the guarantie ceased, such balance having been afterwards paid in the coarse of busi- ness between the continuing firm and the customer. Hollmd V. Teed, 7 Hare, 50. (B) Statement of CofrsiDEHATioN. A guarantie was given in the following form : — " 1843, June 28th. — Mr. Price, I will see you paid for 51. or lOi. worth of leather, on the 6th of Decem- ber, for Thomas Lewis, shoemaker. Robert Rich-, ardson :" — Held, that no consideration appeared on the face of the guarantie. Price v. Richardson, 1 5 Law J. Rep. (n.s.) Exch. 345 ; 15 Mee. & "W. 539. A declaration on a guarantie stated, that J L made his promissory note payable to the plaintiff; that it was in the plaintiff's hands dishonoured ; that thereupon, to wit, on the 2nd of November 1844, in consideration that the plaintiff would forbear and give time to J L for the payment of the note for a reasonable time, the defendant guaranteed the payment. The defendant, at the time of making the note, wrote the following words on the back, " I guarantee the payment of the within note by J. Leigh, the maker, on the 2nd of November next. J. Pink." On the day of the dishonour of the note, the defendant wrote and signed the following gua- rantie, addressed to the plaintiff: — ■" Sir, I request you will hold over the promissory note in your favour of Mr. J. Leigh, dated the 3 1st of July 1844, for 2001., at three months, and in consideration of your so doing, I undertake to continue, in all re- spects, my guarantie of the same. John Pink :" — Held, that the guarantie was defective, and that the plaintiff was properly nonsuited. Semble — that the declaration, stating the consi- deration to be forbearance to sue for a reasonable time, was bad. Temple or Semple v. PinJc, 16 Law J. Rep. (n.s.) 237 ; 1 Exch. Rep. 74. « B gave to A the following memorandum in writing ; — " In consideration of your agreeing to supply S with goods upon credit (the amount to be in your discretion), 1 hereby guarantee you the due payment of such sum as he may now, or at any time and from time to time hereafter, owe you. My liability under this guarantie is to be limited to principal sum in running account of 1001.'' Declaration thereon, that confiding in B's said promise A did afterwards supply S with goods amounting to 85i. ; that S, though requested, had not paid for the same, of all, which B had notice. Breach, non-payment by B on request of 851. : — Held, on general demurrer, that the declaration was good, and that the guarantie disclosed a suffi- cient consideration for B's promise, White v. Wood- ward, 17 Law J. Rep. (n.s.) C.P. 209. A guarantie, purporting to be given in considera- tion " of Messrs. E, &c. giving credit to Mr. D J" is good, as those, words may apply to future as well as to past credit. 2 R 306 GUARANTIE. Evidence is admissible in an action on such a guarantie to shew that it was intended to apply to future credit. The declaration stated, that D J was indebted to the plaintiffs in 4:61. for goods sold, which sum was already due, and that the plaintiffs had delivered goods to D J of the value of 50i, at a month's credit, which had not expired at the time of the promise ; that D J applied to the plaintiffs for time for pay- ment of both sums, and the plaintiffs consented to give three months' time, upon having the guarantie of the defendant, set out in the declaration. The guarantie was then set out, the consideration being stated on the face of it, as above, viz. "giving credit" to D J : — On special demurrer, held that the decla- ration was good ; and that it sufficiently appeared on the face of it that the consideration for the gua- rantie was future credit. Edwards v. Jevons, 19 Law J. Rep. (*.s.) C.P. 50. The defendants gave a guarantie in the following terms — " We, the undersigned, hereby indemnify the National Banting Company to the extent of 1,0001. advanced or to be advanced to R P by the said company -."—Held, that this instrument did not disclose a sufficient consideration for the pro- mise of the defendants. The declaration alleged that at the time of the agreement thereinafter mentioned, R P kept a banking account with the National Banking Com- pany, and was on &c., indebted to the company in &001., and it was then proposed between R P and the company that the company shall advance further monies not then agreed upon, and thereupon, to wit, on &c., a certain agreement, in writing was made between the said company and the defendants — "We, the undersigned, &c. (the above guarantie was then set out,) " and thereupon in consideration of the premises" — alleging mutual promises, that R P was indebted to the company, and default on the part of the defendants to indemnify the company. Plea, the general issue : — Held, that the proposal between R P and the company formed part of the consideration, and was put in issue by non assump- sit. Bellv. Welch, 19 Law J. Rep.(N.s.) C.P. 184. Where the guarantie was in consideration of the plaintiffs agreeing to take lOs. in the pound for their debt, giving five years for the payment, with interest payable half-yearly, the sum to be paid by instal- ments, and in the manner mentioned in the plain- tiff^s agreement with the debtor; and the agreement entered into was for the payment of the debt by instalments, &o., and contained a proviso making the agreement void, and for the recovery of the whole debt if default was made in payment of any instalment or on the issuing of a fiat in bankruptcy, — Held, that the agreement did not comply with the terms of the guarantie, and that the defendant was not liable. Clarke v. Green, 3 Exch. Rep. 619. In assumpsit on a. guarantie given to plaintiff for a debt owing by another person, in order to enable the latter to obtain an interim order of pro- tection under the 7 & 8 Vict. c. 96. ». 6, with the knowledge of the plaintiff, who gave a written ac- knowledgment, not under seal, that he had no claim on the debtor : — Held, that the defendantwas entitled to a verdict, and that the plaintiff was not entitled to judgment non obstante veredicto. Coles v. Stride, 15 aB. Rep. 2. [See (A) Construction of.] , (C) Liability upon. A declaration on a guarantie stated, that the defendant guaranteed to the plaintiffs the due ac- ceptance and payment of two bills of exchange, drawn by C K, for \60l. 5s. and 1601. 5s. 3d., being the amount of an invoice of the plaintiffs of sta- tionery shipped by them, and as the defendant had not then heard from C K if the said invoice had been found correct, the defendant was to have the reserve customary under such circumstances. The declaration then averred, that the invoice was found correct ; that the defendant had all the reserve and time customary in such circumstances, and that the bills were dishonoured. The guarantie corresponded with the statement of it in the declaration, except that it alleged that the defendant claimed " this reserve as customary under such circumstances:" — Held, that the defendant's liability on default of the principal depended upon the invoice being found correct in point of fact, and not upon the defen- dant's hearing from C K that it was con'ect ; that the words " the" in the declaration and " this" in the guarantie signified the same " reserve," and therefore, that there was no variance. A party guaranteeing the due acceptance and payment of a bill of exchange, guarantees the pay- ment of the interest as well as the principal. Acker- mann v. Ehrensperger, 16 Law J. Rep. (H.S.)Exch. 3 ; 16 Mee. & W. 99. A, B, & C were railway contractors in partner- ship, and had entered into a contract to do certain work for a railway company. D had entered into a sub-contract to do part of the work, for which part bricks were required ; and it was necessary that D should have coals to burn the bricks. In order to induce the plaintiffs to supply D with coals, A, without the previous knowledge or subsequent assent of his co-partners, entered into a guarantie in the name of the firm to secure the payment of the price of the coals to be supplied to D by the plaintiffs : — Held, that B and C were not liable on the guarantie. The managing clerk of the firm, without the knowledge of B and C, wrote letters to the plaintiff, containing evidence of an account stated respecting the amount due under the guarantie : — Held, that as the giving the guarantie was not a partnership business, the letters of the clerk respecting it were not evidence of an account stated as against B and C. Brettel v. Williams, 19 Law J. Rep. (n.s.) Exch. 121 J 4 Exch. Rep. 623. (D) Evidence to explain. A declaration on a guarantie stated, that in con- sideration that the plaintiff uiouM, on the 22nd day of June 1840, lend to one V D the sum of 750i. on the security of a warrant of attorney, payable, on the 22nd of August then next, the defendant pro- mised the said plaintiff to pay him the said sum of money on default. The guarantie was in these terms : — " In consideration of your having this day advanced to our client, Mr. V D, of &c., 7501., secured by his warrant of attorney, payable on the 22nd of August next, we hereby jointly and seve- rally undertake to pay the same on default, &c. Dated this 22nd day of June 184-0. Yours, Sc, GUARANTIE— HABEAS CORPUS. 307 S & M." On objection, that the declaration varied from the guarantie,^He]d, first, that no amendment was necessary ; secondly, that evidence was admissible to shew that the guarantie had, in fact, been executed on the 22nd of June, simultane- ously with the payment of the money by the plain- tiff to the party guaranteed. Goldshede v. Swan, 16 Law J. Rep. (n.s.) Exoh. 284; 1 Exch. Rep. 154. To assumpsit on a guarantie, the defendant pleaded, that the guarantie was given by him on certain terms, which limited the liability of him the defendant thereunder, and the plaintiff traversed this plea :-^Held, that, in this state of the record, the plaintiff was not at liberty to object to the admis- sibility of evidence to prove what those terms were, on the ground that (hey were not shewn to have been reduced into writing. Galley v. Taylor, 2 Car. & K. 551. - [See (B) Statement of Consideration.] GUARDIAN. [See Infant.] GUERNSEY. The advice of the bailiff and jurats of the Royal Court in the Island of Guernsey, is not necessary, for the purpose of authorizing the governor, or lieu- tenant-governor, to exercise the power of deporta- tion of aliens domiciled in the island. The bailiff and jurats are individually entitled to take part and speak in all conferences with the governor, or lieutenant-governor, of the island ; but the governor, or lieutenant-governor, has the sole authority to appoint the time and place for such conference. A writ of pardon, under Her Majesty's sign manual addressed to the lieutenant-governor, and the keeper of the gaol, to discharge out of custody a person undergoing imprisonment, does not require to be verified and registered by the Royal Court, before it is executed. The refusal of the gaoler to discharge a prisoner, on the production of a writ of pardon under the sign manual, will not warrant the lieutenant-governor in enforcing obedience to the writ, by the threat of military or other force. In re the Bailiff and Jurats of Guernsey, 5 Moore, P.C. 49. HABEAS CORPUS. [See Inferior Court — Writ op Replevin.] (A) Jurisdiction to grant. (B) Who mat apply for. (C) Writ and Return. (D) Affidavits. [See (C) Return.] (A) Jurisdiction to grant. [/n re Wilson, 5 Law J. Dig. 318 ; 7 G-B. Rep. 984.] Where the commitment on a return to a writ of rebellion omitted the date of the return, — Held, to be a ground only for applying to the court of equity, and not of a habeas corpus i so an allegation of col- lusion between the plaintiff in the suit and the Commissioner under the writ ; and the Court will not interfere as to the detention, when the grounds are, the improper or irregular conduct in the details of the suit before the Judge committing the party j nor if one legitimate cause of detention appears, will it inquire whether there be also others: the commitment for contempt by « court of equity need only recite an adjudication of contempt, and not go on to adjudicate it. In re Cobbett, 7 ft.B. Rep. 187. The Court, although having a jurisdiction: to order a party to be brought up by habeas corpus to be present at the hearing of the argument re- lating to his discharge, will not grant the applica- tion, unless it be satisfied that without his personal attendance justice may not be done. Clark v. Smith, 3 Com. B. Rep. 984. The defendant was tried on an indictment for perjury, convicted and sentenced, at Nisi Prius. On motion for a writ of habeas corpus to discharge him out of custody, on the ground that the judg- ment recited in the warrant of commitment was not warranted by law, — Held, that the Court will not grant a writ of habeas corpus, the effect of which will be to review the judgment of one of the supe- rior courts. In such case the remedy is by writ of error. 'In re Dunn 17 Law J. Rep. (n.s.) C.P. 97 ; 5 Dowl. & L. P.C. 345 ; 5 Com. B. Rep. 215. The Court refused to grant a habeas corpus to a prisoner in custody under process out of the Court of Chancery, applied for on the ground that the keeper of the Queen's Prison had improperly removed him to a part of the prison provided for prisoners of a particular class. Ex parte Cobbett, 5 Com. B. Rep. 418. Semble — that since the 5 Geo. 3. c. 26. a writ of habeas corpus will run at common law to the Isle of Man, as part of the dominions of the Crown of England. The publisher of a newspaper, in which had ap- peared an article contemptuously reflecting on the proceedings of the Chancery Court of the Isle of Alan, was brought before that Court, and com- mitted for contempt. A, who was then present, avowed himself to be the author of the article, and was also forthwith committed verbally by the Court. After some time a written warrant was drawn up, signed by the Lieutenant Governor of the island, which, after stating that at a Chancery Court held, &c., A voluntarily appeared and avowed himself the author of an article headed, &c., and that the writing and publishing the said article was a con- tempt of the Court, ordered that A should be for such contempt committed a prisoner to the gaol of R, there to remain " until further order." It appeared that the Lieutenant Governor presided in the Chancery Court, which was a court of record, having jurisdiction over the whole island, and having power to punish for contempt of its authority ; and that the ordinary course of proceeding in such cases is by a rule or judgment declaring the party to be in contempt, and awarding such punishment as the Court may deem proper ; that no warrant is granted, but a certified copy of the rule or judgment is a sufficient authority to the officer to imprison; 308 HABEAS CORPUS— HACKNEY CARRIAGE. that by the law of the island parties in contempt of any of the Courts are committed to the gaol of R, and no period is in genera) fixed for their release, which they may obtain by application to the Court, and in case of contemptuous behaviour, by paying the fine imposed, or making such apology or com- plying with such terms as the Court may deem satisfactory. On a motion for a habeas corpus to discharge A from custody, — Held, that it sufficiently appeared that the warrant was a judicial act of the Chancery Court ; that a Court of competent authority having decided this to be a contempt, the Court of Queen's Bench could not review its decision ; and that the commitment, being according to the ordinary form adopted by the Chancer)' Court of the Isle of Man, was valid, though it was not for a time certain. Qiuere — Whether committals by way of punish- ment by the superior Courts must be for a time certain. Every tribunal has the power of committing those who treat it with contempt; and the question whether a contempt has or has not been committed is for the sole decision of that Court itself. A libel, reflecting contemptuously on the pro- ceedings of a Court, published while the Court is not sitting, may be punished by immediate com- mitment, as well as such a contempt committed in its face and sedente Curid, In re Craiixford, 18 Law J.Rep. (N.s.) aB. 225. [And see Oldfleld v. Cobbett, 2 Ph. 289.] (B) Who may apply for. A woman may move for a habeas corpus on behalf of her husband. Exparte Cobbett, IS CLB. Rep. 181. (C) "Writ and Return. [/n re Wilson, 5 Law J. Dig. 318 j 7 Q.B. Rep. 984.] Where a party shall have been brought up to this Court, by virtue of any writ of liabeas duly issued, and by reason of pressure of business, or from any other cause, the hearing shall have been postponed to a future day, a new writ of habeas may be issued for such future day, if the Court shall so direct, without payment of any fee. Order of Slst of January 1846, 15 Law J. Rep. (n.s.) Chanc. 118. The return to a habeas corpus to bring up the bodies of two prisoners detained in Millbank Prison set out an act of the Royal Court of Jersey, whereby the prisoners were convicted of burglary by that Court (which was alleged to be a competent Court to try and punish that crime), and sentenced to be transported to such place as Her Majesty in coun- cil sliould order. It also set out an Order in Council directing the place of transportation of these con- victs, and a warrant of the Secretary of State for their removal to Millbank Prison, in order to carry the said sentence into effect, and an authority to the keeper of that prison to receive them : — Held, that this Court was bound to presume that the sentence, being passed by a Court of competent jurisdiction and unreversed, was warranted by law and valid. Held, also, that the 5 Geo. 4. c. 84. s. 17. is directory only, and that the fact of a convict not being detained in a prison appointed under that statute will not entitle him to his discharge. Affidavits cannot be used in addition to a return to a habeas corpus, which sets out the sentence of a Court of competent jurisdiction. On the argument upon a return to a habeas corpug alleging a sentence by the Royal Court of Jersey, which is a Court of competent jurisdiction, the law of Jersey cannot be discussed. Regina v. Brenan, 16 Law J.Rep. (N.s.)a.B. 289 ; 10 aB. Rep. 492. A return to a habeas corpus stated that the pri- soner was detained by an order of the Vice Chan- cellor (which was set out), committing him for a contempt incurred by breach of an injunction issued in a cause in Chancery : — affidavits for the purpose of shewing that the Lord Chancellor, by whom the order for the injunction was made, was an interested party, were held to be inaddiissible, as the return stated a commitment by a court of competent juris* diction. In re Dimes, 19 Law J. Rep. (n.s.) Q.B. 158. (D) Affidavits. [See (C) Writ and Return.] HACKNEY CARRIAGE. Liability of Proprietor. In assumpsit against a cab-driver for the loss of the plaintiff's luggage, the declaration alleged a promise by the defendant to convey the plaintiff and his luggage "safely and securely:" — Held, that these words do not necessarily mean " safely and securely at all events," but are sufficieiitly sup- ported by proof of the want of due care ; and that the meaning to be given to the words, varies accord- ing to the different species of bailments. Ross v. Hill, 15 Law J. Rep. (n.s.)-C.P. 182 ; 3 Dowl. & L. P.C. 788; 2 Com. B. Rep. 877. Defacing Driver^s Licence, Under the 6 & 7 Vict. c. 86. s. 8. the registrar is authorized to grant licences to drivers of hackney carriages ; which licences, by section 21, the proprietors of the carriages are required to pro- cure to be delivered to them, and to retain whilst the drivers remain in their service, and by section 24, when the drivers leave their service to return on demand. A declaration in case stated that the plaintiff, a driver of a hackney carriage, having procured such licence, delivered it to the defendant under this statute as his employer, and that whilst he retained it in his custody he " wrongfully and unjustly wrote in ink in and upon the said licence certain words, purporting to give, and being then intended by the defendant to give, a character of the plaintiff as an unfit and improper person to act as a driver of hackney carriages, that is to say," setting forth the words, whereby it was defaced and became useless: — Held, on motion in arrest of judgment, that the possession being in the defendant, the form of action was properly case, and that it was unnecessary to state the act to have been done maliciously, and that the declaration was good. Hurrtll v. Ellis, 15 Law J. Rep. (n.s.) C.P. 18: 2 Com. B. Rep. 295. \ HARBOURS— HIGHWAY. 309 HAB,BbtrB,S.\ Provisions usually contained in Acts, authorizing the making and improving of harbours, -cks, and piers consolidated by 10 Vict. c. 27 ; 25 Law J. Stat. 80. HEALTH. Geneial and local' boards 'of health established and provisions for promoting the public health made by 11 & 12 Vict. c. 63 ; 26 Law J.Stat/171. Further provisions made by 12 & 13 Vict. c. 94 j 27 Law J. Stat. 189. ' '■ i HEIR. In 1784, after the recdgnitirinof the independ- ence of the United States by the treaty of 1783, A, a British-born subject, emigrfited to Virginia, and in the same year took the oath of allegiance to the United States, and continued to residfe there, exer- cising all the rights of an American citizen until his death in 1833. iBy the terms of the oath he abjured allegiance to any other state, &c. In 1787 A married the daughter of an American citizen, and had issue a son B, who never came to this country, and died abroad, leaving a son C; who, according to the pedigree, was the heir of the testae trix in the cause. The testatrix died in 1839, and in a suit instituted to administer her estate, C, by his answer filed in 1840, claimed to be her heir. In 1846 C for the purpose of complying with the requisitions of the 13 Geo. 3. c. 21. left New York, and in the same year arrived in England and re- ceived the sacrament, and took the oaths as pre- scribed by that act, and thenceforth continued to reside in this country. Upon exceptions to the Master's report finding C to be the heir, it was held, first, that the treaty of 1783 did not apply to A, who had emigrated subsequently to that treaty. Secondly, that the subsequent treaty of 1794 was local ; and A did not reside within the locality. Thirdly, that A by his own acts had not, at the time of the birth of his child, absolved himself from his allegiance, nor divested himself of the character of a natural-born subject. Fourthly, that the exception in the 4 Geo. 2. c. 21, as to the father's being liable to the penalties of treason, was referable to a well-known class of offences, and ought not to be extended ; and that therefore C, under the 7 Ann. c. 5, 4 Geo. 2. c. 21, and 13 Geo. 3. c. 21, was entitled to all the rights and privileges of a natural-born subject, and capacitated thereby to take lands by descent. Lastly, that it was sufiicient that C should have made Jiis claim within the five years allowed by the last- named act ; and that it was not necessary that he should have complied with all the requisitions of the same act within the five years, but a reasonable time must be allowed him for that purpose. Fitch V. Weber, 17LawJ. Eep. (n.s.) Chanc. 73; 6 Hare, 51. HEIR-LOOM. [See Devise, Construction of ■ in general-^ Period of Vesting — Legacy, What Interest Vests.] HIGH TREASON. An allegation upon a record that three Judges executed a commission in relation to the' trials of prisoners, to try whom that commission was issued, is an affirmative allegation Of their authority to perform that duty, and is not rendered uncertain by a subsequent statement that the commission was directed to theni and others. An indictment, charging a prisoiier in Ireland with compassing, &c., to excite insurrection there, and to levy war, and to put the Queen to death, and charging as overt acts assembling with others, armed with weapons to excite insurrection and to levy war, is not an indictment founded ' on the 57 Geo. 3. c. 0. Such prisoner, therefore, is not entitled, under section 4. of that act, to the benefit of the statutes 7 & 8 Will. 3. c. 3. and 7 Ann. c. 21, and consequently is not entitled to a copy of the indictment, and to a list of witnesses, to be deli- vered ten days before the trial. The 4th section of the 57 Geo. 3. c. 6. extends only to treasons made or declared by that statute. Qai«rc^Whether the objection for the want; of such copy and list is to be raised by plea on arraign- ment, 1 . The 36 Geo. 3. c. 7, having been passed before the Union,, did not bind Ireland. The 57 Gep, 3. c. 6. s. 1. made perpetual the provisions of the 36 Geo. 3, but did not extend the provisions of that statute to Ireland. The only effect of the 11 & 12 Vict. c. 12. was to extend to Ireland certain^f the provisions of the 36 Geo. 3, made perpetual by the 57 Geo. 3, but not to extend thither the provi- sions of 4th section of the last-mentioned act, which was limited to treasons made or declared by that act. The offence of levying war against the king, declared by the 25 Edw. 3. stat. 5. c. 2. is high treason in Ireland by the effect of the Irish statute 10 Hen. 7. c. 22, commonly called Poyning's Act, by which, acts which were treason in England under -th6 statute of Edw. 3. were made treason in Ireland. An allocutus, -whether " the Justices and Commissioners ought not on the premises and ver- dict aforesaid to proceed to judgment" agaiilst the prisoner, is sufficient. The form "judgment of death," or "judgment to die," is surplusage; O'Brien v. Regina, 1 H.L. Cas. 465. HIGHWAY. [See Rate— Turnpike— Way.] (A) Dedication. (a) Presumption of , by User. (6) J^ffeet of, without Notice under 5 S; 6 Will. 4. c. 50. s. 23. (B) Surveyors. (a) Appointment of. (6) Notice of Action to. 310 HIGHWAY. (C) Repahation. [See (D) (a).] (D) Indictment pob Non-Repaib. (a) Liability to. (6) Order to indict. (c) Costs to Prosecutor. (E) Diverting and stopping-up. (a) Order of Sessions. (ft) Award of Inclosure Commissioners. (c) Appeal against Certificate. Returns of expenditure on highways to be trans- mitted to the Secretary of State, 12 & 13 Vict. c. 35 ; 27 Law J. Stat. 59. (A) Dedication. (a) Presumption of by User. If a road has been used by the public for a great number of years, a dedication by the owner of the soil may be presumed, whoever he may be ; and it is not material to inquire who the precise owner was, or whether he intended to dedicate the road to the public. Regina v. the Tything of East Mark, 17 Law J. Rep. (H.s.)aB. 177; 11 Q.B. Rep. 877. (ft) Effect of without Notice under the 5 S^ 6 WilLi. u. 50. s. 23. If a road has been dedicated to the public and used, but the necessary steps have not been taken by notice, &c. under the 5 & 6 Will. 4. c. 50. s. 23, to make it repairable by the parish, it is still a high- way in other respects, and an action is maintainable for obstructing it to the plaintiff's damage. Roberts .. Hunt, 15 Q.B. Rep. 17. (B) SURVEYOHS. (a) Appointment of. On the 22nd of March a notice was posted for a vestry meeting, to appoint parish officers on the 25th ; and the meeting being held, two surveyors of highways were appointed. On the 11th of April, at a special sessions for highways, it appeared to the Justices that the appointment was invalid, as there had not been three clear days' notice of the vestry meeting, which is requisite under the 58 Geo. 3. c. 69, and the Justices then appointed two other surveyors under the 6 & 6 Will. 4. c. 50. s, 11. The new surveyors, on the 1st of October, made a rate which some of the inhabitants refused to pay. On the 20th of November they made another rate, and W, one of the inhabitants, having refused to pay, was summoned before the Justices. The Justices refused to grant a distress warrant, whereupon the surveyors obtained a rule nisi for a mandamus : — Held, that the appointment at the vestiy meeting was invalid on account of the insufficiency of the notice, but that the appointment by the Justices was also bad, because it was made at the same special sessions at which it appeared to them that the inhabitants had neglected duly to choose sur- veyors ; whereas, under the 5 8z 6 Will. 4. c. 50. s. 1 1, it should have been made at the next succeed- ing special sessions for the highways. Semble — that the second rate, under such circum- stances, is not bad, although there was a former one existing, the second not being substituted for the first Regina v. Best, 16 Law J. Hep. (n.s.) M.C. 102; 5 Dowl. & L. P.O. 40. (ft) Notice of Action to. The members of a hoard for repair of the high^ ways in the parish of B, having resolved that the surveyor should be directed to open the locus in quo to the public, on the suggestion that there was an ancient right of footway over it, the surveyor did, in pursuance of such resolution, remove a gate obstructing such supposed right of footway. An action of trespass being brought against the mem- bers of the board and the surveyor, — Held, that they were entitled to twenty-one days' notice of action, under the 5 &6 Will. 4. c. 50. s. 109, it being admitted that the act was done bond fide. Smith V. Hopper, 16 Law J. Rep. (N.s.) Q.B. 93; 9 Q.B. Rep. 1005. [And see Action, Notice' of.] (C) Reparation. [^RegiTia v. the Inhabitants of Hickling, 5 Law J . Dig. 319; 7 Q.B. Rep. 880.] [And see post, (D) Indictment for Non-repair, (o) Liability to.l (D) Indictment for Non-Repair. (a) Liability to. By a local act of parliament it was enacted that a certain navigation company should make a good road to the township of T, at least seven yards wide, and should keep the same in repair, and should be liable to be indicted for not repairing the same ; and it was also provided that they should be en- titled to a tonnage of Id., which they were to apply to the making of the road. By a subsequent act of parliament the defendants (a canal company) were empowered to purchase from the first-men- tioned company the navigation and all the rights to tolls, &c., and were in like manner to be liable to be indicted for non-repair of the road. The road was kept in repair by the first-mentioned company to the extent of twelve yards wide till the year 1817, when the purchase by the defendants took place under the above act of parliament, and from that period by the defendants : — Held, that the defen- dants were, under the provisions of the statute, liable to he indicted for non-repair of the road to its full width of twelve yards. Held also, that a count charging them with a, liability to repair rations tenura of the land, &c connected with the navigation, and purchased by them under the powers of the second act of parlia- ment, could not be sustained. Begina v. the Sheffield Canal Co., 19 Law J. Rep. (n.s.) M.C. 44. By a local act (12 Geo. 1. e. xxxviii.) the pro- prietors of a navigation were directed to repair an ancient highway situate in the township of B, and were subjected to indictment in case of default. By the same act nothing therein contained was to excuse the inhabitants of the several towuships, &c. in which the said way lieth, from contributing to the repairs thereof with their carts, &c., or otherwise, as they are now obliged to do by law : — Held, that the township of B was not exempted from the com- mon law liability to repair the highway. In an indictment against a township for the non- HIGHWAY ; (D) Indictment for Non-repair. 311 repair of a road, an indictment against an adjoining township for non-repair of a poiition o^ highway in continuation of the road in question, either sub- mitted to or prosecuted to conviction, is admissible, as evidence to prove the road in question to be a highway. Regina v. the Inhabitants of Brightside BierloWf Regina v. the Inhabitants of Attercliffe cum Damall, Regina v. the Inhabitants of Tinsley, 19 Law J. Rep. (N.S.) M.C. 50. A large parish consisted of two townships, G and H, each of which, had immemorially repaired the highways situated within it separately, and also of a tract called "the Marsh," over which formerly there were no roads, and which was surrounded on three sides by G, and on the tbuith part by a sea hank dividing it from a salt marsh anciently over- flowed by the sea. Before the passing of an inclo- sure act, the landowners in G and H had rights of common over " the Marsh." Under the Inclosure Act, Commissioners set out a public and also a private road in the raarshj and awarded allotments on one side of the said roads in respect of the com- monable messuages, &c. in G, and on the other side in respect of those in H. " The Marsh" was situate at the opposite extremity of the parish to H, and no part of it being nearer than ten mileSi No re- pairs were ever done by G or H on the public road, nor on the private road till 1814, when the sur- veyors of G and H agreed to divide both the roads transversely, and that one portion should be main- tained by G and the other portion by H. On an appeal against an order of Justices, under the 5 ,& 6 Will. 4. c. 50. s. 58, dividing the roads transversely according to the agreement, the Sessions confirmed the order. On a case finding the above facts, the Court of Queen's Bench quashed the order of Sessions as being made without jurisdiction. The proviso in section 58. of the 5 & 6 Will. 4. c. 50. applies only to cases where a boundary line runs along a highway, and where the liability to repair is not at common law, hut ratione tenurte or elausuree. Regina v. Perkins, 19 Law J. Rep. (N.s.) M.C. 105. By a local act passed in 1823, which was to be in force for twenty-one years, and the preamble of which stated that the making and maintaining a certain turnpike road would be of advantage to the public at large, certain trustees were appointed, who were enabled to make the turnpike road, and required to erect sufficient fences where it passed through private lands. The act did not expressly declare that the road should be a highway, but it enabled all persons to use it on payment of toll. Part of the turnpike road was formed upon an existing road, which had been made under a local inclosure act, but which had never been declared to be completed, as provided by the 41 Geo. 3. K. 149. s. 9. The turnpike road was completed and opened to the public in 1833, and had for fourteen or fifteen years since that time been used by the public, and a coach had at one time travelled over it. Part of the ro^d passed through the parish of L, and was out of repair. No repairs had ever been done upon it by the parish. While the Turn- pike Act continued in force an indictment was pre- ferred and found against the parish of L for non- repair : — Held, that the roa,d was a common Queen's highway, which the parish was liable to repair, the user and the preamble of the statute shewing it to be beneficial to the public. That the indictment sufficiently described it as a common Queen's highway, without reference to its temporary nature Under the Turnpike Act or" the payment of toll. That the want of compliance with the provisions of the 41 Geo. 3. c. 149. s. 9, though it rendered the road under the inclosure act a highway, hut not repairable by the parish,"did not prevent it from having all the incidents rof a common -highway when adopted and used by the turnpike trustees. - That a breach of duty by the trustees, iunot making the road of a proper width, or erecting suffi- cient fences, was no answer to the indictment. Evidence was offered by the defendants at the trial to shew that although the road had been opened to the public and used by them, it had never been fully completed according to the requirements of the Turnpike Act. Held, that such evidence was properly rejected as irrelevant. Regina v. the Inhabitants ofLardsmere, 19 Law J. Rep. (N.s.) M.C. 215 j 15 Q.B. Rep. 689. (6) Order to indict. Justices in special sessions made an order under the 5 & 6 Will. 4. c. 50. ss. 94, 95, directing an indict- ment for non-repair of a highway to be preferred against the inhabitants of the parish of H. The order did not state that the highway was within the division for which the special sessions were held. At the trial the defendants had a verdict ; the jury finding that the highway was not within the parish of H. The Judge ordered the costs of the prosecution to be paid by the defendants. The Court set aside the certificate for costs, on the ground of the defect in the order of Justices. Quiere — Whether the certificate for costs must shew on the face of it that the order of Justices was properly made. Qutere, also, whether the Judge had jurisdiction to make such an order, the jury having found that the highway was not in the parish of H. Regina v. the Inhabitants of HicMing, 15 Law J. Rep. (n.s.) M.C.23i 7 Q.B. Rep. 880. (c) Costs to Prosecutor. The provision in the 5 & 6 Will. 4. c. 50. s. 95, as to the Judge's certificate for the costs of the prosecution of an indictment for the non-repair of a highway, only extends to cases where the liability to repair is disputed; and, therefore, where on an indictment for the non-repair of a public carriage- way, the defendants were acquitted, on the ground that the way was not a public highi«ay for carriages, and the Judge certified for the costs of the prosecu- tion, — Held, that he had no jurisdiction to make this certificate, and this Court set it aside. Regina v. the Inhabitants of Heanor, 14 Law J. Rep. (n.s.) M.C. 38; 6 Q.B. Rep. 745. An order for the costs of the prosecution under the 5 & 6 Will. 4. c. 50. s. 95. can only be made when the road is proved affirmatively to be a higWay; and the Court will not go into that question on 812 HIGHWAY ; (E) Divebting akd stoppimg-itp. affidavit Regina v. the Inhabitants of Down Hol- land, IS Law J. Rep. (n.s.) M.C. 25. If an indictment be preferred against the inha- bitants of a parish under the Highway Act, 5 & 6 Will. 4. t. 50. s. 95, and the defendants, plead guilty, the Judge will not direct the prosecutor's costs to he paid under that section, as the indict- ment was not tried before him, Regina r. Vmo- church, 2 Car. & K. 393. A Judge's order for costs of the prosecution of an indictment for non-repair of a highway, under the General Highway Act, 5 & 6 "Will. 4. c. 50. s. 95, should state on the face of it out of what funds the costs are to be paid ; and where it did not do so the Court set aside the order. Semble — that it should also state the amount. Semble — that where an indictment is preferred at the Quarter Sessions by order of special sessions, and is removed into this court by the defendants by writ of certiorari, and is then tried at Nisi Prius, the Judge sitting there is a "Judge of assize, before whom the said indictment is tried," within the meaning of the 95th section of the 5 & 6 Will. 4. c. 50, so as to be enabled to make an order for pay- ment of the costs of the prosecution. Where the order was made to pay the costs to " G H A" (the prosecutor) " or his attorney," Semble — that the order was not bad because " G H A" was dead at the time of the order made. Semble — that it need not appear by express averment, if it may be gathered by reasonable im- putation, that the highway in respect of which the indictment is preferred is within the division for which the Justices in special sessions were sitting, who ordered the indictment to be preferred. Semble — that it is not necessary that the Judge should state on the face of the order, the facts out of which his jurisdiction arises. Regina v. the Inhabitants of Watford, 4 DowL & L. P.C. 593. (E) Diverting and stoppikg-up. (o) Order of Sessions. By the General Highway Act (5 & 6 Will. 4. c. 50.) s. 82. two Justices are empowered to order any high- way to be widened, but such power is not to extend to pull down any house, &c. By section 84. and subsequent sections, if it appears to two Justices that any highway may be diverted, and the owner of the land through which the proposed new high- way is to be made shall consent thereto, the said Justices, upon proof of certain notices, and on delivery to them of a plan describing the old and new highways, may certify that the proposed new highway is nearer or more commodious to the public ; and this certificate, with the proof and plan so laid before them, is to be lodged with the clerk of the peace for the county, and read in open court at the next Quarter Sessions, and enrolled among the records of the court ; and if no appeal against the certificate is made, or being made, is dismissed, the Quarter Sessions may order the highway to be diverted, and the soil for such new highway to be purchased, " subject to such exceptions and con- ditions in all respects as is mentioned with regard to highways to be widened." Semble — that the limitation as to not pulling down any house, &c. does not apply to the case of divert- ing a highway, which must be done with the consent of the owner of the land through which the new road passes ; but, Held, (assxmiing it to apply to such a case) that, where, at the instance of A, and with his consent, the Quarter Sessions duly made an order that an existing highway should be diverted, and a new highway substituted through the lands of A, which the surveyors were thereby authorized to purchase for that purpose, with a proviso that in so doing the surveyors were not to pull down any house, &c., and the surveyors made the new road, not according to the plan deposited with the clerk of the peace, but as nearly on the site there delineated as was practicable, without pulling down a house, that the statutory power for diverting the old highway had not been properly carried out. Held, also, that the proviso rendered the order of Sessions bad on its face, for throwing that upon the discretion of the surveyors, who are ministerially to execute, what is in truth a restraint upon the power of the magistrates who are to order ; and that if it were rejected, the new highway would not be made in pursuance of the order. Regina v. the Newmarket Rail. Co., 19 Law J. Rep. (N.s.) M.C. 241 ; 15 Q.B. Rep. 692. (6) Award of Inclosure Commissioners. An ancient public bridle-way existed for the greater part undefined over common uninclosed lands, the remaining part being through old inclo- sures. By an award of Inclosure Commissioners under an act, 54 Geo. 3. c. clx. the road, altered in some parts, and defined throughout within narrower limits, was set out as " one public bridle-road and private carriage-road for the use" of certain private individuals named, to be kept in repair by them. No order of Justices for stopping up or diverting the old road, or certificate of the sufficiency of the new road, had been obtained : — Held, that the award did not operate under the General Inclosure Act, 41 Geo. 3. c. 109, as a diversion or stopping up of the old public bridle-road, and setting out of a new one, but that the public had the same right of passage as before, and therefore that the parish in which the road lay remained liable to do such repairs as were requisite to maintain it as a public bridle-road. Regina v. the Inhabitants of Cricklade, 19 Law J. Rep. (n.s.) M.C. 169. (c) Appeal against Certificate. The 85th section of the 5 & 6 Will. 4. c. 50. re- quires the certificate of Justices for stopping up a highway, to be read at " Quarter Sessions to be holden for the limit" within which the highway so stopped up shall lie, next after the expiration of four weeks from the day of the certificate having been lodged with the clerk of the peace, and section 88. gives an appeal to the " said Quarter Sessions" upon giving ten days' notice thereof: — Held, that this means the General Quarter Sessions for the county, and not any adjournment thereof; and where the sessions are held on certain fixed days at diflerent places for diflTerent divisions of a county, hut on each by adjournmertt from the preceding, the four weeks under the 85th section, and the ten HOLDERNESS DRAINING ACT— INCLOSURE. ,313 days' notice of ajipeal required under the 88th sec- tion, must be reckoned with reference to the eom- meneement of the sessions for the first division, though the highway is not situate within such divi- sion. Regina v. the Justices of Suffolk, 17 Law J. Rep. (n.b.) M.C. 143 ; 5 Dowl. & L. P.C. 558. HOLDERNESS DRAINING ACT. [See Rate, Retrospective Rate.] HOUSE OF colviiSroNs. : The acts relating, to the offices of the House of Commons further amended by 12 & IS Vict. c. 72 i 27 Law J. Stat. 139. i HULL DOCK ACT. [See Lands Clauses Act, Assessment of Com- pensation.] HUSBAND AND WIFE. [See Baron and Feme.] INCLOSURE. (A) Right of Lessor toInolosoreby Lessee.- (B) ConstRuoiion OF INCLOSURE Acts. (a) Wayleave to carry Minerals, (6) Reservation Clause as to. Mines and Minerals. (C) Proceedings under Inclosukb Acts. (A) RiGHTOP Lessor TO Inclosuke by Lessee, In 1756, E L demised to R J a farm and lands, for the lives of R J, his wife, and T J their son. The farm adjoined a common, over which the oc- cupiers of the farm had rights of common. Subse- quently to the lease, R J inclosed small portions of the common, and by writing indorsed on the lease, and signed and sealed by himself and his landlord, dated 1778, agreed that the inclosure should be deemed a part of the farm, and should be occupied by R J, his executors, &c., at the yearly rent of 6d., and be delivered up by him to his landlord ditched and fenced at the end of the term. In 1785, R J built a house upon the common, which was occu- pied by T M, and made other inclosnres. In 1792, by deeds of lease and release, he bargained and sold to his son a house built upon the common, occupied by. T M. No possession followed the deeds, nor were the deeds delivered to the grantee. By an- other similar indorsement on the lease in 1793, it was agreed, that a house on the common occupied by T M, and all inclosures then already made, should be surrendered to the landlord at the end of the demise ; and that R J should repair the house and pay 6A annually as an acknowledgment for the same. The farm, the house, and inclosnres were Digest, 1845— 1850, possessed and' occupied by R J until his dSath, when they then passed into the hands of other members of his family, and were finally in the pos- session of T J, the last cestui que vie, until his ' death in 1837. The lessor of'the plaintiff was the heir of E L, the original lessor, and the defendant was the heir of T J, the cestui que vie. No evidence was given of any payment of the rents, made payable by the two indorsements :— Held, first, that it is a pre- sumption of law, that a tenant making inclosures makes them for the benefit of his landlord ; secondly, that the indorsements were equivalent to an admis- sion that R J inclosedfor the benefit of his landlord, and resembled an attornment! thirdly, that the second indorsement did not amount to an invalid surrender, but' to an agreement to surrender ; and lastly, that the deeds of lease and release conveyed no interest to the son of R J, and thait the lessor of the plaintifi'was entitled to recover. Doe d. Lloyd V. Jones, 16 Law J. Rep. (n.s.) Exch, 58 ; 15 Mee. & W. 580. (B) CONSTBUPTION OF INCLOSURE AcTS. (a) Waylfave to carry Minerals. An act of parliament for inclosing the moors and commons within the manor of Lanchester, in the county of Durham, contained a saving of all the seignorial rights of the Bishop of Durham as lord of the manor, and also provided, that the bishop and his successors, and their lessees and assigns, should at all times thereafter work and enjoy all mines and quarries lying under the said moors and commons^ together with all convenient and neces- sary ways and wayleaves over the same, and full and free liberty of making and'using any new roads or waggonways over the same, and for that pur- pose to remove obstructions, &c., and of winning and working the said mines and quarries belonging to the see and bishoprick of Durham, wheresoever the same should be, and of leading and carrying away all the coals, minerals, &c. to be gotten there- out, or out of any other lands and grounds whatso- ever, &c." : — Held, that this clause entitled the bishop to carry over the lauds inclosed under the act, not only coals and minerals got within or under those lands, but also those got out of any other mines belonging to the see of Durham t but not to carry coals, &c. got out of other mines worked by the bishop, but not belonging' to the see. Held, also, that an allegation, that a certain col- liery was within and parcel of the manor, was not a sufficient allegation that it was a colliery belonging to the see. Midgley v. Richardson, 15 Law J. Rep. (N.S.) Exch. 257s 14 Mee. & W. 595. (i) Reservation Clause as to Mines and Minerals. Certain waste lands in the manor of Shipley, to the soil of which, and everything constituting the soil, the lord of the manor was entitled, were by an _ inclosure act, 55 Geo. 3. c. xviii, which recited the lord's title, taken away from the lord and allotted to commoners, except as saved by the 32nd clause. That clause reserved to the lord all mines and mine- rals of what nature or kind soever, lying and being within or under the saidcommons and waste grounds, in as full, ample and beneficial a manner, to all intents and purposes, as he could or might have held and enjoyed the same in case the said act had 2S 314 INCLOSURE— INDEMNITY. not been made ; and enacted, that he should and might at all times thereafter have, hold, win, work and enjoy exclusively all mines and minerals of what nature or kind soever, within and imder the said commons and waste grounds, with full liberty of digging, sinking, searching for, winning and working the said mines and minerals, and carrying away the lead ore, lead, coals, ironstone and fossils to be gotten thereout; provided that the lord, in the searching for and working the said mines and minerals, should keep the first layer or stratum of earth separate and apart by itself, without mixing the same with the lower strata. The 33rd section provided for reimbursement to the owners of allot- ments, for injury done by searching for or working mines and minerals: — Held, that the reservation clause must be construed with reference to the title of the lord to the whole of the soil, and inasmuch as the object of the act was to give to the commoners the surface for cultivation, and leave in the lord what it did not take away for that purpose, the word ** minerals" must be understood, not in its general sense, signifying substances containing metals, but in its proper sense, including all fossil bodies or matters dug out of mines, that is, quarries or places where anything is dug; and this, notwith- standing the provision in the latter part of the clause, authorizing the carrying away the " lead ore, lead, coal, ironstone, and fossils," as fossils may apply to stones dug or quarried. Therefore, that the clause reserved to the lord the right to the stratum of stone in the inclosed lands. The 18th section directed the commissioner to set out parts of the waste for places for getting " stones and other mineral^' for the erection and repair of buildings, walls, fences, &c. Semble — that the word "minerals" was used by mistake for materials. Earl of Rosse v. Wainman, 15 Law J. Rep. (n.s.) Exch. 67; 14 Mee. &W. 859; affirmed in error, 2 Exch. Rep. 800. (C) Pkoceedtngs undee Inclosuhe Acts. An award made by an assistant luclosure Com- missioner, that a certain common was within the manor of L, was removed into the Court of Gueen's Bench by certiorari, on the application of the lord of the manor of E, who claimed the common to be parcel of his manor. On his expressing himself dissatisfied with the award, and requiring to have the matter tried by a feigned issue, and stating as the ground of his dissatisfaction that the award was wrong, and setting forth the evidence in support of his claim, the Court directed the trial of a feigned issue under the statute 8 & 9 Vict. c. 1 18. s. 44. to determine the disputed question of boundary. Regina v. Kelsey, 19 Law J. Rep. (n.s.) Q.B. 523. An act empowering commissioners therein named to inclo.se certain lands in the township of A, and reciting that it would be of great advantage to the proprietors of such open lands that the same should be allotted and divided, enacted, that it should be lawful for "the commissioners to set out and make such ditches, watercourses, &c., of such extent and form, and in such situations as they shall deem necessary in the lands to be inclosed, and to enlarge and improve any of the existing watercourses, &c. : ^Held, that the commissioners were not thereby justified in draining the water from the lands to be inclosed into ap ancientwatercourserunningthrough the township of B into the township of A, so as to obstruct the drainage of the plaintiff's lands in the township of B, by means of the said ancient water- course, to his damage and injury. Dawson v. Paver, 16 Law J. Rep. (n.s.) Chanc. 274 ; 5 Hare, 415. INDEBITATUS ASSUMPSIT. Executed Consideration. Where the father of an illegitimate child, in order to prevent the mother from applying to the magis- trates for an order in bastardy, promised to pay her 2s. 6d. per week for the child, and the time for going before the magistratehad expired before action brought without any application having been made, — Held, that indebitatus assumpsit lay at the suit of the mother against the father for the child's main- tenance, the consideration, which was originally executory, having been executed. Linegar v. Hodd, 17 Law J. Rep. (n.s.) C.P. 106 ; 5 Com. B. Rep. 437. Where in indebitatus assumpsit the plaintiff by his declaration claims one sum in respect of work and labour, money paid, and money had and re- ceived, the whole forms only one count. Where, therefore, the latter part of the declara- tion was bad for not alleging that the money was paid, &e. at the request of the defendant, — Held (after a general verdict for the plaintiff), that the defect in the declaration was no ground for arresting the judgment. M'Gregorv. Graoes, 18 Law J. Rep. (n.s.) Exch. 109 ; 3 Exch. Rep. 34. INDEMNITY. A declaration in assumpsit contained a set of counts for work done, and money paid by, and on an account stated with D, alleging promises made to D, and a similar set of counts by and with the plaintiffs as executors of D, laying the promises to the plaintiffs as such executors. The second plea stated that D, being the projector of a railway company, agreed, in consideration of the defendant consenting to act as member of the provisional committee, to indemnify him from any professional or other charges on account of the said railway j that the defendant accordingly consented to become and be- came a member of the provisional committee ; that the said work and labour, monies, and accounts in the declaration were respectively done, paid, and stated by D and by the plaintiffs as Ms executors, in and about the surveying the line of the said rail- way, and after the said agreement^toi^indemnify ; that the defendant became liable to the said pro- fessional and other charges, and made the promises in the declaration mentioned, only in his character of member of the provisional committee ; that after the accruing of the causes of action the railway was abandoned, and the said work done and money paid became wholly useless and of no value to the defen- dant ; and that any money paid by or damage re- covered from the defendant, in respect of the said work or payments, will be wholly lost to the defen- dant, and that the defendant will be thereby damni- INDEMNITY— INDICTMENT. 315 fied, contrary to the said agreement. Last plea, that the said D in his lifetime caused Snd procured the defendant to enter into the promises in the de- claration by fraud and covin. On special demurrer, -^Held, that the first plea was a good har to avoid circuity of action. Held, also, that the last plea was well pleaded to the whole declaration, as the defendant had a right to treat the work done and money paid by, and account stated with the plaintiffs, as being done, paid, and stated in continuance and in respect of the previous contract with D ; and that fraud used in procuring that contract extended to the implied promise arising from the plaintiffs' performance of it. Conmp v. Levy, 17 Law J. Rep. (n.s.) CI.B. 125 ; 11 Q.B. Rep. 169. A, tenant to B, received notice from C, a mort- gagee of B's term, that the interest was in arrear, ihd requiring paytaent to her, B, of the rent then due. A, notwithstanding this notice, paid the rent to B (under an indemnity which turned out to he unauthorized), and was afterwards compelled, by distress to pay the amount over again to C : — Held, that the payment to B was a voluntary payment, with full knowledge of the circumstances, and therefore not recoverable back in an action for money had and received. At the trial, in support of a special count founded upon the indemnity, the plaintiff proved that one H was B's general attorney ; and he then proposed to prove that H, as such attorney, had given the indemnity : — Held, that this evidence was not ad- missible, in the absence of proof of H's authority to make such a contract for his client, Higgs v. Scott, 7 Com. B. Rep. 63. INDICTMENT. [See Attorney and Solicitok — Eerob, When it lies — Practice — PiEADiNG^and the several titles of Criminal Offences.] (A) Indictable Offences. (B) Who may be indicted. (C) Venue. (D) Caption. (E) Necessary and immaterial Averments. (F) Descriptive Allegations. (G) Judgment and Sentence. (H) Removal by Certiorari. (I) Quashing. Defects ip the administration of criminal justice removed by 11 & 12 Vict. >;. 46 ; 26 Law J. Stat. 141. The administration of the criminal law further amended by 11 & 12 Vict. o. 78; 26 Law J. Stat. App. i. (A) Indictable Offences. The second count of the indictment charged that the defendant, contriving, &c. to injure B S, being a person of unsound intellect, and incapable of taking care of himself, did, "wMlst" the said B S was under the care, custody, and controul of the defendant, and whilst the defendant received divers sums of money for his support and maintenance, unlawfully confine him in an unwholesome room, and neglect to clothe him, and suffer him to be covered with filth. &c. The third count charged that B S was the illegitimate son of the defen- dant, and was of unsound intellect, and that the defendant had ample and suflSoient means for the comfortable support and maintenance of her- self and the said B S, whereupon it became and was the duty of the defendant to take due and proper care of the said B S, yet she ne- glected to do so, and confined him (as before) : — Held, on motion for arrest of judgment, that the second count was bad for not containing a direct averment that B S was ever under the care or con- troul of the defendant. Held, also, that the third count was bad for want of any allegation shewing it to be the duty of the defendant to take care of him, or that any injury resulted to BS by the acts of the defendant, or was the necessary consequence of them. Regina v. Pel- ham, 15 Law J. Rep. (n.s.) M.C. 105; 8 Q.B. Rep. 959. If an indictment be bad this Court will quash it, although no question is reserved thereon. To sustain an indictment for a nuisance at com- mon law by indecent exposure, it is essential to prove that it was done in the sight of more than one person. Q««re— Whether an indictment charging the ex- posure to have taken place in the presence of divers persons is good. Regina v. Webb, 18 Law J. Rep. (n.s.) M.C. 39 ; 1 Den. C.C. 338 ; 2 Car. & K. 933. By statute 49 Geo. 3. c. 126. s. 3. it is provided that if any person shall sell, or bargain for the sale of, or take any money for any office, commission, place, or appointment belonging to or in the ap- pointment or controul of the East India Company, such person and every person aiding and abetting shall be guilty of a misdemeanour. W was pre- sented to the court of directors as a cadet, on the nomination of A B a director, and C D received a sum of money for such nomination. It appeared that W, by virtue of such nomination, was entitled to proceed to India as a cadet, but did not receive or hold any commission or appointment till his arrival there. On an indictment against C D, for receiving the money, and A B, for aiding and abetting, — Held, that a cadetship was an office, commission, place, and appointment, and that the offence was complete within the statute. Regina v. Charretie, 18 Law J. Kep. (n.s.) M.C. 100; 13 Q.B. Rep. 447. The merely exposing and deserting an infant a month old in a public place, for the purpose of hurthening a parish with its maintenance, is not an offence for which the person in whose care the infant had been, and who so exposed it, can be indicted. Regina v. Cooper, 18 Law J. Rep. (n.s.) M.C. 168; 1 Den. C.C. 459 ; 2 Car. & K. 876. An indictment alleging that the prisoner " did unlawfully attempt and endeavour fraudulently, falsely and unlawfully to obtain from A B a large sum of money, to wit, the sum of 22/. 10»., with intent thereby then and there to cheat and defraud the said A B," is bad in arrest of judgment, as it does not sufficiently allege an indictable offence. Regina v. Marsh, 19 Law J. Rep. (n.s.) M.C. 12; 1 Den. C.C. 505. 316 INDICTMENT. (B) Who may be indicted. An indictment will lie against a corporation for a misfeazance at common law. kegina v. the Great North of England Rail. Co., 16 Law J. Rep. (n.s.) M.C. 16 ; 9 a B. Rep. 315. (C) Venue. [Regina v. Gompertz, 5 Law J. Dig. 326 ; 2 Dowl. 6 L. P.C. 1001.] A count in an indictment for misdemeanour, with the venue " Lancashire" in the margin, stating that certain unlawful assemblies were held by evil- disposed persons at " divers places," and that the defendants, " at the parish aforesaid, in the county aforesaid," unlawfully aided and abetted the said evil-disposed persons, — Held, good on motion in arrest of judgment, the "want of a proper or perfect venue" (no place being stated where the unlawful assemblies were holden) being cured by the 7 Geo. i. c. 64. s. 20. A count, stating that the defendants, together with other evil-disposed persons, &c., imlawfully did endeavour to excite Her Majesty^s subjects to disaffection, &c., no place being stated, — Held, bad on motion in arrest of judgment, there being no words of reference to the venue in the margin, and the defect not being cured by the said statute. Regina v. O'Connor, 13 Law J. Rep.(N.s.) M.C. 33. An indictment, preferred and found at the Cen- tral Criminal Court, described the defendants as late of the parish of M, in the county of Middlesex, and alleged the oiience to have been committed at the parish aforesaid, in the county aforesaid, and within the jurisdiction aforesaid. This indictment was removed by certiorari, before the passing of the statute 9 & 10 Viet, c, 24, and was tried in this court by a Middlesex jury : — Held, that the bill, having been found by a competent authority, and shewing an offence committed in Middlesex, was properly tried in Middlesex by a jury of that county. Regina v. Hunt, 17 Law 3. Rep. (n.s.) M.C. 14 ; 10 as. Rep. 925. (D) Caption, An indictment, the caption of which was in the usual form, commenced " The jurors o/our Lady the Queen," and laid the offence as "in the tenth year of our Sovereign Lady Victoria," &c. : — Held, on writ of error, first, that taking the caption and the indictment together, there was no error in the description of the grand jurors ; secondly, that the statement of time, if incorrect, was cured by the 7 Geo. 4. c. 64. s. 20. Broome v. Regina, 17 Law J. Rep. (N.s.) M.C. 162 ; 12 a.B. Rep. 834. (E) Necessary and immaTehial Averments. Where the indictment for stealing a mare, saddle and bridle, omitted the conclusion, contra formam, and the verdict was, guilty generally, — Held, that as the stealing the mare as well as the other things was a felony at common law, the offence was well described in the indictment, and that the punish- ment under the 7 Will. 4. & 1 Vict c. 90. s. 1. might be given in respect of the mare stolen. Wil- liams v. Regina, 7 Q-B. Rep. 250. _ In an indictment for stealing 2s. of the current silver coin of the realm, described as the goods and chattels of Samuel Fitch, the words " of the goods and chattels" are surplusage, and may be rejected, money not falling within the legal technical defini- tion of "goods and chattels"; and the remaining allegation, " of Samuel Fitch," is a sufficient de- scription of the property. Regina v. Radley, 18 Law J. Rep. (n.s.) M.C. 184; 1 Den. C.C. 450; 2 Car. & K. 974. An indictment against a bankrupt which alleged that at the time of his examination under the fiat he was possessed of a certain real estate, and then charged that at the time of his said examination he feloniously did not discover when he disposed of the said estate, With intent to defraud his creditors, Was held bad in arrest of judgment, for not contain- ing an averment that the prisoner had in fact dis- posed of the said estate. Regina v. Harris, 19 Law J. Rep. (N.s.) M.C. 11 ; 1 Den.C.C. 461. An indictment, preferred at the assizes, under the Stat. 7 & 8 Vict. c. 2, for a crime committed on the high seas, need not conclude contra formam atatuti. Regina v. Sena, 2 Car. & K. 53, An indictment under the statute 7 Vict. c. 2. (for the more speedy trial of offences committed on the high seas), need not contain an averment that the offence was committed " within the jurisdiction of the Admiralty." Regina v. Jones, 1 Den. C.C. 101 ; 2 Car. & K. 165. [See Peejukt.] (F) Deschipuve Allegations. An indictment describing the prosecutor (a foreigner) as Charles Frederick, Duke of Bruns- wick, that being the title by which he continues to be known, is good, though he be no longer the reigning Duke of Brunswick, and though his proper family surname he omitted. Regina v. Gregory, 15 Law J. Rep. (n.s.) M.C. 38 ; 8 Q.B, Rep. 508. An indictment alleged that the defendant on Henry Bennett did make an assault, and him the said William Bennett did beat, wound, &c. : — Held, good, on motion in arrest of judgment. Regina v. Crispin, 17 Law J. Rep. (n.s.) M.C 128; 11 Q.B. Rep. 913. Indictment stated that the prisoner, a' single woman, on the 27th of August 1844, brought forth a male child alive ; that she afterwards, to wit, on the day and yejir aforesaid, killed the said child. Objection that the judgment ought to have either stated the name of the child, or that its name was unknown to the jurors, overruled by Coleridge, J. at the trial, on the ground that there was no pre- sumption, from the mere fact of birth, that the child had a name, it being a bastard ; that the in- dictment afforded no presumption of its having acquired a name by reputation or baptism ; that an averment that the name was unknown, implied the acquisition of some name. — Conviction held right. Regina v. Willis, 1 Den. C.C. 80. Prisoner indicted under the statute 7 & 8 Geo, 4, c. 29. s. 25, for stealing " sheep." The jury found that the animal so described was a "lamb." In- dictment held good. Regina v Spicer, 1 Den. C.C, 82. The first count of an indictment for murdering a child described the infant " as an infant female child bom of the body of S W and of tender years, INDICTMENT. 317 to wit, of about the age of two days and no^ named." The second count described her as the " said infant female child so born of the body of th,e said S W as aforesaid, and not named." The qount then charged that the said S W assaulted the said infant female child, and threw her iu and upon a heap of dust and ashes, and left her there exposed to the cold air, and that by reason of such exposure the death was occasioned : — Held, first, that the word "said," in the second count, did not incorporate the averment as to the age of the child in the first count; secondly, that as the indictment charged the death to have been caused by the wrongful act of the prisoner, and the jury had found her guilty, the omission to state the age was immaterial, for^t must be taken after verdict that the child was un- able to take care of itself, and that the prisoner's act caused its death, and the count therefore was good; thirdly, that the description of the child as " not named" was sufBcient. Regina v. Waters, 18 Law J. Rep. (n.s.) M.C. 53 ; 1 Den. C.C. 356 ; 2 Car. & K. 864, (G) Judgment and Sentence. The first count of an indictment charged a steal- ing in the dwelling-house of D, above the value of 51. The second count charged simple larceny of the monies of D, on the day and year aforesaid. The jury process was to try " whether the prisoners are guilty of the felony aforesaid," and the verdict was "that they are guilty. of the felony aforesaid." The Court adjudged the prisoners to be transported for ten years: — Held, first, that the indictment charged two felonies, and in that respect was good ; that if the two counts necessarily charged the same ofience, the indictment would have been bad in arrest of judgment. Held, further, that the word " felony" is not nomen eoUeetivum ; that by the verdict the prisoners were found guilty upon one count only, not saying which ; that the verdict was, therefore, bad for un- certainty; that the judgment was also erroneous, not being warranted by the last count, and the Court not being at liberty to apply the judgment to that part of the record, viz. the first count, which would support it. The Court set aside the verdict and judgment, and awarded a venire de novo. Campbell v. Regina, 15 Law J. JRep. (n.s.) M.C. 76. On a conviction for stealing, in a dwelling-house above 51, before the 9 Sc 10 Vict. c. 24, judgment of seven years transportation on error reversed, the 7 Will. 4. and 1 Vict. c. 90, subjecting the party convicted to be transported for not exceeding fifteen years, nor less than ten years. Semble — a conviction with the county stated in the margin, reciting the names of the grand jurors by whom the indictment had been found, adding their residences, but not stating them to be good and lawful men within the county, nor any mention made of the county, a good ground of error. (Per Palteson, J.) Whitehead'^. Regina, 7 QJ&. Rep. 582. The first count of an indictment, tried at the Quarter Sessions for the city of C, charged a steal- ing in the dwelling-house of D above the value of 51. ; the second count charged a simple larceny of the monies of D. The jury process was to try "whether the prisoners are guilty of the felony aforesaid." The record stated that the jury found that the prisoners were " guilty of the felony afore- said." The recorder adjudged the prisoners to be transported for ten years. On a writ of error to the Exchequer Chamber, — held, (aiBrming the judgment of the Queen's Bench — see case above) that the entry of the verdict and judgment was un- certain, the word " felony" in this venire meaning no more than one felony. Held, also, (affirming the judgment of the Queen's Bench) that a venire de novo may be awarded in a criminal case where there has been a misawarding of the jury process ; but 6a«rc— Whether a venire de novo can issue in a case of felony on account of a defective verdict Held, also, thataWerajVe de novo may be awarded after judgment on an indictment for felony, and that it may issue to the Court of Quarter Sessions. Campbell V. Regina, 17 Law J. Rep. (ii,s.)M.C. 89; 11 Q.B. Rep. 799. Upon the trial of an Indictment at Nisi Prius, judgment was pronounced by the presiding Judge under 11 Geo. 4. & 1 Will. 4. c. 70; but a rule nisi to arrest the judgment was afterwards granted by the Court of Queen's Bench, within the first six days of term, and subsequently discharged. Upon writ of error brought, the record was made up with- out any notice of such rule: — Held, that the judg- ment could not be impeached upon the ground of such rule having been granted. Dunn v. Regina, 18 Law J. Rep. (n.s.) M.C. 41; 12 Q.B. Rep, 1031. Prisoner indicted in first count for obtaining from prosecutor an order for the payment of 14?. Is. 2d. by false pretences with intent to defraud him of the same ; in second count for obtaining an order for 16/. 2s. 8rf, with intent to defraud the prosecutor of part of the proceeds thereof, to wit, 65. 6d. Evi. dence as to first count, that the prisoner only in- tended to defraud prosecutor of 7s-, as the rest of the money was really due. Second count proved as laid. General verdict of guilty : — Held, first count proved. A separate sentence recommended to be passed on the other count. Regina v. Leonard, 1 Den. C.C. 304; 2 Car. & K. 514. (H) Removal by Certioraki. The Court will not discharge a side bar rule for costs of a prosecution obtained by a party grieyed, on the ground that such party is only one of several, who have subscribed together to conduct the prose- cution. Regina v. Williams, 15 Law J. Rep. (n.s.) Q.B. 98, u. ; 6 Q.B. Rep. 273. The Court will not inquire into any. aid which a prosecutor may have received from other parties to enable him to defray expenses of prosecution. Regina v. Dobson, 15 Law J. Rep. (n.s.) Q.B. 376 ; 9 Q.B. Rep. 302. (I) Quashing. [Regina v. Wilson, 5 Law J. Dig. 327; 6 Q.B. Rep. 620.] [And see (A) Indictable Oflfences.] 318 INFANT. INFANT. [See Contract, ■When valid or illegal — Settle- ment, by the Court of Chancery.] (A) Maintenance. (a) Generally. (b) Practice as to graniing, (B) GuAsmiAN. (a) Appointment of. (4) Depriving Father of Guardianship. (c) Restraining undue Ivjiuence of, (d) Payments and Allowance to. (e) Changing Guardian. (C) Wakd of Covet. (D) Rights and Liabilities of. (E) Sale and DisposiTio^InF Pkopektt. (F) Conveyance op Real Estate undeb 1 Will. 4. c. CO. (G) SuiNO BY Pbochein Ami. (A) Maintenance. (o) Generally. Order made for a liberal allowance for the main- tenance and education of a female infant, whose father is living, with a view to her being brought up in a manner suitable to her fortune and expec- tations. Ex parte Williams, 2 Coll. C.C. 740. Upon the petition of an infant plaintiff for an order for present maintenance and education, and to provide for a future increased allowance on his entering at a specified time and continuing at the University, the Court ordered a present allowance and made a prospective provision for an increased allowance from the future day until twenty-one, or the further order of the Court, to be applied by the testamentary guardian of the infant. Nunn v. Har- vey, 2r)eGex&S. 301. Bruin v. Knott, 5 Law J. Dig. 329, overruled. 1 Ph. 572. A life policy of assurance was settled, on the marriage of A and B, on B the wife, for life, with remainder to A, the husband, for life, with remain- der to the children of the marriage, at twenty- one ; with remainder, in default of children, as B should appoint. B appointed her interest to A, and died, leaving only one child. After B's death a bonus became payable on the policy. A petition was presented by the trustees and A, stating that A was unable to support his child, and was going to emigrate, and praying that the sum receivable in respect of the bonus might be paid to the trustee, and applied for the maintenance of the child. The prayer of the petition was granted, on condition that A gave up his life interest under the settlement. Ex parte Hays, 18 Law J. Rep. (n.s.) Chanc. 441. (6) Practice as to granting. Upon a petition, on behalf of infants who had lost their father, for an allowance by way of maintenance, an inquiry to ascertain whether the mother was of sufficient ability to maintain- and educate them was refused, as being contrary to established rules. Douglas V. Andrews, 19 Law J. Rep. (n.s.) Chanc, 69; 12 Beav. 310. (B) Guaedian. [In re Park, 5 Law J. Dig. 330 ; 14 Sim. 89.] (a) Appointment of. Guardian of the estate of an infant appointed on petition without suit or reference. Ex parte Bond, 16 Law J. Rep. (n.s.) Chanc. 147. The fact of infants being resident in two different parts of the kingdom is no ground for dispensing with the practice of assigning a guardian ad litem by commission, or on their appearance. Mower v. Orr, 6 Hare, 417. (b) Depriving Father of Guardianship. Before the Court will deprive a father of the gnardianship of his children, it must be satisfied that he has so conducted himself or placed himself in snch a position as to render it essential to the safety or the welfare of the children that the father's lights should be interfered with (except in cases within the 2 & 3 Vict. c. 54). Although the children being in the mother's custody excludes theoperation ofthe 2 & 3 Vict. c. 54, the provisions of that act should be regarded upon an application by her to retain such custody, and to prevent the father's interference. Conduct shewing the father to be a person to whose guardianship it would be very objectionable to entrust children,— Held, sufficient ground for depriving him of their custody, and providing otherwise for their care, maintenance, and educa- tion, where such a provision can by actual appropria- tion of property or otherwise be effectually secured. But where the only security proposed was a deed of covenant of the father's mother-in-law, to provide for the maintenance and education of the children for her life, — Held, that the Court could not inter, fere. In re Fynn, 2 De Gex 8i S. 457. (c) Restraining undue Influence of. [See Contract, Validity of.] Proceedings at law were stayed where the claim originated in obligations entered into by a young lady who had attained her majority about eighteen months previously, and who was and had been for some time residing in the house and under the care of her near connexion and late guardian ; the obli- gations being for the sole benefit ofthe guardian and of the obligees, who had a common interest with him, the latter knowing the relationship in which the lady stood to the guardian, and taking no steps to ascertain whether she acted upon her free will and with full knowledge of the liability she was incurring. Maitland v. Irving, 16 Law J. Rep. (n.s.) Chanc. 95 ; 15 Sim. 437. The plaintiff was a young lady who had been a ward of court ; and eighteen months after coming of age, while continuing to reside with her guardian, she had indorsed a promissory note, drawn by her guardian in her favour. The note was given by the guardian to certain creditors in part payment of a debt, and was by them presented to their bankers and discounted. It appeared that the bankers knew the relative position of the plaintiff and her guar- dian, and also knew that the guardian had been in embarrassed circumstances previous to the note INFANT. 319 beingpresented : — Held, under these circumstances, that it was the duty of the banlcers to have inves- tigated the transaction, and an injunction was granted to restrain them from taking proceedings at law upon the note. Considerations which influence Hie Court in ordering money to be paid into court, when the title to it is disputed. Maithmd v. Backhousei 17 Law J. Rep. (n.s.) Chano. 121 j 16 Sim. 58. (d) Payments and Allowance to. Order made that the dividends of a very small sum of stock, belonging to six infants, should be paid to their guardian until the youngest should attain twenty-one, or further order. In re Butter- field, 19 Law J. Rep. (k.s.) Chanc. 373. Dividends of a fund in, court ordered to be paid to the solicitor of an infant resident abroad with a guardian appointed by a foreign court, he under- taking to remit them to the guardian. In re Mor- rison, 16 Sim. 42. Upon a petition presented on behalf of an infant, who was residing with her guardian in America, and whb was entitled to a sum of money, which had bgen paid into court for her benefit, an order was made that the dividends of the said sum should he paid to an officer of this «>urt, by whom it should be paid over to her guardian. /« re Morrison, 17 Law J. Rep. (n.s.) Chanc. 41. Semble — that the 1 Will. 4. c. 56, s. 32* empowering the Court, on the petition of the guardian of an in- fant, to direct payment of maintenance out of divi- dends of stock standing in the infant's name, does not authorize the appointment of a guardian and a direction for payment, of dividends upon the same petition, although the guardian appointed is one of the petitioners, but that two petitions are proper. In re Pongerard, 1 De Gex & S. 426. The Court exercises a controul as to the allow-' ance ordered to be paid to a testamentary guardian with reference to any change of circumstances. Jones V. Powell, 9 Beav. 345. (c) Changing Guardian. Upon an infant, a boy of the age of nine years, being brought up before the Court by habeas corpus, it appeared that upon the occasion of her husband's death, the mother then residing in India, gave over the child into the care of her late husband's mother, who subsequently died, leaving all her property to this grandchild and his brother, and appointing two persons her trustees and executors, and the guar- dians of the child ; these persons acted, and had con'* tinned to act, as guardians, and were recognized as such, and approved of by the mother, and their con- duct as guardians was not impeached in any way ; she, however, marrying again, and still residing in India, suddenly executed, conjointly with her hus- band, a warrant of attorney, authorizing certain parties, therein named, to demand and receive the custody of the child. This demand had been made upon and refused by the guardians, and in conse- quence of such refusal application was made, under this warrant of attorney, for the habeas corpus. Under these circumstances, the Court refused to disturb the custody of the child. Semble — that a party who is of right entitled to the custody of an infant cannot, by warrant of at- torney, empower another person to apply to this Court to change the eustody. In re Preston, 17 Law J. Rep. (N.s.) a.B. 21 ; S Dowl. & L. P.C. 633. ' ' (C) Ward OF Court. [See Trespass.] Upon a petition to confirm the Master's report, approving of a settlement on the marriagje of a ward of court, the Court varied the proposed terms of the settlement, by giving the intended wife a power to appoint any part, not exceeding one-half part, of the principal of the trust money, in favour of the issue of any subsequent marriage of the intended wife. Rudge v. Winnall, 17 Law J. Rep. (n.s.) Chanc. 215 ; 11 Beav. 98. A lady who was entitled to property upon attain- ing twenty-one or marriage, married uiider age : — Held, that this contingent interest in property was sufficient to entitle her to be made a ward of Court ; and that her mother, although in the light of a stranger to the property, might present a petition to have a settlement under a decree of the Court. Russell v.Nieholls, 16 Law J. Rep. (n.s.) Chanc. 47. (D) Rights and Liabilities op. [See Company — Winding-up Acts, Contri- butory.] The resolution of Trinity term, 3 Vict, declaring the costs of the application to be consequential on making a Judge's order a rule of court, applies where the party sought to be charged is an infant. Beames v. Farley, 5 Com. B. Rep. 178. To an action against the acceptor of a bill of exchange for 500/. at nine months^ dated the 29tli of March 1845, the defendant pleaded infancy, to which the plaintiff replied a written ratification by the defendant after attaining his full age, on which issue was joined. The defendant, after coming of age, in 1846, wrote the following letters to the plaintiff: — "I should feel particularly obliged if you would arrange to keep the bills back for a little time, as my late brother's executors (the Messrs. H) have lost their mother and only sister lately, and which prevents their settling with you. The money will be shortly paid, say 2,000t I have heard from Mr. B this morning; and he tells me a Mr. G has written to him for the money. Please arrange with him, and write to me by return." — "My acceptance for 500/., due on the 1st of January last, will most likely be settled shortly, and would have been settled before, had not a sudden accident occurred, which prevented its being paid." — "I beg to inform you that I have this day forwarded your letter to Messrs. H, and also the letters from Messrs. L and Mr. B. I cannot exactly tell you about whattime they will be settled, as I have not the money myself, and, as I have told you before, I have left it entirely in their hands." — " I received your letter of yesterday, and am sorry to find you are not contented with the letter 1 gave you when you were at my house some time ago. I have heard from the Messrs. H yes- terday, and they said they had written to their agents in Dublin to arrange the whole thing. I therefore beg you will immediately see and inform Mr. L, whom I heard from this day. It is not a bit of use writing these sort of letters, as payment 320 INFANT— INFERIOR COURT. will not be made any the sooner for them. What I tell you is perfectly correct, and the matter will be settled shorUy." Held, that the above letters amounted to a ratifi- cation within the meaning of the 9 Geo. 4. c. 14. s. 5. Semble — that they did not amount to a new pro- mise. Any act or declaration which recognizes the existence of a promise as binding is a ratification of it Harris v. Wall, 16 Law J. Rep. (n.s.) Exch. 270; 1 Exch. Rep. 122. Where a person represents to another that he is of age, and executes to him a release upon which the latter acts, — Held, that he could not afterwards impeach the validity of the release on the ground of his minority; and that it was immaterial whether he was aware or not of the incorrectness of the re- presentation. Where the answer of an executrix alleged a release to have been executed by the plaintifii a legatee, and that he had then stated that he was of age, but contained admissions from which his minority at the time might be inferred : — Held, that such admissions did not entitle the plaintiff to an inquiry whether he was a minor at the date of the transaction. Wrightv. Snmiie, 2 De Gex & S. 321. Doctrine as to the liability of persons after attain- ing their majority, in respect of dealings during infancy, in which they had been silent as to their age. A broker sold railway shares, registered in the name of B, to C, and delivered to C the certificates for the shares, and a transfer-deed signed by B ; and C paid to the broker the purchase-money for the shares. On an application by C at the com- pany's office to register the shares, he was informed that it could not be done, in consequence of a notice having been given to the company not to register the shares, on the ground that B, at the date of the transfer, was an infant A bill was filed by C against the broker and B ; stating that B was of age at the date of the transfer, and that he had held himself out to the world as being of age, and that C had considered B to be, and had held him out as heing, of age; and praying for a reference to inquire whether B was of age at the time of the transfer ; and that, if it should appear that he was an infant, he might be ordered to assign the shares on the ground of fraud ; and that the broker also might be answerable. The broker by his answer, stated that he believed B to be of age at the time. B denied that he had ever held himself out as being of age. It appeared that B was an infant at the date of the transfer, and that the purchase-money had been retained by the broker in respect of a debt alleged to be due to him from B, in respect of dealings in shares during B's infancy : — Held, that C, on this state of facts and these pleadings, had no remedy against the broker or B. Stikeman v. Dawson, 16 Law J.Rep. (N.s.) Chanc.20S; 1 De Gex & S. 90. (E) SAiE AND Disposition of Pkoiebtt. The Court cannot (independently of the statute) authorize trustees for infants to grant a mining lease, although the legal estate is vested in the trustees and the lease would be beneficial to the infants. Wood v. Patteson, 10 Beav. 541. The Court has no power under 11 Geo. 4. & 1 Will. 4. u. 65. t.. 17. to lease an infant's estate. unless the infant is indefeasibly seised either in fee or in tail in possession. Ex parte Legli, 15 Sim. 445. Petition of tenant for life for an inquiry whether it would he for the benefit of infant tenants in re- mainder to transpose trust funds from consols to a mortgage security under a power, dismissed, on the ground that the expenses incidental to the latter security generally more than counterbalanced the increase of income. Barry v. Marriott, 2 De Gex & S. 491. On the petition of an infant, an annual sum was ordered to be paid, through the guardian, lo the rector of a parish in which the infant had a consi- derable estate, to be applied by the rector in cha- rity, and for the purposes of education, for the benefit of the poor of the parish. Langton v. Braclc- enbury, 15 Law J. Rep. (n.s.) Chanc. 256; 2 Coll. C.C. 44«. (F) Conveyance of Real Estate undee 1 Will. 4. c. 60. An infant devisee, ordered to convey real estate sold for payment of the testator's debts, made de- fault and was not amenable to process. The Court under the 1 Will. 4. c. 60. s. 8. directed a person to convey in his place. Thomas v. Guiynne, 9 Beav. 275. (G) Suing ey Pbochein Ami. The petition of an infant plaintiff to be allowed to sue by her proehein ami, may be signed by such prochein ami, on her behalf; the infant being too young to sign it herself. Eades v. Booth, 15 Law J. Rep. (n.s.) aB. 263; 8 a.B. Rep. 718; 3 Dowl.& L. P.O. 770. INFERIOR COURT. [See Admiralty — Costs, Suggestion — Eccle- siastical CouKTS — Foreign Attachment — Prohibition — Staying PBOCEEriNGs.] (A) Operation of 9 & 10 Vict. c. 95. (B) Jurisdiction. (ffl) Extent of. (1) Several Districts. (2) Upon Summons on Charge of Fraud. (3) In granting Warrants of Possession. (6) hltat Actions may he tried. (1) On Judgments recovered in the Su- perior Courts. (2) On BilU of Exchange. (3) By Landlord for double Rent. (4) Trespass for special Damage after Interpleader Summons. (5) For Penalties under the Apotliecaries Act. (6) For Balance of Account. (7) Splitting Demands and abandonment of Excess. (o) Concurrent Jurisdiction, (d) Ouster of Jurisdiction. (1) To grant Warrant of Possession. (2) By asserting Title. («) Excess of Jurisdiction. (/) How shewn in Pleading. (C) Power of Committal. (D) Liability of Judge, INFERIOR COURT ; (B) Jurisdiction. 321 (E) Matteus op Pbactice. (a) Removal of Cause into tlie Superior Courts. (A) Process. (1) Teste. (2) Proof of Service of Summons. (3) Summons to save the Statute of Limit- ations. (c) Certificate of probable Cause. (rf) Execution. (e) Notice of Claim in Interpleader Cause. (/J Attornies practising in the County Courts. (1) Must sign the Roll. (2) To what Fees entitled, (g) Procedendo. (A) Judgment. (i) Proceedings after Judgment of Assets Quando. {Jc) Waiver of Objections. (I) Costs. (F) Officers. (a) Appointment and Removal of, (b) Liability of. (G) CouKTB Bakon. County courts for the recovery of small debts established by the 9 & 10 Vict. c. 95 ; 24 Law J. Stat. 219. The County Courts Act, 9 & 10 Vict. c. 95, amended by the 12 & 13 Vict. c. 101 i 27 Law J. Stat. App. i. The County Courts Acts extended and amended by the 13 & 14 Vict. c. 6>v; 28 Law J. Stat. 121. (A) Operation of 9 & 10 Vict. c. 95. Where an action for a debt recoverable in a court of requests was commenced in a superior court, after the passing of the 9 & 10 Vict c. 95, but before any county court had been established in the district, pursuant to the provisions of that act, and the Court of Requests Act provided that a plaintiff should have no costs when he sued in a superior court for a debt recoverable in the ffourt of requests, — Held, that as the 9 & 10 Vict. c. 95. s. 6. repealed the Court of Requests Act only on the establishment of the county court for the district,4he plaintiff having commenced his action before that time in" the superior court was not entitled to costs. Warburg V. Read, 16 Law J. Rep. (n.s.) Q.B. 342 ; 5 Dowl. & L.P.C. 71. An action for a matter for which a plaint might have Issued under the 9 &.10 Vict. c. 95, was com- menced in one of the superior courts, after the passing of that act, but before the Order in Council establishing the County Court of the district in which the cause of action arose and the parties re- sided : — Held, that the 129th section, which deprives parties of costs who, after the passing of that act, sue in the superior courts for causes "for which a plaint might have been entered in any court holden under that act," did not apply. Harries v. Law- rence, 17 Law J. Rep. (n.s.) Exch. 101 j 1 Exch. Rep. 697. The 9 & 10 Vict. c. 95. s. 5. enables Her Majesty to order that any court for the recovery of sinall debts, established under any of the local acts spe- DiGEST, 1845—1850. oifled in the schedule, shall be abolished. The act constituting the Court of Requests for Kidder- minster was specified in the schedule. By an Order in Council, made in pursuance of the 9 & 10 Vict. c. 95, Her Majesty ordered that all courts holden for the recovery of small debts under any act cited in the schednle should be abolished, except certain specified courts (not including the Court of Requests of Kidderminster), which were to be continued and holden as county courts: — Held, that the court at Kidderminster was abolished, and that the new county court of Worcestershire held for the district of Kidderminster was not" the same court" as the former court of requests, so as to entitle the officers of it to be re-appointed under section 34 of the 9 & 10 Vict. c. 95. Regina v. Dyer, 18 Law J. Rep. (n.s.) Q.B. 285. (B)' Jdkisdiction. (a) Extent of. (1) Several Districts, Under the County Courts Act (9 & 10 Vict. c. 95.) the same person may be appointed Judge of the county court for and to be holden in several districts, Regina v. Parham, 18 Law J. Rep. (n.s.) Q.B. 281. (2) Upon Summons on Charge of Fraud. Under the 98th section of the County Courts Act, 9 & 10 Vict. c. 95, the Court has jurisdiction although the sum due is more than 20/. Byrne v. Knipe, 18 Law J. Rep. (n.s.) Q.B. 33 ; 5 Dowl. & L. P.C. 659. (3) In granting Warrants of Possession. The 122nd section of the 9 & 10 Vict. c. 95. applies to cases where the rent does not exceed 50/. per annum, and there is no fine, whatever may be the value of the premises. A judgment having been given under that section for the plaintiff, but possession ordered to be given on a certain day some months afterwards, the land- lord treated it as a nullity, and again applied under that section, and obtained judgment and an order for possession within eight days. Upon a motion for a prohibition, on the ground that the prior judg- ment was pending and unreversed, — Held, that as the prior judgment was a nullity, the second action was rightly brought. In re Fearon v. Nerval, 18 Law J. Rep. (n.s.) Q.B. 9 ; 5 Dowl. & L. P.C. 445. The 122nd section of the 9 & 10 Vict. c. 95. does net apply, except where there is the relation of land- lord and tenant ; and, therefore, a mortgagor cannot recover possession under that section from a person who has entered into the occupation subsequently to the mortgage, and has not become tenant to the mortgagee. A rule nisi for a prohibition was obtained on the 5th of June, a warrant of possession under the judgment was executed on the 6th, and the rule for the prohibition was served on the Judge of the County Court in Wales on the 7th : — Held, that it was not too late, and the rule was made absolute, with a clause of restitution. Jones v. Owen, 18 Law J. Rep. (n.s.) Q.B. 8; 5 Dowl. &L. P.C. 669. A warrant of possession under the statute 9 & 10 Vict. 0. 95. s. 122. cannot be issued where the lands are situated without the jurisdiction of the Court. 2T 322 INFERIOU COURT ; (B) Juuisdiction. Ellis f. Peachy, 18 Law J. Rep. (n.s.) Q.B. 137 ; 5 Dowl. & L. P.C. 675. [And seepost, (d) (!)•] (b) fVlmt Actions may be tried. ( 1) On Judgments recovered in the Superior Courts. An action on a judgment of one of the superior courts under 201. is a plea in a personal action, and may be brought in the county court. The proper mode of trying an issue raised upon the existence of the judgment is by certiorari and mittimus out of Chancery to the county court. 'I'he Judge of the county court tried the plaint without any legal evidence of the original record. The defendant afterwards claimed a set-off, and the Judge made an order in favour of the plaintiff: — Held, that the defendant had waived the irregularity of proof by not objecting to it at the time. In re Winsor V. Duvford, 18 Law J. Rep. (n.s.) Q.B. 14. (2) On Bills of Exchange. Bills of exchange are within the jurisdiction of the county courts established by the 9 & 10 Vict. 0. 95. Waters v. Hundley, 6 Dowl. & L. P.C. 88. (3) By Landlord for double Rent. Rent in arrear, and a demand of double value for holding over after notice to quit, under the statute 4 Geo. 2. 0. 28, are separate causes of action within section 63. of the 9 & 10 Vict. c. 95, and therefore may be sued for by separate plaints in the county court. Separate plaints may be sued in the county court for two or more causes of action, which would require to be stated in distinct counts, though they might be included in the same declaration. A demand for double valueagain St a tenant holding over under the statute 4 Geo. 2. c. 28, is a " plea of a personal action," and may be sued for in the county court, under section 58. of the 9 & 10 Vict. c. 95. In re Wickham v. Lee, 18 Law J. Rep. (n.s.) CI.B. 21 ; 12 a.B. Rep, 521. (4) Trespass for special Damage after Interpleader Summons. By the9& 10 Vict. c. 95. s. 118. it is enacted, that if any claim shall be made to or in respect of any goods or chattels taken in execution under the pro- cess of any county court, a summons may issue, calling before the said Court the party issuing the process as well as the claimant, and thereupon any action which shall have been brought in respect of such claim shall be stayed, and the Judge of the county court shall adjudicate upon such claim, and make such order between the parties in re- spect thereof as to him shall seem fit. Where the Judge of the county court had made an order ad- verse to the claimant, — Held, that an order to stay proceedings in an action of trespass for breaking and entering the house of the claimant, and taking the goods in question, was proper. Jessop v. Craw- ley, 19 Law J. Rep. (n.s.) Q.B. 319 ; 15 Q.B. Rep. 212. Where underthe9& 10 Vict. c. 95. s. 118. the Judge of a county court adjudicated in favour of a claim- ant, whose house had been broken and entered, and his goods seized and taken away as the goods of an execution creditor in the county court, — Held, that the claimant was afterwards entitled to proceed in an action of trespass, for the special damage occa- sioned by the wrongful breaking and entry, but not for the trespass in taking away his goods. Chafer or Cater v. Chignell, 19 Law J. Rep. (n.s.) Q.B. 520; 15 Q.B. Rep. 217. (5) For Penalties under the Apothecaries Act. A plaint was brought in the County Court of C to recover 20?., for practising as an ■apothecary without a certificate. The particulars of demand stated the cause of action to be that the defendant did, on the 17th of November a.d. 1849, and on divers other days and times, act and practise as an apothecary within the jurisdiction of the Court, that is to say, at U, in the county of C ; U, in the county of N ; O, in the county of C j and O, in the county of N, by then and there attending, and furnishing medicines for divers persons, to wit, S, P, A, and R, whereby the defendant has forfeited 201. The Apothecaries Act, 55 Geo. 3. c. 194. s. 20, enacts, that any person who shall practise as an apothecary without having obtained a certificate, shall "forfeit for every such oifenoe" 201.: — Held, that whether the facts stated in the particulars amounted to four offences or one, the plaintiff could only recover 201. in this proceeding, and that therefore, there was no ground for a prohibition. The Apothecaries Company v. Burt, 19 Law J. Rep. (n.s.) Exch. 334 ; 5 Exch. Rep. 363 ; 1 L. M. & P. 405. (6) For Balance of Account. A claim exceeding 201. reduced by a set-off to a sum less than 201., is not within the jurisdiction of the county court, under the 58th section of the 9 & 10 Vict. c. 95, as a debt on balance of account; and therefore where an action for such a claim was brought in a superior court, leave was refused to the defendant to enter a suggestion under the 129th section to deprive the plaintiff of costs. Semble — that if a balance leaving no more than 201. due had been agreed on by the parties, the plaintiff ought to have sued in the county court. Woodhamsv. Newman,'\S LawJ.Rep. (n.s.)C.P. 213. (7) Splitting Demands, and Abandonment of Excess. The 63rd section of the Small Debts Act, 9 & 10 Vict. c. 95, enacts, " That it shall not be lawful for any plaintiff to divide any cause of action, for the purpose of bringing two or more suits in any of the said courts" : — Held, that the term " cause of action" meant cause of one action, and was not limited to an action on one separate contract; that that definition, however, did not embrace all contracts executed, however unconnected and dissimilar in character, which could be included in one intkbitatus count ; but applied certainly to the cases of tradesmen's bills, in which one item was connected with another, in the sense that the dealing was not intended to terminate with one contract, but to be continuous, so that one item, if not paid, should be united with another, and form an entire demand. Quare — Whether the 63rd section applies to all debts which can be comprised in one description in one count, ex. gr. for *' goods sold." Certain alleged agents of the defendant had given to several persons tickets for goods, which INFERIOR COURT ; (B) J011ISDICTION. 323 goods were to be supplied by tlie plaintiff, and th^ latter bad brought 228 actions in the county court againstthe defendant, in respect thereof, upon claims none of which exceeded 52., and many fell short of 20*., the whole amounting to 303i. X9«. — The Court granted a prohibition. Qaffire-j-Whether a prohibition would have been granted if the whole of the claims had amounted to 201. only, and the items had been separated and sued for in the county court by separate plaints. In re Grimbly v. Aykroyd, 17 Law J. Rep. (us.) Exch. 157 ; 1 Exch. Rep. 479 i 5 Dowl. & L. P.C. 701. A debt above 20t,being due from ihe defendant to the plaintiff, the levying of a plaint in the county court for an item less than 201. is not of itself an abandonment of the excess by the plaintiff. Sembh' — that to constitute an abandonment under the 9 & 10 Vict. c. 95. s. 63. the plaintiff should do some act of abandonment in court. The plaintiff sold goods to the defendant for 17t, and sent him in a bill, and then sold another parcel for 21/. 10«., and sent in a bill for 382. 10s., the amount of both purchases. Afterwards he levied a plaint in the county court for 172. the price of the first parcel, but did not appear at the hearing. The defendant, however, appeared, and admitted the debt, and judgment was given for the plaintiff. The plaintiff, subsequently, brought an action in the superior court for 212. 10s., the price of the second parcel of goods. The defendant pleaded the proceedings in the county court, and that the plain- tiff had abandoned the excess: — Held, that there was no abandonment of the excess on the proceed- ings as above stated. Vines v. Arnold, 19 Law J. Rep. (n.s.) C.P. 98. The plaintiff brought two suits against the de- fendant in the county court, one for 192. Os. 8d. for money lent between the yeais 1846 and 1850 and interest, the other for 192. I9s. for work and labour and goods sold and delivered between the years 1845 and 1850. It did not appear that the items in the two suits were connected, nor that the parties had ever treated them as forming one de- mand : — Held, that the plaintiff had not divided any cause of action within the meaning of the 9 & 10 Vict. c. 95. s. 63. The particulars of demand in one of the suits shewed that the plaintiff reduced his claim, which exceeded 202., below that sum by giving credit to the defendant for 82. :— ^Held, that the Judge had jurisdiction to inquire whether the defendant had consented to the plaintiff's claim being so reduced, and that such consent need not be stated in the particulars of demand. Kimpton v. Willey, 19 Law J. Rep. (n.s.) C.P. 269 ; 1 L. M. & P. 280. The defendant was indebted to the plaintiff for liquors supplied and money lent at different times. The plaintiff had been in the ha:bit of marking down the separate items, and afterwards entering them in his hook as one account, and sent the defendant an account including the whole, amounting to 362. 10s. 4d. The plaintiff levied a plaint in the county court for 202. for goods sold ; the particulars of demand comprising no items for money lent. Having recovered judgment and obtained payment of this amount, he levied another plaint for 51- 1*. 6rf. for money lent, being the amount of the loans in- cluded in the account of 362. 10«. id. At the hearing of the first plaint there was no abandonment: — Held, that these were distinct demands, and that there was no ground for a prohibition. Brunslcill V. Powell, 19 Law J. Rep. (M.S.) Exch. 362; 1 L. M. & P. 550. (c) Concurrent Jurisdiction, By a charter of 33 Edw. 1. (confirming the com- mon law) working tinners within the stannaries of Cornwall have the privilege of being sued only in the court of the vice-warden of the stannaries in certain causes there mentioned ; and the same charter also contains a grant that the warden or vice-warden may hold pleas between the persons and in the causes there specified. By the County Courts Act (9 & 10 Viet. c. 95. s. 67.) " no privilege (except as thereinafter excepted) shall be allowed to any person to exempt Ijim from the jurisdiction of the county court," and by section 141, " nothing in this act contained shall be construed to affect the lord warden or vice-wardens of the stannaries in Cornwall ; but this provision shall not be deemed to prevent the establishment of any court under this act within the said stannaries, or to limit or affect the jurisdiction of any court so established"; — Held, that the effect of these enactments was to take away the personal privilege of the tinner to plead to the jurisdiction of the county court, but to preserve to the court of the vice-warden of the stannaries a concurrent jurisdiction in cases which were cognizable by him under the charter. In re Newton v. Nanearrow, 19 Law J. Rep, (n.s.) Q.B. 314. A clerk in the Privy Council Office is not a person carrying on a "business" within the mean- ing of the 128th section of the Small Debts Act, 9 & 10 Vict. c. 95. Sangster v. Cave, 19 Law J. Rep. (N.s.) Exch. 314. {d) Ouster of Jurisdiction, (1) To grant Warrant of Possession, Where a tenant, after notice to quit, refuses to deliver up possession of the premises occupied by him, and a plaint has been entered in, and a sum- mons thereupon issued out of, the county court, •under the 9 & 10 Vict. c. 95. s. 122, the fact of the tenant appearing to such summons, and shewing cause, is not sufficient to oust the county court of its jurisdiction to grant a warrant of possession ; but it is for that Court to determine whether the cause shewn is sufficient or not. So also the question, whether such tenancy has been "duly determined by a legal notice to quit," is one upon which the decision of the county court is conclusive upon the parties. In re Fearon v. Nowall or Norvall, 17 Law J. Rep. (n.s.) Q.B. 161; 5 Dowl. & L. P.C. 439. [And see ante, (a) (3),] (2) By asserting Title, If a plea asserting a title to the freehold be pleaded in the county court, the Court is imme- diately ousted of its jurisdiction, and should not pro- ceed. Therefore, where the defendant in replevin made cognizance for the taking of cattle, that the place in which they were taken was the soil and freehold 324 INFERIOR COURT; (B) Jurisdiction. of tlie corporation of the city of Y, and tliat he, as tlifir bailiff, took tliera damage feasant, to which the plaintiff pleaded that the defendant was not such bailiff, and did not take them as such bailiff, ou which issue was joined ; after verdict and judg- ment for the plain tiffin the county court, it was held, that such judgment was erroneous. Tinnisswood v. Patiison, IS Law J. Kep. (n.s.) C.P. 231; 3 Com. B. Kep. 243. Under the 58th section of the 9 & 10 Vict. c. ^5. the jurisdiction of the county court is not ousted by a mere claim of title, unless such claim appears upon the pleadings. Upon a parol claim it is the duty of the Judge to inquire and decide whether -the title really is in question ; but his decision is not final, for if the superior Court be satisfied that the title did come in question, a prohibition will be granted. LilUy v. Harvey, 17 Law J. Bep. (n.s.) Q.B. 357. The jurisdiction of the county court is not ex- cluded in an action of trespass quare clausum /regit, by a claim of the defendant, as an inhabitant of B, to enter the plaintiff's land for the purpose of asserting a right of fishing there. For, first, a custom for all the inhabitants of B, as such, to enter the close of the plaintiff, and take fish there without limit, is bad ; and, secondly, the right claimed under such a custom is not a hereditament, and therefore not within the proviso in the 9 & 10 Vict. c. 95. s. 58. Lloyd V. Jones, 17 Law J. Rep. (n.s.) C.P. 206; 5 Dowl. & L. P.C. 784. ; 6 Com. B. Rep. 81. A local act of parliament empowered trustees to build a church and to make rates on all houses in the parish, one half on the landlords, the other half on the tenants. It was also enacted, that the tenants should first pay the whole rate and deduct a moiety out of the rent, and that every landlord should allow of such deduction "notwith- standing any agreement to the contrary." After the passing of this act, certain premises in the parish were leased, the tenant covenanting to pay all rates and taxes. The landlord having refused to deduct half the church-rate from the rent, on the ground that the act extended only to agreements in existence at the time of its passing, the plaintiff served him with a plaint from the county court. — The Court refused a writ of prohibition, "the title to any corporeal or incorporeal hereditaments" within the Small Debts Act, 9 & 10 Vict. o. 95. s. 58, not being in question; and semble,per Parke, B.,- — that the local act did not apply to agreements entered into subsequently to the time of its passing. In re Gwynne v. Knight, 17 Law J. Rep. (n.s.) Exch. 168; lExch. Rep. 802. A plea of not possessed, to an action of trespass quare claumm /regit, takes the case out of the juris- diction of the new county courts. Timothy v. Farmer, 7 Com. B. Rep. 814. Where, in a claim of debt (as in use and occu- pation) under 201. in a county court, it is alleged that the title to land comes in question in the action, the Judge has power to inquire into and determine that point ; but if he decides that title does not come in question, and the fact is otherwise, a prohibition will lie. A declaration in prohibition stated that A sued a plaint out of the county court against B, for use and occupation of a field, that B insisted that the Court had not cognizance of the plaint, because the title to the field was in question, and that in truth the title to the field was in question, but that the Judge proceeded tto hear and determine the plaint. The plea stated that on B*s insisting that the title was in question, A denied it ; and that the Judge, after hearing the evidence and arguments on both sides, decided that the title was not in question, and pro- ceeded to hear and decide the case, and that on the hearing neither party adduced any evidence orargu- raent other than those adduced before. On gene- ral demurrer it was held, that the plea was bad ; for that it either admitted that the title was in fact in question, in which case the opinion of the Judge that it was not so would not give him jurisdiction under the 9 & 10 Vict. c. 95. s. 58, or it set up the decision of the Judge on that question as conclusive, which itis not, hut is open to review by prohibition. Thompson v. Ingham, 19 Law J. Rep; (N.s.) Q.B. 189 ; 1 L. M. & P. 216. The plaintiff brought a plaint in a county court against the defendant for an injury to his reversion, alleging that the defendant had cut down some trees and pulled down a fence separating a garden, occu- pied by the plaintiff's tenant, from a garden of the defendant, and had erected a new fence encroaching on the plaintiff's land. Before the case came on to be heard, before the county court Judge, the defen- dant moved for i prohibition, on the ground that the title to the land was in question in the plaint. The defendant's affidavit alleged that the fence and trees cut down by him were on his own land, and that the new fence had not passed the boundary of his garden. The plaintiff's affidavit supported the charge in the plaint : — Held, that the defendant was entitled to a prohibition, as the title to the laud was clearly in question, and that in this instance, it was no objection to the issuing of the writ that the defendants had not first applied to the Judge of the county court to stay the proceedings on the ground that the title was in question. Sewell v. Jones, 19 Law J. Rep. (n.s.) Q.B. 372 ; 1 L. M. 8c P. 525. (b) Excess o/ Jurisdiction. [See PnoHiBiTiON.] Where a cause in the county court is tried by a jury, the Judge has no power to alter their verdict. A cause having been heard, an entry was made of judgment for the defendants. The defendants then left the court ; and subsequently, and as the defen- dants swore they believed, after the Court had broken up, the Judge rescinded his decision, and ordered a new trial, on which occasion he gave judgment for the plaintifE The aflSdavits in answer did not shew affirmatively when the alteration had been made, but a copy of the entry in the register was produced, in which it was stated to have been at the same court : — Held, on application for a prohibition, that the Judge had exceeded his juris- diction, and the rule for a prohibition was made absolute. In re Jones v. Jones, 17 Law J. Rep. (n.s.) Q.B. 170 ; 5 Dowl. & L. P.C. 628. (/) How shewn in Pleading. A declaration stated that the defendant, on, &c. within the jurisdiction of an inferior Court, was in- debted to the plaintiff for the price and value of goods sold, and money lent, &o., and for money ifouHd to be due from the defendant to the plaintiff INFERIOR COURT. S25 on an account tlieu stated between tliem, wliioh several monies were to be then and there , paid on regnest : -^ Held, ill, on writ of erroii Cook v. M'Pherson, 15 Law J. Rep. (k.s.) Q.B. 283 j 8 as. Rep. 1030. To a declaration in debt for goods sold, the defen- dant pleaded, first, that in an action brought by the now defendant in the County Court of W against the now plaintiff, the now plaintiff then set up a set-off as a defence, and gave notice to the now defendant that he would claim a set-off for \5l. ; that it was adjudged that the now defendant was not indebted to the now plaintiff in the said sum of \5l. or any part thereof, and that the now plaintiff had no claim against the now defendant: averment, of the identity of the two debts. Replication, that by the rules of the county court, any defendant desi- rous of setting off a debt was bound, to give notice of set-off to the cleric of the court, and that the now plaintiff did not give such notice : — Held, on demur- rer that the replication was good. The defendant pleaded, secondly, that in the County Court of E, holden at W, before J H K, the Judge of the court, and within the jurisdiction of the said Court, the now defendant recovered against the now plaintiff a certain debt of lOl. 6s. 8i?. dueto the now defendant from the now plaintiff, within the jurisdiction of and recoverable in the said court, and 5/. 155. 4rf. for his costs, by which judgment it was ordered that the now plaintiff should immediately pay the debt and costs to the now defendant^ as by the record appears : verification by therecord, and set-off of the above sums: — Held, on special de- murrer, that the plea was bad. Stanton v. Styles, 19 Law J. Rep. (n.s.) Exch. 336; 5 Exch. Rep. 578; IL. M. &P. 575. (C) Power op Committal. On a return to a habeas corpus, it appeared that the prisoner, then being at Fleet Lane, in the oitj' of London, had been summoned under section 1. of the 8 & 9 Vict. c. 127. (the Small Debts Act) to the sherifTs court of the city of London, and on appear- ance there had been ordered to pay the debt by instal- ments, and that on his making default in payment of one of the instalments, he was, without being again summoned, committed to the Queen's Prison, as the gaol where debtors are confined in the said city " where he hath been resident." (By Patteson, J; and Coleridge, J., and on a subsequent day by the Court of Common Pleas), — Held, that it was necessary that the debtor should have been sum- moned to shew cause against his committal; and . by Lord Denman, CJ. and Erie, J. that such a summons was not necessary. Held, also {by Lord Denman, C.J,, Coleridge, J., and Erie, J., dissentiente Pattestm, J.,) that the commit- tal should be to the gaol of the district where the debtor resided when the proceedings commenced, and that the warrant was sufScient in this respect. Ex parte Kinning, 16 Law J. Rep. (n.s.) Q.B. 257 ; 10 as. Rep. 730. A party was committed under the '& & 9 Vict, c. 127, by an order under the hand of a Judge of an inferior court (being a barrister-at-law,) for the term of forty days, to the common gaol where debtors under judgment and in execution of the superior courts of justice may be confined within the county of Middlesex, in which he was then residing; — Held, that it was not necessary that the gaol in which he was imprisoned should be locally situate within the county of Middlesex, if it is the common gaol in which debtors resident within that county are confined. Held, also, that the forty days would be calculated from the time when the party was taken into cus- tody, and not from the date of the order. Held, also, that the warrant need not be under seal.l Held, also, that the committal being in the ab- sence of the party did not vitiate it. In re Bowdler, 17 Law J. Rep. (n.s.) Q.B. 243; 12 Q.B; Rep. 612. The defendant in an action brought in the county court, was committed to prison for forty days, on a warrant which recited that judgment had been recovered against him ; that having personally appeared and being present in court, he was exa- mined as to the disposal of his property, and then the Judge found that he had made a gift, delivery, or transfer of his. property, witlv intent to defraud his creditors, and therefore committed him. On cause being shewn against a rule nisi for a habeas corpus, — Held, that the warrant was good; that the case came within the 101st section of the 9 & 10 Vict. c. S5, and that the defendant being present at the hearing, and the examination taking place at that time, it was unnecessary to serve him with a summons under the 98th and 99th sections. Held, also, that the commitment was not to be construed with the same strictness as a conviction, and was not bad for alleging the offence in the alternative. Ex parte Purdy, 19 Law J. Rep. (n.s.) C.P. 222 ; nom. Ex parte Pardy, 1 L. M. & P. 118. A warrant of commitment granted by the Judge of a county court, under the 9 & lOVict. c. 95. s. 113, recited that the party committed had wilfully in- sulted the Judge, who thereupon ordered him into custody ; and it proceeded, " these are therefore to require you," &c. to deliver him to the keeper of the house of correction, to be kept for seven days in custody: — Held, that the warrant was good, aud justified the Judge and the officers of the court in imprisoning the party ; that it was unnecessary to shew what species of insult had been committed ; and that the word " therefore " did not render it un- certain whether the commitment was for the insult, or because the Judge had ordered the party into custody. Semble — that the county courts, constituted by the 9 & 10 Vict. c. 95. s. 113, are inferior courts. Levy V. Moylan, 19 Law J. Rep. (N.s.) C.P. 308 ; 1 L. M. & P. 307. (D) Liability of Judge. The Judge of a county court is not answerable at common law in an action of trespass for an erro- neous judgment, or for the wrongful act of his officer done not in pursuance of, though under colour of a judgment, but he is responsible in an action for an act done by his command and autho- rity when he has no jurisdiction. In an action of trespass against a Judge of the county court of S in Lincolnshire, to which he pleaded only " Not guilty," the facts were, that the plaintiff being resident and carrying on his busi- 326 INFERIOR COURT ; (E) Matters or Pbactice. nes6 in Cambridgeshire bad been sued, by leave of the Judge, in the County Court of S, where judg- ment was given against him by default. A sum- mons under the 9 & 10 Vict. c. 95. s. 98. was, after- wards, and while the defendant resided and carried on his business in Cambridgeshire, issued by order of the defendant, calling on the plaintiff to appear at the County Court of S. to be examined as to his not paying debt and costs, &c. This summons was served on the plaintiff in Cambridgeshire, and on his non-appearance at S, the defendant, bond fide believing that he had power to do so, made a minute in his book ordering the plaintiff to be com- mitted to Cambridge gaol, and he was so committed accordingly : — Held, that the commitment was without jurisdiction, and that the defendant must be taken to be aware of the want of jurisdiction, and was, therefore, liable in trespass. Houlden v. Smith, 19 Law J. Kep. (n.s.) Q.B. 170. (E) Matteks of Pkactice. (a) Removal of Cause into the Superior Courts. A case commenced by justicies in the County Court of Durham cannot beremoved by pone into any of the superior courts at Westminster. Robins son V. Maimoaring , 16 Law J. Rep. (U.S.) Q.B. 223; 10 a.B. Rep. 274. An application under the 121st section of the County Courts Act, 9 & 10 Vict. c. 95, to remove a cause from the county court into a superior court, ought to be made to a Judge at chambers, and not to the Court In re Bouien v. Evans, 18 Law J. Rep. (N.s.) Exch. 38 ; 3 Exch. Rep. 111. The application, under section 90. of the 9 & 10 Viet. t. 95, to remove a cause from a county court into one of the superior courts, must be made to a Judge at chambers, and not to the Court. Robertson V. Womack, 19 Law J. Rep. (n.s.) a.B. 367 ; 1 L. M. & P. 490. (A) Process. (1) Teste. Justification under a writ out of an inferior court, tested on a day not being a court day, is bad. Humphries v. Longmore, 17 Law J. Rep. (n.s.) C.P. 328 ; 6 Com. B. Rep. 363. (2) Proof of Service of Summons. The 1 1th rule of practice under the County Courts Act, 9 & 10 Vict c. 95, requires that where the service of a summons has not been personal, it must be proved to the satisfaction of the Judge that the service of such summons came to the knowledge of the defendant ten clear days before the return day of the summons: — Held, on motion for a prohibition, tiiat the sufficiency of the proof of service is en- tirely a question for the discretion of the Judge of the county court, and that a superior court will not interfere where he has exercised such discretion. Semblc, per Coleridge, J., that the observance of such rule of practice is not a condition precedent to the jurisdiction of the county court in a case other- wise within its jurisdiction. In re Zohrab v. Smith, 17 Law J. Rep.(N.s.) Q.B. 174; 5 Dowl. & L.P.C. 035. (3) Summons to save the Statute of Limitations. The plaintiffs described the defendant in a summons out of tlie county court as executor of A B , and on the defendant's appearance opened the case against him as executor of C D. The cause of action having accrued in 1842, the Judge directed a fresh summons to be issued, describing the defendant as executor of C D, and bearing the same date as the first summons, in order to save the Statute of Limitations : — Held, that it was not a case in which this Court ought to interfere with what the Judge had done. Re the Westminster County Court of Mid- dlesex, Foster v. Temple, 17 Law J. Rep. (n.s.) aB. 230; 5 Dowl. & L. P.C. 655. (c) Certificate of probable Cause. The statute 23 Geo. 2. c. 30, establishing a court of requests for the district of the Tower Hamlets, enacts, that if a person liable to be summoned for a debt cognizable in the court of requests, be sued in one of the superior courts for such debt, and it shall appear to the Judge or Judges of such court that the debt did not amount to 40j., and the defen- dant prove by sufficient evidence to be allowed by any Judge or Judges of that court, that he was resiant within the district, and liable to be summoned to the court of requests for the debt, the Judge or Judges shall not allow the plaintiff his costs, but the plaintiff shall pay the defendant his costs ; pro- vided that in any action in the superior courts, if the Judge or Judges who try the cause shall certify there was probable or reasonable cause of action for 405. or more, the plaintiff shall not be liable to pay costs, but shall recover them. By a subsequent section, it is enacted, that no action or suit for any debt not amounting to 40s., and recoverable in the court of requests, shall be brought in any other court whatsoever. An action of debt having been brought in this court against a person resiant within the district, the defendant omitted to plead the statute, and the case was tried before the sheriff, when the plaintiff recovered less than 40s. There was reasonable cause of action for more, but the sheriff, not having the power, refused to certify: — Held, that the defendant had an option of pleading under the prohibitory clause, or applying to enter a suggestion ; and that he was not precluded from the latter course by the circumstance that the case was tried before a person incompetent to grant a certi- ficate. Capes V. Jmies, 15 Law J. Rep. (N.s.) C.P, 209; 2Com. B. Rep. 911. (d) Execution. Where it was the practice of an inferior court for the officer of the court, on a verdict for either party, to issue execution in case of non-payment, and levy the amount, — Held, that the fact of the plaintiff's bringing his plaint, and not countermanding the execution, was evidence of his having impliedly authorized the execution. Coomer v. Latham, 16 Law J. Rep. (N.S.) Exch. 175 ; 16 Mee. & W. 713. Judgment was given in the county court for the plaintiff, and the entry was judgment for the plain- tiff, payment to be made within a week of the deci- sion of a cause in the superior court Subsequently the cause in the superior court was discontinued, and a judgment summons under section 98. was then issued, upon the hearing of which the former order for payment was rescinded, and a fresh order made: — Held, that the proceedings were valid, the order INFERIOR COURT ; (E) Matters op Pkagmoe. 327 as to payment being only a suspension of execution and not a part of the judgment. Bijrne v. Knipe, 18 Law J. Rep. (n.s.) aB. 33 ; 5 Dowil. & L. P.C. 659. . . (e) Notice of Claim in Interpleader Cause., By the 9 & 10 Vict. c. 95. s. 118, if any claim is niade to or in reepect of goods taken in execution, an interpleader summons may issue, upon which the Judge of the county court is to adjudicate upon the claim. By the 39th rule of pratice, framed under section 78, the claimant shall, five days before^the day on which the summons is returnable, deliver a particular of any goods and chattels alleged to be the property of the claimant, and the grounds of his claim :■'— Held, that a notice stating merely that the goods taken were the property of the claimant and not of the execution debtor, was insufflcient, and that the Judge was right in refusing to adjudicate upon the claim. Ex parte Tanner, in re Cullum v. Ross, 19 Law J. Rep. (n.s.) ttB. 318. (/) Attorrues practising in ti\e County Courts, (1) Must sign the Roll, Quare — Whether, in order to enable an attorney of the superior courts to practise in the county court, it is necessary for him to gign the roll there, under the 6 & 7 Vict. c. 73. s. 27. Glutterbuek v. Hull, 15 Law J. Rep. (n.s.) Q.B. 310. (2) To what Fees entitled. The clause of the statute, 9 & 10 Vict. o. 95. s. 91, which limits the sum to be had or recovered by an attorney for appearing and acting in the county court, applies to costs recoverable by the attorney from his client as well as to costs taxed between party and party; and to everything done by an attorney in regard to a suit in that court, whether before, at, or after the hearing. Costs above the limited amount are not recover- able against the client, though the attorney and he are parties to a prospective general agreement for allowance of such costs on proceedings to be had in the county court by the persons entering into such compact. In re Clipperton, 12 Q.B. Rep. 637. The enactment of the statute 9 & 10 Vict. c. 95. s. 91, that an attorney shall not have or recover more than 1S«. for appearing or acting in the county court, is confined to charges for business done in court, and does not prevent the attorney from re- covering beyond that amount for services out of court in advising or getting up the ease in which he appeared and acted. In re Foley, 12 ft.B. Rep. 694. The 91st section of the County Courts Act, 9 & 10 Vict, c. 95, which provides that no attorney shall have or recover for acting in behalf of any other person in the county courts, any sum where the debt or damages does not exceed 40s., or shall have or recover more than 10s. for his fees and costs where the debt or damage does not exceed 51., or more than 15s. in any other case, does not apply to services rendered by an attorney in the conduct of a suit out of court and before its commencement. In re Toby, 19 Law J. Rep. (n,s.) Q.B. 603; 1 L. M. & P. 426. The 9 & 10 Vict. o. 95. s. 91. enacts, "that no attorney shall be entitled to recover any sum of money for appearing or acting on behalf of any other person in the said cOMrt,. The dates of the proceedings were as follows : — action, 30th of June; declaration, 12th of July; plea, 6th of August; notice of trial, 25th of No- vember ; bill filed, 26th of November ; motion to extend injunction, 21st of January following. Thje motion stood over for an , arrangement without prejudice, and with an understanding that the answer should not be pressed for; the negotiation terminating on the 7th of June, and the ' motion was renewed on the 19th of June, the trial being fixed for the 22nd. The Court thought, that if the case was to be decided as on the 21st of January, the motion ought to be refused ; but that, as matters now stood, the plaintiff was taken by surprise, and the motion was granted. Sawky v. Hancoclt, 13 Beav. 15. By consent an injunction was made perpetual upon motion. Morrell v. Pearson, 12 Beav. 284'. The bill alleged that the defendant sold brushes, on which the trade mark of the plaintiiFwas stamped, and prayed for an account and an injunction. The plaintiff directly after the filing of the bill, obtained the usual injunction. The defendant by his answer stated, that he had sold such brushes on two occa- sions only, when he believed that he had sold them to agents of the plaintiff; but that he had had no intention to sell them without the leave or to the injury of the plaintiff; and that, if the plaintiff had made any application to him, he would have under- taken never to stamp any articles with the plain- tiff's trade marks. The plaintiff set the cause down on the answer of the defendant, without entering into evidence ; and, waiving the account, asked for a perpetual injunction : — Held, that there had not been any unnecessary litigation on the part of the plaintiff; and that he was entitled to a perpetual injunction and the costs of the suit. Pierce v. Franks, 15 Law J. Rep. (N.8.) Chanc. 122. (c) Dissolving the Injunction, Where an injunction had been granted during the long vacation by the Master of the KoUs, in the absence of the Vice Chancellor of England, in a cause which was marked for the Vice Chancellor's Court, a motion to dissolve it should be made before the Master of the Rolls, and not before the Vice Chancellor. Hammond v. Smith, 15 Law J. Rep. (n.s.) Chanc. 40. An injunction was obtained before answer. The defendant filed his answer, but delayed moving to dissolve until several months after replication, and at a period when the evidence would have been published hut for the defendant having obtained an enlargement of the publication. The motion was on that ground refused. Feistel v. King's Pollege, Cambridge, 10 Beav. 491. The iSling of exceptions for impertinence may, before a reference of them, be shewn as cause against dissolving the common injunction. In such case. the plaintiff should be put under terms to obtain the Master's report within a limited time, although the general orders do not provide for such a case. Byng V. Clark, 12 Beav. 608. A motion being made to dissolve the common injunction, it appeared that the plaintiff had not been able to procure an office copy of the answer. Time was given to him to elect whether he would shew exceptions or merits as cause. Byng v. Clark, 12 Beax., 536. A bill was filed to restrain proceedings at law after the common injunction was obtained ; the de- fendants answered, and moved to dissolve the injuncr tion, and the plaintiffs undertook to shew cause on the merits. The plaintiff^ amended their bill. On the coming on for cause to be shewn against dis- solving the injunction, the Court gave defendants the option— 1. To have the motion heard on the re- cord as it stood, — 2. To have it stand over, with liberty to defendants to give notice of motion to dis- solve under the 60th Order of 1845 or otherwise, — or, 3. To have it stand over for the defendants to answer the amended bill. West Durham Rail, Co., V. 4llison, 3 De Gex & S. 558. Defendant having filed a plea and answer, ob- tained at the Rolls an order nisi to dissolve the common injunction : — Held, irregular ; but plaintiff having afterwards appeared before a Vice Chan- cellor and undertaken to shew cause on the merits, — Held, secondly, that there was a waiver of the irregularity ; and, thirdly, that the waiver might be taken notice of on a motion to discharge the order of course at the Rolls. St. John v. Phelps, 12 Beav. 606. An injunction having been obtained, the bill was amended by adding a plaintiffs — Held, that the injunction had thereby ceased to exist. Attorney General v. Marsh, 18 Law J. Rep. (n.s.) Chanc, 272 ; 16 Sim. 572. An injunction having been obtained by the plain- tiff to restrain a joint action against him by several defendants, all the defendants but two put in their answers, and obtained an order to dissolve the in- junction as against themselves; theiother two de- fendants then put in their answers, but refused to move to dissolve: — Held, that those defendants who had obtained the order to dissolve were now at liberty to move to dissolve as against the other two defendants, without serving them with notice of the motion. M'Gregor v. Conyngham, 18 Law J. Rep. (n.s.) Chanc. 41 ; 16 Sim. 366. Affidavits filed in support of statements intro- duced into the bill by amendment, after injunction granted and tending to support the injunction, cannot be read on a motion to dissolve that injunc- tion. Prince Albert v. Stramge, 1 Mac. &. G. 47 ; 1 Hall & Tw. 26. The proper mode of proceeding to dissolve the common injunction is by orders nisi and absolute. The circumstance that the time has expired for taking exceptions to the answer will not entitle the defendant to proceed by special application. Rain- cock V. Young, 19 Law J. Rep. (n.s.) Chanc. 135 ; 1 Mac. & G. 196;, 16 Sim. 566; 1 Hall &Tw. 197. A party is entitled to move to dissolve an in- junction if, from ambiguity in its terms, he may, under any construction of the order, be prejudicially affected. 336 INJUNCTION— INQUISITION. Where the plaintiff obtained an ex parte injunc- tion on the facts stated in the hill, hut other facts came out in the defendant's answer, raising a ques- tion of law on which the right of the plaintiff to the injunction depended: — Held, that it was the duty of the plaintiff to bring these facts before the Court, and his omission to do so was of itself a sufficient ground for dissolving the injunction, and it was no excuse that the plaintiff was not aware of the importance of the omitted tacts. Dalglish v. Jarvis, 2 Mac. & G. 231 ; 2 HaU & Tw. 437. ((f) Retaining the Bill. The planitiff, having obtained a patent for an improved method of making steel by the applica- tion of carburet of manganese, brought an action against the defendant for infringing his patent by using two ingredients, which when fused, would produce carburet of manganese. The Court of Exchequer held that the patent had not been in- fringed, either directly or indirectly, because the defendant was ignorant of the fact that he was using the same substance as that employed by the plain- tiff A motion for an injunction upon a bill filed prior to the action was now opposed, on the ground that the decision of the court of law was final, and the bill ought to be dismissed. The Court con- sidered that although the act was committed un- consciously, the defendant was liable for the injury he had done, and consequently they retained the bill, and gave liberty to the plaintiff to bring another action. Heath v. Unwin, 16 Law J. Rep. (k.8.) Chanc. 283; 15 Sim. 552. A, being in possession of furniture belonging to the plaintiff, contracted to assign it to B, who ad- vertised it for sale. The plaintiff obtained an in- junction to restrain the sale of it ; and the bill was retained for a twelvemonth, with liberty for the plaintiff to bring an action of trover. Such a decree should contain a direction that in case the plaintiff should not bring the action within the twelvemonth, the bill should be dismissed. Woody. RowcUffe, 17 Law J.Bep. (n.s.) Chanc. 83; 2 Ph. 282. On a bill for an injunction to protect the plain- tiff's coal mines from injury by water flowing from defendant's colliery, the Court, on motion, granted an injunction restraining the defendants from working their coal mines in any places which might injure or endanger plaintiff's mines until answer or further order, but gave no directions for a trial at law. The parties went into evidence, and the cause was brought to a hearing, when the Court refused until the plaintiff had established his right at law to make the injunction perpetual, hut retained the bill for a year, with liberty to plaintiff to bring an action, continuing the injunction mean- time. DaA-c of Beaufort v. Morris, 6 Hare, 340. QtuBre — Whether in any case an injunction will be granted to protect a legal right not admitted without providing for the trial of the right at law. Ibid. (e) Coats. In a suit for an injunction against the use by defendants of a certain mark upon their goods, the defendants set up a right to use the mark as their true name. The plaintiff without moving for the injunction, went into evidence in equity. The evi- dence did not establish plaintiff's right to an injunc- tion, but the Court, thinking that defendants had used the mark in a manner which would lead pur- chasers to believe that their goods were made by plaintiff, gave defendants the option of having the bill dismissed against them without costs or of having the right tried at law. The bill being retained for a year and an action brought, the plaintiff recovered. The Court then granted the injunction, and ordered defendants to pay all costs at law and in equity, except the costs of the evidence in equity. Rodgers /. Nowill, 6 Hare, 325. On a motion for an injunction being refused, the costs were reserved to the hearing of the cause; and at the hearing, the injunction was decreed and the defendant was ordered to pay the plaintiff the costs so reserved, as well as the general costs of the suit relating to the injunction. But on appeal, this course of proceeding was disapproved of by the Lord Chancellor, and the decree was altered by striking out the order for payment of the reserved costs. Lewis v. Smith, 1 Mac. & G. 417. Where a party proceeded in an action at law, notwithstanding an injunction, but under an im- pression that the injunction no longer existed, and it was in fact afterwards dissolved, — this Court refused to interfere to deprive him of the costs of the proceedings so taken. Newman v. Ring, 16 Law J. Hep. (N.s.) Chanc. 124. INNKEEPER. [See Lien.] INQUISITION. [See CoEONEK — Scibe Facias.] A coroner's inquisition touching the death of V found, as to the cause of death, that a certain loco- motive steam-engine, numbered 48, with a certain tender attached thereto, and worked therewith, and also with divers, to wit, three carriages, used for the conveyance of passengers for hire, on a certain railroad or tramway called " the Midland Railways there situate, and which said carriages respectively were then and there attached and fastened together, and to the said tender, and were then and there propelled by the said locomotive steam-engine, and which said locomotive steam-engine, tender and car- riages were then and there moving and travelling along the said railroad or tramway towards the town -and county of the town of Nottingham; and the jurors aforesaid, upon their oaths aforesaid, do further say that, whilst and during the time that the said locomotive,"^ &c., averring a collision with a train in which V was travelling, and ascribing his death to the collision, but not so as to be intelligible without the earlier part of the finding. The Court quashed the inquisition, holding that the words, *'and which said locomotive engine, tender and car- riages" could not be rejected as surplusage for the purpose of rendering the previous words sensible. Regina v. Midland Rail Co., 8 Q.B. Rep. 587. INSOLVENT. 337 INSOLVENT. [See Pkisoner.] (A) Petition and Protection. (o) Final Order. (1) Jurisdiction to grant. (2) Effect of. (&) How pleaded. (B) DiSOHAE&E OF. ■ (o) Effect of Mistake in Schedule. (i) Dismissal of Petition after Action brought. (c) Limited to Debts specified in Schedule. {d) As to what Debts. (e) Pleading. (C) Assignees. (o) Appointment of. (b) Powers and Rights of over hebtofs Pro- perty. (c) Suits and Proceedings by. (D) Right oe Insolvent, to sue. (E) Rights of Judgment Creditors. (F) Fraudulent Payments and Convey- ances. (G) Execution after 'Refusal of final Order. (H) Jurisdiction of County Court. (A) Petition and Protection. (a) Final Order. (1) Jurisdiction to grant. The Court of Bankruptcy has jurisdiction to entertain a petition for protection from process, and to grant to the petitioner a final order for protection and distribution, although at the time of presenting such petition and granting such final order the petitioner has no assets. The general plea shewing that such final order was granted to the defendant is good, without setting out any special preliminary averments for the pur- pose of shewing that the defendant was entitled to take the benefit of the act. Laurie v. Bendall, 17 Law J. Rep. (n.s.) aS. 348 ; 12 a.B. Rep. 634. (2) Effect of An orderfor protection, made under the 7 & 8 Vict. t. 96, in the case of an insolvent, protects his person only from process, and not after-acquired property, not attached by his assignees. Toomer v. Gingell, 15 Law J. Rep. (n.s.) C.P. 255 ; 4 Dowl. & L. P.C. 182 ; 3 Com. B. Rep. 322. A retrospective effect will not be given to a statute unless the statute, by precise words, clearly shews that such was the intention of the legislature. The Insolvent Debtors Act, 5 & 6 Vict. c. 116, gave no power to a creditor to prove against an in- solvent, before the Commissioner, for a sum payable by way of annuity at a future time, by virtue of any security ; but by the Amendment Act, 7 & 8 Vict, u. 96. s. 25, it was enacted, that every sum of money which shall be payable by way of annuity at any future time, by virtue of any security, "ihall be deemed and taken to be debts within the meaning of the 5 & 6 Vict, and of this act :" — Held, that sec- tion 25. had not a retrospective efifect, and that it was no answer to an action for a sum which had Digest, 1845—1850. been so payable; that the instolventihad obtained a final order for protection and distribution after the 5 & 6 Vict. c. 116, and before the 7 & 8 Vict c. 96. A release given to one of two joint and several obligors, without notice to the other obligor,' is a release as to both ; but where such a release' con- tained a proviso that the release should not be con- strued to extend to prejudice the obligee's right to enforce payment against the other obligor, — Held, that the proviso restrained the eflfect of the release, and that the debt of the other obligor was not therefore extinguished. Thompsons. Lack, 16 Law J. Rep. (N.s.) C.P. 75 ; 3 Com. B. Rep. 540. A final order obtained by an insolvent under the 7 & 8 Vict. t. 96. constitutes an absolute bar to an action for the debt as to which it is a protection. To an action of debt the defendant pleaded'that after the accruing of the debt, and after the passing of the 5 8j 6 Vict. c. 116, and before the passing of the 7 & 8 Vict. c. 96, andbefore the commencement of the suit, &c., a petition for protection from pro- cess was duly presented by the defendant to the Court of Bankruptcy,' and afterwards filed therein; and that' thereupon and after the passing of the secondly-mentioned act, a final order for protection and distribution was made in the matter of the peti- tion, by a Commissioner of the Court of Bank- ruptcy ; and that the debt accrued before the filing of the petition : — Held, that the plea was good.both in form and substance. Platell v- Bevill, Jacobs v. Hyde, 17 Law J. Rep. (n.s.) Exch. 249 ;' 2 Exch. Rep. 508. (5) How pleaded, A plea, under the statute 5 & 6 Vict. c. 116. ». 10, to an action for debt, stating that the debt was contracted before the date of the defendant's petition, and that he duly presented his petition for protection from process to the Birmingham Dis- trict Court of Bankruptcy, and that, afterwards, a final order for protection was made by a Com- missioner duly authorized, — Held, bad, it not appearing that the order was made for the pro- tection of the defendant, or in the matter of his petition. QMnere, also, whether the plea shewed jurisdiction to make the order ; the Commissioner not being named, and it not being averred that the defendant was within the jurisdiction of the district court. Tyler v. Shinton, 16 Law J. Rep. (n.s.) Q.B. 204; 8a.B. Rep. 610. In an action of assumpsit, defendant pleaded, in bar of the further maintenance of the action, that before the commencement of the suit, he then not being a trader, and having resided twelve calendar months in London, and, according to the provisions of the statute, 5 & 6 Vict. u. 116, having then given due notice, did then duly present a petition for pro- tection from process to the Court of Bankruptcy, which contained all such matters and things as are required by the act ; that on the presenting of the petition all the estate of the defendant forthwith became vested in W W, then being ■ an official as- signee duly nominated by Mr. Commissioner Fane, then acting in the matter of the said petition ; that after the contracting of the debts in the declaration mentioned, and after the commencement of the 2X 338 INSOLVENT; (A) Petition and Protection. action, the said Commissioner tlven being a Comnais- sioner of the said court duly authorized in that behalf, &c., did then make a final order, according to the provisions of the said act, for the protection of the person of the defendant from all process, and for the vesting of his estate, &c. in the said W W, being an official assignee as aforesaid, according to the provisions of the said act : — Held, on special demurrer, first, that the plea was properly pleaded to the further maintenance of the action, as the de- murrer admitted the final order to have been made after the commencement of the suit ; secondly, that the plea sufficiently alleged that the notice of the defendant's intention to petition had been given ; but, thirdly, that the plea was defective, as it ap- peared that the final order vested the defendant's estate in the official assignee only, without any mention of the creditors' assignee, as required by the statute 5 & 6 Vict. c. 116. s. 4. Nicholls v. Payne, 15 Law J. Rep. (n.s.) C.P. 23. To a declaration by indorsee against the acceptor of a bill of exchange, the defendant pleaded that he had resided for twelve months within the Birming- ham district, and that in pursuance of the 6 Vict. c. 116. he duly presented his petition for protection from process to the Court of Bankruptcy for the said district, and that such proceedings were had in the said court, that afterwards, a final order was made by a Commissioner of the court duly authorized, for the protection of the person of the defendant from process, and for vesting the estate 9nd effects of the defendant in J B, one of the official assignees of the said court, and that no. assignee was appointed by the creditors of the defendant, whereby the defendant was discharged from the said cause of action ; verification ; — Held, on special demurrer, Erie, J. dissentiente, that this was not a good plea under the 10th section of the above act, because, as it purported to follow the short form given by that section, it ought to have followed it exactly, and ought, therefore to have stated that the order was " for distribution" as well as " for protec- tion," and that the words " for vesting," &c., did not cure the defect. Semble, per Coltman, J., that the plea might have been good, though no assignee was appointed by the creditors. Per Maule, J., the plea would have been sufficient, though it did not follow the words of the 10th sec- tion, if it had shewn with certainty that the requi- sites of the 4th section had been complied with. Such a plea properly concludes with a verifica- tion. Gillon or Gillan v. Beare, 15 Law J. Rep. (N.s.) C.P. 25; 3 Dowl. & L. P.C. 412; 2 Com. B. Rep. 309. The defendant pleaded, in an action against her as acceptor of a bill of exchange, that she was dis- charged under the Insolvent Debtors Act, 5 & 6 Vict. c. 1 16. s. 1 0. The plea did not state at length the proceedings required to be taken, nor did it designate the order in the same terms as described by the act: — Held, a bad plea; it should either have set out the order, or have described it in the terms of the act. Wright v. Hutchhison or Hutchison, 16 LawJ.Rep.(N.s.)C.P. 226; 5 Dowl. & L. P.C. 149 ; 4 Com. B. Rep. 569. To an action on a bill of exchange the defendant pleaded that he, not being a trader, &c,, at the time of the passing of the 5 & 6 Vict. c. 116, duly pre- sented- his petition for protection to the CoQrt of Bankruptcy in London, which had annexed to it a full schedule of debts containing all matters men- tioned in the statute ; and that the said petition was filed, &c., and that a final order for protection and distribution was made by the Commissioner for protecting the person of the defendant from all process, and for the vesting his estate in T M A, one of the official assignees of the said Court of Bankruptcy, and that the debts in the declaration mentioned accrued before the filing of the said petition, and that the order was still in force, &c. : — Held, that the plea was good, both in form and substance, as shewing the eflTect of a final order under the 10th section of the above statute, though it did not shew the appointment of a creditors' assignee. Lewis v. Harris, 17 Law J. Rep. (n.s.) aB. 129; 11 aB.Rep. 724. Since the passing of the 7 & 8 Vict c. 96, which in some respect modifies the 5 & 6 Vict. c. 116, an insolvent cannot plead, in the form allowed by section 10. of the earlier act, the final order in bar of an action brought against him for a debt ; but in order to make such plea good, it must state that the debt accrued before his petition was filed, ' and that it was inserted in the schedule affixed to his petition. Phillips v. Pickford, 19 Law J. Rep. (Tii.s.)C.P. 171. (B) Discharge op. (a) Effect of Mistake in Schedule. The statute 1 & 2 Vict. c. 110. enacts, (s. 71,) that the Insolvent Court shall cause notice of the vesting order, &c. to be given to creditors of an insolvent whose debts shall amount to 5/. ; and section 93. enacts, that where a debt is specified in an insolvent's schedule, " at an amountwhich is not exactly the actual amount thereof, without any cul- pable negligence, or fraud, or evil intention on the part of such prisoner," the insolvent shall neverthe- lessbeentitledtothebenefitoftheact. The defendant, an insolvent, being indebted to "Mrs. Hoyles" (the plaintiff) in 71. 15s., made, without culpable negli- gence, fraud, or evil intention, the following inser- tion of the debt in his schedule, " Mrs. Isle, 31." No notice of the vesting order, &c. was given to the plaintiff:— Held, thatthe93rd section did not apply, inasmuch as the error in the description materially altered the condition of the creditor ; and that the defendant was not discharged from the debt. Qurere — Whether an insolvent is discharged from a debt where the description of his creditor, as in- serted in the schedule, although not fraudulent, is calculated to mislead. Hoyles v. Blore, 15 Law J. Rep. (n.s.) Exch. 2S ; 14 Mee. & W. 387. (6) Dismissal of Petition after Action brought. To a declaration in debt defendant pleaded, that after the accruing of the cause of action, and before commencement of the suit, plaintiff had petitioned the Court for the Relief of Insolvent Debtors, under the 1 & 2 Vict. c. 110, and that by virtue of an order of that Court all his rights and property had, before the commencement of the suit, become vested in the provisional assignee. Replication, that after that order the plaintiff's petition was dismissed by INSOLVENT ; (B) Discharge op. 339 that Court, and he was discharged from custody without taking the benefit of the act ; — Held, that the replication was bad, inasmuch as the dismissal of the petition must be taken to have been since action brought, and could not give a right to sue where none existed at the time the action was com- menced. Yorston v. Feather, 15 Law J. Rep. (n.s.) Exch. 31 ; 11 Mee. St W. 851 ; 3 Dowl. & L. P.C. 297. (e) Limited to Debts specified in Schedule, The defendant being the maker of two promissory notes of which the plaintiff was the payee, became insolvent, and obtained his discharge under the 1 & 2 Vict. c. 110, having inserted the plaintifFin his schedule as a creditor, in respect of two sums of money, without mentioning the promissory notes: — Held, that the defendant was not discharged from his liability on the notes. Leonard v. Baiter^ 15 Law J. Rep. (n.s.) Exch. 177; 15 Mee. & W. 202. (rf) As to what Debts. An insolvent inserted in his schedule, among his creditors, the name of a person to whom he had given two bills to get discounted, and who had appropriated them to his own use. The schedule was amended by introducing the name of a person to whom the bills had been indorsed, and to whom notice of the hearing was given. The indorsee, however, brought an action on the bills against the insolvent, and proceeded to judgment : — Held, that by the 1 & 2 Vict. c. 110. s. 90, the insolvent was entitled to his discharge as to the debt and costs, though the costs were incurred after the filing of the schedule. Berry v, Irwin, 19 Law J. Rep. (n.s.) C.P. 110. The words "debts growing due" in the 1 & 2 Vict. c. 110. a. 69. (Insolvent Act), mean debts ascertained in amount but payable at a future time. Skelton v. Mott, 19 Law J. Rep. (n.s.) Exch, 243 ; 5 Exch. Rep. 231. (e) Pleading. Replication of Discharge to Plea qf Set-off. A discharge under the Insolvent Act cannot be given in evidence under the replication of nil debet, to a plea of set-off, but must be replied specially. Ford V. Domford, 15 Law J. Rep. (n.s.) Q.B. 172 ; 8 Q.B. Rep. 583. Debt. Plea, set-ofT. Replication, that after the set-off had become due, the plaintiffby an order of the Court for the Relief of Insolvent Debtors, was duly discharged, according to a certain act of par- liament made and passed in the first and second years of Her Majesty, intituled, &c., from the said set-off, without this, that the said order and dis- charge still remain in full force : — Held, that the order and adjudication and discharge would be a legal answer to the plea of set-off, if properly pleaded. But that the 91st section of the 1 & 2 Vict. c. 110, which allows the discharge to be "pleaded generally," only applies to a plea and not to a replication, and that the replication was there- fore bad in form, for not sufficiently shewing that the plaintiff was entitled to his discharge under the statute. Francis V. Dodsworth, 17 Law J. Rep. (n.s.) C.P. 185 ; 4 Com. B. Rep. 202. (C) ASSISNEES. (b) Appointment of. An appointment of a person claiming to be a creditors' assignee of the estate and effects of an in- solvent debtor in the plape of a deceased assignee, on condition that he shall prove his debt by affi- davit on taking out his appointment, such debt having been afterwards proved accordingly, is a valid appointment, entitling the party so appointed to sustain a suit for the purpose of recovering pro- perty claimed as part of the estate of the insolvent. Co/e v. Cofes, 6 Hare, 617. (6) Powers, and Rights of, over Debtor's Property. To a declaration by the assignee of an insolvent, which stated that after the making of the vesting order, and before the final discharge of the insolvent; the defendant was indebted to the plaintiff as such assignee in 141i. for work and labour, &c., of the insolvent, due by him before his discharge, and on an account then stated between the plaintiff, as such assignee and the defendant, alleging a promise to pay to the plaintiff as such assignee after the vesting order, the defendant pleaded that the said work and labour, &c. were merely the personal labour of the insolvent done after the making of the vesting order for the necessary present maintenance and support of the insolvent and his family, and that the money due in respect thereof was not more than sufficient for the necessary maintenance and support of the insolvent and his family : and that before the plaintiff, as such assignee, had interfered or demanded the said monies from the defendant, the defendant paid the same to the insolvent. Re- plication, that the defendant did not before the plaintiff, as such assignee, had interfered or de- manded the said monies pay to the insolvent the said monies. General demurrer : — Held, that the action could not be maintained for a debt claimed to be due directly to the assignee for the personal labour of the insolvent. Williams v. Chambers, 16 Law J. Rep. (n.s.) Q.B. 230 ; 10 a.B. Rep. 337. The official assignee of an insolvent appointed under the 5 & 6 Vict. c. 116. s. 1. may immediately on his appointment sue in his own name for an out- standing debt due to the insolvent ; and the insol- vent after such appointment cannot sue for it. Therefore to an action by the insolvent, a plea shewing the petition of the plaintiff and protection granted, and an assignee appointed within the terms of the statute, is a good plea in bar. Sayer v. Dufaur, 17 Law J. Rep. (n.s.) Q.B. 60; 11 Q.B. Rep. 325. A provisional assignee, in whom a prisoner's estate and effects are vested by an order of the Insolvent Debtors Court, under the 37th section of the 1 & 2 Vict. c. 1 10, has power where such prisoner is a beneficed clergyman, to apply for a sequestra- tion under the 55th section of that statute. Smith V. Wetherell, 17 Law J. Rep. (n.s.) Q.B. 57 ; 5 Dowl. & L. P.C. 278. An annuity granted to a Commissioner of Bank- ruptcy under the 1 8f 2 Will. 4. c. 56. and the 5 8j 6 Vict. c. 122. passes to his assignee under the Insol- vent Act. Spomer V.Payne, 18 Law J. Rep. (n.s.) Exch. 401 i 4 Exch. Rep. 138. Case by an insolvent beneficed clergyman 340 INSOLVENT. against an attorney. The first count charged the defendant with negligence in defending an action brought against the plaintiff by one L, in con- sequence whereof judgment was given against the plaintiff for 14,500i., and he was brought up on a writ of habeas corpus before the Court and remanded to the Queen's Prison charged in execution for that amount, and was put to expense in endeavouring to reverse the judgment: — Held (on general demurrer to a plea), that the cause of action did not pass to the plaintiff's assignees. The second count charged the defendant with negligence in setting aside awrit oi sequestrari facias, issued against the plaintiff's benefice, by reason whereof the writ remained in force longer than it otherwise would have done, whereby the plaintiff lost the rents, &c. : — Held (on general demurrer to a plea), that the cause of action did pass to the plaintiff's assignees. Wetherell v. Julius, 19 Law J. Rep. (n.s.) C.P. 367. The annuity awarded as compensation to a Commissioner of Bankruptcy, whose duties were abolished by the 5 & 6 Vict. c. 122, passes to his assignee on his insolvency. But if the insolvent will not make the affidavit (required by the order for payment of the annuity) that He does not hold any office of emolument, &c., the Lord Chancellor cannot dispense with it, and semble, the assignee is without remedy. Spooner v. Payne, 2 De Gex & S. 439. The omission by assignees of an insolvent debtor to sell or take possession of copyhold estate of the insolvent, or to cause an entry of the assignment or copy of the appointment of the assignee to be made on the court rolls, or to possess themselves of the copies of court roll for nineteen years after the insolvency, whereby the insolvent is enabled to retain the property and hold himself out as the owner, and mortgage it for value to a person who had no actual knowledge of the insolvency, doesnot constitute an equitable ground for giving such mortgagee » charge in priority to the title of the assignee. A trustee for sale of testator's estates sold part and paid the proceeds into court. A party entitled to a share of the testator's property, assigned his interest to S by way of mortgage, and S gave notice of the assignment to the trustee, but did not obtain a stop order. The remainder of the estates was afterwards sold, and the proceeds paid into court under the decree in the suit. Subsequently, the assignor took the benefit of the Insolvent Debtors Act: — Held, that the notice to the trustee was suffi- cient to take the assigned share out of the order and disposition of the assignor. Matthews v. Gabb, 15 Sim. 51. The 1 & 2 Vict. u. 110. 5. 20. is only directory. Cole V. Coles, 6 Hare, 517. (c) Suits and Proceedings by, A bill by an assignee in insolvency need not allege that the consent of the creditors has been obtained to the institution of the suit. Spooner v. Payne, 2 De Gex & S. 439. (D) Right of Insolvent to sue. In 1842, A mortgaged certain leasehold property to B. In May 1843, A filed his petition under the 5 & 6 Vict. c. 116, and in July following obtained his final ordej and protection. In November 1843, A filed his Ijill against B and the official assignee in bankruptcy, to redeem, alleging that he had fully satisfied all his scheduled creditors under the insolvency. The official assignee by his answer disclaimed, and submitted to act as the Court should direct. Upon objection, at the hearing, that A had no title to sue, his whole property being vested in the official assignee by the final order made in the insolvency, the Court refused to dis- miss the bill on the ground of want of title, there being no power in bankruptcy, under the act or other- wise, even after all the insolvent's debts were satis- fied, for superseding the insolvency or re-conveying the property to the insolvent. Quicre — Whether the objection would have been good if taken by way of demurrer. Preston v, Wilson, Id Law J. Rep. (n.s.) Chanc. 137; 5 Hare, 185. (E) Bights of Judgment Creditoks. An insolvent within a year previous to his insol- vency executed a mortgage upon certain property, with a power of sale for the mortgagee to pay him- self off, and the residue to go to the insolvent, his appointees and assigns. The insolvent had sub- sequently executed a warrant of attorney to the plaintiff, on which judgment was entered up, and he was taken in execution. He then presented his petition under the Insolvent Act, and before his discharge the mortgagee sold under his power of sale: — Held, that the plaintiff was entitled to priority in respect of his judgment over the other creditors of the insolvent. Robinson v. Hedger, 19 Law J. Rep. (n.s.) Chanc. 463. (F) Fkaudulent Payments and Conveyances. Where a debtor conveys property in trust for creditors, to whom the conveyance is not commu- nicated, and who are not privy to it, the convey- ance operates not as an assignment, but only as a power to the trustee revocable by the debtor. Smith V. Keating, 6 Com. B. Rep. 136. A bill of sale as to personal property was given by an insolvent to a creditor more than a year before his insolvency, but possession was not taken by the creditor till one month prior to the insol- vency : — Held, that the creditor must be restrained from proceeding to sell the property, and could only avail himself of the bill of sale under the in- solvency. Parrott v. Congreve, 18 Law J. Rep. (N.s.) Chanc. 279; 16 Sim. 579. (G) Execution after Refusal of Final Okdeb. The defendant, who had been taken in execution upon a judgment, having obtained an interim order for his protection from process,underthe7 & 8 Vict, c. 96, afterwards attended upon his first examina- tion before the Commissioner, who dismissed his petition under the 24th section, upon the ground of a debt having been fraudulently contracted. The defendant not being then in custody, the Commis- sioner did not make any order remanding the de- fendant to his former custody, and the defendant therefore went at large. He was afterwardii, on the 20th of August, taken in execution upon a fresh ca. sa. in the usual form upon the same judgment. INSOLVENT— INSURANCE. 341 Upon motion made on the 6th of Novemher to set aside this writ, and to discharge the defendant out of custody, — Held, first, that under the 6th section of the above statute the plaintiff was authorized in taking the defendant in execution upon the same judgment. Secondly, that if there was any irre- gularity in the form of the process, the application to set it aside on that ground was made too late. Semhle — First, that such was the correct form of process to use. Secondly, that under the circum- stances the Commissioner had power to make an order remanding the defendant to his former cus- tody. Parker v. Bayley, 17 Law J. Rep. (n.s.) a.B. 45 ; o Dowl. & L. P.C. 296. (H) Jurisdiction or County Court. Where an insolvent had petitioned the Insolvent Court in 1839, and acquired property in 1848, being resident more than twenty miles from London, — Held, that the Judge of the County Court had no power under the 10 & 11 Vict c. 102. to examine him relating to his estate and effects, the provisions of that act being prospective j and that the circuits of the Commissioner of the Insolvent Court being abolished, the proper tribunal for such examination was the Court of Insolvent Debtors in London. In re Willcox, 18 Law J. Rep. (n.s.)Q.B. 244. INSURANCE. [See Ship and Shipping — Stamp.] (A) On Lives. (a) Concealment. (6) Suicide. (e) Covenant for Payment of Premiums, {d) Revival of Policy. (e) Assignment of Policy. (B) Against Fire. (A) On Lives. [See Infant, Maintenance.] (a) Concealment. By a life policy of assurance it was stipulated that it should be void if anything stated by the assured in his declaration to the directors should he untrue. In his declaration he staled that " he was at that time in good health and not afflicted with any disorder, nor addicted to any habit tending to shorten life; that he had not at any time been afflicted with insanity, rupture, gout, fits, &c., that he had not had any spitting of blood, consumptive symptoms, asthma, cough, or other affection of the lungs; and that one T W was at that time his usual medical attendant." The plaintiffs averred in their declaration the truth of the above statement of the assured. The first five pleas alleged that the de- claration of the assured was untrue in this, that he had had spitting of blood, consumptive symptoms, an asthma of the lungs, an affection of the liver, and a cough of an inflammatory and dangerous nature ; sixthly, that he was afflicted with a dis- order tending to shorten life ; seventhly, that he was not at that time in good health ; and eighthly, that he had falsely averred that T W was his usual medical attendant: — Held, that the plaintiff was entitled to begin at the trial, as the issue on the seventh plea, and semble of the other pleas also, lay upon him. It appeared that four years before the policy the assured had spit blood, that he had since evinced consumptive symptoms, and ultimately died of consumption three years after the making of the policy. The Judge directed the jury to say whether the assured when he made his declaration had such a spitting of blood, and such affection of the lungs, andinflammatory cough as tended to shorten his life: — Held, that this was a misdirection, as the assured was bound to state to the company the fact of a single spitting of blood, to enable them to ascer- tain whether it proceeded from the disorder^ called by that name. Geachv. Ingall, 15 Law J. Rep. (n.s.) Exoh. 37 ! 14 Mee. & W. 95. (i) Suicide. To an action upon a policy of insurance effected by S on his own life, expressed to be subject to a condition that the policy should be void if the assured should commit suicide, or die by duelling or the hands of justice, the defendants (the insurance office) pleaded that S did commit suicide. It was proved that S died by reason of having taken sul- phuric acid voluntarily, and for the purpose of kill- ing himself, being at the time of unsound mind. The Judge directed the jury that to find for the defendants the jury must be satisfied " that S died by his own voluntary act, being then able to dis- tinguish between right and wrong, and to appreciate the nature and quality of the act so as to be a, responsible moral agent." On a bill of exceptions it was held, in the Exchequer Chamber (by Parke, B., Mderson, B., Patteson, J., and Rolfe, B.), that the direction, as to the necessity of S being a re- sponsible moral agent, and capable of distinguish- ing [between right and wrong, was erroneous, the terms in the policy, " commit suicide," includ- ing all cases of TOira^ary self-destructionj whether felonious or not (dissentientibus Pollock, C.B. and Wightman, J.). Cliff V. Sehwabe, 17 Law J. Rep. (N.s.) C.P. 2; 3 Com. B. Rep. 437 ; 2 Car. & K. 134. (c) Covenant for Payment of Premiums. Covenant for non-payment by the defendant as surety of certain annual premiums in respect of a policy of assurance effected on the life of G F, and assigned by G F to the plaintiff. Pleas — first, that before the making of the assignment, and in the lifetime of one E S, it was, by an agreement in writing between G F and the plaintiff, after reciting that G F was in expectation of becoming devisee in fee simple under the will of E S of a certain messuage and premises, &o., agreed that in con- sideration of 5001. then paid, and 1,5007. to be paid on the 1 1th of October then next, G F would within three calendar months from and after the decease of E S, in case be should become the devisee of the said messuage and premises, convey and assure the same to the plaintiff, his heirs and assigns, subject only, &c., and in case G F should not become such devisee in fee simple, or should not be able to make out a sufficient title to the said messuage and pre- mises within three calendar months, the said sum of 2,0007. was to be repaid by G F without interest. 342 INSURANCE— INTEREST. That as a further security for such repayment, the policy ia the declaration mentioned was assigned to the plaintifF, suhject to an agreement hy the plaintiff to re-assign the same to G F in case the conveyance contracted for should be perfected. That G F further agreed to pay the premiums becoming due on the policy, and to procure the defendant and another to enter into a sufficient assurance for the payment of such premiums. That afterwards and in the lifetimeof E S, the defendant, G F and another executed the assignment in the declaration mentioned, in pursuance and part per- formance of the said agreement, whereby the said agreement and indenture in the declaration men- tioned were and each of them was wholly void. The defendant's second and third pleas stated an agreement and indenture, &c. in the same terms as the first plea, and then concluded, the second by alleging that at the time of the sale of the second pretended title, neither G F nor any person by whom he claimed the messuage and premises, had been in possession of the same or of the reversion or the remainder thereof, &c. by the space of one whole year before the making of the said sale, whereby the same was rendered void by the 32 Hen. 8. c. 9 ; and the third, by alleging that at the time of malting the said contract the defendant was not the heir-at-law of E S, nor had he then or at any time any interest in the said event, or in the life and death of E S, wliereby and by force of the 14 Geo. 3. c. 38. the said agreement, policy, and assignment were each of them void : — Held, upon demurrer, that all these pleas were bad. Cooke v. Field, 19 Law J. Rep. (N.s.) Q.B. iil j 15 Q.B. Rep. 460. (d) Revival of Policy. A loan was granted by an insurance company upon a bond with sureties, and a policy on the life of the borrower, as a collateral security. The premiums were not paid within the days of grace, but were demanded by the company, wlio brought actions against the sureties of the bond ; they re- fused to pay, and pleaded nan est factum and pay- ment. Upon a suit instituted to restrain such actions, and it being contended that the demand by the company, after the policy " was actually void," had revived it, — Held, that such revival was neutra- lized by the fact of refusal to pay, and the bill was dismissed, with costs. Edge v. Duke, 18 Law J. Rep. (n.s.) Chanc. 183. (e) Assignment of Policy, [See Intebpleader Suit.] W C O deposited a policy of assurance upon his life with W O to secure a debt and any further advances. Notice of the deposit was given to the directors of the assurance office ; W C O afterwards assigned the policy to W 0, and appointed him his attorney to receive what should be due upon the policy, and declared that it should not be necessary for the assurance ofince to inquire if any money was due to the assignee, and it also empowered W O to give receipts for the money. On the decease of W C the assurance office refused to pay the policy ; they alleged that the signature of the executor to any receipt for the money; was requisite, and they insisted that he was a necessary party to the bill J he was accordingly made a party to the bill, but disclaimed any interest in the money :— Held, that the plaintiff was entitled to receive the money, and that the company was bound to pay the whole sura assured, with interest at 42. per cent, from three months after the decease of W C O, but without costs, there being no substantial object in view by either party, except to fix the other with costs. Ottley V. Gray, 16 Law J. Rep. (n.s.) Chanc. 512. (B) Against Fike. Increase of Risk by Alteration of Premises, Assumpsit on a policy of fire insurance, by the plaintiffs, as varnish-manufacturers, to recover from the Norwich Union Fire Insurance Society 100/. and 501. on account of stock in trade, &c., burnt in a fire. The declaration stated the insu- rance of 1 OOi. to have been on the stock in trade in the oil store-room marked No. 7, and 501. on the stock in trade in the open part of the yard, and that the policy was subject to a condition, that if any alteration or addition were made to any building insured by which the risk of fire to the building or any insured property was increased, such alteration or addition must be immediately notified to the society, in order to its being allowed by indorsement on the policy, otherwise the policy would be void. The declaration then stated a waiver by the defen- dants of the warranty of the oil store-room No. 7 having no manufacturing process carried on there- in. Plea first, that an alteration had been made in the oil store-room, by which alteration the risk of fire to the building and the stock in trade was increased, and that the alteration was not notified to the society. Second plea, that the plaintifis erected the two boilers in the policies mentioned in the oil store-room No. 7, and used the same therein, by which said premises the risk of fire to the room and stock in trade was increased, and that the increase of risk was not notified to the society. Third plea to the whole declaration, that the plain- tiffs carried on, in the oil store-room No. 7, the hazardous trade of a varnish-maker, whereby the risk of fire to the room and stock in trade was in- creased ; averment of want of notice to the society. Replication, de injurid. — Held, that the Judge misdirected the jury in desiring them to consider whether the addition and alteration increased the risk of fire in the case of the oil store-room No. 7; the question being, whether the use of the boilers in the ordinary way as boilers and not for boiling varnish would have increased the risk. Semble — that the second and third pleas were bad. Barrett v. Jermy, 18 Law J. Rep. (n.s.) Exch. 215 ; 3 Exch. Rep. 535. INTEREST. [See GuABANTiE — Limitation op Actions and Suits.] Effect of Payment of, as Evidence of Principal being due. " Five months after date I promise to pay Mr. L P, or order, the sum of 23/. 2s. 6d., being the INTEREST— INTERPLEADER ORDER. 343 amount of interest due on a promissory note from the undersigned to the late W N, for 1171. is. Dated the 6th of July 1838, up to the 6th of July 1814. (Signed J S)" :— Held, evidence to go to the jury of an account stated by J S with I. P, so as to raise a promise to pay the 1171. is. Penny or Peny v. Slade, 15 Law J. Kep. (n.s.) aB. 10; 8 Q.B. Bep. 115. On Debenture Bond, Covenant for the recovery of interest on a deben- ture bond in the following form given to the plain- tiffs : — " Great Western Railway Companv Deben- ture Bond, No. 5,;'29. B 1,000/. By virtue of an act of parliament passed, &c., for making a railway from Bristol, &c., to be called the Great Western Railway, &c., we, the Great Western Railway Company, in consideration of 1,000Z. to us paid by T,P and W G, do assign to the sajd T P and W G the said undertaking, and all future calls, and all tbe estate, rigbt, title, and interest of the said com- pany, in and to the same, to hold unto the said T P and W G until the said sum of 1,000/., toge- ther with interest for the same after the rate of 51. per cent., payable as hereinafter mentioned, shall be fully paid and satisfied. And it is hereby sti- pulated, that the said principal sum of 1,000/. shall be so payable and paid on the 15th of January 1844, and that in the mean time the said company shall, in respect of interest as aforesaid on tbe said principal sum, pay to the bearer of the coupons or interest warrants the .several sums mentioned in such warrants respectively, at the times specified therein." In January 1844, the previous interest having been duly paid, the last of the coupons was presented and the interest paid ; but the company did not pay the principal, nor give notice to the plaintiffs that they were ready to pay it: — Held, that the plaintiffs were entitled, in an action of covenant, to recover the interest accrued since the 15th of January 1844. Price v. Great Western Rail. Co., 16 Law J. Rep. (n.s.) Exch. 87; 16 Mee. & W. 244. On a Judgment Debt. Interest on a judgment debt, under the I & 2 VicL c. 110. s. 17, runs from the date of the entry of the incipitur, and not merely from the time of perfecting the judgment after the taxation of costs. Newton v. Grand Junction Rail. Co., 16 Law J. Rep. (N.S.) Exch. 276 ; 16 Mee. & W. 139. Liability of Testator's Estate for. Testator covenanted to pay a sum of money to trustees on the trusts of his settlement. He made default, — Held, that his estate was liable to pay il. and not 57. per cent, interest. Smith v. Copleston, 11 Beav. 482. INTERNATIONAL LAW. If a bill of exchange is drawn in one country and payable in another, and the bill is dishonoured, the drawer is liable, according to the lex loci contractus, and not the law of the country where the bill was made payable. But where a bill is drawn generally, the liabilities of the drawer, acceptor, and indorsers are governed by the laws of the countries in which the drawing, acceptance and indorsement respectively take place. The principle of compensation in the civil law, adopted by the Dutch-Roman law, applies to bills of exchange ; and a debt due by a creditor to the debtor is extinguished by a liquid debt of the same amount due from the creditor to the debtor. A, resident in Demerafa, drew a bill of exchange in favour of B, also resident in Demerara, payable in London, upon C, resident in Scotland, and accepted the same, making it payable in London. B indorsed the bill to D, who shortly afterwards became bankrupt. When C's acceptance became due, he held two bills of exchange accepted by D, which were dishonoured and protested for non- payment. D's assignees did not proceed against C, but brought an action in Demerara against A and B, the drawer and indorser, who pleaded 'S. right Of set-off to the extent of the two bills accepted by D, which the Supreme Court disallowed, and found for the plaintiffs: — Held, by the Judicial Committee, reversing such sentence. First, that the bill having been drawn in Deme- rara, the Dutch- Roman law, in force in that colony, must govern the case, and that, by that law, the bill accepted by C was compensated or extinguished, pre tanio, by the bills accepted by D ; Secondly, that a surety was entitled to avail himself of this rule of law, in respect of a debt due to the principal debtor ; and. Thirdly, that the drawer and indorser were to be deemed sureties for the acceptor, and entitled to plead this right of set-oiF. Allen\.KemUe,6 Moore, P.C. 314. INTERPLEADER ORDER. (A) When geahteb. (B) Affidavit by Claimant. (C) Reserving Question of Costs. (D) Secuhity for Costs. (E) Staying Proceedings. (F) Entry of Judgment. (G) Order to pay Proceeds pending Writ of Error. . 5. Atkinson v. Hornby, 2 Car. & K. 335. LANCASTER. The practice and proceedings of the Court of Chancery of the County Palatine of Lancaster amended by the 13 & 14 Vict. c. 43; 28 Law J. Stat. 71. LANDLORD AND TENANT. [See Lease — Pleading — Waste.] (A) Of the Tenancy. (o) When and how created, (1) By Underletting, (2) By Attornment. (3) Between Mortgagor and Mortgagee, (4) Contract creating it. (6) CommCTicement of the Holding, (e) Length of Term, {d) Holding over. (e ) Determination of Tenancy, (1) Surrender, (2) By Assignment of Term, (3) By partial Eviction, (4) By Service of Declaration in Eject' ment, (f) Yearly Tenancy. (g) Weekly Tenancy, (h) 'Tenancy at Will, («') Custom of the Country, to what Tenancies applicable, (A) How averred in Pleading, (B) Contracts between. (a) Construction qf. (6) For quiet Enjoyment, (C) Of the Rent. (a) At what Period payable. (b) Payment to Ground Landlord. (c) When Payment of. Evidence of Title. (rf) Penal Rent, (D) Landlord's Remedies. (a) Distress, (1) At Common Law, (2) Notice of. (3) What may be distrained, (4) Fraudulent Removal of Goods, (5) Retention of Goods, (6) Tender of Rent. (7) Time to replevy. (8) For Penalty under a Demise. (b) Re-entry. (c) Restitution of deserted Premises. (d) Use and Occupation. [See (A) (rf).] (E) Landlord's Liabilities. (a) Wrongful Distress. (6) To double lvalue under 2 W. Sf M. c. 5. ». 4. (F) Tenant's Rights and Liabilities. (G) Notice to quit. (H) Assignee of Reversion. LANDLORD AND TENANT; (A) Or the Tbnanot. 857 (A) Oj THE Tenancy. (o) When and how created, (1) By Underletting. The plaintiff, being tenant of premises from May to the 13th of December, let them by parol to the defendant until the latter day, reserving a weekly rent, the intention of the parties being to create the relation of landlord and tenant, and to pass the right of possession by lease : — Held, that the transaction did not amount to an assignment, and that use and occupation might be maintained on the lease. Pol- lock V. Stacey, 16 Law J. Rep. (n.s.) Q.B. 132 ; 9 Q.B. Rep. 1033. (2) By Attornment. The defendant, a mortgagee, avowed for rent due to him from the plaintiff, by virtue of a certain demise to him for two years, ending on the 29th of September 1842. It appeared that the plaintiff was tenant, of the mortgagor, and that he with other tenants subsequently to the mortgage, on the 1 4th of October 1842, attorned to the defendant. Oppo- site the plaintiff's name in the instrument of attorn- ment was entered "Rent 551., from Michaelmas 1840:" — Held, that the avowry was well supported. Gladman v. Plumer, 15 Law J. Rep. (n.s.) O.B. 79. (3) Between Mortgagor and Mortgagee. A mortgage deed, executed by the mortgagor only, contained, in addition to the usual clauses, the following: that " for better securing the interest, the mortgagor does hereby attorn and become tenant of the premises to the mortgagee at the yearly rent of 40i., payable half-yearly, so long as the principal sum shall remain secured.*' The mortgagor having continued in possession of the premises, and having made several of these half-yearly payments, which, however, were described in the receipts given by the mortgagee, as being " for interest," — Held, that the relationship of landlord and tenant existed between the parties, and that the former had the right to dis- train for the amount of a half-year's arrears. West v.Fritch, 18 Law J. Rep. (n.s.) Exch. 50; 3 Exch. Rep. 216. (4) Contract creating it. A held premises of B under a lease for three, seven or ten years, determinable on notice; with a stipulation that the amount of a quarter's rent should be paid by A on taking possession, which was to be allowed to him for the last quarter's rent, " on the determination of the said tenancy." After a notice to determine the lease at the expiration of the third year had been given, and before its expiration, the parties verbally agreed that A should continue tenant for another year, no express mention being made of the terms of the tenancy : — Held, that the above was in substance a stipulation for a forehand rent, and that in the absence of any express mention of other terms, A continued to hold subject to the terms of the original lease; and, consequently, that the payment made on taking possession was appli- cable to the last quarter of the fourth year. Finch V. Miller, 5 Com. B. Rep. 428. Where a contract was made by plaintiff and one H, that H " should build certain houses on plaintiff's land and procure tenants for the same at a given rate, and himself pay the rent till he so procured tenants, from the Michaelmas then nextensuing," — Held, that under the contract no tenancy was created between the, plaintiff and H. Taylor v. Jackson, 2 Car. & K. 22. (6) Commencement of the Holding, ■ The defendant held under a lease from A, for fourteen years and a half from Christmas 1831, and paid rent to A until the expiration of the lease on the 24th of June 1846 ; after that time he continued in possession, and paid, rent to the lessor of the plaintiff, who had become entitled to the premises : — Held, that a notice to quit expiring on the 24th of June was good. Doe d. Buddie v. Lines, 17 Law J. Rep. (n.s.) aB. 108; 11 Q.B. Rep. 402. (c) Length of Term. By a written agreement the tenancy was to be " from year to year from Michaelmas next, at the yearly sum of 551., payable half-yearly at Lady- day and Michaelmas, except the last half-year, which portion of the rent shall be paid on or before the 1st of August in that year; the tenant to dress the lands in the due course of husbandry, &c., and to allow the landlord or incoming tenant in the last year to enter on the 1st of May to make fallows; &c., the tenant to be allowed the use of the barns for stacking and threshing the crops. Sic. of the last year, until the 1st of May after the tenancy:" — Held, that the agreement did not create « tenancy for more than a year, and that notice to quit might be given, expiring at the end of the first year. Doe d. Plumer v. Nainby, 16 Law J. Rep. (N.s.) ft.B. 303; 10 as. Rep. 473. {d) Holding oveVi B being tenant to A from year to year, and under notice to quit at Michaelmas, C entered ipto an agreement with A for a lease of the preniises from Michaelmas, at an increased rent, A undertaking to put the premises in repair before the commence- ment of the term. A afterwards accepted C as tenant, in lieu of B, for the remainder of B's terra. A did not put the premises in repair, and no lease was executed: — Held, that C was not necessarily to be considered as continuing tenant after Michael- mas at the rent previously paid, but that he was liable to A for such reasonable rent as the premises were worth. Mayor, 8;c. of Thetford v. Tyler, 15 Law J. Rep. (n.s.) Q.B. 33; 8 ft.B. Rep. 95. A and B were tenants to the plaintiff of certain premises for a term of three years. B never occu- pied the premises, but A, on the expiration of the term, held over. No assent of B to the holding over was proved. An action for use and occupa- tion having been brought by the plaintiff against A and B, in which A suffered judgment by default, the plaintiff tendered in evidence a letter written by his agent to B, after the expiration of the term, in which he demanded rent alleged to he due sub- sequently to the term : no answer was returned to this letter :^Held, that as one tenant cannot bind his co-tenant by holding over without his assent, according to the doctrine of Christy v. Tancred, which was in effect confirmed by the case of Tan- cred V. Christy I and as there was no evidence of B's assent in this case, the defendant B was not liable 358 LANDLORD AND TENANT; (A) Op the Tenancy. for the rent, and therefore the letter to him, although admissible, was not entitled to much weight. Draper v. Crofts, 15 Law J. Rep. (n.s.) Exch. 92; ISMee. &W.166. In deht for douhle value under the 4 Geo. 2. 0. 28. the declaration stated that the plaintiffs were seised in their demesne as of freehold in right of the plaintiff, Caroline Mary H, during her life, of a messuage held by the defendant as tenant to the said plaintiffs for a year, terminable on the 11th of Oc- tober 1 844, the reversion thereof belonging to the plaintiffs in right of the said Caroline Mary. That the plaintiffs, on the 1st of September, gave notice in writing and demanded of the defendant to de- liver up possession of the said premises to the plaintiffs on the 11th of October, which the defen- dant refused to do. Plea, nil debet, by statute. The defendant became tenant to Mr. H, one of the plaintiffs, for one year, from the 11th of October 1843 to the 11th of October 1844, of a house, farm, &c., at a certain rent, and occupied the same as tenant to him for that year. The con- tract for this tenancy was by parol, and was made by the defendant expressly with Mr. H alone in his own right, and Mrs. H was no party thereto. A demand and notice in writing for delivering up of the possession by the defendant was made by the agent of the plaintiffs. The defendant retained possession of the premises ; — Held, that the two plaintiffs were not entitled to recover in this joint form of action, the defendant not being the tenant of the two plaintiffs, and the reversion not being in the two plaintiffs, but in the husband alone, and that neither the averment of the tenancy, nor the words " to the said plaintiffs" in the allegation of the tenancy, could be rejected. Hareourt v. Wyman, 18 Law J. Rep. (n.s.) Exch. 453 ; 3 Exch. Rep. 817. (e) Determination of Tenancy, (1) Surrender. Defendant being tenant to the plaintiff after having given up possession of the premises, wrote to his lessor as follows, during the term : " I trust you may be able to let the rooms to some other person and on better terms ;'* the plaintiff after- wards without any further communication with the defendant let the premises at an increased rent to a third party, who entered and paid rent for some time. In an action of debt on the original demise, — Held, that these facts constituted a surrender by act and operation of law. NichoUs v. Ather stone, 16 Law J. Rep. (n.s.) Q.B. 371 ; 10 ©.B. Rep. 944. Defendant was tenant to A B of certain apart- ments under a written agreement for a term of years, at a rent payable quarterly. A B became bankrupt. Defendant having occupied for a short time after the bankruptcy and after appointment of the assig- nees, sent the key to the office of one of the plain- tiffs, the official assignee, by a person who left it there with one whom he supposed to he the clerk, stating that it was the key of the apartments in question, and that he brought it from the defendant. A tin plate was fixed outside the door of the apart- ments, announcing that the defendant had removed to another address. The plaintiffs having, eighteen months afterwards, demanded six quarters' rent due since the bankruptcy, — Held, that there was no evidence from which a jury could properly find that there had been a surrender by operation of law, assuming that the delivery by the defendant and acceptance by the official assignee of the key of the apartments would have amounted to such surren- der, within the Statute of Frauds. Cannan v. Hart- ley, 19 Law J. Rep. (n.s.) C.P. 323. [See Doe d. Hull v. Wood,post (/).] (2) By Assignment of Term. The declaration alleged that, in consideration that B had become tenant to A, upon terms that B should, during- his said tenancy, keep the premises in repair, B promised A to keep the premises in repair during his said tenancy upon the terms aforesaid ; that the said tenancy continued until the commencement of the action, but that B did not, during his said tenanvcy, keep the premises in repair. Plea, that after B had become tenant to A, and before the committing of the breach, A, by due course of law, assigned to C all his interest in the demised premises and in the reversion expect- ant on the determination of B's said tenancy; and A, thenceforth, ceased to have anything in the de- mised premises, and B thence ceased to he tenant thereof to A : — Held, that the plea was no answer to the declaration, the contract to repair being a contract to repair during the tenancy ; and that the tenancy was not put an end to by the assignment, Bickford v. Parsons, 17 Law J. Rep. (n.s.) C.P. 192; 5 Com. B. Rep. 918. (3) By partial Eviction. In an action by a landlord against his tenant for a breach of promise to use the demised premises in a tenant-like manner during the tenancy, the defendant pleaded, first, that before the breach the plaintiff had evicted him from part of the premises, and that he had relinquished possession of the resi- due; and, secondly, that before the breach the defen- dant's interest in the premises was surrendered by operation of law by the defendant relinquishing and the plaintiff accepting possession of the pre- mises : — Held, that these pleas were had ; that though the eviction from part created a suspension of the entire rent during its continuance, it did not, even along with the relinquishment of the residue, put an end to the tenancy or relieve the tenant from other covenants besides that for payment of rent; that the plea of surrender did not shew a surrender by operation of law, but that if it did, it was bad in form, being an argumentative denial that there was any breach during the tenancy. Morrison v. Chadwick, 18 Law J. Rep. (n.s.) C.P. 189 ; 7 Com. B. Rep. 266. (4) By Service of Declaration in Ejectment. The service by lessor upon lessee of a declara- tion in ejectment for the demised premises, for a forfeiture operates as a final election by the lessor to determine the term ; and he cannot afterwards (although there has not been any judgment in the ejectment) sue for rent due, or covenants broken after the service of the declaration. Jones v. Carter, 15 Mee. & W. 718. (/) Yearly Tenancy. In 1786 the Dean and Chapter of Canterbury and one P granted a lease of premises for ninety-nine LANDLORD AND TENANT ; (A) Op the Tenancy. 359 years, reserving a rent to the dean and chapter, and another rent to P. This lease purported to he made in pursuance of leasing powers given hy a private act of parliament, hut was in fact not in accordance with them. The rents reserved by the lease had been from time to time regularly paid to and received by the successive deans and chapters and to and by P and his representatives. Qutgre — ^Whether the lease of 1786 was void or only voidable : but held, that if voidable, it had been set up by acceptance of rent by each successive dean and chapter ; and if void, the payment and receipt of rent was evidence from which a demise from year to year by the dean and chapter would be presumed. Though to enforce an executory contract against a corporation, jt may be necessary to shew that it is by deed, yet where a corporation have acted as upon an executed contract, it is to be presumed against them, that everything necessary to make it a bind- ing contract on both parties was done, the corpora, tion having had all the advantage they would have had if the contract had been regularly made. Doe d. Pennington v. Taniere, 18 Law J. B-ep. (n.s.) Q.B. 49 ; 12 a.B. Rep. 998. By the 7 & 8 Vict. c. 76. s. 4. (since repealed hy the 8 & 9 Vict. c. 106.) it is provided that no lease in writing " shall be valid as a lease unless the same shall be by deed, but any agreement in writing to let any land shall be valid and take effect as an agreement to execute a lease j and the person who shall be in possession of the land in pursuance of any agreement to let may, from payment of rent or other circumstances, be construed to be a tenant from year to year." — Held, that the meaning of the statute is, that the person in possession under the lease (which is thereby turned into an agreement to let) is to be deemed from payment of rent or other circumstances a tenant from year to year not indefi- nitely, but only for the term specified in the agree- ment Where during the operation of that statute, by an agreement (not under seal) A agreed to let to B premises for three years from Michaelmas 1845, with a power for B six months previous to the end of the said term of three years, by a notice to that eflfect, to renew the tenancy for a further term of three years, and B entered and paid rent and gave due notice of his desire to renew, but no further lease was granted, — Held, that a tenancy from year to year was created, determinable during the three years by a notice to quit, but expiring at the end of that period by efduxion of time, when A might recover in ejectment without giving any notice to quit. Doe d. Devenish v. Moffatt, 19 Law J. Rep. (N.s.) Q.B. 438. A mere permission to occupy constitutes a tenancy at will only ; and, in order to create a tenancy from year to year, there must be some circumstances to shew an intention to do so, such as payment of rent quarterly, or some other aliquot part of a year. W H, being tenant from year to year to H, died, leaving his widow in possession. J H, some time after, took out administration to deceased, and the widow continued in possession, paying rent to H, with the knowledge of J H, who never objected to such payment or made any demand for the tent; — Held, first, that there was no evidence of a surren- der by operation of law so as to create the relation of landlord and tenant between H and the widow ; secondly, that there were no circumstances from which a tenancy from year to year to the adminis- trator could be presumed. Doe d. Hull v. Wood, 15 Law J. Rep. (n.s.) Exch. 41 j 14 Mee. & W. 682. Where payment of rent unexplained would ordi- narily imply a yearly tenancy, it is open to the payer or receiver of such rent to prove the circum- stances under which such payment was made, for the purpose of repelling sttch implication. Doe d. Lord V. Crago, 17 Law J. Rep. (n.s.) C.P. 263 ; 6 Com. B. Rep. 90. (g) Weekly Tenancy, Where the only evidence of the terms on which a furnished house was taken was the following re- ceipt put in by the landlord : " Received from C 126Z. for rent of furnished house, from the 8th of May to the 1st of August 1846," — Held, that the jury might properly infer that the tenancy was weekly. Quisre — Whether, in the absence of any other evidence of the contract, a notice to quit, from the tenant, was necessary. Towne v. Campbell, 16 Law J. Rep. (n.s.) C.P. 128 ; 3 Com. B. Rep. 921. (A) Tenancy at Will. A, under a mortgage deed, agreed to become tenant to B of the premises demised, " henceforth at the will and pleasure of B, at the yearly rent of 252. 4s. payable quarterly :" — Held, that this was a tenancy at will ; and that occupation for two years, and payment of rent under the agreement, did not make B tenant from year to year. Doe d. Sasto or Barstoui, v. Cox, 17 Law J. Rep. (n.s.) Q.B. 3; U a.B. Rep. 122. In ejectment upon the demise of a corporation, held, that the jury might infer that.H, as servant of the corporation, by whose permission the defen- dant had taken the land, and that F, another ser- vant, who had given him notice to deliver up possession, were authorized by the company so to act J and that a tenancy at will, commencing and determining before the coming into effect of the 3 & 4 Will. 4. c. 27, was no bar, under ss. 2, 7, to an ejectment commenced in 1847. Doe d. Birming- ham Canal Co. V. Bold, 11 Q.B. Rep. 127. [See Dower.] («) Custom of the Country, to what Tenancies applicable. Where a custom of the country is proved to exist, it is to be considered applicable to all tenancies, in whatever way' created, whether verbal or in writing, unless expressly or impliedly excluded by the written terms themselves. Wilkins v. Wood, 17 Law J. Rep. (n.s.) Q.B. Rep. 319. (4) How averred in Pleading. Trespass quare clausum /regit. Plea, that the close was the soil and freehold of B ; that the plaintiif held the same as tenant to B, upon con- dition that B, or his incoming tenant, at any time after notice to quitgiven or received by the plaintiff, should be at liberty to enter on the close, &c. ; that B had given the plaintiff notice to quit, and had agreed to let to the defendant, and the defendant had 360 LANDLORD AND TENANT; (B) Cokteaots between; (C) Of the Rent. agreed to take the said close, &o. as tenant thereof, and the defendant thereupon became the incoming tenant of B, justifying the trespass as such incoming tenant Replication, admitting that the close was the soil of B, de injurid absque residua causa : — Held, on special demurrer, that the replioation was ill, as improperly putting in issue an authority in law derived from the plaintiff Held, also, that the plea was good, upon general demurrer. Milner T. Myers, 15 Law J. Rep. (n.s.) Q.B. lo7 ; nam. Milner v. Jordan, 8 Q.B.Rep. 615. (B) Contracts between. [See (A) (a) (4).] (a) Construction of. Where by a memorandum in writing the plaintiff agreed to let a house at a yearly rental of 501., with a proviso that in consideration of the yearly rent as aforesaid being duly paid, &c., and the memoran- dum concluded " likewise the stable and loft now occupied by H (a third party) at a further rental of 251. per annum, to be paid on the usual quarter day :" — Held, that the quarterly payment applied only to the latter rent. Coomber v. Howard, 1 Com, B. Rep. 440. A railway company agreed with the landlord for part of a ferm j and afterwards by a mistake he, on the same day, conveyed the part to the company, and granted a lease of the whole to a tenant. A question arose whether the landlord or the company should make compensation to the tenant. The com- pany took possession, and the tenant brought eject- ment : — Held, that the company could maintain a suit to stay the ejectment and ascertain the rights, and ah inquiry was directed. Norwich Rail: Co. V. Wodehouse, 11 Beav. 382. (A) For quiet Enjoyment. A, in 1841, agreed to let to B premises, "subject to the same conditions as were mentioned in an agreement to A from F," at a certain yearly rent, for the term of eight years and a quarter, and that if F was willing to accept B as tenant instead of A, B was willing to take die remainder of the lease or memorandum from F, and become his tenant. P was tenant to D, and F's term expired in 1844, whereupon F brought an action of ejectment against B, and recovered possession : — Held, in an action by B, on this agreement, alleging after mutual promises that the defendant promised "that B should and might quietly use, occupy, possess, and enjoy the said premises during the said term for which A had so agreed to let them," that this claim was not made out, as the law would not imply from an agreement to let subject to conditions, in the absence ofshewing what they were, an absolute con- tract for quiet enjoyment, and that it was not in- cumbent on the defendant to shew what they were. Held, also, that, at all events, the implied con- tract for quiet enjoyment, if indeed it could at all be implied from a mere agreement to let, was confined to the interest of A ; and that, in order to enable B to recover, he ought to shew the continuance of A's interest Messentv. Reynolds, 15 Law J. Rep. (n.b.) C.P. 226 J 3 Com. B. Rep. 194. (0) Of the Rent. (a) ^t what Period payable. Premises were demised from A to B from the 25th of March 1844, for a twelvemonth certain, and from thence until determined by a six months' notice from B expiring at any quarter of a year, at the rent of 120/., per annum : — Held, that the rent was payable yearly, and that A could not recover in use and occupation for the quarter ending the 25th of December 1845. Collettv, Curling, 16 Law J. Rep. (N.s.) aB. 390; 10 Q.B. Rep. 785. (6) Payment to Ground Landlord. A plaintifT in replevin may, in bar to an avowry for rent, plead a compulsory payment to the ground landlord or other incumbrancer having claims para- mount to those of the immediate landlord making the distress. Under such a state of facts the proper form of plea is riens in arrere, concluding to the country. A plea setting out the facts specially and concluding with a verification, — Held, to be bad on special demurrer. Jones v. Morris, 18 Law J. Rep. (N.s.) Exch. 477 ; 3 Com. B. Rep. 742. In the year 1840, A being the lessee of a ware- house and cellar, under a demise from B, and being also the lessee under C of property comprising intei- alia a vault, T> became tenant from year to year to A of the warehouse and cellar and vault, under an annual rent of 1851., made up of liOl. for the ware- house and cellar, and 45Z. for the vault On the 27th of October 1845 A became banki'upt, 921. lOs, being at that time due as rent from D to A. The assignees upon being appointed elected to take the property held under B ; and on the 26th of Feb- ruary 1846, elected not to take the property held under C. At Christmas 1845 rent to the amount of 114?. 7s. 6d. became due from A to C, for which amount, on the 19th of February 1846, C distrained upon the goods in the vault held by T>, who, to relieve himself from this distress, paid that sum to C. An action having been subsequently brought by the assignees of A against D, to recover the above sum of 92;. 10s., and also 351., being one quarter's rent of the warehouse and cellar, due at Christmas 1845, — Held that D was not entitled in such action to avail himself of the payment of llil. 7s. 6d. made by him to C. Graham v. AUsopp, 18 Law J. Rep. (n.s.) Exch. 85 ; 3 Exch. Rep. 186. (c) When Payment of. Evidence of Title, A receipt of rent from the tenant by an actual agent of a lessor, although not known to be such by the tenant at the time of payment, is evidence for the jury of the lessor's title to the premises. Replevin. Plea in bar, nmi tenuit, W and B being entitled to certain premises as trustees of C, conveyed their estate to W and N, who conveyed it to the defendants. The plaintiff paid rent to H during the time that he was agent both for W and B and W and N, and received from him receipts in the following form : — " Received for the trustees (not naming them) of C," &o. The plaintiflf was ignorant of the conveyance of the legal estate to W and N, and of H being their agent. The defendants proved the conveyance from W and N to themselves, but not the conveyance from W and B to W and N : — Held, that the payment of rent to the agent of LANDLORD AND TENANT; (D) Landlobd's Remedies. 361 W and N, although he was not known to be such, was evidence of the defendants' title to the premises. Hitchings v. Thompson. 19 Law J. Kep. (n.s.) Exch. 146 j 5 Exch. Hep. 50. (d) Penal Rent. A demised premises to B for a term of years, "yielding and paying to A the yearly rent of 1002., and also yielding and paying to A on the days of payment of the said yearly rent, over and above the same rent, a further yearly rent or sum according to the rate of 20i. the acre of grazing land which should be broken up into tillage by B during the term, and also yielding and paying to A on the days of payment of the said yearly rent first named, over and above the same rent, " according to the rate of 20/. the acre" of any close; which B. should underlet, or from which he should take a third crop of corn without seeding it down, and also yielding and paying to A on the days of payment of the first- mentioned rent, over and above the same rent, the further yearly rent or sum of 201. the acre of land which should be mowed for hay, &c., without being manured once atleast in every three years. The said several eventual and contingent rents, if any such should become due, to be additional to the first- mentioned rent, and to be paid and payable half- yearly by equal portions. The first payment to be made on the day of payment of the first-mentioned rent which should first or next happen after such eventual or contingentrent should have been incurred, and to continue j>ayable thenceforth during all the residue of the term thereby created." B in one year took a third crop of corn without seeding down : — Held, thatBwasliabletothepenal rent of 202. per acre during the residue of the term though the branch of the covenant imposing such penalty did not contain the terms "further yearly rent" -which were con- tained in the other branches of such covenant. Bowers V. Nixm, 18 Law J. Eep. (n.s.) G.B. 35; 12 aB. Rep. 658. (D) Landlokd's Remedies. (a) Distress, (1) At Common Law. A distress cannot be made at common law after the tenancy has been determined by notice to quit, though the rent may have become due before such determination. And an avowry for such rent must therefore be framed so as to bring the case within the 8 Ann. c. 14. Williams Y. Stiven, 15 Law J. Rep. (u.s.) Q.B. 321 ! 9 a.B. Rep. 14. (2) Notice of. A parol notice of distress is insufficient, under the statute 2 Will. & M. sess. 1. st. 5. s. 2. Wilson v. Nightingale, 15 Law J. Rep. (n.s.) Q.B. 309;. 8 Q.B. Rep. 1034. A notice of distress for rent in arrear stated that the party giving the notice had " distrained thegoods, chattels and things mentioned in the inventory hereunder written." In the inventory referred to one article was named, and then followed the words " and any other goods and eifects that may be found in and about the said premises," &c. : — Held, in an action for a wrongful sale, that such notice, though Digest, 1845—1850. very loose, could not be considered insufficient, as it appeared that all the goods upon the premises were intended to be, and were distrained upon. Upon the trial of an action against several defen- dants, where the only plea pleaded is not guilty, it is in the discretion of the Judge. at the end of the plaintiffs cases to direct a verdict of acquittal in favour of one of the defendants against whom there is no evidence. Wakeman v. Lindsey, 19 Law J. Rep. (N.s.) Q.B. 166. (3) What may he distrained. Where the sherifi' seizes goods in execution, and assigns to the execution creditor, having notice that a year's rent is due to the landlord, though he may be liable to an action at the suit of the landlord, yet such landlord cannot distrain for his year's rent while the goods are in the possession of the sheriff or his assignee. Trespass qu. cl. fr. of plaintifl; Plea, entry to seize growing crops under a distress for rent Re- plication, a previous seizure under a fi.fa., at the suit of the plaintiff against the tenant of the locus in quo, and an assignment to the plaintiff by the sheriff under it. Rejoinder, that the seizure was made after notice to the sheriff and to the plaintiff that a year's rent was due to the landlord, and that neither the plaintiff nor the sheriff paid such year's rent, wherefore the landlord (the defendant) distrained : — Held, that the rejoinder was bad. Held, also, that the replication was good, and was no departure from the declaration, which stated the closes to be the closes of the plaintiff, for although the replication shewed a tenant from whom the rent was due at the time of the execution, yet such pos- session was consistent with the possession of the plaintiff at the time of the trespass. Wharton v. Naylor, 17 Law J. Rep. (n.s.) Q-B. 278; 12 Q.B, Rep. 673. Though growing crops seized under a/. /a. are protected from distress at common law, yet if the execution creditor by reason of his claiming some things distrainable at common law is driven to rely on the statute 56 Geo. 3. c.50, he is bound to bring himself in his pleading within the provisions of that statute. And therefore, in an action of trover for pigs, swine, wheat, straw, and other goods, &c., the defendant (the landlord of a farm) justified under a distress for rent, and the plaintiff, in his replication, set out a fi. fa. on a judgment recovered against M C (the tenant), and an assignment to him (the plaintiff) by the sheriff of all the crops, under an agreement by which the plaintiff agreed to use and expend the produce on the farm according to the custom of the country, and alleged that the wheat, straw, &o. seized was the produce of the crops, and that the pigs and swine were kept to consume the straw and produce under the provisions of the statute and the agreement :— Held ill, for not shew- ing that there was no covenant or written agree- ment between the landlord and tenant within the 3rd section. Secondly, the plaintiff's agreement, as set out in the replication, being that he would not sell or dis- pose of or carry off from the farm any straw, &c., except such as M C had a right to sell or dispose of in case the execution had not issued, — Held, that the replication which did not negative that the 3 A 362 LANDLORD AND TENANT ; (D) Landlord's Remedies. straw, Src. was straw which M C had a right to dispose of, was, for this reason, also ill. Thirdly, the plea having stated the possession of M C, the replication as to the residue of the goods, &c., stated that M C at the time when, &c. was in possession of part only, and not of the whole of the said farm, and the saidTesidue was not on the said farm in the possession of M C, — Held ill, as being either an argumentative denial of M C's pos- session, and of the cattle, &c. being on the farm, or an informal new assignment. Hutt v. Morrell, 16 Law J. Kep. (N.s ) a.B. 240. To a declaration in replevin, for taking the cattle, goods, and chattels of the plaintiff, the defendant made cognizance as bailiff of W M, and justified the talcing for rent due to W M, from the occupier J T (W M's tenant). Plea in bar, that the pre- mises in which the cattle, goods, and chattels were taken, were occupied by J T as tenant, at a yearly rent; that, at the time of the making of the distress, J T was a " common public livery stable-keeper," and was used in his trade " as such," from time to time, to take in, to feed, to keep, and to clean all other persons' horses and carriages who placed the same with him ; that it was necessary for the car- rying on such trade that horses and carriages should be kept and taken care of on the premises and that the cattle, goods, and chattels distrained were placed and remained on the premises to be managed and dealt with by J T in his said trade, as defendant well knew, &c. : — Held, that horses and carriages standing at livery may be distrained for rent. Semhle — If articles are sent to remain at a place, they are distrainable ; if sent for a particular pur- pose, and the remaining at the place be an incident necessary for the completion of such purpose, they are not. Parsmis v. GingeU ; Lewis v. Gingell, ]6 Law J. Rep. (n.s.) C.P. 227; 4 Com. B. Rep. 545. (4) Fraudulent Removal of Goods. A commitment, under the statute 11 Geo. 2. c. 19. s. 4, for the fraudulent removal of goods, omitted to state a complaint in writing by the landlord, his bailiff, agent, or servant The order of adjudi- cation stated the defendant to have been duly charged in writing before the m^istrate. The Court held the commitment to be bad. Ex parte Fuller, 13 Law J. Rep. (N.s.) M.C. 142. In trespass for entering the plaintiff's dwelling- house, the defendant pleaded, that at the said time when, &c., S held certain premises, situate at, &c., as tenant thereof to the defendant, under a certain demise thereof, made on &c., by. the defendant to S, for the term of, &c., from thence next ensuing, upon which ■■* yearly rent of QOl. was reserved by quarterly payments on &c. ; that half a year's rent was owing from S to the defendant, and that after the said rent became due, and while it was unpaid, S fraudulently removed certain goods from the demised premises to prevent the defendant distrain- ing, and in concert with the plaintiff deposited the said goods in the said dwelling-house of the plain- tiff, in which, &c., and justified entering the plain- tiff's house within thirty days after the removal, for the purpose of seizing the said goods as a dis- tress, there being no sufficient distress upon the demised premises, under II Geo. 2. c. 19. s. 1: — On special demurrer, it was held that the plea contained a sufficient statement of the defendant's right to distrain. Angell v. Harrison, 17 Law J. Rep. (n.s.) an. 25. (5) Retention of Goods. Trespass for seizing and taking away goods. Plea, that the defendant had demised a house to the plaintiff; that rent was in arrear; that the plaintiff fraudulently removed the goods to prevent a distress, and that no sufficient distress being left, the defendant seized the goods in question. The plaintiff new assigned, that after the defendant had seized the goods, as in the plea mentioned, and after the plaintiff had paid the defendant the arrears of rent and costs of distress, and after the defendant had received the same in full satisfaction and dis- charge, and after the defendant ought to have re- stored the goods distrained, the defendant retained possession of the goods, and afterwards sold and dis- posed of them : — On special demurrer, held, that the new assignment did not sufficiently allege an act of trespass ; that as the new assignment did not state that the acceptance of the rent took place before the impounding of the goods, it must be considered to have taken place afterwards ; and that where a landlord after a lawful distress and impounding accepts the rent in arrear and costs of distress, he is not liable as a trespasser for retaining possession of the goods distrained, and selling and disposing of them. West v. Nibbs, 17 Law J. Rep. (n.s.) C.P. 150; 4 Com. B. Rep. 172. (6) Tender of Rent. A bailiff acting under a warrant of distress for arrears of rent, has an implied authority to receive the amount of the rent and costs, if tendered by the tenant ; and such authority cannot be limited by a previous express instruction, given on behalf of the landlord to the bailiff, not to receive the rent, but to refer the tenant to the landlord's attorney. Hatch V. Hale, 19 Law J. Rep. (n.s.) Q.B. 289 ; 15 aB. Rep. 10. (7) Time to replevy. The five days allowed to a tenant or owner of goods by the statute 2 Will. & M. sess. 1 . u. 5. s. 2. to replevy a distress for rent, are to be reclct)ned exclusively both of the day of distress and the day of sale. Robinson v. Waddington, 18 Law J. Rep. (N.s.) a.B. 250. (8) For Penalty under a Demise. Replevin. Avowry, that A held land as tenant to B under a demise, subject to certain rents, pro- visions, conditions and stipulations, inter alia, that H should not during the continuance of the tenancy sell any hay off the premises, under the penalty of 2s. 6d. for each yard of the hay so sold, to be reco- vered by distress as for rent in arrear. Averment of the sale of 800 yards of hay by A, contrary to the said stipulation, by reason whereof a sum of money at 2s. 6d. per yard became due to B ; non- payment thereof; and a distress for the same. Plea, non tenuit. Verdict for the defendant and judgment under the statute 17 Car. 2. c. 7. The Court of Queen's Bench, on error, affirmed this judgment (16 Law J. Rep. (n.s.) Q.B. 25 ; s. c. 11 LANDLORD AND TENANT ; (E) Landlobd's Liabilities. 363 G.B. Rep. 949). On error, brought upon the judgment of the Court of Queen's Bench, — Held, by the Court of Exchequer Chamber, that the sum distrained for not being a rent service, the judgment under the statute 17 Car. 2. c. 7. was erroneous, although after verdict the avowry might have sustained a judgment for the defendant at common law. » Held, also, that under these circumstances this Court had no power to give judgment for the defen- dant pro retorno habendo at common law, but could simply reverse the judgment of the Court below. PoUittv. Forrest, 17 Law J. Rep. (n.s.) Q.B. 291 j 11 Q.B. Rep. 962. (6) Re-entry. Where the lease provided that, on non-payment of a half-year's rent, the landlord might enter on the premises for the same until it should be fully satisfied, — Held, that the 4 Geo. 2. c. 28. did not operate to dispense with the formal demand of rent. Doe d. Darke v. Bowditch, 15 Law J. Rep. (n.s.) Q.B. 266; 8 a.B. Rep. 973. The statute 1 Geo. 4. c. 87. s. 1, enabling landlords to recover possession of premises unlawfully held over by tenants, does not apply to the case of a sjih- sisting lease, a condition of which has been broken, and a right of re-entry has accrued. Doe d. Cundey V. Sharpley, 15 Law J. Rep. (n.s.) Exch. 341 ; 15 Mee. & W. 558. Where land is demised subject to a condition for re-entry on default in payment of the rent, the right of re-entry does not accrue until the rent has been duly demanded. Hili v. Kempshall, 7 Com. B, Rep. 975. Goods sufficient to countervail arrears of rent are not " to be found" on the demised premises, so as to avoid the operation of the statute 4 Geo, 2. c. 28. o. 2, unless they are so visibly there that a broker going to distrain would, using reasonable diligence, find them, so as to be able to distrain them. Doe d. Haverson v. Franks, 2 Car. & K. 678. (e) Restitution of deserted Premises. The appeal allowed by the statute 11 Geo. 2, 0, 19, s. 17, against an order of magistrates giving possession to a landlord, under section 16, is to the Judges of Assize, as individuals. Held, therefore, that an indictment alleging that the Judges of Assize had made an order for restitu- tion of the premises to the tenant, was not supported by production of an order, made upon an appeal to A B and C D (the Judges), " and others their fel- lows. Justices," and signed by the deputy clerk of assize only. Semble, such an order should be signed by the Judges who made it. Semble, also, that it is not necessary, on such in- dictment, to prove the proceedings before the magis- trates preliminary to the restitution, and that it is sufficient to put in the record made up by them, in which, after reciting the complaint and other pro- ceeding, they declare that they put the complainant into possession. Regina v. Sewell, 15 Law J. Rep. (N.s.) Q.B.49; 8 Q,.S. Rep. 161. (rf) Use and Occupation. [See (A) Of the Tenancy,(rf) Holding over.} (E) Landloed's Liabilities. (a) Wrongful Distress. A principal is not liable in trespass for the wrong- ful acts of his agent, though he receives benefit from them, unless at the time of the receipt he has notice of the illegality. Where a broker, under a warrant from the land- lord authorizing him to distrain the goods and chattels of the tenant, seized a fixture, which was afterwards sold, and the proceeds paid to the land- lord, — Held, that the receipt of the proceeds did not make the landlord a trespasser, it not being shewn that he was aware of the illegal seizure. Freeman v. Rosher, 1 8 Law J. Rep. (n.s.) Q.B. 340. The declaration in an action on the case against two defendants, complained that they wrongfully and injuriously distrained upon the plaintiff's goods for more rent than was due, and also that they after- wards wrongfully sold the same for the alleged rent and the expenses of the distress. The defendants pleaded paytiJent into court of Is., and no damages ultra. The jury found for the plaintiff, damages Wl. There was no evidence given at the trial to connect one of the defendants with the acts complained of: — Held, that no such evidence was necessary, ashy the payment into court the defendants admitted a joint wrong, not only in respect of the alleged dis- tress, but also of the subsequent sale, which was to be considered not merely as matter of aggravation, but as an alleged substantive wrong. Held, also, that case was a proper form of action, and that it was not necessary to allege in the de- claration that the wrongs complained of had been done maliciously. Leyland v. Tancred, 19 Law J. Rep. (n.s.) Q.B. 313. In case for selling goods distrained for rent, without complying with the provisions of the statute 2 Will. & M. sess. 1. c. 5, the damages are, the value of the goods distrained, less the amount of rent due. ffhitworthv. Maden, 2 Car.& K.. 517. A was seised in fee of nine acres of land charged with legacies, for which there was a power of dis- training. A let the land to B, and the legatees assigned their legacies to C, who gave notice to B to pay the rent to him: — Held, that B was not justified in so doing upon a notice only, although he would have been under the threat of a distress. Whitmore v. Walker, 2 Car. & K. 615. (6) To double Value under 2 W. ^ M. c. 5. s. 4. In case upon the 2 W. & M. c. 5. s. 4. for double value, for distraining, no rent being due, the jury ought to he directed, if they find for the plaintiff, to give damages to double the amount of the value of the goods. Masters v. Harris, 1 Com. B. Rep. 715. (F) Tenant's Rights and Liabilities. A debtor assigned by bill of sale all the household goods and furniture, horses, cows. Sic. and all the hay, corn, and grain, as well in stock and in the barn and granary as now standing, growing, and being upon the farm, &o., and all carts, waggons, &c., " and also all the tenant right and interest yet to come and unexpired" of the debtor, in trust, to sell and pay the debt and the residue to the debtor: — Held, that away-going crops sown after the exe- cution of the bill of sale passed under it as a tenant 364 LANDLORD AND TENANT— LANDS CLAUSES ACT. right yet to come. Fetch r. Tutin, 15 Law J. Bep. (N.s.)Exch. 280 ; 15 Mee. & W. 110. A tenant who has agreed to keep and deliver up premises in good repair at the end of his term, is bound to put and keep them in good repair with reference to the class to which they helong. It is not sufficient for him to keep them in as good con- dition as he found them. Payve v. Haine, 16 Law J. Rep. (n.s.) Exch. 130 j 16 Mee. & W. 541. Where tenant for years agrees to keep the pre- mises in repair during the tenancy, and, hefore the expiration of the term, an action is brought against him for breach of this agreement, the plain- tiff is entitled to recover nominal damages only. Marriott v. Cotton, 2 Car. & K. 553. (G) Notice to quit. [Bessell v. Landsberg, 5 Law J. Dig. 376 ; 7 Q.B. Rep. 638.] [Doe d. Clarice v. Smarridge, 5 Law J. Dig. 376 ;. 7 aB. Rep. 957.] A notice to quit, given by an agent, in the names of W and B, and also several other parties, is valid as a notice from W and B onlv. Doe d. Bailey v. Foster, 15 Law J. Rep. (n.s.) C'.P. 263 ; 3 Com. B. Rep. 215. Where a tenant is entitled to six months' notice to quit, a notice to quit " at the expiration of the present year's tenancy" is sufficient, although it does not appear on the face of it that it was given six monthsbeforetheperiod therein specifiedfor quitting. Doe d. Gorst v. Timothy, 2 Car. & K. 361. (H) Assignee of Revehsion. The statute 32 Hen. 8. c. 34. applies only to cases of demise by deed, and an assignee of the reversion cannot maintain assumpsit on a contract to repair made with the assignor. Where a lease contains an express contract on the part of the tenant to repair, there can be no implied contract to repair arising from the relation of land- lord and tenant. A and B being entitled to copyhold premises in certain shares, B demised the whole to defendant, in his own name, by lease in writing (not under seal), for one year, at a rent payable half-yearly ; and B thereby agreed for himself, his heirs, &c. and assigns with defendant that he should peaceably hold the demised premises. Before the first half-year's rent fell due, B surrendered his interest in the premises to A, of which the defendant had notice, and after- wards paid that rent to an agent employed by A and B. In assumpsit, for use and occupation, brought by A to recover the last half-year's rent, — Held, that the occupation of defendant having become in point of law an occupation by the permission of A, as soon as his interest accrued, the action was maintainable by virtue of the 11 Geo. 2. c. 19. s. 14. Admitted copies of the court roll of the manor, by which the premises purported to have been sur- rendered, were held sufficient evidence of their being copyhold. Standen T. Chrismas, 16 Law J. Rep. (n.s.) Q.B. 265 i 10 aB. Rep. 135. The defendant entered into possession of certain premises as tenant under a written agreement, for a term of years, made on the 28th of March 1845, between the plaintiff and T of the one part, and the defendant of the other part, and which agreemeftt was prevented from operating as a lease by the 7 & 8 Vict. c. 76. The agreement stipulated that the de- fendant would put and keep the premises in good repair and condition. On the 16th of June 1847, T assigned all his interest in the premises to the plaintiff, of which the defendant had notice, and afterwards paid the rent to the plaintiff alone :— Held, that a tenancy from year to year, upon the terms of the written agreement with the plaintiff and T, was to be presumed ; that after the assignment by T a new substituted agreement with the plaintiff, upon the same terms as those contained in the ori- ginal agreement, might be implied; and that the plaintiff might sue alone for a breach of such implied agreement by the defendant in not repairing the premises. The repealing statute, 8 & 9 Vict. c. 106, does not apply to agreements made before October 1845, and which by the 7 & 8 Vict. c. 76 are prevented from operating as leases. Arden v. Sullivan, 19 Law J. Rep. (n.s.) Q.B. 268. LANDS CLAUSES CONSOLIDATION ACT. [See Company — Injunction, Special.] (A) Purchase by Agreement [See Specific Performance.] (B) Compulsory Powers op Purchase. (a) When they may he exercised. (i) What is an Exercise of. (c) Taking part of House, Manufactory, 8;e. {d) Lands in Mortgage. (C) Notice to take Lands. (D) Assessment of Compensation. (a) By Arbitration. (1) Appointment of Umpire. [See (2).] (2) FormandRequisites of the Award. (3) Costs of Arbitration. (6) By a Jury. (1) Warrant to summon Jury. (2) Before what Jury Compensation may be assessed. (c) For what Compensation may be assessed, (1) Severance, (2) Lands injuriously affected, (3) Ferry. (4) Injury to Trade. (d) Costs of the Inquiry. (e) Inquisition, Waiver of Objection to. (E) Entry on Lanes. (o) In general. (ft) Under Section 85. before Compensation assessed. (c) Wilful Entry. (E) Application of Compensation. (o) In Discharge of Incumbrances, (ft) Purchase of other Lands. (e) Where Land is in Lease. (d) Payment of small Sums to Parties. (e) Investment of Compensation. (1) Generally. (2) Petilionfor and Practice. LANDS GLAUSES ACT ; (B) Compuisoet Puiichabe. 365 (/) Payment of Deposit out of Court, (g) Deposit where Title not made out. (A) Costs of Deposit and Investment of Com- pensation, (G) CONYETANCE OF CoPYHOLD LaNDS. ■ (A) Purchase by Agreement. [See SpEcinc Performance.] (B) Compulsory Powers op Purchase. (a) When they may he exercised. The S W Railway Company, who were em- powered to construct their railway in a line which crossed the L Railway, included in their deposited plans and took of reference certain land on part of which the L railway was actually constructed, and gave a notice to the L Railway Company that they required to purchase the whole of such land for the purposes of constructing their railway. There was no power in any of the acts to cross on a level, or for the S W Railway Company to purchase, or for the L Railway to sell that portion of the land on which the latter railway was constructed: — Held, that a mandamus requiring the S W Rail- way Company to take proceedings to assess com- pensation for the purchase of the land on which the L Railway was constructed could not be supported. R, V. South Wales Rail, Co., 19 Law J. Rep. (n.s.) a.B. 272. Where the power of fully completing a railway according to the intention of the legislature depends on the voluntary consent of individuals having pro- perty on the line, such consent should be obtained by the company before they proceed in the under- taking. Quare, whether where it is evident that a line of railway cannot be fully completed, the company can compulsory take any part of the property along the line. Gray v. Liverpool. and Bury Rail. Co., 9 JBeaV. 391. The time within which a railway company was authorized to take lands eiipired on the 4th of August 1818. Long before this period, they gave notice to a landowner to treat, and afterwards deli- vered to the plaintiff to whom the lands had been in the mean time devised, a bond, and paid the esti- mated value of the lands comprised in the notice into the Bank under the Lands Clauses Consolida- tion Act, 1845, s. 80. Under an amended act, the powers of which extended beyond 1848, the com- pany were authorized to take the land included in the notice; and, on the 3rd of August 1848, they gave a notice to the plaintiff, that in pursuance of the powers of both those acts, they intended to take the lands. After the 4th of August 1848, but with- out taking any further steps under the acts, the company entered upon the land. On a motion for an injunction, the Court declined to interfere, on the ground that, although the company might not be then entitled to take possession under their com- pulsory powers, they were able, by some proceeding under the second act, to obtain the land ; and the motion was ordered to stand over with liberty to the plaintiff to bring an action. Williams v. South Wales Sail. Co., SDe Gex & S. 354. (t) What is an Exercise of. Where a railway company has power to take a certain quantity of land, that poweris not exhausted by their taking, in the first instance, a smaller quantity, if they afterwards find that the quantity comprised in their first purchas^ is not sufficient for their works. Stamps v. Birmingham, Wolverhamp- ton andStour Valley Rail, Co., 17 Law J. Rep. (n.s.) Chanc. 431 ; 7 Hare, 251. A railway company, who were by their act em- powered to take, among other lands, a close of the plaintiff, gave him notice of their intention to take part ; and more than a year afterwards gave him notice of their intention to take the remainder. The part first taken was for the railway and the remainder for a station, both of which they were empowered by their act to make :-^Held, that their power as to the plaintiff's close was not exhausted by the first notice. Simpson v. Lancaster and Car- lisle Rail. Co., 15 Sim. 580. Where a company had compulsory power to purchase land for the purposes of their railway and other works, and the whole of a piece of land was numbered on the railway plans, the company were entitled to purchase the whole of it, where they required it for the purpose of making an additional station and other works connected with their rail- way, although a part would have been sufficient merely for the line of railway, and although the plans merely shewed the line of railway, and did . not shew any intention of constructing other works there. Cother v. Midland Rail. Co., 17 Law J. Rep. (n.s.) Chanc. 235; 2 Ph.453. By the Whitehaven Railway Act it was provided, that the powers of the company for the compulsory purchase or taking of lands should not be exercised after the expiration of three years from the passing of the act. This period expired on the 4th of July. The company having given the plaintiff notice that they would take a portion of his land under the compulsory powers, a jury was summoned accord- ing to the provisions of the act, and assembled on the 3rd of July, but did not terminate their sittings or make their award till the 6th of July. Upon an application that the company might be restrained from paying the money in the manner directed by the act, and from proceeding to take possession of the land, the Court granted an injunction until the opinion of a court of law should be obtained whether the compulsory powers had or had not determined. Brocklebanh v. Whitehaven Junction Railway Co., 16 Law J. Rep. (n.s.) Chanc 471 ; 15 Sim. 632. (c) Taking Part of a House, Manufactory, S;c. By section 18. of the Lands Clauses Consolida- tion Act, when the promoters of an undertaking require to purchase any lands, they shall give notice to the parties interested therein, and every such notice shall state the particulars of the lands re- quired, and that the promoters are willing to treat for the purchase thereof. By section 92. no party shall be required to sell to the promoters of an undertaking a part only of any house or other building or manufactory, if such party be willing and able to sell the whole thereof: — Held, that this latter section is not obligatory on the promoters, 366 LANDS CLAUSES ACT; (C) Notice to take Lands. though it protects an owner of a huilding, &c. from heing compelled to sell a part of it only. Therefore, when a company have given a notice requiring part of a manufactory, a mandamus directing them to summon a jury to assess com- pensation for the whole cannot he sustained. "Where a mandamus requires the company to take the whole manufactory, the prosecutors can- not have the writ for a part only. JReginav. London and South- Western Rail. Co., 17 Law J. Rep. (n.s.) Q.B. 326; 13 Q.B. Rep. 775. Landowners, by an original hill, sought to restrain a railway company from entering in and taking eight out of ten pieces of land required by their notice. Having obtained an injunction, they filed a supplemental bill, alleging that the ten pieces formed part of a "manufactory" within section 92. of the Lands Clauses Consolidation Act, and pray- ing for an injunction to restrain the company from taking possession or assessing the value of the ten pieces without taking the whole manufactory. The Court granted an injunction to that effect, put- ting the landowners under terms to concur, upon the request of the company, in speedily taking the opinion of a court of law, whether the pieces, notice to take which was given were parts of a manufac- tory within section 92. But the Lord Chancellor, on appeal, held that the landowners were not en- titled to the last injunction. Barker v. North Staf- fordshire Rail. Co., 2 De Gex & S. 55 ; 5 Rail. Cas. 412. (d) Lands in Mortgage. A railway company having notice that certain lands required for the purposes of the railway were mortgaged, and that the mortgage money could not be paid off until March 1851, paid the purchase- money into court, upon a valuation, to the credit of the mortgagor, and entered upon the lands without any communication to or negotiation with the mortgagees : — Held, that the company not having provided for the expenses of re-investment orfor the . costs of the mortgagees, or any compensation for the difference of interest, had wrongfully taken pos- session of the lands, and an injunction was granted to restrain them from prosecuting the works of the railway upon the lands mortgaged. Ranken v. East and West India Docks and Birmingham Junction Rail. Co., 19 Law J. Ren. (n.s.) Chanc. 153; 12 Beav. 298. (C) Notice to take Lands. Conclusiveness and Effect of. A party who has received notice from a railway company of their intention in exercise of the powers of the Lands Clauses Consolidation Act to purchase his lands, may sustain a bill for specific perform- ance of the agreement thereby created ; and the Court will enforce it by ordering the company to take the proceedings prescribed by the statute for ascertaining the amount of purchase money and compensation. Walker v. Eastern Counties Rail. Co., 6 Hare, 594. A railway company having given the plaintiff notice that they should require twenty perches of his land, subsequently gave a notice that they should only require one perch, and also gave a notice with- drawing the former notice: — Held, that the first notice was binding ; and that, without the consent of the plaintiff, another valid notice could not have been given. Tawney v. Lynn and Ely Rail. Co., 16 Law J. Rep. • s.) as. 89. Such a settlement of the costs need not be within three months of the matters being referred to the person or persons by whom the award is made. An averment that the umpire was called upon to settle and determine the costs, and that he did by an instrument in writing, &c. duly settle and ascer- tain the same, &c. suificiently shews that he did it in the performance of his duty under the 34th sec- tion of the statute. Gould v. Staffordshire Water- viorlcs Co., 19 Law J. Rep. (N.s.) Exch. 281 ; 5 Exch. Rep. 214. (6) By a Jury. (1) Warrant to summon Jury. Where arhitration proceedings, under the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, to settle compensation for land required by a railway company, had gone off, owing to a disagreement about the appointment of an umpire, and the time allowed to the Board of Trade for making such appointment had passed, and the party claiming compensation had given notice to the company re- quiring them to issue their warrant for a jury to assess the amount of compensation, and further, that in case of neglect he would apply for a manda- mus to compel them, — Held, that the claimant was entitled, under the provisions of the act, to have his claim of compensation then settled by a jury ; and that, after a refusal, a mandamus lay to compel the company to issue their warrant for that purpose. Held, also, that in such a case it was enough to shew H refusal on the part of the company, and that no particular form or service of notice upon them was necessary under the act. In re South Yorkshire, Dojicaster and Goole Rail. Co., ex parte Senior, 18 Law J. Rep. (n.s.) a.B. 333. The Lands Clauses Consolidation Act (8 Vict, c. 18. e. 123.) provides, that " the powers of the promoters of the undertaking for the compulsory purchase or taking of lands for the purposes of the special act shall not he exercised after the expira- tion of the prescribed period." Where within the prescribed period the promoters of a railway company gave notice to a landowner that they required to purchase his land, and the landowner gave notice to the company of the amount of his claim, and demanded that the amount of compensation should he settled by a jury, but the company neglected to take any further steps towards completing the purchase until after the expiration of the prescribed period, at which time the claimant applied for a mandamus to compel the company to issue their warrant, — Held, that the mandamus might issue, as the limitation in the statute does not apply where the proceeding for completing the purchase originates with the land- owner under such circumstances. Quare— as to the effect of the 11 & 12 Vict. c. 3. upon the 8 VicL c. 18. s. 123. in respect of the powers of compulsory purchase or taking of land. Regina v. Birmingham and Oxford Junction Rail. Co., 19 Law J. Rep. (n.s.) Q.B. 453. Section 38. of the Lands Clauses Consolidation Act (8 Vict c. 18.) applies only to cases where the promoters of an undertaking are about to take or injuriously affect land in the possession of the claimant, and in such case they are bound to give the claimant ten days' notice of their intention to cause a jury to be summoned to assess compensa- tion, but such notice is not required where the pro- moters have already taken possession of or injuri- ously affected land, but for which no compensation LANDS CLAUSES ACT; (D) Assessment or Compensatioit. 369 has been made. Such a case is regulated hy sec- tion 68 J and if the claimant desires the question to be settled by a jury, and states the amount which he claims, the promoters are bound to pay the whole amount so claimed, or to issue their warrant for summoning a jury within twenty-one days. Railstone v. York, Newcastle and Berwick Rail. Co., 19 Law J. Rep. (n.s.) a.B. 464. (2) Before what Jury Compensation may he assessed. A claimed compensation under the Lands Clauses Consolidation Act for injury done by a railway company to land held by him in fee in the county of the city of L. The injury complained of was occasioned by the company in the county of L cut- ting off the communication with a ferry across a stream which separated the city of L from the county of L. The ferry was claimed as appurtenant to the lands of A in the city of L : — Held, that as tl»c laircHnjuiiDuol^ aflfccted lay Wholly in the city of L a jury of the city had jurisdiction to award compensation. In re Cooling and the Great Northern Rail. Co., 19 Law J. Rep. (n.s.) Q.B. 25. (c) For what Compensation may be assessed. (1) Severance. The line of a proposed railway crossed at a level an occupation way leading from the residence of R to the high road. R claimed compensation for land to be purchased from him by the railway company, for damage by severance of the lands taken from other lands belonging to him, and for injuriously affecting such other lands by reason of the execution of the act. A jury having been impannelled under . the Lands Clauses Consolidation Act, 8 Vict. c. 18, to assess the amount of compensation to be paid to him by the company, R claimed to have included the expense of erecting a bridge to connect the two portions of the occupation wa^. This was resisted by the compajiyj »» not "being a matter cognizable by the jury. The jury ultimately gave in a written verdict, whereby they found a gross sum for the purchase of th'e lands required by the company, a sum to be paid for severance estimated at a cer- tain number of years' purchase, and a third sum expressed to be for " severance owing to the cross- ing, and the expense incurred thereby." There was some evidence to shew that this last sum was that which a bridge would cost : — Held, that as to this portion of the verdict there was an excess of juris- diction, the enforcing the construction of such a communication being confided to two Justices by the 8 Vict. c. 20. s. 69. (Railways Clauses Consolidation Act), and that, consequently, a certiorari would lie as to the whole. In re South Wales Rail. Co. v. Richards, 18 Law J. Rep. (n.s.) G.B. 310. (2) Lands injuriously affected. A railway company, in prosecuting their works within the powers of their act, carried their- line across a street by a solid embankment, by means of which the access from one part of the street to the other was totally interrupted. The owner of houses, &c. in this street, which were situate 126 feet from the boundary line of the railway, served the com- pany with a notice, under the 68th section of the Lands Clauses Consolidation Act 1845, of a claim for compensation, on the ground of his premises Digest, 1845—1850. being injuriously affected by the works of the com- pany, and requiring them to summon a jury to settle the compensation in case they declined to pay the amount claimed. On a bill filed by the company against the claimant, denying his right to compensation, the Court granted an injunction to restrain the defendant from proceeding upon his notice, or taking any other steps to recover the amount claimed by him ! but gave him liberty to bring an action against the company, and directing that the company in such action should admit the notice of claim within the terms of the 68th section, and that the company had not taken proceedings to summon a jury within the time prescribed by that section ; and that either party should be at liberty to apply after trial, the parties undertaking to use the judgment as the Court should direct. London and North- Western Rail. Co. v. Smith, 19 Law J. Rep. (n.s.) Chano. 193 ; 1 Mac. & G. 216 ; 1 Hall & Tw. 364. (3) Ferry. The land held by A had been in 1844 leased and afterwards conveyed to him by the corporation of L. Neither the lease nor the conveyance expressly mentioned the ferry, but purported to pass the land " with the profits and commodities thereto belonging." The lessees of the land always as far as living memory went used the ferry and took toll. The landing-places were not shewn to belong either to the corporation of L or to A : — Held, first, that the ferry, if attached to the land of A, was a private right in respect of which compensation might be assessed; and, secondly, that under the circum- stances a jury might infer that the ferry passed to A by the conveyance of the land with its profits and commodities. In re Cooling and the Great Northern Rail. Co., 19 Law J. Rep. (n.s.) Q.B. 25. (4) Injury to Trade. The Hull Dock Act, 7 & 8 Vict. c. ciii. s. 117, provides, that if the dock company cannot agree with any party for the purchase of lands, a jury shall be summoned, who .shall deliver their verdict for the sum of money to be paid for the purchase of the lands required, and also the sum of money to be paid for the injury. done to the lands of such party by the severance of such lands from the lands required, and also the sum of money to be paid by way. of compensation for the damage occasioned to any such lands by the execution of the works, whether damage sustained before the inquiry, or for future damage, either temporary or permanent : the sums of money to be paid for the injury done by severance, or by way of compensation for any such damage as aforesaid, to be assessed separately from the value of the lands. A jury, summoned, assessed the compensation as follows : — 400?. for the purchase of J's interest in his brewhouse (the lands required) ; 300?. as a compensation for the damage which J will sustain by reason of his having to give up his premises as a brewer until he can obtain suitable premises in which to carry on his business: — Held, that the latter part of the finding of tlie jury was warranted by the authority given them to award the sum to be paid by way of compensation for the damage occasioned to any lands by the execution of the works. Regina or Jubb v. Hull 3B 370 LANDS CLAUSES ACT ; (D) Assessment of Compensation. Dock Co., 15 Law J. Rep. (N.s.) a.B. 403; 9 Q.B. Rep. 4i3. ( ip wpt apart-to^answer what should be found due from him to his solicitor, and that the surplus, after payment of the judgment debt, might be paid to R C, — Held, that the amount of debt between R C and his solicitor must be ascertained by the Master, that the corporation need not attend, but that it must pay the costs of this petition, but not of the affidavits made relating to the claims of thejarties. Ex parte Collins, 19 Law J. Rep. (n.s.) Chanc. 244. (G) Conveyance of Copyhold Lands. A steward of a manor entitled by the custom on the conveyance of the manor lands to one fee for the surrender and another for the admittance to such lands, is entitled under the 95th section of the Lands Clauses Consolidation Act, 8 8z 9 Vict. c. 18, to a fee upon the surrender, but not upon the ad- mittance to such lands. Cooper v. Norfolk Rail. Co., 18 Law J. Rep. (n.s.) Exch. 176. LAND-TAX. [See Lunatic] Where tenant for life has redeemed the land-tax under the 42 Geo. 3. o. 1 16, the reversioner may on coming into possession compel the representatives of such tenant for life to accept the consideration . paid for such redemption, together with the arrears of interest, so as to render the land no longer charge- able with the yearly payment of interest. Therefore, where defendants in replevin avowed as devisees of » tenant for life in respect of the yearly sum payable as interest on the redemp- tion money, and the plaintiff pleaded in bar that he held a moiety of the remainder in fee as tenant in common, and being desirous of freeing the lands from that charge, had, before the distress, tendered to the defendants the redemption money and interest, which they had refused, — Held, that the plea in bar was good. Cousens v. Harris, 17 Law J. Rep. (n.s.) Q.B. 273 ; 12 Q.B. Rep. 726. The last reversionary grant, by the rector and lord of the manor of Bredon, of certain copyhold premises, comprised in it, in one aggregate holding and at one aggregate undivided rent, three ancient tenements, originally held of the manor, under dis- tinct grants at distinct rents. The same rector afterwards sold and conveyed the reversionary fee in those premises, under the powers in the Land- Tax Redemption Act, to redeem a portion of the land-tax on the living, and the sale was confirmed by the Land-Tax Commissioners under that act. In ejectment by a subsequent rector, to recover the premises, held, that the title of the defendant, who claimed under the parliamentary sale and convey- ance, could not be impeached, on the ground that the sale was the sale of a reversion expectant on a void grant. Doe d. Strickland v. Woodward, 17 Law J. Rep. (n.s.) Exch. 1 1 1 Exch. Rep. 273. The Court of Exchequer cannot order the Com- missioners of Land-Tax to cause the proportion charged upon a division to be equally assessed. In re Holborn Land-Tax Assessment, 5 Exch. Rep. 548. The land-tax is a " parliamentary tax," within the meaning of an agreement to pay rent "and all taxes parliamentary and parochial." Manning v. Lunn, 2 Car. & K. 13. The guardians of A, an infant, who was tenant in tail in possession of an estate, contracted for the redemption of the land-tax, under the powers of the 38 Geo. 3. c. 60, and made all the transfers of stock, agreed to be made, before 1804. In 1804, A attained his majority, and suffered a recovery. In 1805, A, by indentures of lease and release, executed in con- sideration of his then intended marriage, conveyed the estate with its rights, members, and appurte- nances. Sic. (using the usual general words) to certain uses, and entered into the usual covenants for title. The land-tax was not noticed in these deeds. After the execution of these deeds, and during A's life, the said charge in lieu of land-tax was kept separate from the rents of the estate : — Held, that this charge did not pass by the settle- ment, and that it had not been merged in the estate during A's life. Blundell v. Stanley, 18 Law J. Rep. (n.s.) Chanc. 300. LARCENY. [See Receiving Stolen Goods.] (A) What constitutes the Offence of Lakceny. (a) Appropriation in Hope of Reward. (i) Post-Letters. . (c) Cases of finding. (rf) Appropriation after lawful Possession, (e) Determination of Bailment. (f) Other Cases. (B) By Servants. (a) Possession of, when Possession of Master. (b) Animus furandi. (c) Lucri Causd. {d) Other Cases. (C) Stealing from the Person. (D) Indictment. (n) Averment of Thing stolen. \b) Property, In whom laid. (c) Election. (E) Trial, Practice at. The law relative to larceny amended by the 12 Vict. c. 11 ; 27 Law J. Stat. 11. 376 LARCENY ; (A) What constitutes the Opfence. The summary jurisdiction in cases of larceny further extended by the 13 & 14 Vict c. 37; 28 Law J. Stat. 66. (A) What constitutes the Offence of Larcent. (a) Appropriation in Hope of Reward, Upon an indictment for stealing a watch, the jury returned the following verdict : — ■'* We find the prisbner not guilty of stealing the watch, but guilty of keeping it in the hope of reward from the time he first had the watch." The Court of Quarter Sessions directed a verdict of guilty to be entered : — Held, that upon this finding a verdict of not guilty should have been entered. Regina v. York, 18 Law J. Kep. (n.s.) M.C. 38 ; 1 Den.' C.C. 335 ; 2 Car. & K. 841. (6) Post-Letters. In an indictment under the 7 Will. 4. & 1 Vict. c. 36, against a person employed under the Post Office, the prisoner was charged in one count with stealing, and in another count with secreting letters. The jury found that the prisoner, having committed a mistake in the sorting of the letters in question, secreted them in the water-closet, in order to avoid the supposed penalty attached to such mistake ; — Held, that this amounted to a verdict of guilty on both counts. Regina v. fTynB, 18 Law J. Rep. (n.s.) M.C. 51 ! 1 Den. C.C. 365 ; 2 Car. & K. 859. S, post-mistress of G, received from A a letter unsealed, hut addressed to B, and with it U. for a Post-office order, 3d. for the poundage on the order, \d. for the postage, and Id. for the person who got the order. S gave the letter, unsealed, and the money to the prisoner, who was the letter carrier from G to L, telling him to get the order at L, and inclose it in the letter, and post the letter at L. The prisoner destroyed the letter, never procured the order, and kept the money: — Held, that he was indictable under section 26. of the statute 7 Will. 4. & 1 Vict. c. 36, for stealing, embezzling, and destroying a post-letter, he being at the time in the employ of the Post Office. Regina v. Bicker, staff, 2 Car. & K. 761. Any letter posted in the ordinary way, whatever be its address or object, is a post-letter, within the statute 1 Viet. c. 36. ss. 26, 47, and the stealing such letter is punishable accordingly. Regina v. Young, 1 Den. C.C. 194 ; 2 Car. & K. 466. (c) Cases of finding. If a man finds goods that are actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny. Nor is it larceny if, after having so taken them, he obtains knowledge of the ownership, and then appropriates them to his own use ; but if he takes goods so lost, or supposed to be lost, reason- ably believing at the time of taking that the owner can be found, it is larceny. The prisoner was indicted for stealing a bank note. It appeared that he had picked it up in the road, and that he meant to appropriate it to his own use, but he had not then any means of ascertaining the owner, or any reason to believe that the owner knew where to find it. He afterwards was informed who the owner was, but, notwithstanding, he changed it and appropriated the money. The jury found that he had reason to believe it to be the prosecutor's property before he changed it : — Held, that he was not guilty of larceny. Regina v. Thurbum, 18 Law J. Rep. (N.s.) M.C, 140 ; 1 Den. C.C. 387 ; 2 Car. & K. 831. (d) Appropriation after lawful Possession. A watch-maker, who had received a watch to repair, without any intention of stealing it at the time he received it, but who subsequently appro- priated it to his own use, was held not guilty of larceny. Regina v. Thristle, 19 Law J. Rep. (n.s.) M.C. 66 ; 1 Den. C.C. 502 j 2 Car. & K. 842. A letter carrier between A and B is intrusted at A with two directed envelopes, each containing a 51. note, to deliver at B. He delivers the envelopos at B, having previously taken out the two notes. Verdict, guilty, but that he had no intention of stealing the notes when given to him at A: — Held, no larceny. Regina v. Glass, 1 Den. C.C. 215 ; 2 Car. & K. 395. A servant, who receives goods from his master on the master's account, and wrongfully appro- priates them, is not guilty of embezzlement, but of larceny. Regina v. Hawkins, 1 Den. C.C. 584. Prisoner, a drover, was employed by A and B, pig-jobbers atN, to take some pigs by railway, and deliver them to C at L, and bring back to A and B such price as C should give for them. No instruc- tions were given to the prisoner as to what he was to do with them, if C refused to buy them. No bargain was made between A and B and the pri- soner as to his remuneration for the job ; but the custom of the trade was to pay for such jobs by the day ; nor was anything said as to the prisoner's right to take cattle from any other person at the same time; hut by the custom of the trade he would have liad such right. On his arrival at L, C was from home, and his wife refused to take the pigs; the prisoner thereupon sold the pigs tp another person in the market, and absconded with the pur- chase-money: — Held, not guilty of larceny, as at the time of receiving the pigs from the owners he was not their servant: but by the receipt became a bailee, and at that time had no intention of stealing. Regina v. Hay, 1 Den. C.C. 602; 2 Car. &. K. 983. (e) Determination of Bailment. A having become the bailee of B's mare, took her to a livery-stable, and paid B a balance due to him, after deducting certain expenses, and B ordered the stable-keeper not to let A have the mare again j and on A asking to be allowed to ride the mare to a certain place, twice told him never to put a finger near her more. A made no claim of lien or pro- perty in the mare, but at a later period on the same day obtained her, by a false story, from the ostler at the livery-stables, and sold her: — Held, that there was evidence to go to the jury, that after the bailment was ended, a change of possession had taken place, after she had been left at the stables, and that the stable-keeper had become B's agent ; and that A was rightly convicted of larceny. Regina LARCENY; (B) By Sebtants- 377 V. Steer, 18 Law J. Rep. (n.s.) M.C. 30; 1 Den. C.C, 349 i 2 Car. & K. 988. (/) Other Cases. A went to B's shop, and said lie had come from C for some hams, &c., and at the same time pro- duced a note in the following terms : " Have the goodness to give the hearer ten good thick sides of bacon, and four good showy hams at the lowest price. 1 shall be in town on Thursday next, and will call and pay you. Yours, &c., C." B thereupon delivered the hams to A. The note was forged, and A had no such authority from C :— Held, that A was not guilty of larceny. Regina v. Adams, 1 Den. C.C. 38. A assists the wife of B to take B's goods, which were afterwards used by them in common without the consent of B : — Held, evidence to warrant a conviction against A of larceny. Regina v. Thomp- «.-G.C S4fc A, assisted by B, had done work foi- the father of C, and C told A and B that if they would bring a stamped receipt they should be paid. B bought a stamp with the money of A, and they together went to C, and the blank stamp was given to C to write a receipt on it. C did so ; and as the stamp lay on C's desk, A signed the receipt and B witnessed it, but neither of them ever had the stamp in his possession after the receipt was written on it. C, under pretence of fetching his father's cheque- book, took away the receipt, and would not pay the money it was given for : — Held, not a larceny of the stamp. Regina v. Frampton, 2 Car. & K. 47. (B) By Sekvants. (a) Possession of, when Possession of Master. The prisoner was a shareholder and a salaried clerk in an unincorporatei partnership called "The Globe Insurance -C&mpany." By its constitution the directors had the appointment and dismissal of the servants, and fixed the duties which they had to perform. The directors had the ultimate charge and custody of the documents of the company. By the course of business between the company and its bankers the pass-book and the paid cheques were returned weekly to the directors. It was one of the prisoner's duties to receive the pass-book and cheques from the company's messenger, and to preserve the cheques for the use of the company. On the 14th of February the prisoner paid in to his own account at his bankers' a cheque purporting to be drawn by the company on their bankers. The cheque was cashed, and the amount entered in the company's pass-book to their debit, and the cheque and pass-book were, on the following day, delivered to the messenger, and by him delivered to the pri- soner in the usual way. On the 4th of March search was made for the cheque among the vouchers of the company in the prisoner's keeping, and it could not be found there, and never was found, for the prisoner had fraudulently abstracted or destroyed it. On examination of the pass-book, it was discovered that the entry of the amount of the cheque had been erased. There was no evidence to shew that the cheque was drawn by any one on behalf of the company, or that it was written on paper stolen from the company : — Held, that the prisoner Digest, 1845— 185Q. was properly convicted of stealing the cheque, on an indictment for stealing a piece of paper the property of the directors, his masters; since the facts shewed that he was a servant of the directors who had the custody of and a special property in the vouchers of the company: that the cheque had reached its ultimate destination when it came into the prisoner's keeping, which being on account of his masters made his possession theirs, wherefore his afterwards feloniously appro- priating it was an act of larceny, not of embezzle- ment : and that his interest as a shareholder gave him no property in the paper. Regina v. Watts, 19 Law J. Rep. (n.s.) M.C. 192; 2 Den. C.C. 14. (6) Animus furandi. To constitute larceny there must be a taking with intent to deprive the owner of the entire domi- nion over the property. A person, employed in a tannery to dress skins of leather, clandestinely got access to the ware- house where the dressed skins were kept, and re- moved from it, but not off the premises, some skins dressed by other workmen. The practice was for the dressed skins to be delivered to the foreman, and each workman was paid for the skins thus deli- vered as for his own work. Upon an indictment for larceny of the skins so removed, the jury found that the prisoner did not intend to remove the skins from the tannery and dispose of them elsewhere, but that his intention in taking them was to deliver them to the foreman, and to get paid for them as if for his own work, and in this way he intended the skins to be restored to the possession of his masters : — Held, that this did not amount to larceny. Regina v. Hollouiay, 18 Law J. Rep. (n.s.) M.C. 60 ; 1 Den. C;C. 370 ; 2 Car. & K. 942. The servant of a tallow-chandler removed por- tions of fat, belonging to his master, from one part of the premises to another, and put it into a pair of scales used by the master for weighing the fat offered by other persons for sale. The jury found that the removal was for the purpose of selling it to his master, and appropriating the proceeds to his own use : — Held, that this was larceny. Regina v. Hall, 18 Law J. Rep. (n.s.) M.C. 62; 1 Den. C.C. 381 ; 2 Car. & K. 947. (c) Lucri Causd. A, a servant of B, applied for at the post-office and received all the letters addressed to B. She delivered them all to B except one, which she burned. Her motive for destroying it was the hope of suppressing inquiries respecting her character : — Held, a larceny : and that supposing lucri causd to be a necessary ingredient therein (which the Court did not admit) there was a sufficient lucrum proved. Regina v. Jones, 1 Den. C.C. 188 ; 2 Car. & K. 236. Prisonerswere charged withstealingtheir master's oats. It was proved that they took them wrongfully to give to their master's horses, without any end of gain to themselves : — Held a larceny. Regina v. Privett, 1 Den. C.C. 193 ; 2 Car. & K. 114. (d) Other Cases. Where a servant received money from his master in order to pay the wages of certain work-people 3C LARCENY— LEASE. therewith, and in the book in which the accountof the monies so paid was kept by the servant, entries were found charging the master with more money than the servant had actually disbursed, but there was no proof that he had ever delivered this account to his master : — Held, that this did not amount to larceny in the servant. Regina v. Butler, 2 Car. & K. 340. (C) Stealing fkom the Person. A asked B what o'clock it was, and B took out his watch to tell him, holding his watch loosely in both his hands. A caught hold of the ribbon and key attached to the watch, and snatched it from B, and made off with it: — Held, no robbery, but a stealing from the person. Regina v. Walls, 2 Car. & K. 214. (D) Indictment. (a) Averment of Thing stolen. An ftidictment for larceny which alleged that the prisoner stole " one ham of the value of 10*. of the goods and chattels of A B," is good, as the Court will presume that a barn is an article which is a subject of larceny. Regina v. Gallears, 19 Law J. Rep. (n.s.) M.C. 13; 1 Den. C.C. 501 ; 2 Car. & K. 981. The prisoner was indicted for stealing sovereigns and half-sovereigns : — Held, [Erie, J. dissentiente,) that if the jury found that he stole either sovereigns or half-sovereigns, but that they could not say which, they ought to acquit him. Regina v. Bond, 19 Law J. Rep. (n.s.)M.C. 138 ; 1 Den. C.C. 517. Prisonerwas charged in one count of theindictment with stealing a cheque for 13/. 95. 7d. ; in another count for stealing a piece of paper value \d. : — Held, that supposing the cheque to have been a void cheque (as being contrary to the provisions of the statute 55 Geo. 3. c. 184), it would still sustain the charge laid in the second count. Regina v. Perry, 1 Den. C.C. 69. (&) Property, In whom laid. Prisoners were indicted for sacrilegiously breaking into a church and stealing a box and money : — Heldj first, that the box (under the circumstances) was not affixed to the " freehold," but was construc- tively in the possession of the vicar and church- wardens. Secondly, that the property was rightly laid in the vicar and others, in their individual names. Regina r. Wortley, 1 Den. C.C. 162; 2 Car. & K. 283. (c) Election. Where a prisoner was indicted in one count for stealing from the mine of one H J G coal, the pro- perty of the said H J G, and, in the same count, for stealing from the mines of thirty other proprie- tors coal, the property of each of such other pro- prietors, and it appeared that all the coal so alleged to have been stolen had been raised at one shaft, — Held, first, that the prosecutor could not , be called upon to elect on which charge he would go to the Jury ; secondly, that, although for the sake of convenience in trying the prisoner the Judge might direct the jury to confine their attention to one particular charge, yet that the prosecutor was entitled to give evidence in support of all the charges laid in the indictment ; thirdly, that proof of such charges might be relied on in order to shew a felonious intent. Regina i. Bleasdale, 2 Car. & K. 765. (E) Tkial, Pkactice at. Where a prisoner charged with larceny has given two different accounts of the way in which he be- came possessed of the stolen property, it is not incumbent on the prosecutor to call as witnesses persons whom, in one of the statements, he says could prove his Innocence, with a view of disproving that statement ; but it may be prudent in the prose- cutor to have these persons in attendance at the trial, though he does not call them, to avoid the effect of the observations by the prisoner or his counsel, that these persons could prove the prisoner's innocence, but that he has not the means of pro- curing their attendance. Regina v. Dibley, 2 Car. & K. 818. LEASE. [See Inclosdke — Landlobd and Tenant- Stamp — Vendor and Purchaser.] (A) Lease or Agreement. (B) Validity of. (C) By Estoppel. (D) Covenants. (E) Renewal of. (F) Surrender. (G) Forfeiture. Relief against defects in leases made under leasing powers granted by the 12 & 13 Vict. u. 26 ; 27 Law J. Stat. 31. The 12 8c 13 Vict. c. 26. as to defects in leases made under leasing powers amended by the 13 Vict, u. 17; 28 Law J. Stat. 20. (A) Lease or Agreement. " Proposals for letting the M Farm, at H, in the county of S ; quantity 130 acres, term twelve years, determinable at the end of eight years, provided notice be given by either landlord or tenant at the end of the first four years. Rent 172/." (with stipu- lation as to the mode of cultivation) and subjoined to them the following. — "June 3, 1835. — Agreed to the above rent, provided the house, cottages and buildings are put in good and tenantable repair, on a plan to be mutually determined upon, and finally settled within a month from the above date." Signed by the parties ; — Held, not to be a present lease, but at most a conditional agreement for a future tenancy. Doe A. Wood v. Clark, 14 Law J. Rep. (N..S,) Q.B. 233; 7 aB. Jlep. 211. Certain copyhold property having been devised to the poor of the parish of W, upon certain trusts, P was admitted tenant in trust ; and subsequently, a memorandum between G, agent for the church- wardens of the parish, of the one part, and F, of the other part, was entered into, by which G agreed, provided a licence could be obtained from the lord, and upon F putting the premises into repair, that the churchwardens should grant, or procure to be granted, a lease for twenty- one years, at a certain LEASE. 379 rent, to contain the usual covenants, and until such lease should be executed, the rent should be reco- verable by distress, in the same manner as if the lease had been executed : — Held, that this was not a lease, but an agreement merely. "W and B were churchwardens at the time of this agreement, and A was let into possession under it by G: — Held, that he was estopped from disputing the title of W and B. Doe d. Bailey v. Foster, 15 Law J. Rep. (n.s.) C.P. 263 ; 3 Com. B. Rep. 215. Agreement entered into on the 28th of October 1843, between M, D, and T, and signed by them, that whereas M held and rented under D a messuage situate, &c., at the rent of 251. per year, payable quarterly, and that whereas M had agreed with T to underlet the messuage from Monday next, at and after the rent of 201. per year, until the 24th day of June next, at which time the said D agrees to ex- onerate_the said M from his tenancy, on his paying all rent up to the said 24th of June, and to accept the said T as tenant from that period, at, &c. Now, therefore, the said M agrees to let, and the said T agrees to take the said messuage, &c. (and to do certain repairs), and the said T agrees to take of the said D the said messuage, from the said 24th day of June next, at, &c. and the said D agrees to release and exonerate the said M from his tenancy on and from the said 24th of June next, on his pay- ing up all rent due to that time : — Held, that this instrument amounted to a lease, as regarded both T and D. After T had been let into possession by M, and before the expiration of his tenancy to M, he con- tracted with D for the purchase of the messuage : — Held, that such contract did not affect the above lease, and that after the 24th of June T became a yearly tenant to D. Tarte v. Darby, 15 Law J. Rep. (N.s.) Exch. 326; IS Mee. & W. 601. The 4th section of the 7 & 8 Vict. c. 76. (re- pealed by the 8 & 9 Vict. c. 106.) enacted, that no lease in writing of any freehold, copyhold, or lease- hold land should be valid, unless the same should be made by deed j but that any agreement in writ- ing to let any such lands should be valid and take effect as an agreement to execute a lease. A memo- randum of agreement, dated the 3rd of July 1845, and made while that section was in force, whereby M agreed to let, and B agreed to take, certain pre- mises from the 7th day of that month, for the monthly rent of 36s., to be paid every four weeks, was held to take effect as an agreement to execute a lease, and to be admissible in evidence without a stamp. Semble — that but for the operation of that section this memorandum would have been properly con- strued as a lease requiring a H. \5s. stamp under the 55 Geo. 3. c. 184. Burton v. Reevell, 16 Law J. Rep. (N.s.) Exch. 85 ; 16 Mee. & W. 307. (B) Validity of. Husband and wife, by a post-nuptial settlement, conveyed part of the wife's estates to a trustee to the use of the husband for life, remainder to their eldest son for life, &c., with an ultimate remainder in fee to the husband, and a power to him to lease " for any time or term of years or lives, and with or without covenants for renewal; and in case of the determination ofallor any of the aforesaid lease or leases, to make new or other leases thereof in manner Aforesaid, and with or without any fine or fines as he should think fit." The husband was also empowered to raise, by sale or mortgage, any sum or sums of money not exceeding in the whole 20,000i, or to charge the premises therewith, for such uses as he should appoint, and to charge to any amount for younger children. The husband and wife afterwards executed three leases of parts of the estates comprised in the settlement for terms of 999 years, upon which fines were taken. One of the leases contained a clause permitting the lessee to graff and burn the surface, and also a clause of surrender; and another contained clauses making the lessee dispunishable for waste, and permitting him to cut timber, and to graff and burn the sur- face, and in this lease was included part of the wife's estates not comprised in the settlement. The latter lease, and another of prior date, were made subject to existing freehold leases. None of the leases were referred to in the power. The fines received on the making of these and other leases amounted to 10,208^., and the husband subse- quently raised 10,500?. by mortgage of the estates subject to the leases : — Held, that all the leases were valid at law, as being authorized by the power in the settlement; and consequently there was no ground of equity to impeach them. Regard is tol)e had to the objects of the settle- ment, where the power is of doubtful construction ; but no such consideration is to controul powers expressed in clear terms, according to their ordinary acceptation. Sheehy v. LordMuskerry, 1 H.L. Cas. 576. (C) By Estoppel. By an indenture in 1742, the Brod«rers Company demised a certain farm for 100 years, with a cove- nant for perpetual renewal. On the 25th of August 1827, the party in whom that term vested assigned the residue to one Hogarth. On the 28th of August 1827, Hogarth assigned the residue of the term to mortgagees, with a proviso for redemption on re- payment of 5,000i. within twelve months. In May 1828, a lease of the premises in question was exe- cuted by Hogarth and the plaintiff for twenty-one years, under which the plaintiff entered into pos- session, and paid rent to Hogarth up to the year 1835, and afterwards to the defendant. On the 12th of January 1836, by an indenture made between the mortgagees, Hogarth, the defendant, and the Broderers Company, the mortgagees and Hogarth surrendered, released, &o. to the company the pre- mises in question for the residue of the term, toge- ther with all covenants, &o., to the intent that the residue of the term might be merged in the rever- sion, and the covenant for renewal be extinguished. On the 13th of January 1836, the Broderers Com- pany demised the premises to Hogarth for 100 years ; and, by an indenture of the 4th of February 1836, the unexpired residue of the term became vested in the defendant. An action of covenant having been brought against the defendant as as- signee of Hogarth, for a breach of covenant in not endeavouring to destroy the rabbits on the farm, — Held, on a special case stating the above facts, first, that Hogarth did demise to the plaintiff, as the 380 LEASE. lease by him was good by way of estoppel ; second- ly, that the reversion became vested in the defen- dant, as it was good by way of estoppel. Sturgeon V. Wingfield, 15 Law J. Rep. (n.s.) Exch. 212 ; 15 Mee. & W. 224. (D) Covenants. A lease of premises for a term of years was granted to K, L, and C. Some time afterwards L granted a lease of the residue of the said term, wanting one day, to the defendants, by whom the lease was duly executed, and rent was paid to L. Both leases con- tained covenants to repair, insure, &c., and a proviso for re-entry for breach of either of them, but a per- formance of the covenant to insure in the lease to the defendants would not neces.sarily have included a performance of the corresponding covenant in the original lease. The premises being out of repair and uninsured, the original lessor entered for a for- feiture. In an action of covenant by L, as rever- sioner,. against the defendants for a breach of their covenants to repair and insure, and for damages sustained by his loss of the term, &c., — Held, first, that the execution of the lease and payment of rent to L by the defendants were evidence that L was solely entitled to the reversion upon the determina- tion of the lease granted to the defendants : — Held, that L (a sub-lessor) could not recover against the defendants (sub-lessees) thevalueof the term granted by the original lease, which lie had lost by the defen- dant's breach of covenants. Logan v. Hall, 16 Law J. Rep. (N.s.) C.P. 252 ; i Com. B. Rep. 598. Under a power to make leases for years, deter- minable on lives, of premises usually so leased, reserving the usual rents and heriots, and so as there should be contained usual and reasonable covenants, a lease was granted, in 1831, of a tenement, called C, " together with so much of the water from the shuts in D's ground as R M has been accustomed to have, and at the same time for the purpose of working a mill, and also the use of the water de- scending from the head weir, reserving to the occu- piers of the meadows watered by the said course running from the head weir through Little Moor Meadow, and thence by a trough into T Meadow, the right to enter and cleanse the said watercourse, and to take the water for watering the meadows, having the right thereto as heretofore accustomed." This lease contained a covenant to do suit and ser- vice at the courts of the manor of W, but no cove- nant to pay fines, &c. In what was taken as the pattern lease, executed in 174-9, there was a demise of C, with all waters, watercourses, Sec, excepting to the lessor a watercourse flowing from the head weir, through Little Moor Meadow, and from thence by a trough into another meadow, for watering the same and other lands of the lessor; and there was a covenant to pay fines, &c., as well as to do suit and service. It appeared that from a date prior to 1749, there had been no courts baron or customary courts held for the manor, and no evidence was given of the existence of any freehold or copyhold tenants : — Held, that the covenant to pay fines, &c. was not a usual orreason- able covenant the omission of which avoided the lease. Held, also, that the lease of 1831 did not demise more than had been formerly leased, the effect of the pattern lease being to pass the channel of the water- course, reserving only the water itself. Held, also, that it was properly left to the jury to say what quaiitity of water R M was accustomed to have to turn the mill, in order to see whether it was in excess of what was formerly granted. Doe d. Earl ofEgrem&nt v. Williams, 17 Law J, Rep. (n.s.) Q.B. 154; 11 Q.B. Rep. 688. Where a lease is executed on a certain day, habendum from a previous day, the tenant who has entered between the two days is not liable on the covenant to repair for breaches committed during the interval. The operation of the habendum is prospective merely. Shaw t. Kay, 17 Law J. Rep. (n.s.) Exch. 17 ; 1 Exch. Rep. 412. A lease was in the following terms : — S C cove- nants with E J that the said S C will during the continuance of the term, at his own costs and charges, in all things well and sufficiently repair and glaze the windows of the messuag:e, and also the hedges, ditches, mounds, and fences of and belong- ing to the premises, and all fixtures, additions and improvements thereto, daring the said term, in and by and with all and all manner of needful and ne- cessary reparations, cleansings, and amendments when and as often as occasion shall require, the said farm-house and buildings being previously put and kept in repair by the said E J: — Held, that these latter words raised an absolute covenant on the part of E J to put the farm-house and buildings in repair. By another clause in the lease it was agreed be- tween the parties that E J should within eighteen months from the date of the lease, erect and boild a new shed and stalls for feeding cattle, &c. ; " the whole of which is agreed to he left to the superin- tendence of the said S C and the son of E J." The declaration stated, as a breach thereof, that although eighteen months from the date, &c. had elapsed, the defendant did not nor would within that period, or at any other time, erect and build a new shed and stalls for feeding cattle, &c. : — Held, on motion in 'arrest of judgment, that the breach was well assigned, the provision that the work should be left to the superintendence of J C and the son of E J not being a condition precedent to or concurrent with the covenant by E J to build and erect the shed, &c. Connoch or Cannoch v. Jones, 18 Law J. Rep. (s.s.)' Exch. 204 ; 3 Exch. Rep. 233. A agreed to let, and B to take, a piece of land, with liberty to build thereon such warehouses, glass- houses, kilns, houses for workmen, and other erec- tions, necessary for carrying on the business of a glass-manufactory, as he should think fit, for sixty- one years, at a certain rent j and B agreed to pay the rent, to build in a substantial manner, and not to use the premises for any other purpose than a glass manufactory during the term. A lease and counterpart to he executed in conformity with the agreement, in which should be inserted all usual covenants: — Held, that this agreement did not warrant the insertion in the lease of an affirmative covenant by the lessee, that he would carry on the business of a glass-manufactory on the demised premises during the term. Doe d. Marquis of Bute v. Guest, 15 Mee. & W. 160. A lease for years contained a proviso for re-entry, incase the lessee " should at anytime duringthe term commitany act of bankruptcy, whereupon a commis^ LEASE. 381 sion or fiat in banlsruptcy should issue against him, and under which he should bedulyfoundanddeclaied a hantrupt." The lessee, heing a trader, com- mitted an act of bankruptcy, on which a fiat issued against him, and he was by the Commissioner found and declared a bankrupt ; hut the petitioning creditor's debt on which the fiat was founded was proved by A and B, as partners, whereas it was due to A, B and C, as partners: — Held, by Pollock, C.B. and Piatt, B., Parke, B. dissentiente, that the lessee was not duly found and declared a bankrupt, within the meaning of the proviso. Doe d. Lloyd v. Ingleby, 15 Mee. & W. 465. ' An action on a covenant to repair in a lease cannot he sustained where the lessor never executes the lease, although the lessee occupies for the whole term in the intended lease. Pitman v. Woodbury, 3 Exch. Rep. 4. By an agreement between A and B it was agreed that B should- -hold, .premises until Michaelmas 1845, at which time A was to grant him a lease for a term containing a covenant by B " to insure and keep insured the premises at all times during the term." Owing to disputes in Chancery the lease was not executed until the 12th of January 1847, but was by the Court of Chancery ordered to hear date on and to take efiect from Michaelmas 1845. B left the premises uninsured until the 18th of February 1847. Ejectment having been brought by A against B for a forfeiture, the defendant gave no evidence in explanation of his delay to insure: — Held, that under the circumstances of the case the Judge ought to have directed the jury as a matter of law that the plaintiff was entitled to a verdict. Doe d. Darlington v. Ulpli, 18 Law J. Rep. (n.s.) a.B. 106; 13 Q.B. Rep. 204. A lessee bound by a covenant to repair under penalty of forfeiture, must do so within a reasonable time after the premises are out of repair; and the acceptance of rent by the lessor does not operate as an extension of such time if, when such rent became due, the reasonable time has not expired. Doe d. Baker v. Jones, 19 Law J. Rep. (n.s.) Exch. 405; 5 Exch. Rep. 498. (E) Renewal op. In ejectment, to prove the grant of a new lease a witness was called, who deposed to a conversation which took place fourteen or fifteen years back, with the owner of the property in dispute, under whom the lessor of the plaintiff claimed, in which conversation such owner admitted the premises had been released, without stating the term, or lives, rent, or any other particulars : — Held, that such evidence could not be niade available as proof of a new lease having been granted. Doe d. Lord v, Crago, 17 Law J. Rep. (n.s.) C.P. 263 ; 6 Com. B. Rep. 90. Lessees of way-leaves under a lease granted by a copyhold tenant in fee of the land, entered into a negotiation for a new lease with the tenant for life tinder the lessor's will, which gave the tenant for life power of leasing, and a new lease was accord- ingly granted. The original lease contained a clause usual, if not universal, in such leases, giving the lessee the option of determining the lease on notice. The correspondence respecting the new lease was silent as to such a clause, but the proposed lease was alluded to as a renewal of the former : — Held, first, that the lessees were not hound to accept a lease without such a clause; and, secondly, that the tenant for life had no power to grant such a lease, and that the reversioner, though able to fulfil the agreement, was not entitled to a specific per- formance of it. Qutsre — Whether in executory agreements there is a presumption in favour of the insertion in the executed contract of all such stipulations as are customarily inserted in such contracts. Ricketts v. Bell, 1 De Gex & S. 335. On a devise of successive interests in leases for lives or years where the testator directs that the leases are from time to time to be renewed without more, the fines and expenses of renewal are to be borne by the tenant for life and remainderman, or parties successively entitled, in proportion to their actual enjoyment of the estate, and not in proportion to an extent of enjoyment to be determined specu- latively, or by a calculation of probabilities. If the testator provides a specific fund for re- newals, or directs that the fines shall be raised or borne by the parties in a certain manner, such direction supersedes the general rule ; but if trustees having power to direct the mode in which fines shall be raised do not exercise the power, the Court will pursue the general rule. Qusre — If the trustees might so act as to throw the burthen on the parties differently from the general rule. Quisre — ^Whether there is any difference where parties take successive interests under a will, and where they take them under deeds of settlement. Jones V. Jones, 5 Hare, 440. (F) SUKRENDER. B, tenant for life, with a power of leasing, made in April 1788 a lease to A for ninety-nine years, determinable on three lives, of a portion of premises already demised to A by two several leases of 1 760 and 1784. The lease of April 1788 purported to be granted " for and in consideration of the sur- rendering up to B" of the leases of 1760 and 1784 ; " and in order to effectuate an agreement entered into between A and one C for the sale to C of the residue of the premises, which residue the lease recited was intended to be demised by B to C, by indenture of lease bearing even date therewith." The lease to A, of April 1788, was not a good execution of the power. The lease of 1784 was a good execution of the power. The lease of 1760 had determined. The residue of the premises, mentioned in the lease to A of April 1788, was demised to C, by indenture of that date, by a valid subsisting lease : — Held, that the acceptance by A of the lease of April 1788 did not, as to the premises thereby demised to A, operate as an absolute sur- render in law of the lease of 1784, and that, on ejectment being brought by the remainder-man afterthedeathof the tenant for life, the lease of 1784 must he considered as a subsisting lease. Doe d. Biddulpk Y.Poole, 17 LawJ. Rep. (n.s.) Q.B. 143; 11 a.B. Rep. 713. In 1755, a tenant for life, under a power of leasing, demised lands to the defendant for ninety- nine years, determinable on lives. In 1812, the tenant for life under the same power granted a 382 LEASE— LEGACY. further lease in reversion of the same lands to the defendant for ninety- nine years on additional lives. The lease purported to he made " in consideration of the surrendering up into the hands of the lessor by the lessee" of thelease of 1755, " which surren- der is hereby made and accepted accordingly." The lease of 1812 was not a valid execution of the power : — Held, that as it did not pass an interest according to the contract, it did not operate -as a surrender of the lease of 1755, and one of the lives named in that lease being still in esse, ejectment would not lie. Doe d. Earl of Egremont v. Courtney, 17 Law J. Rep. (n.s.) Q.B. 151 ; 11 Q.B. Rep. 702. (G) FOKFEITURE. A lessee was to incur a forfeiture if he did not do certain repairs " to the satisfaction of the surveyor" of the lessor. He did the repairs, hut the lessor's surveyor was not satisfied : — Held, in ejectment for the forfeiture, that if the jury thought the surveyor ought to have been satisfied, that would be sufficient, and there would be no forfeiture incurred. Doe d. Baker v. Jones, 2 Car. & K. 743. LEAVE AND LICENCE. [See Licence — Pleading.] LEGACY. [See Monet had and keceived.] (A) Construction of. (a) In general. (&) Gift by Implication. (B) Who take as Legatees. (o) GeTierally. (6) Description of Legatee, (c) Gift to a Class. (1) When and how ascertained. (2) Distribution per Capita or per Stirpes. (3) Next-of-Kin. (4) Legal Representatives. (5) Issue. (C) What Pkopeety passes. (a) Generally. (J>) Dividends. (D) What Interest vests. (a) Absolute. \b) For Life. (c) Joint Tenancy. (d) Tenancy in common. (e) Trust or Beneficial. (/) Separate Use. (E) On what Property chargeable. (F) Vested or Contingent. (a) In general. (4) Period of vesting. (G) Specific and Demonstrative. (H) Cumulative or Substitutional. ( I ) Conditional. ( J ) Survivorship. (K) Payment of. (L) Investment. (M) Abatement. (N) Ademption and Satisfaction. (O) Remission OF Debt. (P) Void. (Q) Revoked. (R) Lapsed. ( S ) Priority and Contribution. (T) Residue. (U) Interest on. (V) Annuity. (W) Recovery of Legacy. (X) Rights and Liabilities of the Legatee. (Y) Legacy Duty. (A) Construction of. (a) In general. A testator bequeathed thirty G W Railway shares to A, and other thirty shares to B, and declared that the legacies .should not he deemed specific so as to he capable of ademption. At his death lie was entitled to fifty G W Railway shares originally subscribed for, and seventy purchased shares. The G W Railway Act was passed during his lifetime. All the calls had not been paid on the shares at the time of his death. After his death, the G W Rail- way Company passed a resolution, declaring that the proprietors of shares should be entitled to two new quarter shares in respect of each whole share : — Held, first, that the legatees were entitled to the income of the shares from the death of the testator; secondly, that the legatees were entitled to a pro- portional number of new quarter shares ; thirdly, that (as between the legatees and the testator's estate) the legatees were bound to pay the calls on the new quarter shares ; fourthly, that the legatees also were bound to pay the future calls on the pur- chased shares ; fifthly, that the legatees, and not the executors, had the right of determining out of which class their shares were to come. Whether the testator's estate was liable to pay the future calls on the shares originally subscribed for — quisre. Jaques v. Chambers, 15 Law J. Rep. (N.s.) Chanc. 225 ; 2 Coll. C.C. 435. Testator bequeathed to G two sums of stock, and in case of his death in the testator's lifetime without issue, the two sums were to be equally divided among the testator's nieces thereinafter named, under the same conditions and restrictions as were thereinafter mentioned respecting the several be- quests thereinafter mentioned to them respectively given. He then gave 12,000/. stock to trustees, upon trust to pay the dividends (in thirds) to his three nieces. A, B, and C, for their lives, and after their respective deaths to transfer the capital (in thirds) to the children of the nieces ; with limitations over, in the nature of cross-remainders, in the event of any of the nieces dying without leaving children ; with an ultimate limitation in the event of all the nieces dying without leaving children, in favour of the residuary legatee, a stranger. G died, without issue, in the testator's lifetime. The nieces had children : — Held, that the children took the same interests in the stock given to G as they did in the 12,000/. consols. Ross v. Ross, 2 Coll. C.C. 269. Real and personal estate was given to trustees, upon trust to pay the income to the testator's wife for LEGACY; (A) Construction of. S83 her life, and within or at the expiration of ten years from the death of the survivor of himself and his wife to sell and convert the same into money, and out of the income to pay annuities to several per- sons and classes of persons for the said term Of ten years, with pecuniary legacies to the same persons and classes, and also to other persons at the expira- tion of that time, and annuities to other persons for the lives of the annuitants, and specific legacies to others. The residue was then given to all and every the several legatees before named, rateably and in proportion to the amount of their several legacies. The wife survived the testator : — Held, that the " legatees before named " meant the legatees taking benefits out of the fund which fell in at the wife's death, and the " legacies," such legacies as re- mained unsatisfied at the end of the ten years. That annuitants for life not having other legacies were legatees of shares in the residue, and that _those who - died during- the ten years took vested interests in their annuities and legacies. That specific legatees were entitled to share in the residue according to the value of their legacies. * That a class described as " the children of B," but not otherwise named, came within the descrip- tion of " legatees before named." That the testator's widow did not take under the residuary gift. Bromley v. Wright, 7 Hare, 334. A testator directed his trustees to pay an annuity to his brother, until he should attempt to charge it, or some other person should claim it, and then to apply it for his support and maintenance. The annuitant having become insolvent, — Held, that his assignees were entitled to the annuity. Young- husband V. Gisborne, 15 Law J. Rep. (n.s.) Chanc, 355. A testator bequeathedleaseholds to his son Charles, and if he died without issue, that they should be considered part of his residuary estate, and divided among the children of his three daughters, Isabella, Matilda, and Mary, as thereinafter mentioned ; and he gave the residue of his estate to trustees in trust for his son and three daughters, or such of them as should be living at the death of his wife, equally during their lives j and directed that after their deaths the whole of the residue should be divided among all the children of his said son and daughters in equal shares ; and in case any of his said son and daughters died without leaving issue, the share of him, &c. so dying should be divided among the survivors and their issue, in like equal shares, &c. Isabella died in the lifetime of the widow, leaving children. Mary died after the widow, leaving chil- dren. Charles died without- issue. Matilda was still living, and had children: — Held, that Isabella's and Mary's children each took a fourth of the resi- due; that Matilda was entitled to another fourth for her life, with remainder to her children j and that Charles's fourth was divisible into three parts, each part to go as the other fourths of the residue. Hawkins v. Hamerton, 16 Sim. 410. A testatrix, after leaving ten guineas to the person who should, at her death, be the eldest son of her daughter, by her then husband, and stating that she gave him no more because he would have a hand- some provision from the estate of his grandfather and his father, who was still living, bequeathed one moiety of her residuary estate to her daughter's children, except the eldest son, in equal shares, to be divided when the youngest should attain twenty- one: — Held, that one of the daughter's younger children, who became the eldest son, was excluded, although he did not become the eldest son till after the death of the testatrix, and took no provision under the will of hi? grandfather, and very little under the will of his father. Livesey v. Livesey, 15 Law J. Rep. (n.s.) Chanc. 357 ; 13 Sim. 33. A testator directed a fund to be set apart to answer an annuity, which he directed to he paid to his widow. After her death, he directed the fund to form part of his residuary estate, which he be- queathed to all his children equally, with a proviso that if any child should die, either in his lifetime or after his decease, and before the part or share bequeathed to such child should become a vested interest, without leaving issue, then such share should go to the survivors ; but in case any child should die leaving issue, then such issue should take their parent's share: — Held, tliat the second branch of the proviso must be read in connexion with the first, and that in both, the death contem- plated was a death before the share vested in pos- session. King V. Cullen, 2 De Gex & S. 252. Meaning of " money" in a will. Glendening v. Glendening, 9 Beav. 324. Testator gave the interest of his residuary estate to his mother for life, and afterwards one-half of the interest to his brother, and one-half to his sister. On the death of his sister, the capital was to go to her children, if any, and if not, to his brother. On the death of the brother, the capital was to go to his children. The sister died without children : — Held, that the brother's children took no interest in her moiety. Tatnall v. Tatnall, 10 Beav. 509. Bequest in trust for A for life, if he should not marry H B, and after such forfeiture should have taken place, and after the decease of A, in trust for the widow of A (except as aforesaid) and A's chil- dren, by any other woman than H B. A married H B : — Held, that A was still entitled to the income. W V. B , 11 Beav. 621, A testator bequeathed a sum of money to his trustees, who were to pay the dividends to his bro- ther, until his niece should attain the age of twenty- one, or should previously marry with the consent of her father, such interest to be applied by his brother in the maintenance and education of the niece, and when she should attain twenty-one, or marry with such consent, upon trust, to transfer the capital to her. The niece married under age, without con- sent ; — Held, that the dividends between the time of her marriage and her attaining twenty-one were to be paid to the niece. In re Camac, 17 Law J. Rep. (n.s.) Chanc. 418. Upon the construction of a will and codicil, — Held, that <> substituted executor was not entitled to a legacy given to the original executor for his trouble in the execution of it. Finch v. Seeker, 1 De Gex & S. 34. A testator directed trustees to pay an annuity to his nephew for life, without anticipation, &c., or until bankruptcy or insolvency ; and in case of bankrupted' or insolvency to pay the same to his wife for the personal support of herself and him and his children, during thfi life of him and her and the survivor, with power, in case of alienation, &c. by 384 LEGACY ; (A)CoNSTBncTiON of. them or either of them, to the trustees to withhold payment of the annuity, or to apply it towards the support of their children. The nephew took the benefit of the Insolvent Debtors Act in the lifetime of his first wife, living at the testator's decease, and afterwards married a second wife : — Held, that the second wife took no interest in the annuity, and that upon the death of his first wife, their children became entitled in equal shares to the annuity during his life, and that upon his decease the fund upon which it was secured fell into the residue of the testator's estate. Boreham v. Bignall, 19 Law J. Rep. (N.s.) Chanc. 461 ; 8 Hare, 131. A testator bequeathed one-seventh of the residue of his estate to each of his seven children, for his or her life ; and declared that after the death of any of his children the capital of the share or shares of such child or children should be divided among his, her, or their children ; and if any of his children should die without issue living at his or her death, the interest and capital of such child should be divided equally amongst the survivors or survivor of his said children then living, and the children or issue of such of them as should he then dead, at such times and in such manner as was thereinbefore directed concerning the original shares. A, one of the testator's children, died without issue, and then B, another child, died without issue:— Held, that B's accrued share went over to the other children and the grand children of the testator. Goodman v. Goodman, 17 Law J. Rep. (N.s.) Chanc. 103; 1 De Gex & S. 695. A testator gave all his personal estate to trustees, upon trust, to pay an annuity to his wife for her life, and to pay the remainder of the interest equally between his nephews and nieces and his sister E W, in equal shares ; but that the share of the said interest should be paid to E W during her life, and, after her decease, to go to. her children ; and he directed that, after the death of his wife and sister, the principal monies should be divided between his nephews and nieces equally. At the death of the testator E W was living ; but no other sister, and no brother, of the testator. E "W had three children, and there were five other nephews and nieces: — Held, that all the nephews and nieces were equally entitled to the property, with the qualification that the shares of the children of E W, during her life, belonged to her. Blakelock v. Sharpe, 17 Law J. Rep. (N.s.) Chanc. 453; 2 De Gex & S. 484. A testator bequeathed to trustees 8001. upon trust to invest, and pay the income equally among his four daughters. A, B, C, and D, for their lives, to their separate use ; and in case of the decease of any or either of them leaving issue of her or their body or bodies, then he bequeathed one-fourth of the said principal sum to be equally divided amongst such issue, and if but one, to such one only ; and in default of issue, then the share of her or them so dying he bequeathed unto the survivors of them equally, and if but one, to such one only. By a subsequent clause in his will, the testator directed that in case any or either of his children, to whom or to whose benefit any legacy or bequest was given by his will should die, before such legacy or be- quest should have become vested in her or them, leaving lawful issue, then such legacy or bequest should descend to and become the property of such issue. A died before the testator, but after the date of the will, leaving issue, and B survived the testator and died without issue: — Held, that, by the efieet of the subsequent clause in. the will, "the issue of A were entitled to participate with C and D, the surviving children in the one- fourth share given over in the event of the death of B without issue. Willetts v. Willetts, 17 Law J. Rep. (n.s.) Chanc. 457 ; 7 Hare, 38. (6) Gift by Implication. A testator, by will, gave to A a legacy of 500/. By the first codicil to his will the testator bequeathed a further legacy of 5001. to A, which the testator declared to be in addition to the like sum be- queathed to him by the will. By a second codicil the testator bequeathed to A 500?. in addition to the 1,500/. which he had before bequeathed to A: — Held, that A was by implication entitled to a legacy of 2,000Z. Jordan v. Forteseue, 16 Law J. Rep. (N.s.) Chanc. 332 ; 10 Beav. 259. A testator bequeathed 100/. each to the two children of his nephews, A and B. A had three children and B two children all living at the date of the will, and at the testator's death: — Held, that the five children were entitled to 100/. a piece. Mor- rison V. Martin, 5 Hare, 507. An estate was mortgaged to A, who sub-mort- gaged to B. A devised the estate to C, and be- queathed toB, through his executors, 1,000/. to clear the estate in part. B, after the testator's death, foreclosed the estate: — Held, that C was entitled to the 1,000/. Lockhart v. Hardy, 9 Beav. 379. And to interest thereon at 3/. per cent. 10 Beav. 292. Gift of life estate by implication. Hudleston r. Gouldsbury, 10 Beav. 547. A testator bequeathed a sum of money to his wife's nephew for life, and if he should die in the testator's lifetime, without issue, then he gave the same to other parties. The nephew died in the life- time of the testator, leaving issue : — Held, that such issue was not entitled, by implication, to the legacy. Cooper v. Pitcher, 16 Law J. Rep. (N.s.) Chanc. 24. [See (B) Who take as Legatees, (c) Gift to a Class (1), and (D) What Interest vests, (i).] (B) Who take as Legatees. (a) Generally. A testator gave and devised all his estate in the funds of England, and all his freehold, copyhold, and leasehold property to A for life, and then to his first and other sons in tail male, remainder to B, with the same limitations to his children, and in default of such issue " to his own right heirs for ever." The testator also gave his trustees a power to lay out his personal estate in the purchase of freeholds to he settled to the same uses: — Held, that the testator's personal estate would go to his heir-at-law, and not to his next-of-kin. De Beau- voir v. De Beauvoir, 15 Law J. Rep. (n.s.) Chanc. 305; 15 Sim. 163. Upon the construction of a will, — Held, that executors were entitled as against the Crown claim- ing in default of next-of-kin, to the surplus proceeds of leaseholds bequeathed to he sold for payment of debts and legacies. LEGACY ; (B) Who take as Legatees. 385 Executors having legacies under the will, — Held, not precluded from taking property undisposed of by the will to their own use, the legacies being un- equal in amount. Russell v. Clowes, 2 Coll. C.C. 648. A testatrix, by her will, bequeathed all interest of money arising from money in the hands of A B, unto her daughter, C D, for her natural life, and afterwards to devolve in succession upon her (tes- tatrix's) remaining children. On the death of C D, the next eldest child in priority of birth, who had attained twenty-one, was held entitled to the interest of the fund for life. Young v. Shepherd, 16 Law J. Rep. (N.s.) Chano. 247; 10 Beav. 207. (4)' Description of Legatee. Testator gave 5,000/. after the decease of his niece, to he divided among his next-of-kin of the surname of Crump, who should be living at the death of his said niece : — Held, that the wife of A, who was next-of-kin of the testator, and whose maiden name was Crump, but who had married before the death of the niece, was entitled. Carpenter v. Bott, 16 Law J. Rep. (n.s.) Chanc. 433 ; 15 Sim. 606. A testator gave to four persons, whom he de- scribed as " children of J and A E," legacies of 5001. each. A E was a daughter of a brother of the testator. The gift of these legacies was followed by this clause, " I direct my executors to pay by and out of my personal estate, the sum of 5001, a piece to each child that may be born to either of the children of either of my brothers lawfully be- gotten : — Held, that under this clause the four children of J and A E had not any claim to a second legacy of 5001. Early v. Benbow, 15 Law J. Rep. (N.s.) Chanc. 169 ; 2 Coll. C.C. 342. A testator who was a farmer by his will gave a legacy in these terms : " to W R, one of my farm- ing men." At the date of the testator's will, and at the time of his death, he had two persons in his service named W R — one of them was a farming man, and the other was employed both in the house and in the farm ; — Held, (upon some evidence that the testator intended to benefit the latter), that the latter and not the former was entitled to the legacy. Reynolds v. IVlieUm, 16 Law J. Rep. (n.s.) Chanc. 434. The Earl of A by bis will gave to each person as servant in his domestic establishment at the time of his death a year's wages. The Earl of A lived at E Castle. Adjoining to the castle was a garden, inclosed by a wall, which was cultivated under the direction of O as head gardener. O lived in a garden-house situated in the garden, the do- mestic work of which was performed by the Earl's servants who came there from the castle : — Held, that O was entitled to a legacy under the above clause. . In this case the garden-house had been pulled down shortly before the Earl's death, and a new house was in the course of erection at his death j and, during this period, O lived at some distance from the castle. It was, however, the intention of the Earl that, on the completion of the new house, O should remove to it: — Held, that O's absence was only of a temporary and provisional nature and did not interfere with his right to the legacy. In this case the circumstance that O was hired Digest, 1845—1850. at weekly wages (the hiring not being a yearly one) did not interfere with his right to the legacy. Ogle V. Morgan, 19 Law J. Rep. (n.s.) Chano. 531. (c) Gift to a Class. [See (F) Vested or Contingent.] (I) When and how ascertained. A testator directed his trustees to set apart a sufficient sum out of his estate to produce 6001. per annum, which was to be paid to his daughter during her life, and after her decease to her chil- dren ; and if at her death she should not have any child, or if none of her children should attain the age of twenty-four years, the trust monies were to be sold, and certain legacies paid out of the pro- ceeds i and the testator bequeathed the rest of the trust monies to and among his heirs-at-law in equal shares : — Held, that the death of the testator was the time for ascertaining the parties who were to take ; and that the testator's daughter being then his sole next-of-kin, and also his heiress-at-law, was in one of those characters entitled to the fund ; but whether as heiress or as next-of-kin, quiere. Ware V.Rowland, 16 LawJ. Rep. (n.s.) Chanc 427; 15 Sim. 587 ; affirmed, 17 Law J. Rep. (n.s.) Chanc. 147. A testator bequeathed the residue of his estate in trust for his wife for her life, and after her decease to distribute the same, in equal shares and propor- tions, between and amongst each and every of his brothers and sisters, and such of their children as should be then living, the parents ^nd children to be classed together, and to share in equal proportions : — Held, that the residuary fund was distributable in equal shares per capita amongst such only of the brothers and sisters of the testator and their chil- dren as were living at the death of the testator's widow, who survived the testator. Turner v. Hudson, 16 Law J. Rep. (n.s.) Chanc. 180 ; 10 Beav. 222. Gift, by will, to A for life, and after her death for her surviving brothers and sisters. Some of A's brothers and sisters had died before the testa- tor, and some died after the death of the testator, in the lifetime of A : — Held, that the brothers and sisters living at the death of A were alone entitled." Dames v. Thorns, 18 Law J. Rep. (n.s.) Chanc. 212 ; 3 De Gex & S. 347. _A testator willed that certain property should be vested in a manner most secure and least liable to fluctuation, and that 3,000t should be at the will of his wife at her death, but the residue he willed she should distribute to bis relations, and he made his wife residuary legatee : — Held, that the distribution to the relations took place at the wife's death, and that on the whole bequest the wife took a life estate. Hudleston v. Goulilsbury, 10 Beav. 547. A testator, by his will, bequeathed his residuary estate to trustees upon trust for A, but with the proviso that if A died without having attained the age of twenty-one, and without leaving lawful issue him surviving, then that the trustees should pay the money arising from his estate unto and equally among B, the children of C, and the chil- dren of D, and the issue of such of them as should die leaving lawful issue, such issue taking their parent's share. A died under twenty-one, and without having been married. B was the first of 3D 386 LEGACY ; (B) Who take as Legatees. the residuary legatees who attained twenty-one. C had children living at the death of the testator, and horn afterwards : — Held, that the children of C bom hetween the death of the testator and B's attaining twenty-one, were entitled to share in the hequest Robley v. Ridings, 16 Law J. Rep. (n.s.) Chanc. 345. A residuary hequest to testator's brother for life, and after his death to his wife, and at her death to go to such of testator's relations as survived them, — Held, to give the whole to the only one of testa- tor's brothers who survived the tenants for life, to the exclusion of the children and representatives of brothers of the testator who survived him, but died in the lifetime of the second tenant for life. Bishop v. Cappell, 1 De Gex & S. 41 1. A bequest for the benefit of unbeneficed curates whose annual incomes do not exceed Z5l. and to such as shall be recommended in a particular manner, — Held, to comprise two separate classes of legatees. Pennington v. Buckley, 6 Hare, 453. A testator gave specific legacies and the residue of his personal estate to his children nominatim, payable to them at twenty-one or on marriage. He also gave the residue of his real estate, subject to the payment of an annuity to his wife and other trusts, hetween all his said children (not naming them) share and share alike; and directed in case any of his children by his second wife should die without issue before he or she should attain twenty- one, that the interest of each in his, the testator's, last-mentioned real and personal estate, together with the thereinbefore-mentioned legacies be- queathed to them respectively, should go between his said second wife and such of his children by her as should he living, &c. : — Held, that one of the said legatees, who was an illegitimate daughter of the testator by his second wife, was entitled to share with their legitimate children in the residue of the testator's property. Evans v. Davies, 18 Law J. Eep. (n.s.) Chanc. 180 ; 7 Hare, 498. (2) Distribution jier Capita or per Stirpes, Upon a hequest of 2,00W. to be equally divided amongst testator's next-of-kin both maternal and paternal, the fund is divisible between the two classes per capita, and not per stirpes. Dugdale v. Dugdale, 11 Beav. 402. A testator, by his will, gave a fund to trustees on trust, to pay the proceeds of it to A for life ; and after the death of A, to pay the principal money unto and equally amongst all and every the chil- dren of A and B, which should be living at the death of A, and the lawful issue of such of them as should be then dead, share and share alike : — Held, that this was a gift to the children and issue of A and B per capita, and not per stirpes. Abbey v. Howe, 16 Law J. Rep. (n.s.) Chanc. 437; 1 De Gex & S. 470. A bequest to testator's wife of the use and usage of all his eflfects for her life, and at her death bequest of the same to four nieces by name, to be by them equally divided, share and share alike, and at their deaths to go equally share and share alike to their children, — Held, to give the respective children their parent's share only. Arrow v. Mel- lish, 1 De Gex & S. 355. Upon an appointment of stock " unto and among my said brother and my sisters and my nephews and nieces living at the decease of my wife, in equal shares," — Held, that the qualification of living at the death of the wife attached only to the nephews and nieces, and that the legatees took per capita. Baker v. BaJcer, 6 Hare, 269. Bequest of a fund to he divided among the children of A, the children of B, the children of C, the children of D, and to E, if he should then be living, and, if not, E's share to he divided into four parts, and paid to the children of A, B, C, and D " in manner aforesaid" : — Held, that the fund was divisible among the children per stirpes and not per capita. Nettleton v. Stephenson, 18 Law J, Rep. (n.s.) Chanc. 191. (3) Next-qf-Kin. S D M, by his will, dated in 1832, gave to trus- tees all his real and personal estate which he might be entitled to at his death, upon trust, after the second marriage of his wife, to apply the income for the benefit of his children, and if more than sufficient for their maintenance, &c., to invest the surplus to accumulate at interest till they attained twenty-one years of age, and on their attaining twenty-one, upon trust to convey the testator's real and personal estate equally between such children ; and if either of them should die before attaining twenty-one years leaving issue, then the share of him or her so dying should go to such issue, hut if there should be only one such child, then unto such only child, his heirs, exe- cutors, or administrators for ever ; and if all his, the testator's, present or future children or child should happen to die without leaving issue, then upon trust to release the said real estate to the testator's heir- at-law, and to assign his personal estate unto and equally between his next-of-kin, according to the Statute of Distributions. Mrs. B, the testator's widow, married the defendant, J B B, in 1838. The testator had two children living at his death, a son and a daughter ; the son died on the 8th of July 1841, in the ninth year of his age, and the daughter died on the 9th of July 1841, in the thirteenth year of her age. In pursuance of a reference made by the Court in January 1843, the Master reported that the two children of the testator were his next- of-kin at his death, and that the defendants, J G M and E M, the brother and sister of the testator, would have befen his next-of-kin if he had died without issue, and that they were such next-of-kin at the death of the testator's last surviving child : — Held, that the legal personal representative of the two deceased children was entitled to the personalty in their right. Seifferth v. Badham, 15 Law J. Rep. (n.s.) Chanc. 345 ; 9 Beav. 370. See Lasbury v. Newport, 9 Beav. 376. A testatrix, under a power, charged estates with a sum of money, and directed it to be paid to such of her mother's relations as her husband should by will appoint, and for want of such appointment then to her mother's relations according to the Statute of Distributions. The husband survived, but did not appoint the fund to any relation of his wife's mother: — Held, that the next-of-kin of the mother living at the death of the husband were entitled to the fund in default of a valid appointment by the hus- band. Davidson v. Proctor, 19 Law J. Rep. (n.s.) Chanc. 395. LEGACY ; (C) What Pkopeety passes. 387 A testator directed the dividends of stock to be paid to his wife for life, and after her death the capital to he transferred to such persons in such shares at such times and in such manner as might he ex- pressed in any codicil to his will ; and in default of such direction or appointment the same to be trans- ferred to such persons as would under the Statutes of Distributions have been entitled to his personal estate in case he had died intestate. The testator died without making any appointment by codicil, leaving his wife surviving him. The wife afterwards died; — Held, that the fund belonged to those who at the testator's, andnot at the widow's, death would have been entitled to his personal estate in case he had died intestate, and that, consequently, the widow was entitled to a distributive share. But, semble, there was no joint tenancy between the widow and the next-of-kin of the testator living at his death, and, therefore, that the widow having survived those next-of-kin did not take the whole by survivorship. Jenkins v. Gower, 2 Coll. C.C. 537. (4) Legal Representatives. A testator gave a sum of money to his daughter for life, and after her decease to three persons, share and share alike ; and in the event of the death of all or any of the three legatees, in the lifetime of the daughter, he gave the shares of those sodying to their legal personal representatives. Two of the legatees died in her lifetime: — Held, that their executors, and not their next-of-kin, were entitled to two-thirds of the fund. Hinchliffe v. Westwood, 17 Law J. Rep. (n.s.) Chanc. 167 ; 2 De Gex & S. 216. A testator gave his residuary estate to his son for life, with remainder to his children, and upon the decease of his son, if he should die without issue, he directed that one- fourth should be paid to his nephew, if he should then heliving; and if not, then to his legal representative or representatives. The nephew died before the tenant for life, who died without issue : — Held, that the next-of-kin of the nephew were en- titled to his share of the estate. Walker v, Camden^ 17 Law J. Rep. (n.s.) Chanc. 488 ; 16 Sim. 329. (5) Issue. Bequest to testator's brother and sisters A, B, and C for their several lives, share and share alike, and after the decease of either of them, then as to the share orsharesof either of them so dying, he bequeathed the same to the issue of the body or bodies of him, her, or them so dying begotten, or to be begotten, by their present husbands, share and share alike for ever. Assuming that A, B, and C took life estates only, — Held, that "issue" included grandchildren and remoter descendants. Evans y. Jones, 2Coll. C.C.516. (C) What Peopebty passes. (a) Generally. V. Wright, 5 Law J. Dig. 393; 14 Sim. 400.] Canal shares will not pass under a bequest of " property vested in bonds or securities." Hudleston V. Gouldsbury, 10 Beav. 547. A testator bequeathed all his property in the Aus- trian and Russian funds, and that vested in a Swedish mortgage security. He had at the date of his will several sums invested on different Swedish mort- gages : — Held, that the bequest was not void for uncertainty, and that all the sums invested in Swedish mortgages passed. Richards v. Patteson, 15 Sim. 501. A testator gave to trustees all his leasehold estates, and the residue of his monies, chattels, fiinds, rail- road shares, securities for money and other personal estate and effects, on trust, to convert into money all such parts as should not consist of government securities, stocks, funds, or railroad shares, and apply the monies arising therefrom for the benefit of his wife and children, and after the death of his wife if there should he no children, the testator directed his real estate to be sold, and the money arising therefrom, and also the money arising from his residuary personal estate and effects, to be held upon certain trusts mentioned in his will : — Held, that the railroad shares passed in the gift over after the death of the widow. Surtees v. Hopkinson, 18 LawJ.Rep. (n.s.) Chanc. 188. A testator made the following bequest : — " To my wife I give all my interest in my house at Laven- der Hill, the furniture, books, pictures, wines," &c. Between the date of the will and his death the tes- tator removed to another house, where he died : — Held, that the widow was entitled to the furniture, books, pictures, wines, and articles of a similar de- scription, which were in the testator's house when he died. Norris v. Norris, 15 Law J. Rep. (n.s.) Chanc. 420 ; 2 Coll. C.C. 719. Under a devise of a house in Camden Place and "all therein" to M for life ; " at her death I give and bequeath the house, &c. to my nephew T and hi» heirs," after the death of M, T is entitled to all the chattels which were in the house at the testator's death except consumable articles. Ttvining v. Powell, 2 Coll. C.C. 262. A bequest of all the property which a testator might die possessed of, held, from expressions in a codicil, to pass only part. Attorney General v. Wilt- shere, 16 Sim. 36. (6) Dividends. A testator bequeathed all the dividends or in- terest of all his money in the funds, and of all other his personal property, to A for life. The testator was at his death entitled to some dividends on stock which had accrued due during his life, hut had not been received by him: — Held, that such divi- dends did not pass under the words " dividends of money in the funds," hut formed part of his general personal estate. Shore v. Weekly, 18 Law J. Rep. (n.s.) Chanc. 403. A testator bequeathed all the shares he possessed in a railway, and all his right, title, and interest therein and thereto. Calls had been paid by the shareholders on each of the shares, at the date of the will and death of the testator, and the testator had also, by virtue of a power to that effect, con- tained in the act of parliament establishing the railway company, made payments in advance on each of his shares, and received interest from the railway company thereon : — Held, that the anti- cipated payments and the interest payable by the railway company in respect of the anticipated pay- ments passed to the legatees with the shares. Tanner v. Tanner, 17 Law J. Rep. (n.s.) Chanc. 115; 11 Beav. 69. A testator bequeathed to A all and singular his 388 LEGACY ; (D) What intekest Vests. ready money, money in the funds, furnitare, &c., and all other his property in and about his house, except securities for money. He then gave the rest and residue of his estate on the trusts therein men- tioned. The testator at his death was entitled to dividends on stock in the 31. per cent, reduced an- nuities, and the 31. 10s. per cent, annuities belong- ing to him, which had accrued due during his life, but had not been received by him; — Held, that such dividends did not pass under the words " ready money" or "money in the funds.'* May v. Graven 18 Law J. Rep. (n.s.) Chanc. 401. (D) What Interest vests. (a) Absolute, [See Lassence v. Tierney, 2 Hall & Tw. 115 ; 1 Mac. & G. 551, tit. ' Will, Construction of."] Bequest to testator's daughter for life, and on her death to testator's son and his children. The son had no child at his father's death, but had children living at the death of the daughter : — Held, that his children were neither joint tenants with him, nor entitled in remainder after his death, but that the fund belonged to him absolutely. Scott v. Scott, 14 Law J. Rep. (n.s.) Chanc. 439 ; 15 Sim. 47. [5 Law J. Dig. Add. 835.] A testatrix gave 1,0001 to her nephew to bring up and maintain her natural son Frederick ; she then gave the residue of her property for the benefit of her four children, including Frederick : — Held, that the nephew took the l,000i. absolutely. Ward V. Biddies, 16 Law J. Rep. (n.s.) Chanc. 455. Abequest of 8,0001 to testatrix's daughter, a mar- ried lady, towards purchasing a country residence, ^Held, to be an absolute bequest. Knox v. Lord Hotham, 15 Sim. 82. A testator bequeathed the interest of all monies invested in loan societies, as well as all other pro- perty, to his wife for life. He then directed all his debts to be got in and invested in government secu- rities for the benefit of his wife for her life, and after her decease he 'gave various legacies to his grandchildren ; and as to the remaining part of his estate he directed the same to be put out at interest for the benefit of his wife during her life, arid all monies were to be kept in the Bank of England. The testator afterwards directed that all monies belonging to him in the friendly societies when received should belong to his wife for her own use absolutely : — Held, that the last clause in the will mustcontroul the first, and that the testator's wife was entitled to the money in the friendly societies absolutely, and not merely for life. Held, also, that the trustees were not hound to convert the money in the societies immediately for the purpose of investment in government securities, Marks v. Solomon, 18 Law J. Rep. (N.s.) Chanc. 234. Bequest to A, and in the event of her death without children to her heirs, the nearest relations of her grand-aunt A. A took the absolute interest. Yearwood v. .Yearwood, 9 Beav. 276. A testator gave fourteen Phoenix shares in trust to pay the produce of ten to his daughters for life, and afterwards to his son, and afterwards to his son's " children ;" and he gave the other four to his son for life, and afterwards to his "children;" and in default of "such issue" of his son to his daughters, and their " issue," share and share alike, such issue not to take more than their deceased parent's share. The son died without issue : — Held, that the daughters took absolute interests, and that their children took only by substitution for their parents, and not by way of limitation or succession. He also gave ten Pelican shares to his son, his heirs, executors, administrators and assigns, for ever, he paying the profits of eight to the testator's daughters, for life, and after their decease the daughters' shares were to return to the son and " Ws issue," and in default of such issue over to the daughters and their issue : — Held, that subject to the life interest of the daughters, the son was abso- lutely entitled to the shares. Hedges v. Harpur, 9 Beav. 479. Testator bequeathed his residue to his three sons, in trust to be divided between his three sons and his daughter, and he directed his daughter's share to be kept in the hands of his sons for her " or" her children's sole use, free from the controul of her husband. The daughter survived :— Held, that she took absolutely. Whitcher v. Penley, 9 Beav. 477. Under a bequest to "my son William or his children," — Held, that the son who survived was absolutely entitled, and that the children could only take by substitution in case of the death of their parent. Penley v. Penley, 12 Beav. 547. A testator gave a fund to A absolutely, but directed that the interest only should be paid to her for her separate use for life, and that after her death the property should go to her children, and in the event of her not intermarrying nor having children, the property to be at her disposal by will or otherwise. A, being a widow, sixty-four years of age, and never having had any children, filed a bill for the transfer of the fund : — Held, that she was entitled to it. Mackenzie v. King, 17 Law J. Rep. (n.s.) Chanc. 448. A testatrix directed her trustees to pay and apply the sum of 8001 in and upon the education of her grandson, who was an infant : — Held, that this was an absolute legacy, vested immediately, upon which interest was payable from a year after the death of the testatrix. Noel v. Jones, 17 Law J. Rep. (n.s.) Chanc. 470; 16 Sim. 309. A testator bequeathed to his grand-daughter the interest arising out of 1,5001 consols, during her life, and at her decease to descend to her heirs male or female, by paying to her uncle 101 per annum, during his life, but the said 1,5001 stock to be by no means sold whatsoever, except on failure of issue, and then to descend to the testator's son and his heirs for ever: — Held, that this was an absolute bequest of the 1,5001 stock to the testator's grand- daughter. Ovsby V. Harvey, 17 Law J. Rep. (n.s.) Chanc. 160. A testator bequeathed to trustees two sums of stock, standing in his name, upon trust, to pay the dividends to his four brothers and his two sisters in equal proportions for their several and respective lives ; and from and after their several and respec- tive deceases, upon trust, to pay the same dividends unto and amongst the present or any eldest future sons or sou only for the time being, of the testator's said brothers, born or to be born, and the survivors or survivor of them, for their life or lives, equally upon their attaining twenty-one; and if but one son LEGACY ; (D) What Inteeest tests. 389 only of his said trothers should be living at the time of the testator's decease, then the whole to such only son during his life ; and from and after the decease of such eldest sons or son, for the time heing, and the survivors or survivor of them, as the case might be, upon further trust to pay such divi- dends amongst the lawful eldest male issue, for the time heing, of their, and each and every of their bodies or body ad infinitum, for ever, without in any manner disposing of any part of the said capital sums of stock : — Held, that the four eldest sons of the testator's four brothers, living at the time of the testator's death, took absolute vested interests in the said sums of stock, as tenants in common, in remainder, expectant upon the decease of the testator's said brothers and sisters. Harvey v. Towell, 17 Law J. Rep. (n.s.) Chanc. 217 ; 7 Hare, 231. - The Earl of A, by his willj reciting that he was seised, of an inalienable estate tail, settled by act of parliament, and also of divers purchased estates, which it was his intention to give to his eldest son to descend with the title, devised all his said pur- chased estates to trustees, to the use of his eldest son for life, with remainder to the use of such per- son or persons as might be entitled upon such son's decease to the family settled estates, in such order and course successively, and for such estates, and subject to such powers, &c., as were expressed in the acts settling the family estates. The testator then bequeathed to his said son, all his gold and silver plate, pictures, &c., to be held as heir-looms, and directed his executors to make an inventory of the same. By a codicil the testator declared, that in addition to the articles and things by his will made heir-looms, certain other specified chattels should be considered and taken to be heir-looms, and he thereby gave and bequeathed them to his executors as heir-looms in his family, and directed his executors to make an inventory of the same : — Held, that the bequest of the specified chattels was direct, and that they vested absolutely in the first taker. Rowlands. Morgan, 17 Law J. Rep. (n.s.) Chanc. 339; 5 Hare, 563; affirmed, 18 Law J. Rep. (n.s.) Chanc. 78. Bequest to A and B of a fund upon trust to invest on security, and to apply the interest on the principal for the benefit of C, in such way as A and B should think fit, during the life of C, and so that A and B should have the entire power over the fund, to dispose of the principal and interest, or any part thereof, or to withhold the same as they should think fit, without being accountable to C or any other person ; and on the death of C, in ease the said sum or any part thereof should be undis- posed of, to stand possessed thereof on the trusts therein mentioned. A and B paid the income to C during their lives, and died leaving C surviving: — Held, that C was absolutely entitled to the capital. Gude V. Worthingtm, 18 Law J. Rep. (n.s.) Chanc. 303. Atestatorgave to his daughter the sum of 15,000/., to be kept in trust by his executors till she should attain the age of twenty-one, or marry with consent, whichever might first happen, when this sum was to be settled on his said daughter ; but failing her attaining twenty-one or having issue by such mar- riage, then the money to devolve upon others. The daughter attained the age of twenty-one, without having been married : —Held, that she was entitled to the legacy absolutely without any settlement being made. Arnold v. Arnold, 18 Law J. Rep. (n.s.) Chanc. 90 ; 16 Sim. 404. A testator, by his will, gave 1 ,000i. to his sister for her or her children's sole use and benefit for ever. By a codicil to his will, he recited that he was desirous of making further bequests in relation to his sister and her family ; and then gave, amongst other benefits, a further sum of 1,000/. to his trus- tees to pay the dividends to his sister for life, and then for her children : — Held, that the 1,000/. be- queathed by the will was given absolutely to the testator's sister. Chipchase v. Simpson, 18 Law J, Rep. (N.S.) Chanc. 145; 16 Sim. 485. M H, by her will, gave to trustees the sum of 3,000/. upon trust to pay the interest thereof for the maintenance of A, and to pay him the principal when he should attain twenty-one ; but directed that in case he should die before his legacy should be payable, leaving lawful issue, such issue should take their deceased parent's legacy. She then gave one moiety of the residue of her estate upon trust for W for her life, and, after the death of "W, she gave this moiety to A at the time his other legacy be- came payable, and in case of his death without lawful issue, then the same to be equally divided between B, C and X). A survived the testatrix, attained twenty-one, and died in the lifetime of W without ever having been married: — Held, that the share of the residue had vested in him abso- lutely, and did not go over to B, C and D. Wood- burne v. Woodburne, 19 Law J. Rep. (n.s.) Chanc. 88. A testator directed his trustees, out of his estate, to pay to each of his children, as and when they shall attain twenty-five years, the sum of 3,000/. ; and declared that it should be lawful for the trus- tees to apply all or any part of the income of each share of his said children for their maiiitenance and benefit, until he or she should attain twenty- five; and also to apply any part not exceeding' 200/. for his or her advancement: — Held, that the legacies vested absolutely in the children at the testator's death. Eccles v. Birhett, 19 Law J. Rep. (n.s.) Chanc. 280. (i) For Life. [See (A) Construction of — (6) Gift by Implica- tion.'] Gift in trust to he equally divided between A, B and C separate from their husbands, and for their sole use, and at their decease to be divided amongst their daughters: — Held, that each took one-third for life, with remainder as to her share to her daughters. Willes v. Douglas, 10 Beav. 47. A testator gave each of his daughters 400/. per annum for their lives, and after their respective - deceases, he gave the same to their " children" respectively, and in case any of the daughters died without issue, the annuity to cease: — Held, that the children of the daughters took for life only a proportion of the annuity. Hedges v. Harpur, 9 Beav. 479. A testator gave and bequeathed all his personal estate and effects to his daughter, the same to be always considered as vested in her, upon her attain- 390 LEGACY ; (D) What InteKest vests. ing twenty-one, and to be subject to her disposition thereof; and the testator further directed that in case his daughter should happen to depart this life without attaining twenty-one, or without disposing by her will of the property bequeathed to her, then the same to be subject to the disposition by will of his wife. The testator's daughter married under twenty-one, and by articles previously to her mar- riage the husband covenanted to settle all the pro- perty left her by the testator upon his wife and himself for life, and then for the benefit of the children of the marriage: — Held, that the daughter took the property not absolutely but for life only, with power to dispose of it by will, and that her husband not having reduced it into possession, the articles were not binding upon the wife. Barton v. Barton, 18 Law J. Rep. (n.s.) Chanc. 219; 16 Sim. 552. A testator gave his wife the interest of his money and the use of his goods for life j and at her death he gave certain legacies, and the remainder of his property to his brothers and sisters:— Held, that the wife took the residue for life. Glendening v. Glendening, 9 Beav. 324. A testator bequeathed to his daughter H l,O00t stock, and 701. a- year during her life, which two sums he directed to be under the trust of his exe- cutors, viz., not to permit H to assign the said annuities to any one, and the interest arising from the 1,000?., as it became due, to be paid to her, for her life ; and at her decease the IfiOOl. to be equally divided between her children. H died, having had no issue :■ — Held, that H took only a life interest in the 1,000?. legacy ; and that the same being a re- stricted gift, her representatives could not take under it. Scauien v. Watson, 16 Law J. Rep. (n.s.) Chanc. 175; 10 Beav. 200; affirmed 16 Law J. Rep. (n.s.T Chanc. 404. Bequest to the children of A B for life ; but in case of death before marriage his share to go to the survivors. In the margin was written " What is to become of the principal 1 The share of the parent to be divided amongst the children, if any. QutBre, to be put in afterwards in a proper manner." The children of A B all died unmarried : — Held, that the gift was for life only, and not an absolute gift cut down merely to admit their children. Kay v. Winder, 12 Beav. 610. A testator gave property in trust for his sister, the interest to be paid to her during her life, and the principal at her death to go to the heirs of her body, share and share alike. The sister had five children living at testator's death : — Held, that she took for life, with remainder to her children as tenants in common. Symers v. Johson, 16 Sim. 267. A will contained a devise of realty in trust for A for life, remainder to B, his wife, for life, and after the death of the survivor to sell and divide the pro- ceeds equally among the children whose shares were to be vested at twenty-one for sons, and twenty-one or marriage for daughters,"with a proviso postponing payment in the event of shares, vesting in the life- time of A or B. The will also contained a bequest of stock in trust to pay the dividends to A for life, and on his death to divide the principal among his children equally, the shares to vest at the same times as were before provided as to the proceeds of the realty ; and there was a proviso that in the event of there being no child of A and B, or all the children dying before twenty-one, or if daugh- ters before twenty-one or marriage, the proceeds of the realty and the stock should be divided equally among the members of a defined class of persons who should be living at the death of the survivor of A and B, or A's child or children as the case might require : — Held, that the last of these clauses must be read distributively, and that it did not give to B by implication a life interest in the stock. Drew v. Killick, 1 De Gex & S. 266. (c) Joint Tenancy. [Amies v. Skillern, 6 Law J. Dig. 397 ; 14 Sim. 428.] [See Jenkins v. Gower, 2 Coll. C.C. 537, ante, (B) (c) (Z)— Scott V. Scott, 15 Sim. 47, ante, (D) (a).] A legacy was bequeathed to a husband, his wife, and children. Upon a suit to determine the rights of the parties, it was held that the husband and wife were entitled to one share. Under a similar bequest in the same will the wife claimed to be en- titled to a settlement out of the whole share to which the husband and wife were entitled: — Held, that the wife was not entitled to a settlement out of the whole share, as the husband was not entitled to the whole in her right; that their interest was a joint tenancy, modified so as to make their rights contingent ; that it was not payable to the husband during the life of his wife, or to the wife during the life of her husband, and that the whole share ought to he carried over to the joint account of the hus- band and wife, and that the dividends must be paid to the husband during their joint lives; with liberty for all parties interested to apply. Ateheson v. Atcheson, 18 Law J. Rep. (n.s.) Chanc. 230; 11 Beav. 485. A legacy was bequeathed to A B, his wife and children: — Held, that the parents and children took together as joint tenants, and that A B and his wife were to be reckoned as one person, and took only one share. Gordon v, Whieldon, 18 Law J. Rep. (n.s.) Chanc. 5 ; 11 Beav. 170. (d) Tenancy in common. [See Symers v. Johson, 16 Sim. 267 — ante, (6) For Life.-] Bequest of personal estate upon trust to assign to four persons, and to each of their respective heirs, executors, administrators and assigns: — Held to create a tenancy in common. Gordon v. Atkinson, 1 De Gex & S. 478. (c) Trust or Beneficial. A testator bequeathed to his wife for her life the use of all his property, and directed that certain specific chattels should be finally appropriated as she pleased, with a sum of 4,000/.; which sum, however, he recommended her to divide among certain persons :— Held, that no trust was created in favour of any of those persons as to any part of the 4,000?. White v. Briggs, 15 Law J. Rep. (n.s.) Chanc. 182; 15 Sim. 33. A testator bequeathed copyhold and leasehold property, upon failure of prior trusts and limita- tions, in trust for his personal and not his real representative ; and he appointed his wife sole executrix of his will and residuary legatee : — Held, LEGACY; (F) Vested or Contingent. 391 that the testator's widow was henefloJally entitled to the copyhold and leasehold property, to the -exclusion of the next-of-kin of the testator. Smith V. Bameby, 16 Law J. Rep. (n.s.) Chanc. 466 ; 2 Coll. CO. 728. A testatrix gave l,000i. to her nephew to maintain and bring up her natural son F B, and she directed the interest of one-fourth of her residue to be ap- plied for the maintenance and education of P B during his infancy, and the capital to be paid to him on his attaining twenty-one : — Held, that the nephew was not a trustee of the 1,000?. for F B, but was entitled to it for his own benefit. Biddlea T. Biddies, 16 Sim. 1. A testator directed an annual sum of 3002. to be paid towards the maintenance, clothing, and educa- tion of his grandchildren during the life of their father : — Held, that this was equivalent to a gift for the benefit of the grandchildren, and that the i^epre- sentative of a deceased child was entitled to his share. Lewes v. Lewes, 17 Law J. Rep. (n.s.) Chanc. 425 ; 16 Sim. 266. (/) Separate Use. Bequest of 1,0002. stock to » married woman " solely and entirely for her own use and benefit during her life," is a bequest to her for life to her separate use. Inglefield v. Coghlan, 2 Coll. C.C. 247. (E) On what Pkoperty chargeable. [Dorfton v. Richards, 5 Law J. Dig. 400; 14 Sim. 537.] [Davies v. Ashfmd, 5 Law J. Dig. 400 ; 15 Sim. 42.] A testator gave freehold and leasehold estates to trustees, upon trust, to receive the rents from time to time as they became payable, and thereout to pay to his wife an annuity during her life, and after her decease upon trust to convey to other peYsons absolutely. The rents were inadequate to satisfy the annuity : — Held, that the annuity must abate, and that it was not charged upon the corpus of the estates. Foster v. Smith, 15 Law J. Rep. (n.S.) Chanc. 183 ; 1 Ph- 629. , A testator bequeathed pecuniary legacies, and charged his executors with the payment thereof, to whom he gave the residue of his real and personal estate to and for their own use and benefit The personal estate being insufiicient to pay the legacies, — Held, that the same were charged on the real estate. Cross v. Kennington, 15 Law J. Rep. (N.a) Chanc. 167 ; 9 Beav. 150. The will of a testator was in part as follows: — " All my goods and chattels to be converted into money. 1 bequeath the sum of 2601. a-year to Mrs. C C, my housekeeper, during the term of her life. And the remaining interest of my money I bequeath to R W : in the event of his demise to S W," &c. : — Held, that the annuitant bad a charge in respect of her annuity on the capital of the re- siduary estate, and not merely on the income. Wroughtort v. Colquhoun, 16 Law J. Rep. (n.s.) Chanc. 70 ; 1 De Gex & S. 36. A testator bequeathed specific chattels charged with the pay ment of a pecuniary legacy and of all his just debts and funeral and testamentary expenses, and bequeathedotherspecific and pecuniary legacies, but made no residuary bequest: — Held, that not- withstanding the charge, the general undisposed of residue was first applicable. Hewitt \. Snare, 1 De Gex & S. ^33. A testator gave 1,5002. to A, and charged it upon a farm L. He gave other legacies, some of which he directed to be paid by his executors, and charged his real estates with payment of his debts and in aid of his personal estate. By a codicil he confirmed all gifts, &c. made to A, and desired that all his debts, annuities and legacies should be paid in the first instance out of any money he might have in the 32. per cent, consols, and he charged his farm called R with the payment of all his debts, annuities and legacies in aid of bis monies in the 32. per cents : — Held, that the 1,5002. was not charged on L exclusively, and in exoneration of the personal estate, but that the consols were to be applied first, the farm R next, the general personal estate next, and the farm L last, in payment of it. Evans v. Evans, 17 Sim. 102. (F) Vested or Contingent. [Nicholson v. Wilson, 5 Law J. Dig. 406 ; 14 Sim. 549.] (a) In general. The testator, by his will, gave to trustees a sum of stock, upon trust, to pay the dividends to his daughter B for life, and, after her decease, to pay both principal and interest to and amongst her children, as .she should by deed or will direct ; but if she should leave no child living at her decease, or all should die before their ages of twenty-five years, then over. B died without having exercised the power of appointment, having had two children, one of whom died in her lifetime at the age of twenty-eight years, and the other survived her and died at the age of fifty-three years : — Held, that the respective representatives of the two children of B were entitled to the stock in moieties. Faulkner V. Lord Wynford, 15 Law J. Rep. (n.s.) Chanc. 8. Testator, after directing his personal estate to be invested, gave the income of the same and of his real estate to his wife for her life, and directed that after her death his trustees should sell his real estate and "pay, distribute, and divide" the money thence arising, and the money at interest, and he gave oiie-third thereof unto J S "if he should be then living, but if he should he then dead, unto his legal representative or representatives if more than one, share and share alike." J S died in the life- time of the testator's widow, leaving a widow and children : — Held, that upon the death of J S, his widow and children, as the persons who would in case of intestacy be entitled to his personal estate accordingto the Statute of Distributions, took vested interests in the third of the residue in equal shares as tenants in common. Smith v. Palmer, 7 Hare, 225. A testator gave his real and personal estate, after paying four annuities, to A for life, and after his death he directed his personal and the produce of his real estate to be divided amongst the children of A living at the testator's death, when the youngest attained twenty-one, if the annuitants should he then dead ; but if not then his trustees were either to invest it and pay and apply the residue of the 392 LEGACY; (F) Vested on Cohtingent. income for the maintenance of the children, or to accumulate, such accumulations to he paid after the death of the annuitants with the original shares. There was a gift over in the event of any child enti- tled dying hefore his share hecame payable. One of the children pre-deceased an annuitant : — Held, that the bequest was Tested, and that the gift over did not take effect. Butterworth v. Harvey, 9Beav. 130. A testator gave to trustees 2,000Z. in trust to invest and pay the income to his daughter for life, and after her death to pay and assign the trust fund to her children, as and when they should attain twenty- one years, in equal shares, to whom he gave the same accordingly, with benefit of survivorship in case any child died before his share became payable, and with a direction to apply the income of their shares for maintenance during minority: — Held, that the only child of the daughter dying under twenty-one took a vested interest. Re Bartholo- mew's Trust, 19 Law J. Rep. (n.s.) Chanc. 2-37; 1 Mac. & G. 354; 1 Hall & Tw. 565 j 16 Sim. 585. A testator directed his trustees, at their free will and pleasure, to sell certain portions of his pro- perty, and to pay and apply any sura not exceeding 2,0002. to each of his sons for setting them up in business, or for such other purpose as his wife should think proper and most beneficial for his said sons; one son died without any sum having been raised for him : — Held, that the son had a vested right in the 2,0002., and his personal representative was entitled to call upon the trustees to pay the amount. Gough v. Bult, 17 Law J. Rep. (n.s.) Chanc. 10; 16 Sim. 45; affirmed 17 Law J. Rep. (n.s.) Chanc. 401. (J) Period of Vesting. [See (D) What Interest vests, (a) Ahsolute.1 The testator gave all his real and personal estate to trustees, upon trust, to sell and invest, and to set apart a sufficient sum to produce an annuity to his widow for her life, and that the trustees, during the life of his wife, should stand possessed of the resi- due of the money arising from such sales, and, after the decease of his wife, of the whole of such monies, upon trust, to pay and divide the same unto and equally between and amongst all and every his children, as and when they should respec- tively attain the age of twenty-one years, and to their several and respective executors, administra- tors, and assigns ; but in regard to such of his children as had already attained the age of twenty- one years, he directed that the share or shares of such children should be paid to them respectively at the expiration of twelve months after the decease of his wife ; but in the event of the decease of any or either of his said children before he, she, or they should have received or become possessed of their shares leaving issue, that the share of the child so dying should go to the children of such child on their attaining twenty-one; and on failure of issue of any of his (the testator's) sons or daughters, then that the share of such his sons or daughters should go to such of his (the testator's) children as should be then living: — Held, that the children of the testator, who had attained twenty-one at the date of the will, took vested interests in their shares, liable to be divested in the event of their dying before the widow; but that they were entitled to receive the interest of their shares in the mean time; and that the children who had attained twenty-one since the date of the will were entitled to an imme- diate transfer of their shares, except as to the fund appropriated to the widow's annuity. Rammell v. Gillow, 15 Law J. Rep. (n.s.) Chanc. 35. A testator gave a sum of money to trustees, upon trust, to pay the interest thereof "to his daugh- ter for life, and after her death the interest to be appropriated for the use of any of her children, until they should reach the age of twenty-one, and then the principal to be paid to the survivors, share and share alike : — Held, that the testator intended those children only to take who survived their mother, and attained twenty-one, and that the re- presentative of a child, who attained twenty-one, but died before the mother, was excluded. Turing V. Turing, 15 Law J. Rep. (n.s.) Chanc. 272 ; 15 Sim. 139. A testator bequeathed 1,5002. stock to trustees, in trust for his daughter for life, and after her decease for her children, but if she should have no children then he directed his executor to stand possessed of the fund, in trust to pay or transfer the same equally unto and between his three nephews A, B and C, and his niece, and the survivors or survivor of them, share and share alike. The nephews and niece survived the testator, and died in the lifetime of the daughter, who died without ever havihg had a child: — Held, that the representatives of the nephews and niece were entitled in equal shares. Wagstaffv. Crosby, 1 Coll. C.C. 746. A testatrix, by her will, gave the residue of her property to her three sisters ; and after her death, to be divided between her four nieces named in her will: — Held, that the gift to the nieces vested imjnediately upon the death of the testatrix. Cochrane v. Wiltshire, 16 Law J. Rep. (n.s.) Chanc. 366. A testator gave a legacy to Anne, wife of Peter, for life, remainder to Peter for life, and after the death of both, upon trust to pay the interest for the maintenance of such children of Anne as should be living at her death, until they should respectively attain twenty-one, and when and as they should severally and respectively attain that age, upon trust to pay the legacy equally among all the chil- dren of Anne, when and as they should severally and respectively attain their said ages of twenty-one; and if any of the said children should die under twenty-one, then to such as should attain that age, share and share alike ; and in case all and every the said children should die under twenty-one, then to pay the legacy to the testator's next-of-kin: — Held, that the children of Anne who attained twenty-one acquired vested interests notwithstanding they died in the lifetime of their mother. Bradley v. Barlow, 5 Hare, 589. A testatrix gave an annuity of 3002. to her daughter, together with the interest of all she had in the stocks ; and at her death she gave the stock to her children, to be equally divided between them, together with the interest, to be laid out for their use, in case their mother died before they arrived at the age of twenty-one. In case one died, the others were to have share and share alike; the sur- LEGACY ; (F) Vested on Continqent. 393 vivov to have the whole ; and if they all died before twenty-one, then she gave the stock to her five nieces. All the children of the daughter attained twenty-one, but four died before their mother : — Held, that all the children of the daughter, who attained twenty-one, took vested interests, although they died in the lifetime of their mother. Bouverie V. Bouverie, 16 Law J. Rep. (n.s.) Chanc. 411 ; 2 Ph. 349. A testator directed his executors to invest his personal estate, and pay the dividends of one-third part to his daughter for life for the maintenance of herself and what issue she should have; and after her death his executors were to pay, apply, and divide one- third of the principal monies unto and amongst all and every the children of his said daughter " when and as" they respectively attained the age of twenty-six years, with benefit of survivor- ship among them ; and in case either of such children, at the time of his daughter's decease, should be under twenty-one, then the executors were to invest the principal share of such child, and during minority apply the interest for its main- tenance ; they were also empowered to apply any part of such child's share for advancement : — Held, that a direction to pay to an indefinite class " when and as" they attained a certain age, did not prevent any from becoming entitled, and that the intention of the testator, to be collected from other parts of the will, was to give the children of his son and daughter immediate vested interests. Harrison V. Grimwood, 18 Law J. Rep. (n.s.) Chanc. 485 j 12 Beav. 192. A testator bequeathed his residuary estate to trustees, upon trust to provide a fund (which was subsequently to sink into the residue) for the pay- ment of annuities, and then to pay the income to his children and grand-child for life ; and after the decease of either of them, upon trust to pay and transfer the share of the party dying in *he prin- cipal, amongst all and every the child and children of the party dying, and if but one, to such one child : — Held, that the gift to trustees, followed by trusts directing payment and transfer of the capital, gave immediate vested interests to the children of the tenants for life, living at the decease of the testator, and that the shares of two of the children who sur- vived the testator, but died in the lifetime of the tenant for life, passed to their legal personal repre- sentatives. Salmon v. Green, 18 Law J. Rep. (n.s.) Chanc. 166; 11 Beav. 453. A testator gave and bequeathed all his real and personal estate to his trustees upon trust to convey, assure and divide the same unto and amongst all his children in equal shares, as tenants in common, on their respectively attaining twenty-one ; and in case'^of the decease of any or either of his said children without issue under that age, or before they should acquire vested interests therein, then the trustees were to convey, assure, pay and divide the shares of the children so dying to the survivors : — Held, that the testator's children, on attaining twenty-one, acquired absolute vested interests in the real and personal estate. Wheahle v. Withers, 18 Law J. Rep. (n.s.) Chanc. 156 ; 16 Sim. 503. A testator directed the dividends of two sums of stock to be equally divided between all his nephews living at his decease, and after the decease of any Digest, 1845—1850. of them, the capital of his share to be sold, and the proceeds to be divided amongist his children ; and in default of such issue then to go and be divided amongst the children of A ; and in case> all A's issue should be dead, then to be divided amongst the children of B. A had four children, three of them died, and then one of the testator's nephews died without issue ; — Held, that the three deceased children as well as the surviving child of A took vested and transmissible interests in the deceased nephew's share of the stock. Cohen v. Waley, 15 Sim. 318. Bequest to H S for life, and after her decease, to the testator's four brothers and sister, " or such of them as should be then living," equally. And in case any of them should be then dead, then he be- queathed the deceased child's share to the children " to be paid at the time before mentioned." The brothers arid sister all died in the lifetime of H S, one (A B) having had no children : — Held, that the representatives of A B were entitled to his share, and that all the children took, whether living at the death of H S or not. Masters v. Scales, 13 Beav. 60. A testator bequeathed 10,000/. to his brother, to be paid in twenty equal half-yearly payments, but in ease his brother should die before all the pay- ments became due, then the remainder should be placed out at interest, to be paid to the children of his brother till they attained twenty-one, and then the principal to be divided amongst them. The brother died after three payments had been made, leaving five children, one of whom was supposed to be dead, not having been heard of for thirty years. Four of the children received their shares, and filed a bill praying that the remaining share might be divided amongst them. There was no evidence of the brother's marriage: — Held, that there was sufiioient evidence of the legitimacy of the children, and tha* each was entitled, upon attaining twenty- one, to a share in the residue, but inquiries were directed as to the death of the child who had not been heard of. Gaches v. Warner, 16 Law J. Rep. (n.s.) Chanc. 281. A testator gave the residue of his property in trust for his mother for life, with remainder to all the younger children of his two sisters, to be a vested interest on their attaining twenty-one. There was also a clause of survivorship upon any of the children dying under twenty-one : — Held, that those children were alone entitled who were born previously to the death of the tenant for life. Berkeley v. Swinburne, 17 Law J. Rep. (n.s.) Chanc. 416 ; 16 Sim. 275. Bequest of personal estate to A for life, and after her death to the testator's brothers and sisters ; but if any of the brothers and sisters should die before they became entitled to their shares, the shares of them so dying to go to their children. The testator left five brothers and sisters ; two of whom died in the lifetime of A ; — Held, that the word " entitled" had reference to the death of the testator, and not to the death of A, and that the shares had therefore vested absolutely in the brothers and sisters, and that the representatives of each of them who had died were entitled to a fifth of the fund. Henderson V. Kennicott, 18 Law J. Rep. (n.s.) Chanc. 40 ; 2 De Gex & S. 492. 3 E 394 LEGACY. (G) Specific and Demonstrative. A testatrix gave to her grand-daughter all her property, except certain pecuniary legacies, but, should her grand-daughter marry, then her issue were to be her heirs, but should her grand- daughter die, and not leave any issue, then her property was directed to be divided between other persons. The testatrix concluded her will by observing, " that her property was in the Bant and India House." Tlie testatrix's property, on her death, consisted of a sum of East India stock, and S^l., per cent Bank annuities: — Held, that the dividends of those sums were to be paid to the grand-daughter during her life, and that those sums were not to be converted. Hubbard v. Young, 16 Law J. Rep. (n.s.) Chanc. 182; 10 Beav. 203. A testator, after certain specific bequests, gave to his wife all his property in the world for her life, and after her decease all his freehold and leasehold estates to his sister B and her heirs : and the inter- est of his funded and other property between B and S for their respective lives, with remainders over. The testator then declared that his wife should hold peaceable possession of his house, furniture, plate, linen, and glass, and all his property at East House and elsewhere for her life j and that no distribution of any part of his property should take place until after the decease of his wife, except for payment of debts, &c.: — Held, that the widow was entitled to the enjoyment in specie of certain long annui- ties, part of the residue of the testator's estate. House V. Way, 18 Law J. Rep. (n.s.) Chanc. 22. A bequest of 5,000/. consols, with a direction that if the testatrix should not have sufficient stock to answer the legacy, her executors should out of her residuary estate purchase enough to make up the deficiency : — Held, to create a specific, and not merely a demonstrative legacy. Tovmsend v. Mar- tin, 7 Hare, 471. • Upon the construction of a will legacies of stock, and of monej' on mortgages, bonds, &c., — Held, to be specific. Evansv. Jones, 2 Coll. C.C. 516. A testator, as to the residue of his monies, debts, stocks, funds and securities for money, and all other his personal estate and effects, gave the same and every part thereof to trustees, upon trust to permit and suflfer A to receive the interest, divi- dends and proceeds thereof for her life, and after the death of A for other persons. The residue of the testator's estate consisted only of long annui- ties : — Held, that A was not entitled to enjoy the long annuities in specie, and that they ought to be sold, aud the produce invested for the equal benefit of all parties interested in the residue. James v. Gammon, 15 Law J. Rep. (n.s.) Chanc. 217. If a testator leaves a number of articles of the same kind to a legatee, and dies possessed of a greater number, the legatee, and not the executor, has the right of selection. Jaques v. Chambers, 15 Law J. Rep. (n.s.) Chanc. 225; 2 Coll. C.C. 435. A B bound himself to pay 16,000t on the death of the survivor of himself and wife on certain trusts, under which, on a contingency, the amount was to revert to himself. By his will he gave the 16,000Z. if it reverted, to trustees on trust to pay thereout 14,000;. to C, and three legacies of 5001. each to charities, and the remaining sum of 5001. to the Foundling Hospital. His wife survived him nine years, and the 16,000/. was invested in 25,702/. 3/. per cents. In 1848, the fund reverted and amounted to considerably more than 16,000/. : — Held, that the legatees were entitled to money legacies only, and not to the whole fund. Loscombe v. Wintringham, 12 Beav. 46. A bequest of " all my household goods and fur- niture, linen, china, glass, horses, carriages, and all my other personal estate not hereinafter mentioned to be otherwise bequeathed, and also all monies in my banker's hands or in my houses, and also all monies which shall be due and owing to me," held to be residuary, and not specific ; and none of the enumerated items were specifically given. Sargent y. Roberts, 17 Law J. Rep, (n.s.) Chanc. 117. A testator bequeathed his personal estate in trust so far as its nature would permit for those persons to whom he had devised his real estates in strict settlement, and directed that they should under letters of attorney and powers from the trustees (which he empowered and required them to grant) receive the yearly dividends which might arise out of the public or other funds, and the yearly interest which might arise from other parts of his personal property under the same restrictions, &c. as they held his real estates : — Held, that the personal estate was to be enjoyed in specie, though it con- sisted in part of long annuities and Bank stock. Neville v. Fortescue, 16 Sim. 333. (H) Cumulative or Substitutional. A testatrix, by her will, dated in 1828, gave to her servant girl, E H, the sum of 20/. a-year. By a codicil, dated in 1831, the testatrix gave to her ser- vant, E H, 20/. per annum for her life : — Held, that the words " my servant" were words of description merely ; and that the legatee was entitled to two annuities of 20/. each. Roch v. Callen, 17 Law J. Rep. (n.s.) Chanc. 144; 6 Hare, 531. By his will a testator bequeathed his residue between Ann Sarah Parker and ten other persons. Two of the legatees having died, by a codicil he gave the residue between eight persons and Ann Sarah Parker, G F, and Ann Parker. Ann Sarah Parker and Ann Parker were the same person: — Held, that she was entitled to one-tenth, not two- elevenths of the residue. Ready. Strangeways, 12 Beav. 323. A testator having 7,300/. stock, bequeathed to his nephew J C 200/. stock, part of the 7,300/., in order' to enable him to resist any attempt to deprive him of property at C, and in order to deter any person from attempting the same, he directed 260/. of the above-named stock to be placed in a bank subject to the controul of J C and the testator's niece M, should it be found necessary to remove it for the above purpose. On no other account was the 200/. stock to he removed from the bank, but the interest of it might be drawn for the use and benefit of J C, the principal to continue in the bank for ten years after the testator's death, at the expiration of which time it might be withdrawn for the benefit of his family, provided no threat or intimation of a claim were made against the property. The property was re- covered by law against J C in the lifetime of the testator, who paid the costs of the action : — Held, that J C was entitled to two legacies of 200/. stock LEGACY. 395 each, absolutely. Inglefield v, Coghlan, 2 Coll. C.C. 217. (I) Conditional. A testator bequeathed personalty after his wife's death to his son, his only child ; and if his son should die under twenty- one he expressed his wish to give 5001. to each of his brothers and sisters A, B, and C, and any further surplus to be equally divided between them, my said brothers and sisters, or their legal heirs and successors. The testator's son sur- vived him, and died under twenty-one. A died in the testator's lifetime : — Held, that ths gift of the surplus was not a residuary gift, but was a gift of the surplus after the three sums of 5001. should be subtracted from it ; and that the legal heirs and successors of A, B, and C were not to take unless all of them iiei so as not to take; and, therefore, that there was an intestacy as to the 500^. and the share of the surplus given -to A. Gibson v. Halei 17 Sim. 129. A testator bequeathed a fund to trustees, on trust, as to two-thirds, for two of his daughters, for their respective lives, for their separate use, with remain- der to their children ; and, as to the remaining third, to pay the income to a third daughter, in the manner directed respecting the portions of the other daugh- ters, during such time as she should continue to live apart from her husband, and directed that, should she at any time cohabit with him, the trus- tee should, during such time as she should so cohabit, pay the income to the other daughters. At the date of the will the third daughter was living apart from her husband, but she subsequently re- turned to him, and was living with him at the time of the death of the testator: — Held, that she was entitled to the benefits given to her by the will, dis- charged of the condition. Wren V. Bradley, 17 haw J. Rep. (N.s.) Chanc. 172; 2 De Gex & S. 49. A testator, who was a publican carrying on busi- ness at a leasehold house in G Street, bequeathed this house to A, with the business, stock, and out- standing debts, conditionally upon his purchasing a certain annuity : — Held, that A, in accepting the bequest, was not to be held to pay the debts due from the testator in his business. A testator made certain bequests to A and B, conditionally on their purchasing an annuity for S W for her life, and another annuity for S H for her life, or 5001. in money : — Held, that S H had not the option of taking the 5001. Wilson v. Wilson, 19 Law J. Kep. (n.s.) Chanc. 279. (J) Sdkvivohship. [See (F) Vested or Contingent, (6) Period of vesting.} A testator gave two sums of stock to his widow for her life, and after her decease, one-half of the same stock was to be divided among his surviving brothers and sister, or their issue, share and share alike. The brothers and sister of the testator all died in the life- time of the widow ; and four of them only left issue living at the death of the widow ;^Held, that the word " survivor" was to be construed with reference to the period of distribution, and that the issue (in- cluding remoter descendants) took in substitution the share their respective parents would have taken if they alone had survived the widow. Shailer v. Groves, 16 Law J. Rep. (n.s.) Chanc. 367 ; 6 Hare, 162. A married woman having power to dispose of 1,5001. by will, gave the interest of it to her husband for life, and directed that after his decease the prin- cipal should be divided equally between the five daughters of B: and if any of them should die, during her husband's lifetime, leaving issue, that the respective issue of such deceased daughters should liave equally divided among them their mother's share; but in case any of them should die during her husband's lifetime without lawful issue, that the l,500i. should be divided, share and share alike, among "the surviving said daughters:"— r Held, that the word " surviving" had reference to the husband, and that all the daughters having died in his lifetime, and only one having left issue, four-fifths of the 1,500J. were undisposed of. Wat- son V. England, 15 Sim. 1. Bequest to one for life, remainder to two others, with a clause of survivorship if one or other of the latter should die : — Held, that the survivorship had reference to the death of the tenant for life and not of the testator ; and one of the remainder-men having survived the testator but pre-deceased the tenant for life, the survivor was held entitled to the whole. Whitton V. Field, 9 Beav. 368. A testator gave an annuity to his servant, and directed that the funds constituting the annuity, after the death of the annuitant, should be trans- ferred to his two cousins, or to the survivor or survivors of them in equal shares. The two cousins died before the annuitant : — Held, that the repre- sentative of the survivor was entitled to the fund, and not the residuary legatee. Antrohiis V. Hodgson, 18 Law J. Rep. (n.s.) Chanc. 93 ; 16 Sim. 450. Testatrix, before the 1 Vict. c. 26, bequeathed the residue of her personal estate to her son A and her daughter B, to be divided equally between them, in case they were both living at the time of her decease : but if either of them should happen to die before her, or at any time after without issue, then she be- queathed the share of him or her so dying and with- out issue to the survivor of them. A and B survived the testatrix. A died unmarried in the lifetime of B : — Held, that the moiety of the residue given to A devolv'ed on B. Turner v. Frampton, 2 Coll. C.C. 33 L (K) ' Payment op. [See (F) Vested or Contingent, (6) Period of vesting.'] Where a testator bequeathed an annuity to his grand-daughter for life, and directed that if she should die during the lifetime of his widow, the annuity should be paid for the maintenance of the children of the grand-daughter, and that after the decease of his widow and grand-daughter, the value of the annuity should be paid to all and every the child and children of the grand-daughter, if more than one, to be equally divided among them, when and as they should respectively attain twenty-one years ; and if there should be only one, then the whole to such one child, with a gift over in case of the death of the grand-daughter without issue who should attain twenty-one, — Held, that the children of the grand-daughter were not entitled to the 396 LEGACY. annuity or interest of the fund after the death of the widow and grand- daughter until they attain twenty-one. Festing v. Allen, 5 Hare, 575.. An absolute vested bequest was accompanied with a direction that it should not be delivered till the legatee attained twenty-five: — Held, that he was entitled to payment on attaining twenty-one. Roclce v. Rode, 9 Beav. 66. A testator, who died in 1838, left a legacy to a person of weak intellect. At the end of a year after the testator's death the executors invested the amount in the funds, and regularly invested the dividends arising therefrom. A suit was instituted by the legatee, by her next friend, against the exe- cutors, in which the amount of legacy with il. per cent, from a year after the testator's death and the costs of the suit were claimed; — Held, that the exe- cutors were not hound to pay the legacy and interest; and it was ordered that the stock should be trans- ferred into court, and that the costs of the suit should be paid out of the testator's general estate. Pothe- cary V. Pothecary, 18 Law J. Rep. (n.s.) Chanc. 48. Atestatordistributesasumof stock, excepta small part, amongst certain legatees, as to one of whom X Y he uses expressions of resentment, and says that the bequest is more than she deserves. By a codicil he leaves the surplus stock to he appropriated as his executors think proper among the several legatees. The executors in appropriating the stock cannot omit X Y. IngUfield v. Cogklan, 2 CoU. C.C. 247. Residuary personal estate was given in trust for all the sons and daughters of A and B (who were living), the shares to be vested at twenty-one, though "not payable or transmissible" until the deaths of A and B. The will contained powers of maintenance : — Held, that the sons and daughters, on attaining twenty-one, acquired vested interests, subject to the rights of future horn children, and that after attaining twenty-one they were entitled in the lifetime of A and B to payment of their shares of thg income, though not of the capital, Ellis V. Maxwell, 12 Beav. 104. A testator bequeathed the residue of personal property to trustees upon trust to apply the divi- dends and income of it in the maintenance and education of the children of his two sons until they severally attained twenty-one years of age ; and when each grandchild attained that age to raise and pay 2,000?. to each, and when all the grandchildren attained that age to pay the surplus of the said residuary estate to them as tenants in common, each grandchild upon the age of twenty-one years to take a vested interest : — Held, upon bill filed by all the children of one of the sons living at the death of the testator, when the youngest of them attained twenty-one (the other son being then a bachelor), that the plaintiffs were not entitled to a division of the trust funds in exclusion of any other children who might be born of either of the sons ; but that the plaintiffs were entitled to the whole of the in- come, and would be entitled to the principal if no other such child should be horn and attain the age of twentv-one years. Mainwaring v. Beevor, 19 Law J. Rrp. (n.s.) Chanc. 396; 8 Hare, 44. (L) Investment. An application for a transfer of consols purchased by means of a legacy paid into court under the 36 Geo. 3. o. 52. may be made on motion. Ex parte Bennett, 19 Law J. Bep. (n.s.) Chanc. 875. An infant being entitled to a legacy of 501., the executors under the will invested that sum, minus the legacy duty, in the SI. per cent, consols, and tendered the amount produced by sale of the stock, with the interest upon it, to the infant upon her coming of age. A bill was filed against the execu- tors by the legatee for the amount of the legacy, with il. per cent, interest : — Held, that the executors ought to have paid the legacy into court, under the Legacy Act, and a decree was made for the plain- tiff, with costs. Rimell v. Simpson, 18 Law J. Bep. (n.s.) Chanc. 56. (M) Abatement. [See (E) On what Property chargeable — (S) Priority and Contribution.] A testator gave a charitable legacy, which he directed to be raised and paid out of such part of his personal estate as he could by law charge with the payment of the same. The testator's general personal estate was more than sufficient for the pay- ment of tis debts, funeral and testamentary ex- penses and legacies ; but the pure personalty was insufficient for these purposes; — Held, that the charitable legacy ought to abate in the proportion which the pure personalty bore to the general per- sonalty. Robinson v. Geldart, 18 Law J. Bep. (n.s.) Chanc. 454. (N) Ademption and Satisfaction. [See Porter v. Smith, 16 Sim. 251.] A testatrix in loco parentis to M bequeathed 10,0002. sterling to her, and afterwards transferred 12,000/. consols into the joint names of herself and M: — Held, under the circumstances of the case, that the transfer was an ademption or satisfaction of the legacy. A legacy is given to M, with a contingent limit- ation over to N, in the event of M dying without children. The legacy to M is adeemed by a sub- sequent gift to her in the lifetime of the testatrix, to which no limitation in favour of M is attached, and the legacy is extinguished as to N. Twining V. Powell, 2 Col. C.C. 262. A testator, resident in Jamaica, by his will, dated the 30th of March 1843, gave all his monies in the Zl. per cents, and Bank stock to A. On the 20th of June 1846 the testator, by a letter, directed his London agents (who had a power of attorney to sell out the stock) to sell out such a sum as would produce 800/., and apply it in the manner men- tioned in the letter. The testator died on the 29th of June. On the 24th of July a part of the stock was sold out, by the London agents, in pursuance of the directions given them : — Held, that there was no ademption, and that A was entitled to a sum equivalent to all the testator's 31. per cents, and Bank stock on the 20th of June. Harrison v. Asher, 17 Law J. Rep. (n.s.) Chanc. 452 ; 2 De Gex & S. 436. There is a distinction between satisfaction of debts, and of a portion, by legacy. Equity leans against satisfaction of debt by legacy, but in favour LEGACY. 397 of a proTision by will, being In satisfaction of a portion by contract. Small differences between the debt and the legacy negative the presumption of satis- faction, but are disregarded in the case of portions. So in case of debt, a smallei: legacy is not a satis- faction of a larger debt, but may be satisfaction of a portion pro tanto. A gift of residue cannot be _ a satisfaction of a debt, because, the amount being uncertain, it may be less than the debt; but as a portion may be satisfied by a smaller legacy pro tanto, so on principle a residue ought to^be con- sidered as satisfaction of a portion altogether, or pro tanto, according to the amount Lady Thynne V, Earl of Glengall, 2 H.L. Cas, 153. (O) Remission of Debt, A testator gave A and B 10/. each for mourning, and loot to J N, his executor, for his trouble. By a codicil he gave legacies to other persons, and directed that if they or any other person who had a legacy left them by his will should owe him money at his decease it should be considered as part of their legacy. At the testator's death J N owed him 4,000/,, and two of the other legatees owed him sums greater than their legacies : — Held, that the testator intended to remit their debts as well as to give them their legacies. Hyde v. Neate, 15 Sim. 554, (P) Void. [See (C) What Property passes.] Bequest to A for life, remainder to her children who should attain twenty-five, with a clause for maintenance and accumulation of surplus income : — Held, that the gift to the children was not void for remoteness. A testatrix gave unto, and to the use and benefit of the several in-brothers and in-sisters for the time being resident in the several hospitals of or in the vicinity of Canterbury, a yearly sum of 5/. : — Held, that the bequest was void for uncertainty. Flint v. Warren, 16 Law J. B,ep. (n.s.) Chanc. 441; 15 Sim. 626. Bequest of 2,000/. to trustees to apply 800/. in building six almshouses and to pay the income of the residue to the six almsmen residing therein : — Held, that the whole was void. Smith v. Oliver, 1 1 Beav. 481. A testator gave 5,000/. in trust to pay tbe interest to his nephew John for life, remainder to John's first son for life, remainder, as to the principal, to flie children of John, and for default of such issue to pay the interest to the second and other sons of John and their respective issue, and for default of issue male of John to his nephew Charles: — Held, that the limitations subsequent to the gift to the first son of John were void for remoteness. Burley v. Evelyn, 16 Sim. 290. A testator gave a legacy for the best essay on the subject of " Natural Theology," treating it as a science, and demonstrating the truth of the evidence upon which it was founded, and the perfect accord- ance of such evidence with reason, also demon- strating the adequacy and sufiiciency of natural theology when so treated as a science to constitute a true, perfect, and philosophical system of universal religion. The testator also gave a legacy for the best essay upon "Emigration to America": — Held, that the first bequest was void, as being Inconsistent with Christianity, and the second bequest was void for uncertainty. Briggs v. Hartley, 19 Law J. Bep. (n.s.) Chanc. 416. (Q) Revoked. [See (R) Lapse.] Testator, by his will, distributed 7,800/, stock among several legatees, except 200/. surplus of the stock, which he directed to be applied in defraying any necessary expenses. By a codicil (dated two years after, when there was, by reason of certain erasures made in the will, a much larger surplus than 200/. stock), he gave " the surplus of his money in the funds" to be appropriated as his executors might think proper among the several legatees. By a subsequent codicil, dated a few days after the former, the testator, after giving specific legacies, and stating that there appeared " a surplus remain.- ing after the legacies aforesaid were paid," begged his executor to distribute the same among the children of his son W. There was property of inconsiderable amount besides stock, to which the residuary bequest in the last codicil might be applied : — Held, that that bequest did not operate as a revocation of the bequest of the surplus of the funds contained in the second codicil. Inglefield v, Coghlan, 2 Coll. C.C.247. Testatrix, by will, gave 3,000/. in trust for C for life for her separate use, and after her death for her children; and if there should be no children, in trust for P. By a codicil, stating that C had been largely provided for from other sources, testatrix deducted 2,900/. from the legacy of 3,000/., and revoked so much of the legacy accordingly, leaving C 100/. only:— Held, that the legacy of 3,000/. was revoked in toto, and a legacy of 100/. given,in lieu of it for the absolute benefit of C, and that P took no interest in the 100/. or any part of the 3,000/. Effect of conflicting dispositions in a will and a codicil, of the same residuary personal estate. San- ford V. Sanford, 1 De Gex & S. 67. (B) Lapsed. [See (T) Residue.] Upon the construction of a will, — Held, that lapsed legacies fell into the general and not into a particular residue. Master v. Laprimandaye, 2 Coll. C.C. 443. A testator bequeathed all his estate to trustees on trust to convert the same into money, and to invest the proceeds on government or real securities, and to pay the income to his wife for her life ; and from and after the death of his wife, as to a, moiety of the trust funds, upon trust for such purposes as his wife should by deed or will appoint ; and he directed that, in default of appointment, the same should be received by her next-of-kin as in the case of the distribution of intestates' effects. The wife died in the lifetime of the testator: — Held, that the bequest of the moiety did not lapse, and that such moiety belonged to the next-of-kin of the wife. Edwards V. Saloway, 17 Law J. Bep. (n.s.) Chanc. 329 j 2 De Gex & S. 248. A testator gave to A a sum of stock to be paid to him within six months after the testator's decease, and in case it should happen that A should die not having received the legacy, and he should leave any 398 LEGACY. children, such children should be entitled to the same in equal proportions payable at twenty-one or marriage. A died during the testator's lifetime, leaving three children who had attained twenty-one, and were living at the testator's decease : — Held, that the legacy lapsed and the children toot no interest therein. Smith v. Oliver, 18 Law J. Rep. (n.s.) Chanc. 80 j 1 1 Beav. 494. A testator devised freehold estates upon trust to sell, with a declaration that the monies to arise from such sale should be deemed part of his personal estate, and that the income thereof till sale should be considered as part of the income of his personal estate, and be subject to the disposition of his per- sonal estate thereinafter mentioned. He then gave his personal estate, upon trust for four persons as tenants in common. By a codicil he revoked the residuary gift to one of the four, who was also his heir-at-law and customary heir:^ — Held, that the heir was entitled to so much of the lapsed residue as consisted of real estate. Gordon v. Atkinson, 1 De Gex & S. 478. The son of a testator was dead at the time the latter made his will, but left issue, who survived the testator : — Held, that the bequest in the will to the son did not lapse or become void, but passed, as part of his personal estate, to his administrator under the 33rd section of the 1 Vict. c. 26. Mower V. Orr, 18 Law J. Rep. (n.s.) Chanc. 361 ; 7 Hare, 473. Bequest of pecuniary legacies to each of four persons for life ; interest at 51. per cent, to be paid until the heir attained twenty-one, and in case of the demise of any of the above parties without legi- timate issue, then his or her proportions were to be divided amongst the survivors. After the testator's death, one of the legatees married and died, leaving three children surviving : — Held, that as the legacy was expressly limited to the legatee for life, and as the gift over did not take effect, the gift to him was defeated, and no gift to the children was to be implied, and, as the legatee by express words took no interest beyond his life, the legacy lapsed, and that the residuary legatee was entitled. Ranelagh v. Ranelagh, 19 Law J. Rep. (n.s.) Chanc. 39 ; 12 Beav. 200. (S) PmoKiTY AND Contribution. A testator gave his residuary estate to trustees, upon trust, in the first place, to pay two debts due from him on his covenants, and his funeral and testamentary expenses ; and then to set apart and invest a sufficient sum to meet some annuities given by his will ; and then, after such investment, to pay certain legacies. The testator's estate being insuffi- cient to pay all the annuities and legacies in full, — Held, that the annuitants were not entitled to priority, but that the annuities and legacies must all abate rateably. Thwaites v. Foreman, 15 Law J. Rep. (N.s.) Chanc. 397. A testator gave legacies to different persons and an annuity for his brother's support, and directed the payment of it to commence on the first half- yearly day after his death, and the legacies to be paid at the end of two years after that event, or as much sooner as circumstances would permit, but without interest in the mean time. The property being insufficient to pay both annuity aud legacies in full, — Held, that the annuity did not take priority, but abated proportionably with the legacies. jishburnham v. Ashburnham, 16 Sim. 186. A contribution was directed among specific lega- tees for payment of the debts and costs of suit. One of the legatees becoming insolvent, the fund raised became deficient. The Court directed an additional contribution among the solvent lega- tees. ConoUy v. Farrell, 10 Beav. 142. A testator directed that after payment of his debts, &c. the residue should be invested, and out of the interest and dividends certain annuities paid to his daughter and other persons, and afte* payment of them to pay the remainder of the interest and divi- dends to his wife for life ; with a direction that if his daughter had a child living at or born after the decease of his wife, her annuity should cease, and 20,000^. should be raised in trust for his daughter for life, and after her death for her children, and if the children should die under twenty-one, that it should sink into his residuary estate thereinafter disposed of; and he further directed that after the decease of his wife his trustees should pay 5,000i., part of his residuary estate, to such person as his wife should appoint, and, subject to the trusts of his will, he disposed of the residue of his trust estate. The property was insufficient to pay the annuities and the 5,000i. in full : — Held, that the annuities were to be paid in priority to the 5,000/., and if necessary out of the corpus of the property. Miller v. Huddlestone, 17 Sim. 71. (T) Residue. A testator devised and bequeathed his real and personal property upon trusts for sale, and directed that his trustees should divide the net proceeds, after payment of debts, charges, expenses, aud the legacies given by his will, into ten parts ; and he gave a tenth part to each of ten persons named in his will; but he directed that, in case his net resi- due, after payment of debts, &c., should exceed 10,000/., then the sum of 10,000/. should only be applicable to the trusts thereinbefore declared, and that each tenth share should be satisfied by the pay- ment of 1,000/. ; and he gave all the residue of his said property beyond the sum of 10,000/. equally to be divided among his nephews and nieces. The residuary property exceeded 10,000/. ; and one of the legatees of a tenth share having died in the lifetime of the testator, — Held, that the nephews and nieces only took the excess of the residue above 10,000/., and that the lapsed share was un- disposed of. Greer or Green v. Pertwee, 15 Law J. Rep. (n.s.) Chanc. 372 ; 5 Hare, 249. A testator bequeathed his residuary estate to A, the executor and trustee of his will, with a gift over in case of the death of A so that he might not be enabled to perform the duties thereby required of him. A proved the will, but died before he had fully performed the trusts of it: — Held, that by merely proving the will he entitled himself to the residue absolutely. Hollingsworth v. Grasett, 15 Sim. 52. A testator directed his residuary personal estate to be divided into shares, of which each of his sons was to have two, and each of his daughters was to have one. What he gave to his daughters was to be in this manner : each of them was to have the LEGACY. 399 interest during her life, and after her death it was to go to her lawful heirs : — Held, that, upon the death of one of the daughters, without issue, her share formed part of the residue of the testator's estate, not disposed of by his will, and did not be- long to the personal representative of the deceased daughter. Gompertx v. Gompertx, 16 Law J. Rep. (n.s.) Chanc. 23; 2 Ph. 107. A gift by willof one-sixth of testatrix's residuary estate to S W was revoked by a codicil, and given to S W for life, with a direction after her decease to pay a legacy thereout, and that the remainder of such sixths should sink into the residue of the per- sonal estate: — Held, that the remainder of the sixth share of the residue did not pass to the other resi- duary legatees, but was undisposed of. Humble v. Shore, 7 Hare, 247. A testator bequeathed 2002. a year to A for her life, and directed that, after the death of A, the stock which would be required to produce 200/. a year should be divided equally among such of the children of A as should attain the age of twenty-one years. The testator then made a residuary bequest. A had six children, of whom five were of age at the death of A, and one was an infant ; — Held, that the residuary legatee was not entitled to the dividends of one-sixth of the stock accrued and which should accrue between the death of A and the death or majority of the infant; and the dividends were ordered to be accumulated until such death or majo- rity. Stone V. Harrison, 15 Law J. Rep. (U.S.) Chanc. 421 ; 2 Coll. C.C. 715. Upon the construction of a will,— Held, that the testator's widow was not entitled to enjoy the testa- tor's residuary property for her life in specie. Johnson v. Johnson, 2 Coll. C.C. 441, A testatrix bequeathedleaseholds to trustees, upon trust, to sell and apply the proceeds in payment of her debts, funeral and testamentary expenses and legacies as far as the same would go ; and as to all the monies and 'personal estate not thereinbefore disposed of, and not consisting of lands, tenements, or hereditaments, or Jhe produce thereof, she be- queathed the same for charitable purposes. The produce of the leaseholds was more than sufficient for payment of her debts, &c., and she had not devised any other than leasehold lands to be sold : — Held, that the surplus produce of the leaseholds did not fall into the residue, but was undisposed of. Russell V. Clowes, 2 Coll. C.C. 648. A testator gave and bequeathed all his real and personal estate to his trustees, upon trust, to sell and pay thereout certain legacies, and he made his brother, who was also one of his trustees, his resi- duary legatee ; he then gave certain other legacies : — Held, that his brother took both the real and personal property after payment of all the legacies given by his will. Evans v. Crosbie, 16 Law J. Rep. (N.s.) Chanc. 494; 15 Sim. 600. -A testator bequeathed all bis personal estate, except money laid out in stock, mortgages, and bonds, to A ; and as to his money in stock and on mortgages and bonds he gave the same to B. The gift to B failed by an event analogous to a lapse: — Held, ■that the property intended for B passed under the residuary bequest to A. Evans v. Jones, 2 Coll. C.C. 516. Bequest of 10,000/. consols as follows : 500/. sterling to A, 600/. consols to B for life, and after her death to sink into the residue : gift of the residue of the 10,000/. consols to A. after deducting there- from the legacies above mentioned. A died in tes- tator's lifetime : — Held, that his 500/. was not to be deducted from the 10,000/. consols. Carter v. Lag- gart, 16 Sim. 423. A testator gave to three persons annuities of 25/. each, and gave the residue of the income of his estate during the lives of the annuitants to M and N, to be paid to them during their lives in equal shares, and after the deaths of the annuitants as to the residue of his estate, he gave the same to M^nd N, and their several children, to bedivided between them in equal shares. One of the annuitants died first, then M, and, subsequently, N : — Held, that the surplus in- come between the death of N and the death of the surviving annuitants, was not undisposed of, but passed by the residuary bequest. Cunningham v. Murray, 17 Law J. Rep. (n.s.) Chanc. 407; reversing 16 Law J. Rep. (n.s.) Chanc. 484 ; 1 De Gex & S. 366. A testator gave an annuity to D, and to A, B, and C his residue, except the S canal shares, which were not to be sold till after the death of D : — Held, that the shares passed by the residuary gift. James v. Irving, 10 Beav. 276. A testator, who died in 1789, by his will gave all his property to the defendant upon a series of trusts, which did not exhaust the whole beneficial interest in the estate, and iie then appointed the defendant his executor: — Held, that the next-of-kin, and not the executor, were entitled to the undisposed of residue. Mapp v. EUeock, 18 Law J. Rep. (n.s.) Chanc. 217 ; reversing 16 Law J. Rep. (n.s.) Chanc. 425 ; 15 Sim. 568. (U) Interest on. [See Will, Election.] Where a legacy is given by a father to a child, payable at a future period, interest is payable thereon byway of maintenance ; but if maintenance is pro- vided by the will for the child from other sources, interest on the legacy is not allowed until the legacy becomes payable. Donovan v. Needham, 15 Law J. Rep. (N.s.) Chanc. 193; 9 Beav. 164. A by will bequeathed to B all the goods, plate, money at the bankers, linen, horses, carriages, &c. he might die possessed of, at M or elsewhere in L, on condition that B gave 3,000/. sterling to the Casa d' Assicurazione, to make an annuity for the life of C. C elected to take the 3,000/. instead of the annuity. The Master, on a reference to him, found that A, at his death, was possessed at M and elsewhere in L, of divers goods, chattels, Polish and Austrian certificates, bonds, money at his bankers, carriages, horses, &o. ; and the Master also found that C was entitled to interest on her legacy. It was afterwards determined that the Austrian and Polish certificates did not pass to B by the will ; by a consent order, made after the confirmation of the Master's report, a sum of 3,000/. was directed to be paid to C in satisfaction of her legacy, and the ques- tion of interest thereon was thereby reserved: — Held, that it was a pecuniary legacy, and that C was entitled to interest thereon at 4/. per cent, per annum, from the expiration of one year from the death of the testator, although the delay in payment 400 LEGACY. arose from the bequest of the articles being disputed by the residuary legatee. Semble — the subsequent reservation of interest did not, of itself, affect the Master's report of prior date, finding the legatee entitled to interest on her legacy. Hertford (Marquis) v. Lowther (Lord), 15 Law J. Rep. (N.s.) Chanc. 126 ; 9 Beav. 266. Bequest of a " bond for 500i., and interest at 51. per cent.," — Held, to carry the arrears of interest accrued due thereon at the death of the testator. Kent V. Tapley, 17 Law J. Rep. (n.s.) Chanc. 99. A testator directed his trustees to raise the sum of 2,0002. for hisi,son out of his real estate. The sum so directed to be raised was not paid for many years after the death of the testator : — Held, that the 42nd section of the Statute of Limitations, 3 & 4 Will. 4. c. 27, did not apply, and the legatee was entitled to interest upon the legacies from the death of the tes- tator. Gough V. Bull, 17 Law J. Rep. (n.s.) Chanc. 486; 16 Sim. 323. A testator bequeathed his personal estate to trus- tees upon trust to place out so much money in the funds as would produce a yearly sum of lOOi. to be paid to his wife, and then to place out the further sum of 2,120/. upon the like securities, and pay the dividends of part thereof to W H for life, and after- wards to his children, and the remainder of the 2,120/. to other persons named; and the testator declared that in case his estate should not be suffi- cient to pay the legacies in full previously to the death of his wife, then such legacies should only be paid in part during the life of his wife, and the same should be made up after her decease. The estates proved to be insufficient to pay the legacies in full during the life of the testator's wife : — Held, that the legatees were only entitled to interest upon the unpaid portion of their legacies from the time at which the remainder should be capable of being paid up. Holmeav. Crispe, 18 Law J. Rep. (n.s.) Chanc. 440. A testator directed his trustees to raise a sum of 12,000/., for portionsof the children of his son J and his daughter E, towards whom he stood in loco parentis, and also to levy and raise for their main- tenance and education in the mean time, until the respective portions should become payable, such yearly sum (not exceeding what the interest of the expectant portion would amount to after the rate of 4/. per cent, per annum) as to the trustees should seem sufficient. The trustees raised for mainte- nance less than the 4/. per cent., and it was held, upon a petition by the legatees, that they were not entitled to interest, but to maintenance only. Rudge V. Winnall, 18 Law J. Rep. (n.s.) Chanc. 469 ; 12 Beav. 357. (V) Annuity. A testator, whose property consisted principally of foreign securities, bequeathed to his trustees so much ofhis personal estate as would produce 1,500/. a year, which sum was to be appropriated by them at their uncontroaled discretion, and the income was to be paidtohis widow for life, with any increase or dimin ution which might take place in its amount : — Held, that the widow was entitled to have a suffi- cient sum invested in the 3/. per cents, to secure an annuity of 1,-500/. a year. Prendergast v. LusJiing- ion, 16 Law J. Rep. (N.S.) Chanc 125; 5 Hare, 171. A testator directed his trustees to sell his per- sonal estate, and after payment of his debts, &c., to invest the residue, and out of the produce thereof, or if need be, by the sale and conversion, from time to time, of a sufficient part of the principal, to pay two annuities ; and he directed his trustees if occa- sion should be, from time to time to pay out of the reuts and profits ofhis freehold and copyhold estates so much of the annuities as his said personal trust estate should be insufficient for discharging. The personal estate being exhausted, and the annual rents of the real estate being insufficient to keep down the annuities, — it was held, that the arrears were to be raised by sale or mortgage. Fentiman v. Fentiman, 16 Law J. Rep. (N.s.) Chanc. 436. A testator while domiciled in Jamaica bequeathed an annuity of 100/. to his son for life, and after his death to he continued to his son's daughter. The testator afterwards gave other annuities in sterling money. Two codicils were made by the testator while he was domiciled in England: — Held, that the testator intended the annuity of 100/. to be paid in Jamaica currency, and that it was a perpetual annuity to his son's daughter, and that a sufficient sum was to be paid over to produce that annuity, Yates V. Maddan, 18 Law J. Rep. (n.s.) Chanc. 310 ; 16 Sim. 613. A testator bequeathed an annuity to three sisters, and the survivors and survivor for their lives and the life of the survivor, with a gift to the survivor of the corpus of the fund, from the interest whereof the annuity was payable. The fund set apart to answer the annuity was improperly sold out by the surviving trustee immediately after the death of one of the annuitants, and in consequence thereof the annuity fell into arrear ; but a fund, less in amount than the original fund, afterwards became available : — Held, that the survivor was entitled to a rateable proportion of this fund, in respect not only of the arrears of the annuity which became due during the joint lives of herself and her sister, but also of the arrears of the annuity which became due after her sister's death up to the time of her own decease, as well as of the corpus to which she became entitled as the survivor. Innes v. Mitchell, 16 Law J. Rep. (n.s.) Chanc. 415 ; 1 Ph. 710. But see 2 Ph. 346. A testator, by a will not executed so as to pass freehold estate, gave freeholds and copyholds to his brother, on condition of his joining with testator's nephew in the purchase of certain annuities, and gave to the nephew freeholds, leaseholds, and per- sonalty on a similar condition. The brother dis- claimed : — Held, that the nephew must make provision for one-half of the annuities. One of the annuities was to be paid to the widow so long as she should live, and if she had any child born, such sum to be continued for its life. There were three children born : — Held, that the direction applied to the eldest only, and that taking the annuity she was bound to give effect to the other annuity, and to the gifts to the nephew as regarded the one-third share of freeholds which descended to her. A bequest of 500/. or an annuity of 25/. for life, — Held, not to give an option to the legatee, but to the parties ioterested in the property subject to the legacy. Wilson v. Wilson, 1 De Gex & S. 152. Bequest of a chattel leasehold house to trustees, LEGACY. 401 on trust to pay to A an annuity for her life ; and after A's death to be possessed of it on certain trusts. The house was taken by a railway company, and the purchase-money was paidinto court : — Held, that A was entitled to have the corpus of the fund broken in upon for the purpose of obtaining payment of some arrears, and the payment for the future of the annuity in full. In re the London, Brighton and South Coast Rail. Co., ex parte Wilkinson, 19 Law J. Rep. (n.s.) Chano. 257. Interest not given on the arrears of an annuity unpaid for several years during the progress of the cause, although the suit was instituted by, and a receiver appointed on the application of, the resi- duary legatee, and the surplus income out of which the annuity was payable was brought into court, and made productive. In order to entitle an an- nuitant whose annuity is payable from a fund which has been brought into court to any profit which may have been made by the investment of the arrears of his annuity, he should procure the arrears to be set apart and distinguished from the general estate. Semble — that the claim of an annuitant to interestis not affected by the circumstance that the annuity is secured by a term of years of which he is himself trustee if his title to the annuity, in the circum- stances of the case, is one of sufficient doubt to require the direction of the Court. Semhle — that an annuitant who has established his right to an annuity in a proceeding directed by the Court for trying such right, may immediately apply for the appropriation of the portion of the fund necessary for its payment. Taylor v. Taylor, 8 Hare, 120. A testator, after inaccurately reciting that his wife was entitled for life to 39,0001, which he stated would yield 1,560^. a year, directed his trustees to add an annuity of 440i., to raise her jointure to 2,000/. : — Held, that she was entitled to have her annuity made up to 2,000/. at all events. Ouseley V. Anstruther, 10 Beav. 459. Where atestator's effects are insufficient to satisfy an annuity given by a will and the pecuniary lega- cies, — Held, that the annuity ought to be valued, and the amount of the valuation paid to the annui- tant at once, subject to a proportional abatement with the legacies, and that though the annuitant died before the payment of the annuity in full would have equalled the abated amount of valuation, the other legatees would have no claim to the surplus. Wroughton v. Colquhoun, 1 De Gex & S. 357. A general legatee of " the sum of £ — long annui- ties," held, not entitled to dividends accruing before the expiration of a year from the testator's decease. Collyer v. Ashburner, 2 De Gex & S. 404. (W) Recoveey of Legacy. The statute 3 & 4 Will. 4. c. 27. does not apply to the arrears of a mere personal annuity. A defendant not setting up the statute by his answer, cannot have the advantage of it at the hear- ing. Roch V. Callen, 17 Law J. Rep. (n.s.) Chanc. 144; 6 Hare, 531. (X) Rights and Llabilities of the Legatee. A legatee, who owed the testator 4,000/., claimed to be entitled to it under the will. By an order he Digest, 1845—1850. paid the 4,000/. into court, and it was directed to be invested in stock, and the dividends accumulated. The Court decided in favour of his claim : — Held, that he was entitled only to the stock and accumu- lations, though owing to a fall in the funds they were of less value than 4,000/. Hyde v. Neate, 15 Sim. 558. [Liability to pay calls on shares bequeathed. See Company.] [See Jaques v. Chambers, 15 Law J. Rep. (n.s.) Chanc. 225 ; 2 Coll. C.C. 435— (A) Construction. (Y) Legacy Duty. [See Will, Probate Duty.] Parties, strangers in blood, and appointed ex- ecutors, took the whole real and personal estate of a testator, and paid the duty of 10/. per cent, on the whole personal residue ; afterwards, on an eject- ment by the heir-at-law, the testator's incapacity was clearly established, and upon a suit being in- stituted in the ecclesiastical court, the probate was recalled, and administration granted to the next-of- kin, liable to a less duty: by an arrangement the latter, on payment of a sum to the next-of-kin, re- leased all their claim : — Held,' that the former were, under the 36 Geo. 3. c. 52. s. 37, entitled to a return of the duty, not only on the sum paid to the next- of-kin, but of the amount retained, being retained not under the will, but as a gift of the next-of-kin ; and that the Commissioners of Stamps were to account for the duty as that charged on the next-of- kin at the lower rate. Regina v. Commissioners of Stamps and Taxes, 6 Q.B. Rep. 657. A testator bequeathed to R B sen., and R B jun., and four others, 4,200/. 31. per cent, consols, in trust, as to 1,700/. part thereof, to apply the divi- dends in establishing and supporting a daily school at N, for instructing twenty boys, resident at N, on the National School principle. That the annual dividends of the 1,700/. should be retained by R B sen. and R B jun. for applying the same in the con- duct of the school; that R B jun. should be school- master during his life, and that the management of the school should for ever remain in the family of R B sen. ; that the election of the boys should be in the discretion of the schoolmaster-; that the schoolmaster should provide a school-room and firing out of the dividends of the said stock ; that the dividends from the sum of 400/., part of the said 4,200/., should be applied in providing the boys with pinafores, caps, shoes, books and slates, the same to be left by the boys on their leaving the school or going out to work : — Held, that the sums of 1,700/. and 400/. were liable to legacy duty. In re Griffiths, 15 Law J. Rep., (n.s.) Exch. 130; 14 Mee. & W. 510. In an information for legacy duty a special ver- dict stated, that the testator devised his real estates in trust to pay the rents to his brothers and sister and the survivor of them for their lives, and after the death of the survivor to convey the estates to all his nephews and nieces equally, as nearly as they could make partition, and in the mean time to pay the rents to them. That for the purpose of such partition it should be lawful for the trustees to sell all or any part of the estates, and that they should stand possessed of the money arising from such sale 3F 402 LEGACY— LIBEL. upon the same trusts as were declared concerning the residue of the personal estate, namely, for his brothers and sister and the survivor of them for life, and then for his nephews and nieces. The testator died in 1819, leaving his sister and two brothers him surviving, the last of whom died in 1832. He also left ten nephews and nieces. In 1833, and at various times afterwards, the trustees sold the real estates for 9,064i., with the view of dividing the pro- ceeds of the sale among the nephews and nieces : — Held, that legacy duty waspayable on the above sum, it being within the meaning of the 55 Geo. 3. c. 1 84. sched. part 3. tit. ' Legacies,' money arising from " real estate directed to be sold.*' attorney General v. Simcox, 18 Law J. Bep. (n.s.) Exch. 61 ; 1 Exch. Rep. 749. A, by deed dated 1802, conveyed certain lands to trustees to the use of himself for life, remainder to B, his son, for life, remainder to the defendant, his grandson, for life. The deed provided that it should be lawfiil for the defendant and the survivor of A and B to declare by deed any new uses or trusts of the said lands. A having died in June 1822, B and the defendant, by an indenture of Oc- tober 1822, declared and appointed that it should be lawful for B by any deed or will to charge the lands with the payment of any sum not exceeding 47,000i. for his own or any other use. In 1823 B made his will, whereby he charged his lands with payment to his executors of 47,000i. to be applied in payment of his debts, &c. and the residue to the defendant. B died in 1842. The 8 & 9 Vict. c. 76, amending the law relating to duties on legacies, passed in 1845. In 1847 the executors raised 11,2591. lis. 8d.,part of the 47,000i., and paid it to the defendant, the debts, &c. having been previously satisfied :— Held, that the 8 & 9 Vict. c. 76. was retrospective, and that the defendant was liable to the payment of legacy duty on the sum of Il,259t 11*. 8rf. Attorney General v. Marquis of • Hertford, 18 Law J. Rep. (n.s.) Exch. 332 ; 3 Exch. Rep. 670. A testator by his will directed that the legacies therein given should be paid free of legacy duty. By a codicil, which he directed might be taken and considered as part of his will, he gave other lega- cies : — Held, that the latter legacies were not given free of legacy duty. Early v. Benboai, 2 Coll. C.C. 354. A testatrix directed all her personal estate to be converted into money, and her debts and funeral expenses and legacies to be paid out of the proceeds, and that out of the residue large sums of stock should be appropriated upon certain trusts. She then gave some pecuniary legacies of small amount, and directed that all the said legacies, and all lega- cies thereinafter given, should be paid free from legacy duty : — Held, that the exemption from legacy duty applied to the bequest of stock as well as to the pecuniary legacies. Ansley v. Cotton, 16 Law J. Rep. (n.s.) Chanc. 55. In 1795 a reversion in real estate was devised to trustees upon trust, after the death of the tenant for life, to sell the estate, and to pay a part of the pur- chase-money to A. A, by will, made F his execu- tor and L his residuary legatee. By a deed dated in 1828, in consideration of 6,000/. paid to F as executor of A, F, by the direction of L, assigned the right to the purchase-money to S. No mention was made of the legacy duty at the time of this sale. In 1836 the estate was sold, on the death of the tenant for life, to S, and A's share of the purchase- money was allowed to him. In 1846, F, as executor of A, was made to pay the legacy duty. L died insolvent. A bill was filed by F in 1846, against the executors of S, and the devisee of the estate under his will, praying to be recouped the sum paid for legacy duty ; — Held, that F had no right to re- cover this sum, either against the executors or the devisee. Farwell v. Seale, 18 Law J. Rep. (n.s.) Chanc. 189. A testator by his will gave certain annuities and legacies, and directed, as to some of them, that the legacy duty thereon should be paid out of his resi- duary estate, but as to others, he directed that the legacy duty should be deducted. The executor only partially paid the legacy duties, and left various sums unpaid on both descriptions of annuities and legacies. The Commissioners of Stamps and Taxes claimed a lien upon the residuary estate of the tes- tator for the unpaid legacy duties in priority over the costs of the suit and the unpaid legacies : — Held, that the executor was personally a debtor to the Crown for the amount of legacy duty where he had deducted it ; and where a payment had been made to the legatee without deduction, the legatee, as well as the executor, was liable with respect to the duty which the legatee ought to have seen pai^, but the Crown had no claim upon the residuary fund. Wright v. Barnetvall, 19 Law J. Rep. (N.s.) Chanc. 38. LIBEL. [See Slandek.] (A) Action for, when maintainable. (a) In general. (h) Privileged Communications. (B) Pleading. (fl) Parties. {b) Prefatory Averments. (c) Innuendos. (rf) Traverse. (e) General Issue. (/) Pleas of Justification. {g) Replication to Plea under the 6 Sf 7 net. c. 96. s. 2. (A) Several Pleas. (C) Evidence. (a) Of Publication. (6) Of Malice. (D) Practice. (a) Staying Proceedings. (6) What Question for the Judge, and what for the Jury. [See (A) (*).] (c) Recognizance. (A) Action for, when maintainablii. (o) In general. In an action for libel or slander when the words written or spoken are not in themselves applicable to the individual plaintiff, no introductory averment or innuendo can give them such an application. LIBEL ; (A) Action for, when maintainable 403 The declaration in an action for libel, after an iutioductory allegation that the plaintiff was em- ployed in supplying water to ships calling at St. Helena, set out a letter published by the defendant in a newspaper, which letter stated " that the ship M arrived from Bombay with the passengers in a dying state; that there is no doubt that the illness was occasioned by the water taken in at St. Helena, where it was run into a copper tank, from whence the casks were filled alongside. There is no doubt, therefore, that the poison is imbibed in this copper tank, and it behoves the authorities immediately to replace it with an iron one" (innuendo that the plaiiitiflT had supplied bad and unwholesome water to the ship M). The second count stated, that the defendant published a letter " in substance as fol- lows," (setting out the former letter), and that he further contriving, &c. published another letter, of and concerning the first letter, &c., containing, &c. : " I beg to correct an error in my former letter, with respect to the passengers in the ship M being poi- soned by the water supplied at St. Helena from a copper tank. I stated that the tank belonged to the government. This is an error ; the copper tank is fitted up in a schooner belonging to Mr. S" (the plaintiff), (innuendo as before) : — Held, on motion in arrest of judgment, first, that there was nothing in the first letter to warrant the innuendo applying the imputation of supply ingbad water to the plaintiff, and that the first count could not therefore be sustained. Secondly, that the second letter could not be con- sidered a substantive libel, independently of the first, and that the first letter not having been ex- pressly set out and declared on as part of the libel in the second count, that count also could not be supported. Solvmon v. Lawsan, 15 Law J. Rep. (N.s.) Q.B. 253 ; 8 a.B. Rep. 823. In an action for libel, to which the defendant pleaded only not guilty, — Held, that the jury were properly directed that a clergy man gives no occasion for public comment by establishing or carrying into effect any arrangements for the purposes of charity. And where a clothing society, with the vicar at the head -of it, was formed and carried on, in a parish containing 5,000 persons, on the principle of the exclusion of dissenters, it was held not to be the subject of public comment, on a plea of not guilty. Quare, as to a sermon preached by a clergyman to his congregation and not published. Per Pollock, C.B. and Parke, B. that it gives no occasion for public comment. Galhercole v. Miall, 15 Law J. Hep. (n.s.) Exch. 179 ; 15 Mee. & W. 319. An application to the Court of Queen's Bench, for a criminal information against a party for the publication of a libel, which application has been refused, is no bar to an action on the ease in the other courts for the same ground of complaint. Wakley v. Cooke, 16 Law J. Rep. (n.s.) Exch. 225 ; 16 Mee. & W. 822 ; 4 Dowl. & L. P.C. 702. Allegorical terms of a defamatory character of well-known import, such as imputing to a person the qualities of the " frozen snake" in the fable, are libellous per se, without innuendos to explain their meaning. To write to the members of a charitable institu- tion calling on them " to reject the unworthy claims of Miss H," and stating that " she squandered away the money which she did obtain from the benevolent in printing circulars abusive of Com- mander D," the secretary of the institution, is libellous. Hoare V. Silverlocke, 17 Law J. Rep. (N.s.) a.B. 306 i 12 Q.B. Rep. 624. A libel upon the plaintiff, amongst other imputa- tions, contained charges of misconduct in relation to his office of coroner for Middlesex on an inquest at Hounslow, and concluded in these terms — " There can be no court of justice unpolluted which this 'libellous journalist' (meaning the plaintiff), this violent agitator and sham humanitarian, is allowed to disgrace with his presidentship." The defen- dants, in justification of the words "libellous jour- nalist," pleaded that the plaintiff on the 29th of March 1838, being the proprietor of a public journal, intending to injure one C in his profession, pub- lished of him a false, scandalous and malicious, &c. libel, setting it out. The proof was, that in the year 1828 an action of libel had been brought by C against the plaintiff in respect of the said libel published by the plaintiff as proprietor of the Medical Times, in which action 1001. damages had been recovered : — Held, that the words " libellous journalist" imputed to the plain- tiff habitual libelling and moral misconduct; and that the Judge did not misdirect the jury in stating that the question was, whether the libel on C was a scandalous and malicious libel ; and that the de- fendant ought to have produced other evidence than that of the record of that action for the purpose of proving that it was a scandalous and malicious libel • A coroner on an inquest ought not to exclude .the testimony of parties who have material evidence to offer, on the ground that their testimony may tend to criminate themselves. Wakley v. Cooke, 19 Law J. Rep. (n.s.) Exch. 91 ; 4 Exch. Rep. 51L A publication, reflecting on the character of the plaintiff, professed to contain a report of the pro- ceedings before two Judges of different courts at chambers, on applications, under the Bankrupt Act, 5 & 6 Vict. c. 122. s. 42, to discharge a bank- rupt out of custody. The defence (under, the general issue) was, that it was a fair account of what took place before those Judges when acting in a judicial capacity : — Held, that if it was, the defendant was entitled to the verdict. Held, also, that if the report, though not correct, was an honest one, and intended to be a fair account of what really occurred before the Judges, that would be a ground for reducing the damages. Smith V. Scott, 2 Car. & K. 580. [See post, (B) (c). (&) Privileged Communications. In an action against a party for publishing a libel, — Held, per Tindal, C.J. and Erie, J., that a person having information materially affecting the interests of another, and honestly communicating it privately to such other party, in the full belief, and with reasonable grounds for the belief, that it is true, is justified in so publishing it, although the publisher has no personal interest in the subject- matter of the libel, and although no inquiry has been made of him, and although the damage to the other party, or to his property, is not imminent. Per Coltman, J. and Cresswell, J., that such a communication is not privileged. 404 LIBEL; (A) AcTIOH POE, when MAINTAIJfABLE. The libel in question was written by the mate of a vessel to the defendant, falsely charging the cap- tain of the vessel with having endangered the vessel and lives of the crew by continued drunkenness. The vessel was at this time in port, and likely to continue there a few days. The defendant, who was slightly acquainted with the ownerof the vessel, but was not interested in the vessel, and had no inquiry made of him, believing in the truth of the letter, shewed' it to the owner, who, in consequence, dismissed the captain. The Chief Justice, upon these facts, having directed the jury that if the defendant acted honestly and bond fide, the publi- cation was justifiable, and their verdict must be for the defendant, if otherwise for the plaintiff; and the jury having found a verdict for the defendant, — held, per Tindal, C.J. and B7le, J., that the publica- tion was justifiable, and that the direction to the jury was right; per Coliman, J. and CressweU, /., that it was wrong. Coxhead v. Richards, 15 Law J. Hep. (n.s.) C.P. 278; 2 Com. B. Rep. 569. A, having had no previous knowledge of B, a trader, sold him goods to the amount of 621. 1 Os., at two months* credit. Upon going to ' B's shop at the expiration of the credit, A found that the whole of the stock in trade, including a portion of the goods sold by him, had been sold by auction, by B's desire, on the previous day, and at a reduction of 30 per cent., and that the proceeds were in the hands of S, the auctioneer. Upon inquiry, he could not learn where B was to be found. He thereupon went to his attornies, and they, on his behalf, served on S a notice not to part with the proceeds, " the said B having committed an act of bankruptcy." B had, in fact, committed no act of bankruptcy, the goods having been sold for the purpose of his retiring from business r^Held, by Tindal, C.J., Coltman, J. and Erie, J. (CressweU, J. dissentiente), that he had such an interest in serving tlie notice as to render it a privileged communica- tion, if it was served with good faith and under the hond fide belief that B had committed an act of bankruptcy. Blackham v. Pugh, 15 Law J. Rep. (n.s.) C.P." 290; 2 Com. B. Rep. 611. Where the defendant, in a letter addressed to the Secretary of State, stated, that the plaintiff, who was town clerk and clerk to the Justices of the borough of A, was in close intimacy with one R C G and one D H, who had been brought before the Justices of that borough on a charge of embezzling the monies of T K their master, and that when the papers of the two prisoners were produced various accommodation transactions with the plaintiff were discovered, " thus clearing up the mystery as to the uses to which the plunder had been appropri- ated," and called on the Secretary of State to in- stitute inquiry, &c. (innuendo, that the plaintiffhad conspired with and was an accomplice of the said R C G and D H, in embezzling the monies of the said T K, and had made use of the proceeds of the said embezzlement; and also that the plaintiff, as such clerk and legal adviser as aforesaid, had acted corruptly and dishonestly in his office, &c ) — Held, first, that the communication could not be con- sidered privileged or confidential by reason of its being an application addressed to the Secretary of State. Secondly, that the falsehood of part of the state- ment was sufficient to support the presumption of malice, supposing the occasion of the publication to be evidence to rebut such presumption. Lastly, that the Judge properly left it to the jury to say, whether the libel bore the meaning alleged in the innuendo ; as the words were such as were capable of conveying that meaning. Blagg v. Start, 16 Law J. Rep. (n.s.) Q.B. 39; 10 Q.B. Rep. 899. A letter written to a bishop, informing him of a report current in a parish in his diocese, that the incumbent of a district in that parish had collared the schoolmaster, and that a fight ensued between them, is a privileged communication if such letter was written to the bishop honestly, to call his attention to a rumour in the parish which was bringing scandal on the church, and not from any malicious motive ; and it is not material that the writer of the letter did not live in the district to the incumbent of which the letter referred. James v. Boston, 2 Car. & K. 4. (B) Pleadinos. (a) Parties. A and B may join in an action for a libel con- taining imputations injurious to a trade carried on by them jointly as partners. Le Fanu v. Malcolmson, 1 H.L. Cas. 637. (i) Prefatory Averments. Declaration averred th^t the defendant used the words "blacklegs and black-sheep," to denote per- sons guilty of fraud, and persons of disreputable character; that divers persons had formed a club, called "The RoyalWestern Yacht Club;" that the defendant, intending to cause it tobebelievedthat the plaintiffwas a confederate of personsgnilty of fraudu- lent play at cards, and of being blacklegs and black- sheep in the sense aforesaid, in a certain newspaper, called, &c., published of and concerning the plaintiff the following libel, — " Royal Western Yacht Club, expulsion of two blacklegs," (meaning an expul- sion from the club of two persons, being blacklegs in the sense in which that word was used as afore- said). The declaration then stated that suspicion had attached to two members (meaning the afore- said two persons) of the club, owing to two gentle- men having been plucked at cards, at the residence of one of the two suspected members, in a manner that seemed to indicate foul play ; that an inquiry took place which resulted in the expulsion of the two suspected persons. The declaration then stated that a person, "known to be a confederate of the expelled parties sought admission into the club ; his name was O'B" (meaning thereby, the plain- tiff) ; — Held, on motion in arrest of judgment, that as it appeared from the innuendos, coupled with the p'refatory averments, that the defendant had published libellous matter of and concerning the plaintiff, it was notnecessary to allege in the decla- ration that the libel was published of and concerning the Royal Western Yacht Club, and the other pre- fatory averments. O'Brien v. Clement, 16 Law J. Rep. (n.s.) Exch. 77; 16 Mee. & W. 159; 4 Dowl. & L. P.C. 563. (c) Innuendos, Though defamatory matter may appear only to LIBEL ; (B) Pleadings. 405 apply to a class of individuals, yet if the descrip- tions in such matter are capable of heing, by in- nuendo, shewn to be directly applicable to any one individual of that class, an action maybe maintained by such individual in respect of the publication of such matter. In such a case the innuendo does not extend the sense of the defamatory matter, but merely points out the particular individual to whom matter, in itself defamatory, does in fact apply. Therefore, after verdict, a declaration which re- cited that the plaintiff was owner of a factory in Ireland, and charged that the defendant published of him and of the said factory a libel, imputing that 'in some of the Irish factories' (meaning thereby the plaintiff's factory) cruelties were practised, though there was no allegation otherwise connect- ing the libel with the plaintiff, was held good, ie Fanu V. Malcolmsm, 1 H.L. Cas. 637. In case for a libel, stating that a party had been hocussed and robbed in a public-house kept by the plaintiff, the declaration stating in the innuendo the meaning to be, that he had been feloniously, &c, and intending to impute that the plaintiff's house was the resort of felons, thieves, and depraved and bad characters ; on which issue the jury found for the defendant, the Court not seeing that they had manifestly done wrong in not finding the libel to bear the meaning put on it by the plaintiff, refused to disturb the verdict Broome v. Gosden, 1 Com. B. Rep. 728. In case for libel in an advertisement, " warning" J C and Co. (meaning the plaintiffs) that certain shares were bought under a false representation, and that unless the deposit and expenses were re- paid legal proceedings would be taken, without any innuendo to whom the warning was intended to apply, or that the false representations were imputed to the plaintiffs : — Held, insufficient to maintain the action. Capel v. Jones, 4 Com. B. Rep. 259. If words charged to be libellous may, in their ordinary acceptation and without the aid of extrin- sic circumstances, be reasonably understood as dero- gatory to the character of the plaintiff, judgment cannot be arrested. So where the words used are in terms general, and the innuendos apply them to the plaintiff, and the jury so find, the judgment cannot be arrested. Thus a passage in a newspaper warning certain persons to avoid the traps laid for them by desperate adventurers, — innuendo, meaning the plaintiff amongst others, was after verdict held to be libel- lous. A declaration in libel, after an inducement, in- serted before the first count, that the plaintiff was a barrister and the editor and proprietor of a weekly publication called the Medical Times, &c., charged, in the second count, that the defendant, in a certain publication, &o. published, &c., omitting the words " of and concerning the plaintiff as the editor of the said weekly publication." It then set out the libel, in which the following words were complained of as libellous : — " A body which has disgusted the go- vernment, and which other persons, not belonging to the profession (thereby meaning the plaintiff as such barrister as aforesaid), and whose weekly vocation it is to bring everything belonging to the profession into disrepute and contempt, — (thereby meaning that the plaintiff was in the habit, as editor of the said weekly publication called the Medical Times as aforesaid, of bringing the medical profession into disrepute and contempt)" : — Held, on writ of error, that the words themselves were actionable, the jury having found that they were derogatory to the plain- tiff, and that the innuendo might be rejected as surplusage. Quiere — Whether any special averment that the libel was of and concerning thcplaintiff as editor of the weekly journal, was necessary, the libel itself sufficiently shewing the reference of the words to the plaintiff in that character. Waliley v. Healey, 18 Law J. Rep. (n.s.) C.P. 241; 7 Com. B.Rep. 591. A count in a declaration in an action on the case for libel alleged the libel as follows : — " There is a strong reason for believing that a very con- siderable sum of money was transferred from Mr. T's (meaning the said W T's) name in the books of the Bank of England, by power of attorney obtained from him by undue influence after he became mentally incompetent to perform any act requiring reason and understanding," innuendo " thereby meaning that the said plaintiff and the said J H T had transferred or caused to be transferred the said money from the said W T's name in the said Bank by means of a power of attorney obtained by them from the said W T by undue influence exercised by them over the said W T, and at a time when the said W T had become mentally incompetent to give a power of attorney and to perform any act requiring reason and understanding :" — Held, in error, affirming the decision below (18 Law J. Rep. (N.s.) C.P. 155 ; 7 Com. B. Rep. 251), first, that although the libellous words pointed at no particular person, yet as they imputed in substance that some one had been guilty of the offence, the plaintiff might, by innuendo, apply them to himself, and that it was a question of evidence whether they applied to him. Held, secondly, that the innuendo that the libel meant to impute that the plaintiff and J H T had actually transferred the stock was not too large, since the words of the libel, that there was strong reason for believing the stock had been transferred, were capable of the interpretation thus put on them j and that after verdict the Court would presume that the jury had found that they bore the meaning averred in the innuendo. Merywether v. Turner, 19 Law J. Rep. (N.s.) C.P. 10. [See (A) (a).] (d) Traverse. A declaration in libel stated as inducement that the plaintiff was a surgeon and member of the Col- lege of Surgeons, which said college had the power of expelling persons guilty of unprofessional con- duct, and of unprofessionally advertising themselves and their cures. The libel was alleged to be pub- lished of and concerning the plaintiff as such sur- geon, and of and concerning the said college and its said power. One of the libels complained of con- tained a statement that the college had the power of expelling its members. The second plea was, that the plaintiff was not a surgeon and member of the College of Surgeons, having the power of expel- ling persons guilty of unprofessional conduct, and of unprofessionally advertising themselves and 406 LIBEL; (B) Pleadikos. their cures : — Held, that the traverse put in Issue the power of the college to expel, and that the state- ment in the libel itself was not sufficient evidence of such power. JVakleyv. Healey, 18 Law J. Rep. (n.s.) Exch. 426 1 4 Exch. Rep. 53. (e) General Issue, In an action for libel the plea of not guilty puts the malice in issue. Where the libel is contained in a report of judicial proceedings, it is a good defence that the report was a fair substantial, though not a verbatim, report of the proceedings, and the evidence may be given under the general issue. Hoare V. JSilverlock, 19 Law J. Rep. (n.s.) C.P. 215. [See post, (A) Several Pleas.'] (/) Pleas of Justification. A declaration in libel alleged that the libel stated that the plaintiff, who was seeking admission into a club, gave an entertainment a few days before he was to be elected ; that he was afterwards black- balled, and on the next morning bolted, and some of the poor tradesmen had to lament the fashion- able character of his entertainment. The defendant pleaded in justification, that the plaintiff did sud- denly leave and quit the town without paying every one and all of the debts contracted by him with divers persons in the town, and without notice to them, and with intent to defraud and delay them, whereby the said persons, to wit, on &c., remained unpaid and defrauded: — Held, on special demurrer, that the plea was bad, in not stating the names of the tradesmen alleged to have been defrauded. O'Brien v. Clement, 16 Law J. Rep. (N.s.) Exch. 76 ; 16 Mee. & W. 150 ; 4 Dowl. & L. P.C. 343. A declaration set forth a libel stating, that the plaintiff who was seeking admission into a club, gave an entertainment a few days before he was to be elected; that he was afterwards blackballed, and on the next morning bolted, and some of the tradesmen had to lament the fashionable character of his entertainment. The defendants pleaded by way of justification, that on the following morning the plaintiff suddenly left and quitted the town and neighbourhood of P, leaving divers of the tradesmen of that town and neighbourhood, to whom he owed divers sums of money, unpaid, to wit, TT, W S, &c. :— Held, that the plea was bad, as not amounting to a justifica- tion of the libel, which imputed to the plaintiff a fraudulent evasion of his creditors. O'Brien v. Bryant, 16 Law J. Rep. (n.s.) Exch. 77 ; 16 Mee. & W. 168 J 4 Dowl. & L. P.C. 341. {g) Replication to Plea, under the 6 <§■ 7 Vict. c. 96. s. 2. The 2nd section of tlie 6 & 7 Vict. c. ^6. enables a defendant in an action of libel to plead, by way of defence, certain special matters therein stated, and enacts, that, " to such plea to such action it shall be competent to the plaintiff to reply generally, denying the whole of such plea" : — Held, that the replication under this statute need not deny all the facts stated in the plea, but the plaintiff may tra- verse as much of it as he thinks necessary. Chad- wick V. Herapath, 16 Law J. Rep. (n.s.) C.P. 104; 4 Dowl. & L. P.C. 653 ; 3 Com. B. Rep. 8^5. (A) Several Pleas, The general issue and a special plea of apology and payment of money into court, under the 6 & 7 Vict. c. 96. s. 2, to the same cause of action, will not be allowed. Under the general issue^ in an action for libel, you may disprove the fact of publication, or shew that it is not of an injurious character, or that it was published on some justifiable occasion. O'Brien V. Clement, 15 Law J. Rep. (N.s.) Exch. 285 ; 15 Mee. & W. 435 ; 2 Dowl. & L. P.C. 676. (C) Evidence. (a) Of Publication. The defendant communicated to the editor of a certain newspaper certain facts concerning A B, such as that he had been hung up in effigy in a ludicrous character, &c., at the same time saying to the editor that he wished he would " shew up" A B, The editor knew of the facts themselves from other quarters. An article subsequently appeared in the newspaper, containing in substance the matters so narrated, and which article it appeared that the defendant saw and expressed his approbation of after publication. The jury found that the article was libellous : — Held, that the defendant was rightly convicted of the publication. Jiegina v. Cooper, 15 Law J. Rep. (n.s.) aB.206; 8 Q.B. Rep. 533. On the trial of an action for a libel in a news- paper, a witness stated, that he was president of a literary institution having eighty members ; that about the date- of the paper proved one was brought (he could not say by whom) to the reading-room of the institution, and left there gratuitously; that, a fortnight after, it was taken away without his autho- rity, and never returned ; that he had searched for it, but could not find it, and believed it to be lost or destroyed ; that the title of it was the same as that proved, and, as far as he could judge from a glance at it, it contained the libel in question, and he believed it was a copy of that paper. He was not cross-examined : — Held, fir,st, that secondary evi- dence of the contents of the copy was properly admitted. Secondly, that there was evidence for the jury that the paper so sent to the institution was a copy of that which contained the libel. Thirdly, that, though sent by a person unknown, it was evidence against the defendant, not to shew malice, but to affect the.damages, by shewing the extent of circulation. Gathercole v. Miall, 15 Law J. Rep. (n.s.) Exch. 179 ; 15 Mee. & W. 319. In an action for libel, in order to prove that the defendant had published the libel, which was con- tained in a printed pamphlet, a witness was called, who stated in substance, that the defendant gave her a copy of the pamphlet ; that she lent it several times to persons, expecting that they would return it to her ; that the persons to whom she had lent it had returned her the same, or a copy, but that she could not swear it was the very same, though she had no reason to doubt it: — Held, that there was evidence for the jury that the pamphlet returned to the witness was the same given to her by the defen- dant. Fryer v. Gathercole, 18 Law J. Rep. (n.s.) Exch. 389 ; 4 Exch. Rep. 262. In an action against the proprietor of a news- LIBEL— LIEN, AT LAW. 407 paper for a libel the evidence given of publication was, that the plaintiff had, many years after the libel was printed, sent a person to the newspaper- office to buy a copy of the newspaper in which it appeared, and to whom a copy was accordingly sold at the office : — Held, sufficient evidence of publica- tion. Where the first count set out a libel which was referred to in the subsequent counts alleging other libels, and the original cause of action for libel in the first count was barred by the Statute of Limit- ations, but a re-publication ofit within six years was proved, it was held that the Judge was not bound to direct the jury to give damages for the libel in the first count with reference only t6 its re-publica- tion. The Duke of Brunswiclc v. Harmer, 19 Law J. Kep. (n.s.) Q.B. 20. (4) Of Malice. Where the alleged libel was a complaint made by the defendant of the incompetency of the plain- tiflr, a surveyor who had been sent to him for em- ployment, and the innuendo charged that the defen- dant meant that the plaintiff was not a competent and skilful surveyor, — Held, that evidence of the general competency and abilities of the plaintiff was inadmissible to shew malice. Brine v. Baxal- gette, 18 Law J. Rep. (n.s.) Exch. 348 i 3 Exch. Rep. 692. [See (A) (4).] (D) Practice. (o) Staying Proceedings. Seven actions having been brought against the defendant by the same plaintiff for different publi- cations of the same libel, a rule was made absolute for staying proceedings in all but one until that one was tried. Jones v. Pritchard, 18 Law J. Rep. (n.s.) Q.B. 104. (4) What Question for the Judge and what for the Jury. [See (A) (4).] (c) Recognizance, An application under the 1 Will. 4. c. 73. to enforce the recognizances taken under the 60 Geo. 3. c. 30. must state distinctly that the defendant in the action for libel was either the editor, con- ductor, or proprietor of the newspaper; and an alle- gation that he was the printer and publisher is insufficient. Semble — Under that statute a rule calling on the bail to shew cause why the plaintiff should not have leave, pursuant to the statute, to proceed upon the recognizances is correct in form. Ex parte the Duke of Brunswick, inre Clements, 18 Law J. Rep. (n.s.) Exch. 304 ; 4 Exch. Rep. 492. LIEN, AT LAW. [See Ship and SnipriNd, Freight.] (A) In general. (B) Innkeepers, Liveky-Stable Keepers, AND Trainers. (C) Wrongful Removal. LIBERTY. Union of liberties with counties facilitated by the 13 & 14 Vict. c. 106 ; 28 Law J. Stat. 318. (A) In general. A certificated conveyancer is not entitled, to a lien upon deeds delivered to him, and " with and in respect of" which he has done business; the busi. ness not having been done upon the deeds, or their value thereby increased. Steadman v. Hockley, 15 Law J. Rep. (n.s.) Exch. 332 ; 15 Mee. & W. 553. The unpaid vendor of a real estate conveyed to a purchaser has not at law any lien on the title deeds for his purchase-money. Goodey. Burton, 16 Law J. Rep. (N.s.) Exch. 309; 1 Exch. Rep. 189. An attorney has no lien on his client's money in his hands, beyond the amount in which the latter is indebted to him. Miller v. Atlee, 3 Exch. Rep. 799. (B) Innkeepers, Livery-Stable Keepers, and Trainers. An innkeeper received the carriage and horses of a person not residing at his inn; Whilst they were in his possession the owner took refreshments occa- sionally at the inn, and a friend of his resided there for some time at the owner's credit, and by his direction : — Held, that the innkeeper had no lien upon the carriage, &c. for the amount of his bill, which included charges for the keep of the horses, the standing of the carriage, and refreshments for the owner and his friend. Smith v. Dearlove, 17 Law J. Rep. (n.s.) C.P. 219 ; 6 Com. B. Rep. 132. Where a guest brings a chariot to an hotel at which he takes up his abode, the keeper of the hotel has a lien on the chariot for its standing room and any labour bestowed on it; and this holds good whether the chariot is the property of the guest, or hired by him from a third party. Queere — Whether he has a lien on it for the board and lodging, &c. of the guest. Turrell v. Crawley, 18 Law J. Rep. (N.s.) ft-B. 153; 13 Q.B. Rep. 197. A" livery-stable keeper has no lien upon a horse standing at livery in his stables, in respect of monies paid to a veterinary surgeon for blistering the horse according to the owner's directions. Orchard V. Rackstraw, 19 Law .T. Rep. (N.s.) C.P. 303. The labour and skill expended by a trainer on race-horses intrusted to him for the purpose of being trained is such as may on general principles give him a lien on the horses against the owner. But this right of lien may be destroyed by any agreement or usage inconsistent with the continu- ing right of possession by the trainer. An owner of race-horses intrusted them to A for the purpose of having them trained to run at races generally. During the time the horses were with A they were (according to the usage in such cases) sent in charge of A's servant to run at such races as the owner selected. They were placed in stables hired by A until the race, and were then ridden by jockies selected and paid by the owner. The owner 408 LIEN, AT LAW— LIMITATIONS, STATUTE OF. frequently selected one of A's servants as his jockey. After the race the horses were re-delivered to A's servants, and taken back by them to his stables :— Held, that, under these circumstances, A had no lien on the horses. Forth v. Simpson, 18 Law J. Kep. (U.S.) as. 263. (C) Wrongful Removal. A being indebted to B it was agreed that B should keep A's cow till the debt was paid, that A might drive her away every morning and night to be milked, and if he did not return her, that B might re-take her whenever or wherever he found her. A drove her away and kept her three weeks, where- upon B re-took her. In trespass by A against B, for so doing, — Held, that these facts supported a plea denying A's property in the cow. Richards v. Symons, 15 Law J. Rep. (n.s.) a.B. 35 ; 8 O.B. Rep. 90. Co. had no remedy at law. Spalding v. Ruding, 15 Law J. Rep. (n.s.) Chanc. 374. A authorized a sale of his share in a brewery to B, his partner, whom he made his executor. B treated the sale as duly made, carried on the busi- ness till his death, after which it was carried on by C, his executor. Afterwards the sale was set aside and A's estate became entitled to share in the profits since his death. C then became bankrupt, having the trade property in his possession : — Held, that the trade creditors during C's time had no lien for their debts on A's share, and that the property was not in the order or disposition of C. Stoeken v. Dawson, 9 Beav. 239. LIEN, IN EQUITY. [See Limitations, Statute op.] S & Co. were merchants at Stralsund, and in May 184'1 their agent sold to T a quantity of wheat, the amount to be drawn for on T at three months' date, payable on handing over invoice and bills of lading. S & Co. sent the invoice, with the bills of lading, to T, and at the same time drew on him at three months' date for the amount. T received the invoice and bills of lading on the 8th of June 1841, and requested R to accept for him a bill payable at three months for 1,000/., which he did on receiving from T a memorandum authorizing him to dispose of the cargo of wheat on T's account, subject to the usual commission and charges, before the bill became due, T undertaking to provide R with cash to the amount of the advance, should T wish R to hold it beyond that time. On the 1st of Jiily 1841, the wheat Srrived in the port of London, and abfiut the same time T stopped payment. On the 2nd of July, Z, the plaintiffs' agent in London, gave m, verbal, and on the 3rd of July a written message to the master of the vessel, not to part with the wheat without the orders of S & Co. On the 5th of July a fiat issued against T, and on that day Z gave notice again to the master of the vessel not to part with the wheat; the wheat, however, was allowed by Z to be delivered to & on giving him notice that S & Co. claimed to be entitled to the same, and did not, by removing the stop, abandon their rights. S & Co. insisted on their right to the balance of the proceeds of the wheat, after satisfy- ing R's legal claim, and R claimed to be entitled to apply the proceeds of the wheat, not only in pay- ment of the ],000(. bill, and freight aiid other charges of the ship, but also in satisfaction of the balance of the general account, which he alleged to be subsisting between him and T. S & Co. then offered R 1,200Z. in discharge of his acceptance and charges in respect of the wheat, and demanded the delivery of the cargo to them, which was refused. The wheat was afterwards sold by R for 1,822/. net proceeds: — Held, that S & Co. were entitled in equity to the residue of that sum, after payment of the amount due to R in respect of the acceptance and charges, and freight of the ship, and that S & LIMITATIONS, STATUTE OF. [See Legacy, Interest on; Recovery of — Lien, IN Equity — Rate — Tithe.] (A) Where the Statute applies. (a) Under the 21 Jac. I. c. 16. (i) Under the S S; i Will. 4. c. 27. (c) Under the 3 S; i Will. 4. c. 42. (B) Computation of Time. (C) How THE Statute may be barred. (a) /Acknowledgment. (&) Part Payment. (c) Indorsement on subsequent Writ under the 2 Will. 4. u. 39. s. 10. (D) Pleading. (A) Where the Statute applies. (o) Under the 21 Jac. 1. o. 16. \_Fannin v. Anderson, 5 Law J. Dig. 425 ; 7 Q.B. Rep. 811.] From 1825 to 1837 A, B & C carried on busi- ness in partnership as bankers; and during that period D W deposited with them various sums of money, for which the bank gave him promissory notes in the following form : — " I promise to pay three months after sight D W or order £ , with interest at 3/. 10s. per cent, per annum, 21st January 1826. For A & Co. (signed) B." In March 1837 A died, having appointed B and another his executors, and B & C continued his business till 1842. Interest was yearly paid on the notes by A, B & C, and by B & C after A's death up to December 1842 ; and on each such payment an indorsement was made on the notes in this form: — "Paid one year's interest, due March 1836, £ , for A & Co.," and was signed by the clerk of the bank. In 1843 B & C became insolvent; and in the month of December, in the same year, the executors of D W filed their bill on behalf of themselves and all other the creditors of A, against the executors of A and tlie devisees and legatees under his will, praying an account of the personal estate of A, and of the rents and profits of his real estate,, and that the legacies might be refunded, and the real estates sold, and that the same might be applied in satisfaction of A's debts. The defen- dants, by their answer, pleaded the Statute of Limit- ations: — Held, first, that the payments of interest LIMITATIONS, STATUTE OF; (A) Wheee the Statute applies. 409 by B were not to be taken as made by him in his character of executor of A. Secondly, that the acts of the surviving partners of A had not the effect of keeping the plaintiffs' debt alive as against the real or personal estate of the deceased partner. Tl>irdly, that the form of the pleadings prevented the plain- tiffs working out payment of their debt through the equities of the partners. Fourthly, that the pre- sentment of the notes for payment of the interest was a " sight," and that the statute began to run from such presentment. Way v. Bassett, 15 Law J. Rep. (n.s.) Chanc. 1 ; 5 Hare, 55. In 1825, the plaintiff brought an action against a lunatic for a debt. The lunatic and his commit- tees thereupon filed a bill in equity to restrain the plaintiff from prosecuting the action. By an order made in this suit in July 1825, by consent, it was ordered that the plaintiff should be restrained from further prosecuting the action, or commencing any other proceedings at law in respect of the debt, and that the proceedings in the suit should be stayed, and that the plaintiff should be at liberty to carry in his claim before the Master in the matter of the lunacy. In 1828 the Master reported that the plaintiff's claim required further consideration; and, in 1830, made a report as to debts, in which no notice was taken of his claim. The commission of lunacy was never superseded, and the lunatic died in 1843. A bill filed by the plaintiff in 1841 against the lunatic's representatives (so constituted by a will dated before the lunacy), in respect of the debt, was dismissed, with costs. Roche v. Cooke, 1 7 Law J. Rep. (n.s.) Chanc. 93; 1 De Gex & S. 675. (i) Under the 3 ^ i mil. 4. .,. 27. In the year 1801, the testator, being seised in fee of a messuage, put his daughter and her husband (the defendant) into possession of it, and they con- tinued in occupation, without any payment of rent, until 1837, when the testator died. By his will, dated in 1837, be devised the messuage to his said daughter for life, remainder to the lessor of the plaintiff in fee, and also devised an annuity of 51, to his daughter. This annuity was received by the defendant regularly, and he and his wife (the testator's daughter) continued in possession of the premises till 1844, when she died: — Held, first, that the testator's right of entry having been barred by the 7th section of the 3 & 4 Will. 4. c. 27, the right of the lessor of the plaintiff was also barred j secondly, that the receipt of the annuity by the de- fendant did not conclude him, so as to prevent his setting up his adverse possession as against the testator. Doe d. Dayman v. Moore, 15 Law J. Rep. (n.s.) Q.B. 324 i 9 Q.B. Rep. 555. The testator died in 1784, having, in 1776, de- mised the land under a lease to a tenant for sixty- one years ; the defendant, and those under whom he claimed, received rent under the lease from the death of the testator to the year 1837, when the lease expired. An action of ejectment being brought in that year immediately upon the determination of the lease, — Held, that the right of the lessor of the plaintiff to bring the action would have been barred by length of time, under the 3 & 4 Will. 4. ^^. 27. B. 9, if it were not saved by section 15 of the same act. Digest, 1845— 1850. But held, lastly, that such right of action was saved by the 15th section. Doe d. Angellv. Angell, 15 Law J. Rep. (n.s.) Q.B. 193; 9 Q.B. Rep; 328. A, the devisee of a term for lives in a messuage, in 1793 conveyed it to Richard J, his heirs and assigns, during the remainder of the term, with reversion to A, her heirs and assigns, in case Richard should die without children. A died in 1799. In 1811, Richard purchased the reversion in fee, and at the same time a satisfied outstanding term was for his protection assigned to a trustee to attend the inheritance. In 1812, Richard died without- issue, leaving Lewis, the ancestor of the plaintiff, his heir-at-law. Lewis was also the heir-at-law of A. Lewis did not take possession in 1812, and the messuage in question continued to be occupied by others than those entitled to it. The last life in the lease fell in 1835, when the lessor of the plain- tiff, being heir-at-law of Lewis and also of Richard, brought the present ejectment : — Held, first, under the 3 & 4 Will. 4. c. 27. s. 3, that the title of Lewis to the term accrued in 1812, and by the 5th section his right to the reversion accrued in 1835 ; that the - 5th section applying only to the cases where another person than the termor was the reversioner, and the land not having been recovered by any person, the right of Lewis was barred by the lapse of twenty years from 1812, and the right of the lessor of the plaintiff claiming the reversion through him waS barred also. Quiere — Whether the term merged, either by the purchase of the reversion by Richard in 1811, or on his death in 1812, by the descent of the reversion to his heir Lewis. Semble — that the satisfied term ceased and deter- mined under the statute 8 & 9 Vict. c. 112, on the 3 1st of December 1845, and would have afforded no defence to this ejectment. Doe d. Hall v. Mouls- dale, 16 Law J. Rep. (n.s.) Exoh. 169 ; 16 Mee. & W. 689. Three females being coparceners in tail, two of them suffered recoveries of their shares, but the third did not. They all married, and their husbands entered into an agreement for partition by deed of the lands held in coparcenry, but for nothing more. No such deed appeared to have been executed, but the lands had been held according to the agreement from its date. An action being brought by the heir in tail of j:he parcener who did not suffer a recovery within twenty years after her death, and before the 3 & 4 Will. 4. c. 27, to recover her share, which had been held by the husband of one of the other coparceners, — Held, that the possession was under the agreement, and not adverse. Held, also, that nothing could be presumed, be- yond what was contemplated by the agreement, which provided for a deed and not for a recovery. Doe d. Millett v. Millett, 17 Law J. Rep. (n.s.) Q.B. 202 J 11 aB. Rep. 1036. A, some time before 1824, being under contract to purchase, let B, his son, into possession of the premises contracted for as tenant at will. The con- veyance to A was executed in 1824, and A mort- gaged the premises in 1829. B occupied the pre- mises from the time he was let into possession till 1834, when he died, and- his widow, the defendant, occupied them till the day of the demise in the de- claration (the 8th of January 1845). The jury. 3G 410 LIMITATIONS, STATUTE OF; (A) Where the Statute appiibs. finding that B's tenancy at will oommenoed more than twenty- one years before the day of the demise in the declaration, — Held, first, that the conveyance to A did not determine the tenancy at will of B. Secondly, That the mortgage by A did not deter- mine such tenancy even if it could be supposed to exist, with reference to the Statute of Limitations, after the expiration of one year from its commence- ment ; and that an action of ejectment against the defendant was barred by the statute 3 & 4 Will. 4. c. 27. ss. 2, 7. Doe d. Goody v. Carter, 18 Law J. Rep. (n.s.) Q.B. 305 ; 9 Q.B. Rep.?63. Under the 3 & 4 Will. 4. c. 27. ss. 2, 3, and 34, the right to rent is extinguished by the lapse of twenty years from the time 6t the last payment of such rent, although twenty years have not expired since the rent became due. Where a Statute of Limitations-extinguishes the right and does not merely bar the remedy, the defence under such statute need not be pleaded specially, and therefore in an action of replevin evidence of the lapse of twenty years since the last payment of rent may be given under a plea in bar of non tenuit. De Beauvoir v. Owen, 19 Law J. Rep. (n.s.) Exch. 177; 5 Exch. Rep. 166; affirming the judgment of the Court of Exche- quer. Owen V. De Beauvoir, 16 Mee. & W. 547. The petitioner claimed a sum of money due from the estate of a testator on a judgment entered up on a bond given in 1793. The Statute of Limit- ations was set up as a bar, and it was contended that the statute did not apply to a charge upon personal estate, and that a suit instituted in 1817 against the testator's estate would prevent the statute from run- ning. That suit was for the arrears of an annuity due to the party who instituted it, and it prayed that the estate might be administered, and that cer- tain documents, which were in the possession of the obligee, and upon which he claimed a lien in respect of the money due upon the bond, might be produced, and the lien, if any, of the obligee might be ascertained : — Held, that the Statute of Limit- ations was a bar to any proceedings upon a judg- ment after twenty years, although such judgment was a charge upon personal estate only, and that the suit of 1817 was not in the nature of a creditors' suit, and there was not such an acknowledgment of the debt due upon the judgment as would prevent the statute from running. Watson v. Birch, 16 Law ■J. Rep. (n.s.) Chanc. 188; 15 Sim. 523. More than twenty years after the death of a testator, the representative of one of his executors, and the residuary legatee under the will, file a bill against the representative of a co-executor to re- cover residuary assets of the testator alleged to have been possessed by the co-executor. The plaintiflTs are barred by the 3 & 4 Will. 4. o. 27. s. 40. as to assets possessed by the executor more than twenty years before the filing of the bill, but not as to assets pos- sessed by him since. Adams v. Barry, 2 Coll. C.C. 290. Where an annuity, charged upon land, is given by will to A, and the land is devised to B in fee, B is not a trustee for A within the 25th section of the 3 & 4 Will. 4. c. 27, so as to entitle A to recover more than six years' arrears of the annuity. Francis v. Grover, 15 Law J. Rep. (n.s.) Chanc. 99; SHare, 39. In consequence of the invalidity of an appoint- ment, the plaintiff became entitled to a sum which was to be raised out of real estate under the trusts of a term of 500 years, which was still subsisting, but no steps for questioning the validity of the appointment, or for the recovery of the money, had been taken till more than twenty years had elapsed since the title accrued : — Held, that the right of the plaintiff was not barred by the Statute of Limit- ations, 3 8j 4 Will. 4. c. 27, that statute not apply- ing to cases of this nature between trustees and cestuis que trust. Young v. Watermark (Lord), 15 Law J. Rep. (n.s.) Chanc. 63. A mortgagee who had entered into possession of the mortgaged premises in 1816, in 1827 executed a transfer to another, who thereupon entered into possession, and in 1828 transferred to a second transferee, who also entered into possession. The mortgagor was not a party to either transfer, and never received any acknowledgment in writing of his right to redeem. In 1833, the 3& 4 Will. 4. c. 27. passed. In 1845, the representative of the mortgagor filed this bill for redemption against the representatives of the second transferee ; — Held, that the statute operated retrospectively by taking from the mortgagor the benefit of the acknowledg- ment of the mortgage title contained in the trans- fers of 1827 and 1828, and that the suit was barred. Batchelor v. Middleton, 6 Hare, 75. A contract for sale of an estate was made in March 1811, the piu-chase-money to be paid in May following, and the purchaser was let into pos- session immediately on the execution of the con- tract The purchase-money was not paid, hut the purchaser and persons claiming under him con- tinued in possession. In 1844 the assignees of the vendor filed the bill, claiming a lien on the estate for the purchase-money, and interest from the day fixed for the completion of the contract : — Held, that the right of the vendor to recover the purchase- money as a lien or charge on the land was barred by the 3 & 4 Will. 4. c. 27. s. 40. Such equitable title of^the vendor to recover from the vendee the purchase-money is not an express trust within the 3 & 4 Will. 4. c. 27. s. 25. so as to be kept alive under that section. The vendor's right to recover the purchase- money as a lien or charge on the estate is not pre- served by the existence of a suit by creditors of the devisor under whose will the sale took place, nor of suits by the residuary devisees and legatees of the purchaser for the administration of his estate. Toft v. Stephenson, 7 Hare, 1. The 3 & 4 Will. 4. c. 27. s. 42. takes away from an incumbrancer upon land; in all cases, the right of recovering as against the land more tlian six years' arrears of rent or Interest ; and the statute 3 & 4 Will. 4. u. 42. s. 3. merely restores the per- sonal remedy against the debtor on the covenant. An annuity and certain extra premiums for in- suring the life of the grantor were charged upon land, and also secured by the covenant of the grantor : — Held, reversing the order of the Court below, that the annuitant was only entitled to re- cover against the land the arrears that had accrued due and the premiums paid by him within six years from the time of instituting proceedings to recover the same. Hunter v. Nockolds, 19 Law J. LIMITATIONS, STATUTE OF ; ( C) How the Statute may be baebed. 411 Rep. (n.s.) Chano. 177; 1 Hall & Tw. 641; IMao. & G. 640; reversing 18 Law J. Rep. (n.s.) Chano. 407. (c) Under the S ^ i Will. 4. c. 42. Arrears of a fee-farm rent held not recoverable under section 42. of the 3 & 4 Will. 4. o. 27. after the expiration of six years from the last receipt, apd no acknowledgment in writing relating thereto ; and held that the 42nd section is not repealed by the 3 & 4 Vict c. 42. s. 2. Humfrey v. Gery, 7 Com. B. Rep. 567. In July 1817, a mortgage was executedby the defendant, for securing, first, to the defendant's bankers, the payment of a sum of 1,6202. and upr wards, and interest ; and, secondly, to the plaintiff a sum of 1,5002. and interest, and the plaintiff thereby became a surety with the defendant for pay- ment to the bankers of the amount so due to them. A power of sale was given to the bankers, which they, exercised io the year 1834, but the proceeds of the sale were not sufficient to satisfy the amount due to them. By a deed-poll, dated the 7th of August 1817, after reciting the existence of the debt due from the defendant to the plaintiff, and the fact that the plaintiff had become surety for the defendant in divers instances, and that the defen- dant had considerable expectations &om the rela- tions and friends of himself and his wife, and that he was desirous as far as might be of securing the payment of the debt due to the plaintiff, the defen- dant, in the most extensive terms, nominated the plaintiff his attorney irrevocable, to sue for and receive from all persons whomsoever, all sums of money, and all legacies and b'equests, which should or might become due or payable to him, or his wife, &c. Several of the relatives of the defendant and his wife, subsequently to the date of the deed-poll, bequeathed legacies to the defendant and his wife respectively ; and in the year 1842 the plaintiff filed this bill, seeking the benefit of the deed-poll, and a decree for payment to the plaintiff of the legacies so bequeathed to thb defendant and his wife in satisfaction, so far as the same would extend, of the debt due to the plaintiff: — Held, that the plain- tiff's debt was not barred by the Statute of Limit- ations, 3 & 4 Will. 4. c. 42, notwithstanding the lapse of twenty-five years between the date of the security and the filing of the bill ; that the power of attorney contained in the deed-poll was in the nature of a covenant, and that whilst the trusts of the indenture of July 1817 remained unsatisfied, the Statute of Limitations would not run against the plaintiff's debt. Bennett v. Cooper, 15 Law J. Rep. (N.s.) Chano. 315 ; 9 Beav. 252. (B) Computation of Time. Where a mortgagee is also tenant for life of the mortgaged estate, the Statute of Limitations does not run against the mortgage title until his death. The same where the mortgagee is tenant in com- mon of the estate. Wynne v. Styan, 2 Ph. 303. In June 1829, the plaintiff, a mortgagee with power of sale, employed F & S, as his solicitors, to give notice of sale. F & S gave such notice, and under their advice the plaintiff sold the property without the concurrence of the mortgagor. In 1841, on a bill by the representatives of the mortgagor, a decree for redemption was made on the ground of the insufficiency of the notice. In 1846, the plain- tiff brought an action on the case for negligence against,F & S, and then filed a bijl of discovery in aid of the action. A demurrer to the hill of dis- covery was allowed, on the ground tliat the cause of action arose more than six years before the suit. In an action on the case for negligence, the cause of action was held to arise immediately upon the commission of the negligent act, and not when the negligence was discovered and the damage ensued. A demurrer on the ground of the Statute of Limit- ations may be a good defence to a bill of discovery in aid of an action at law. Smith v. Fox, 17 Law J. Rep. (N.S.) Chanc,,170; 6 Hare, 386. (C) How THE Statute may be bajired. (a) Aclcnmtiledgment, The following letter, by the defendant, to a clerk of the plaintiff, in answer to one applying for pay- ment of a debt, was held insufficient to defeat 3 plea of the Statute of Limitations : — " I will not fail to meet Mr. H (the plaintiff) on fair terms, and have, now a hope that before perhaps a week from this date, I shall have it in my power to pay him, at all events, a portion of the debt, when we shall settle^ about the liqjiidation of the balance." Hart v. Prendergast, 15 Law J. Rep. (n.s.) Exch. 223 j 14 Mee. & W. 741. , , , In order to give in evidence an acknowledgment in writing, to take a specialty debt put of the Statute of Limitations, 3 & 4 Will. 4. c. 42, the replication must state such acknowledgment. Kent v. Gibbons, 16 Law J. Rep. (N-s.) G.B. 120 ; nam. Kempe v. Gibbon, 9 Q.B. Rep. 609.. To a plea under the 3 & 4 Will. 4. c. 42. s. 5, that the cause of action on a deed did not accrue within twenty years, a replication, alleging a written acknowledgment of the debt within twenty years, need not set out the writing in its terms. Kempe v. Gibbon, 17 Law J; Rep. (N.s.) Q.B. 298 ; 12 aB, Rep, 662. To an action by the executor of an attorney to recover the amount of a bill of costs for work done by the testator, the defendant pleaded the Statute of Limitations and a set-off for money lent, &c.,to ^hich latter plea the plaintiffreplied the Statute of Limit- ations. The testator had transacted the law business of the defendant, and had received his tithes and rents. In a letter written by the defendant's agent the defen- dant desired to have the testator's account for thepur- pose of settling. In a second letter written in Welsh, and addressed by the same party to the testatpr, the writer stated that he would come to, the testator's house for certain title deeds; In a subsequent letter by the testator to, t^e defendant, the former says, "I have received,,a,Wglshi, letter from your, agent, and as far as I am able to understand it he requests, to have the abstracts of title, and my bill again,st you and account. . , . , I .sliould be glad to hear from you, as I aip no Welsh .^cliplar myself, precisely what is wanted." To this the defendant wrote the following answer : — " Being one of those people who think short: accounts make long friends,,! directed my agent last year to apply to you for your bill, in order that we inight settle the tithe account, Htc. 412 LIMITATIONS, STATUTE OF; (B) How the Staicte may be bakeed. What he applied to you in Welsh the other day was for my title deeds." In a letter written three months subsequently, the agent stated te the testator that the defendant was anxious to have his bill. The defendant, for the purpose of taking his set-off out of the statute, put in evidence an account fur- nished by the testator to the defendant, in obedience to a rule of court This account contained items to the credit of the defendant for tithes and rents re- ceived by the testator for the defendant, and also items to the credit of the testator for cash paid and work done, and claimed a large balance as due to the testator. The defendant also put in evidence an affidavit of the testator, made on the occasion of his furnishing such account, in which a large balance was claimed by the testator in like manner : — Held, that neither the letters nor the account and affidavit were sufficient, within the 9 Geo. 4. c. 1 4, to take either the plaintiffs claim or the defendant's set-off out of the Statute of Limitations. Williams V. Griffith, 18 Law J. Rep. (n.s.) Exch. 210; 3 Exch. Rep. 335. D, in 1824, executed a mortgage to P of houses to secure payment of 400/., and by the same deed covenanted for the re-payment of the money at a certain day. In 1 828 D executed a deed to which P was no party, which, after reciting that D had executed a mortgage of the houses to P, conveyed them and other property to trustees to sell, and out of the proceeds to pay off all mortgages and other incumbrances, and then to pay D's creditors: — Held, in an action of covenant on the mortgage-deed (breach, non-payment of the money), that the recital in the deed of assignment in 1828 was not an ac- knowledgment of a debt, sufficient under the 5th section of the 3 & 4 Will. 4. u. 42, to take the case out of the operation of the 3rd section of the same statute. HowcuU v. Bowser, 18 Law J. Rep. (n.s.) Exch. 262 ; 3 Exch. Rep. 491. (6) Pari Payments Where money is paid by a debtor on behalf of a creditor, the character of such payment is blotter rather of evidence than of law. B, a solicitor, managed the affairs of A, a female relative, to whom in 1820 he was indebted in the sum of 1,1532. for money lent. In accounts ren- dered by B to A from time to time up to 1823, B debited himself with interest on this sum, taking credit in the same accounts for various payments made on behalf of A to A's landlord, for the rent and tithes of the farm she occupied, and also for various cash payments to A. There was no state- ment of account of interest, nor any proof of pay- ment either of principal or interest to A by B after 1823, but B up to the death of A in 1842, regularly paid to her landlord on her account her yearly rent of 76/. : — Held, in an action for the 1,153/. money lent and interest thereon brought against B in 1843 by A's administrator, that these facts were evidence from which the jury might infer that the payment of A's rent by B was a payment on account of the interest due from B to A, so as to take the case out of the Statute of Limitations. Worthingtonv, Grims- ditch, 15 Law J. Rep. (n.s.) Q.B. 52 ; 7 Q.B. Rep. 479. In an action for money lent the defendant pleaded the Statute of Limitations; and at the trial the plaintiff proved the transmission of the money to the defendant, and the payment by him of a half- yearly sum for interest up to a certain time, and produced an answer to a bill in Chancery, in which the defendant admitted having paid" the same half- yearly sum within six years, but asserted that it was paid by way of annuity, and not of interest. As- suming that an acknowledgment of a payment must be in writing, and signed, under the 9 Geo. 4. c. 14. s. 1, in order to bar the operation of the Statute of Limitations, — Held, that the evidence for the plain- tiff was sufficient to go to the jury. That the con- struction of the admission in the answer was for the Court, and that the whole of it should have been left to the jury ; but that they might believe the fact of the payments having been made half-yearly, but reject the residue, and infer from the other evidence that the payments were really made in respect of interest Words used at the time of making a payment qualify it ; but it is for the jury to judge of the truth of a statement accompanying the admission of a previous payment Baildony. Walton, 17 Law J. Rep. (N.s.) Exch. 357 ; 1 Exch. Rep. 617. Where a specific sum of money is due, as upon a promissory note, the mere fact of a payment of a smaller sum by the debtor to the creditor is some evidence of a part payment to take the case out of the Statute of Limitations. Semble — It would not be evidence if no specific sum was due, but the demand was only on a quan- tum meruit. Per Tindal, C.J. — If two admitted demands were due at the time of the part payment, so that it was doubtful to which demand the payment applied, such a part payment would not take either demand out of the Statute of Limitations. Burn v. Boulton, 15 Law J. Rep. (n.s.) C.P. 97 ; 2 Com. B. Rep. 476. The plaintiff applied to the defendant for IS/. 6s., as interest due to her upon a promissory note made by the defendant. The defendant gave the plaintiff a sovereign, stating that he had paid her 4/. in April ; that he owed her the money, but would not pay it The Judge directed the jury that if the de- fendant by the part payment admitted his liability, the law created the promise to pay, and that the case was not barred by the Statute of Limitations : — Held, that this was a misdirection ; that to take the case out of the statute the facts must be such as to warrant the Jury in inferring a promise to pay, and that those facts ought to have been left to the jury. Wainman v. Kynman, 16 Law J. Rep. (h.s.) Exch. 232; 1 Exch. Rep. 118. A parish vestry having agreed to borrow money for building almshouses, the defendants, being two of the parish officers, in 1830 gave to the testator, who advanced the money, a promissory note signed thus : — " Joseph Hughes, ) Church- '\ " E. R. 5 wardens, f " Or others for " John Evans, ) „ (the time being." "WE ( '-'^^''seers. \ ° Interest on this note had been regularly paid by the overseers for the time being up to 1847, and had been by them debited to the parish. An action having been brought upon the note, and the Statute of Limitations pleaded, — Held, that the LIMITATIONS, STATUTE OF; (C) How the Stahttb mat be babrbd. 413 very fonn of the note made the existing parish officers the agents of the defendants for the payment of the interest on the note, and therefore that the Judge was wrong in withdrawing the form of the note from the consideration of the jury, and stating that the question was, whether the interest had heen paid with the authority or knowledge of the defen- dants. Jones V. Evans or Hughes, 19 Law J. Bep. (U.S.) Exch. 20Q; 5 Exch. Rep. lO*. A, B and C made a joint and several promissory note. A died, leaving B his executor. C, heing afterwards sued on the note, pleaded the Statute of Limitations ; and the plaintiff, in order to take the case out of the statute, proved a payment of interest on the note hy B within six years : — Semble — that the plaintiff was entitled to recover, without reference to the question whether B had paid such interest as the executor of A or as a patty to the note. Griffin v. Mhby, 2 Car. & K. 139. (c) Indorsement on subsequent Writ, under the 2 Will. 4. c. 39. a. 10. To take a case out of the Statute of Limitations hy means of a suhsequent writ under the Unifor- mity of Process Act, 2 Will. 4. c. 39. s. 10, the memorandum required by that section must he proved to have been indorsed on the Writ at the time of the service. In support of a plea of the Statute of Limitations, the defendants put in evidence a copy of an alias writ of summons served upon them, which did not contain a memorandum of the date of the first writ and of the return, pursuant to the Uniformity of Process Act, 2 "Will. 4. c. 39. s. 10. The plaintiff, without producing the original alias, gave in evi- dence an examined copy of the roll, which stated the alias writ in the usual form, and he gave no further proof that the alias contained the requisite indorsement at the time of its service. A verdict having been found for the plaintiff on this issue, and a motion made to enter a verdict for the defen- dants, the Court directed the rule to be absolute for a new trial, provided the plaintiff produced an affidavit stating that the necessary indorsement had been made on the writ at the time of its being served, otherwise a verdict to he entered for the defendants. Walker v. CoUick, 18 Law J. Kep, (n.s.) Exch. 387; 4 Exch. Rep. 171. (D) Pleading. [Fannin V. Anderson, 5 Law J. Dig. 430; 7 Q.B. Rep. 811.] To an action of debt on bond, the defendant craved oyer of the bond and of the condition, which was that the defendant should pay to the plaintiff's testator the sum of 670t on the 1st of February then next, according to and in full performance of the covenant or condition mentioned in an indenture dated, &c., and made between &c., and should per- form the covenant?, grants, articles, conditions and agreements, comprised and mentioned in the said recited indenture ; and then pleaded that no cause of action in respect of the said writing obligatory, by reason of any breach of the condition of the writing obligatory, or of the said covenants, grants, articles, conditions, and agreements, in the said indenture, had accrued at any time within twenty years next before the commencement of the suit: — Held, first, that the plea was bad, in not setting out the indenture, as the same might contain negative or alternative covenants, in which case performance ought to be pleaded specially, or it might contain impossible covenants, in which case the bond would be single, and the plea to the breaches only would be bad; secondly, that the plea was bad in not stating affirmatively that the condition had been duly performed. Semble — that the proper form of plea would be to set out the indenture ; to aver performance of all that was performed within twenty years f to admit the breaches beyond that time;* and to plead to those breaches the Statute of Limitations. Sanders V. Coward, 1 5 Law J. Rep. (n.s.) Exch. 97 ; 15 Mee, & W. 48 ; 3 Dowl. & L. P.C. 281. In trespass qu. cl. fr. the defendant pleaded, de- ducing title by an inclosure act to an allotment of land, including the hcus in quo, to T T, who entered and became and continued possessed thereof, just before the said time when, &c. The plea then jus- tified the trespass by the defendants, as servants of T T, and by his command. The plaintiff replied that the defendants entered and committed the trespasses, after the passing of the 3 & 4 Will. 4. c. 27 ; that the entry was made to recover the said close in which, &c. ; that the right to make such entry did not first accrue to T T, or the defendants, or to any person through whom T T or the defen- dants claimed the estate in the said close at any time within twenty years next before such entry ; — Held, on special demurrer, that the replication was good, it being sufficient for the plaintiff to bring the case within the 2nd section of the statute ; and that if the defendants sought to avail themselves of a right of entry under the 15th section, they ought to plead it in a rejoinder. Jones v. Jones, 16 Law J. Rep. (n.s.) Exch. 299 ; 16 Mee. & W. 699 j 4Dowl.&L. P.C. 494. Where defendants by their answer claim the benefit of "the Statute" of Limitations, that will entitle them to the benefit of any Statute of Limi- tations applicable to their case. Adams v. Barry, 2 Coll. C.C. 290. A bill stated that A C, being seised of White- acre, demised it for sixty years from 1765 ; that A C was in his lifetime in possession or receipt of the rents of Blackacre, which was under lease for terms, of which sixty-seven years were unexpired in 1767; that A C died intestate in 1768, leaving T C his heir-at-law; that T C died in 1817, leaving M S his heiress-at-law; that M S was then and until her death under coverture ; that M S died in 1836, leaving the plaintiff her heir-at-law; that the defendant was in possession of the property, and that the plaintiff had brought an action of eject- ment in 1845. The bill prayed for a discovery in aid of the action. The defendant put in a plea, whereby he denied that Whiteacre was under lease at the death of A C, and denied that T C, or those claiming under him, had made any claim to White- acre or Blackacre between the death of A C and the action of ejectment, and pleaded the 3 & 4 Will. 4. c. 27. The plea was allowed, with costs. Scott v. Broadwood, 15 .Law J. Rep. (n.s.) Chanc. 257; 2 Coll. C.C. 447. 414 LOAN SOCIETIES— LUNATIC. LOAN SOCIETIES. The 3 & * Vict. c. 110. continued by the 13 & 14 Vict c. 45 i 28 Law J. Stat. 79. , LOCAL ACT. [See Statute.] Preliminary inquiries to be made in cases of application for local acts, 9 & 10 Vict. c. 106; 24 Law J. Stat. 286. The 9 & 10 Vict. c. 106, as to preliminary in- quiries in applications for local acts repealed and amended by the 11 & 12 Vict, c, 129 j 26 Law J, Stat. 339, LONDON COAL ACT. [See Penalties.] LORD'S DAY. [See Akrest.] LOTTERY. [See Abt-Union — Company, Companies re- gistered under the 7 & 8 Vict. c. 110.] LUNATIC, [See Bankruptcy, Act of Bankruptcy- - Protection— ^Trust and Trustee.] (A) Committee. (B) Conveyance by. (C) Maintenance. (D) Guardian. (E) Custody and Conthoul. (*■) Commission. (a) Effect fffjmding under. (6) Compromise, (c) Superseding. (d) Carriage of, (G) Practice. (H) Insane Prisoner. -Poor The laws concerning lunatic asylums and the care of lunatic paupers amended by the 9 & 10 Vict. c. 84; 24 Law J. Stat. 203. The laws relating to the regulation of lunatic asylums altered by the 10 & 11 Vict, u. 43 ; 25 Law J. Stat. 156. (A) Committee. The committee of a lunatic is personally respon- sible in that character only to the Great Seal, and an order on him made by the Master of the Rolls in respect of a liability established against him in that court will be discharged as being without jurisdiction. Ames v. Parkinson, 2 Ph. 388. Securities belonging to a lunatic's estate ordered to be deposited with the Master for the purpose of reducing the amount of the committee's recogni- zances. In re Eagle, 2 Vh. 20\. The eontroul of the committee over a lunatic's estate will not generally be interfered with, except in case of improper conduct on the part of the com- mittee : and therefore a petition presented on behalf of a joint-stock company, in which a lunatic was a shareholder, praying for a reference, whether it would be for the benefit of the lunatic that the amount due in respect of his shares by virtue of a call which had been made by the company, should be paid out of his estate, which petition was opposed by the committee, was dismissed, with costs, Inre Hitchon, 15 Law J. Rep. (n.s.) Chanc. 126. Notwithstanding the provisions contained in the Land-tax Redemption Act (42 Geo. 3. u. 116.) it is the. duty of the committee of a lunatic to obtain the sanction of the Lord Chancellor before proceed- ing to a sale of any part of the lunatic's estate for the purpose of raising monies wherewith to redeem the land-tax. In re Wade, 1 Hall & Tw. 202. The residence of a committee at a great distance from the lunatic and his estate is not per se a dis- qualification for the office. The 13th General Order in Lunacy of October 1842 enables the Master to institute inquiries and report thereon without a previous order of reference for that purpose; but such report requires the sanction of the Great Seal before it can be acted upon. Where the committees of a lunatic, acting with the sanction of the Master, but (by mistake) with- out the authority of the Great Seal, had expended large sums in improving the estate, and had done other acts of an important character, the Court refused to discharge the committees, or to direct a reference at their cost to inquire as to the pro- priety of such acts, no mala fides being shewn, and no improper items being pointed out in the accounts which had been passed by the Master. In proceedings in Lunacy, the attendance of the heir-at-law is required, not for the protection of his own interest, but for the protection of the lunatic. Where an infant heiress-at-law, residing with her mother, a widow, was represented before the Master by her mother's solicitor, and the accounts had been regularly passed, the Court refused, on the petition of the heiress-at-law, to re-open the accounts on the sole objection, that the heiress at the time of passing such accounts had no legal guar- dian appointed. In re Brown, 19 Law J. Rep. (N.s.) Chanc. 96 ; 1 Mao. & G. 201 ; 1 Hall & Tw. 348. An ad interim committee is incapable of conveying under the 1 Will. 4. c. 60. s. 3. In re Poulton, 1 Mac. & G. 100; 1 Hall & Tw. 476. An order was made for payment of a lunatic's maintenance to a married woman (committee of the person) on her separate receipt, her solicitor undertaking that the money should be duly applied. In re Edwards, 2 Mac. & G. 134. (B) Conveyance by. [See Practice, in Equity, Accounts.] Where an equitable interest has been conveyed a person of unsound mind to h party taking ty _ ^ „ without fraud or notice of the unsoundness of mind, and the case is such that the deed would be void at LUNATIC. 415 law on the ground of the lunacy, equity will relieve against the conveyance. Price v. Berrington, 7 Hare, 394. (C) Maintenance,,. Where the whole income of the lunatic amounted only to 211. 16s. lid., heing the dividends arising out of a sum of stock to which the lunatic was entitled, the Court allowed an annuity of SOI. for the life of the lunatic to he purchased and paid for out of the fund. In re Fisher, 19 Law J. Rep. (N.s.) Chanc. 521 ; 2 Hall & Tw. 449. (D) GUAKDIAN. Who may be appointed. Biddulph v. Lard Camoys, 9 Beav. 548. (E) Custody and Conikoul. A return to a habeas corpus, directing the keeper of a lunatic asylum to bring iip the body of R F, certified that the said R F was, on a certain day received under the 2 & 3 Will. 4. c. 107, and that on the day and year aforesaid the keeper re- ceived an order and medical certificates, in the form directed by that act (setting them out). It then further certified, that oh the 22nd of November 1845, an order and two medical certificates, under the 8 & 9 Vict. v. 100. (setting them out), wCre delivered to the keeper ; and concluded, " that the said R F is now detained under our custody, under and by virtue of the last-mentioned act of parlia- ment :" — Held, that the return was sufficient under the 2 & 3 Will. 4. c. 107, as it sufficiently appeared that the order and certificates returned were received at the same time with the lunatic, and that they were those under which he was received. The 8 & 9 Vict. c. 100. s. 1, which repeals the 2 & 3 Will. 4. c. 107, leaves orders made under the latter act so far valid as to amount to a justification of a detainer in an asylum. Semble — The medical certificates required by the 8 & 9 Vict. c. 100. s. 46.- must state specific facts upon which the opinion of the insanity of the party confined under them is founded, and a statement that he has a general siispicion of the motives of every person, and makes ungrounded statements, is not sufficient. In re Fell, 15 Law J. Rep. (n.s.) M.C. 25 ; 3 DowL & L. P.C. 373. A return to a habeas corpus, directed to the keeper of a licensed lunatic asylum, set out the order for her admission, in the form given by the 8 & 9 Vict. c. 100. s. 45. sched. B : some of the particulars required to be stated were stated, others were left in blank, and the reason given for these not being inserted was, " her being constantly watched by an attendant whom she fears :" — Held, that the order was sufficient. One of the medical certificates given under S8. 45. and 46. sched. C, stated that the medical man formed his opinion from the fact that the patient " laboured under delusions of various kinds, and was dirty and indecent in the extreme :'' — Held, sufficient. Held, also, that the provisions of s. 46. were directory only j that a strict compliance with them in point of form was not essential to the validity of the certificate upon habeas corpus. The other medical certificate stated that the medjcal man formed his opinion from " a conversa- tion he had had"'') When Wages not apportionable. [See (A) Contract of Hiring.] (c) Pleadings and Evidence in Actions for Wages. In an action for dismissing a servant, a plea that the defendants did not wrongfully, without reason- able or probable cause, dismiss the plaintiff in manner and form, &c., puts in issue only the fact of dismissal ; and affirmative evidence is not ad- missible under it for the purpose of shewing that there was reasonable cause for the dismissal. Powell V. Bradbury, 18 Law J. Rep. (n.s.) C.P. 116; 7 Com. B. Rep. 201. To an action for the wrongful dismissal of a servant, the defendants pleaded in justification that the plaintiff had been guilty of various acts of mis- conduct, which were specified in the plea, and that by reason of the premises they had dismissed him: — Held, that the replication, de injuria, only put in issue the misconduct, and not whether it was known to the defendants at the time of the dismissal. Spotswoode V. Barrow, 19 Law J. Rep. (n.s.) Exch. 226; 5 Exch. Rep. 110. A declaration in assumpsit against the defendant for dismissing the plaintiff, his servant, during the period for which he was employed, stated that the defendant refused to permit the plaintiff to continue in his service during the said period, and wrongfiilly dismissed him without reasonable cause. Plea, that the plaintiff disobeyed the defendant's orders, without this that the defendant dismissed him witlt- out reasonable cause, concluding to the country. The dismissal having been admitted at the trial, the Judge refused to receive evidence, on the part of the defendant, of the reasonable Cause of the dismissal, being of opinion that the dismissal alone was in evidence, and accordingly directed a verdict for the plaintiff: — Held, that the direction was wrong: that, although the averment in the declara- tion of reasonable cause was immaterial, and the plea was specially demurrable in putting it in issue, yet issue having been joined thereon, the ques- tion of reasonable' cause was essential to the detei*- mination of that issue. Lush y. Russell, 19 Law J. Rep. (n.s.) Exch. 244 ; 5 Exch. Rep. 203. MERCHANT SEAMAN'S ACT. [See Penalties.] MERGER. [See Deed — Limitations, Statute of.] METROPOLIS. (A) Paving Act. (B) Police Acts. The act for the construction and use of buildings in the metropolis, 7 & 8 Vict. c. 84, amended by the 9 Vict. c. 5 ; 24 Law J. Stat. 46. The office of Registrar of public Carriages con- solidated with the Commissioners of Police by the 13 Vict. c. 7; 28 Law J. Stat. 10. Provisions for the interment of the dead in and near the metropolis by the 13 & 14 Vict. c. 52 ; 28 Law J. Stat. 89. (A) Paving Acts. Ashes falling from the furnace of a brass-founder, and containing particles of metal, were by him subjected to a process whereby a portion of the metal was extracted. The residue having been given by hira to his apprentices as a perquisite, was by them sold to a brass-refiner, for the purpose of extracting a further quantity of metal. The plain- tiff, who was employed by the brass-refiner, whilst in the act of conveying the ashes from the brass- founder's premises for this purpose, was appre- hended by the defendant under the Metropolitan Paving Act, 57 Geo 3. c. 29, which gives the power of apprehending all persons who, not being em- ployed by or contracting with the Commissioners under the act, shall carry away any " dust, cinders, or ashes," within the district: — Held, that the ashes in question were not " dust, cinders, or ashes" within the meaning of the act of parliament. 428 METROPOLIS— MINE. The 136th section of that act enacts that no action shall he brought against any person for any- thing done in pursuance of the act until after twenty-one days' notice in writing ; and " if it shall appear that such action was brought before twenty-one days' notice was given," the jury shall find a verdict for the defendant ; — Held, that the defendant could not avail himself of a want of notice of action without specially pleading it. Law V. Dodd, 17 Law J. Rep. (n.s.) M.C. 65 ; 1 Excb. Rep. 845. (B) Police Acts. County magistrates who, acting under the 3 & 4 Vict c. 84. s. 6, convict a party of an ofienoe under the 2 & 3 Vict. u. 71, are entitled to the privileges of a metropolitan police magistrate, under the last- mentioned statute, and, therefore, to the same limit- ation of three months upon any action against them, which a police magistrate would have had. The Metropolitan Police Acts are not local and personal acts, or acts of a local and personal nature, within the statute 5 & 6 Vict. c. 97. Barnett v. Cox, 16 Law J. Rep. (n.s.) M.C. 27; 9 Q.B. Rep. 617. A metropolitan police magistrate, sitting alone, has jurisdiction to hear and determine an informa- tion by the auditor of a metropolitan poor-law dis- trict, for non-payment of disbursements regularly disallowed, and surcharged by such auditor, and certified to the Poor-Law Commissioners under the 7 & 8 Vict. 0. 101. s. 32, where such information is laid within nine calendar months from the time of the disallowance, as required by the 12 & 13 Vict. c. 103. s. 9, although not until after the limit- ation of six calendar months mentioned in the 2 & 3 Vict. c. 71. s. 44. has expired. Regina v. Tyrwhitt, 19 Law J. Rep. (n.s.) M.C. 249; 15 a.B. Rep. 249. By the statute 10 Geo. 4. c. 44. s. 10. (the Me- tropolitan Police Act) a receiver for the metropo- litan police district is to be appointed, who is to receive all monies applicable to the purposes of that act and to pay thereout all salaries, &c. to the police force, and all other charges and expenses in carrying that act into execution ; and by section 37. all sums adjudged by Justices to be paid for offences against the act are to be paid to the receiver, to be applied as part of the funds for the purposes of the police. By the 2 & 3 Vict. c. 47. a portion of all penalties adjudged by any magistrate, whether sitting at a police court or not, within the police district, are to he paid to the receiver for the purposes of the act. By the 2 & 3 Vict. c. 71. police courts are estab- lished, and the receiver of the metropolitan police district is to receive all fees, &t. applicable to the purposes of this act, and is to pay all the expenses and charges attending the courts and in carrying the act into execution. In an action by the receiver against the clerks to Justices acting for a part of the metropolitan police district for which no police court had been established, for monies payable to him as receiver under the above acts, the defendants claimed to retain against him the fees payable for summonses, &c. applied for by police constables acting under the directions of the Commissioners of Police, and to which they were entitled under a table of fees sanctioned as required by the 26 Geo. 2. 0. 14: — Held, that tlie defendants were entitled to demand these fees from the constables applying for the summonses, &o., but that they had no right to retain them as against the receiver out of the monies payable to him under the provisions of the above acts. Wray v. Chapman, 19 Law J. Rep. (n.s.) M.C, 155. MINE. [See Vendor and Puhchaseb.] (A) Rights and Duties of Owners of Mines. (o) As regards adjoining Mines, ( 6) Right of Action. (1) For Consequences of uirmgful Ex- cavation. (2) Against the Hundred. (c) Under Local Custom. (B) Authority and Liability of Directors AND Managers. (C) Mining Leases. An act for the inspection of coal mines, 13 & 14 Vict. c. 100; 28 Law J. Stat 296. (A) Rights and Duties of Owners of Mines. (a) As regards adjoining Mines. Each of the owners of two adjoining coal mines, neither being subject to any servitude to the other, has a right to work his own mine in the manner' most convenient and beneficial to himself, although the natural consequences may be that some prejn- judiee will accrue to the owner of the adjoining mine, so long as that does not arise from the negli- gent or malicious conduct of the party. The plaintiff and the defendant occupied adjoin- ing collieries. A predecessor of the defendant, but with whom he had no privity, committed a trespass, and made holes, called " thyrlings," in a barrier (of coal belonging to the plaintiff) which separated the two collieries. The defendant, in working his mine, broke down a seam of coal of his own, and the consequence was, that the water flowed from his mine into the plaintifTs through the "thyr- lings" : — Held, that there was no duty incumbent on the defendant to prevent the water from flowing from his mine into the plaintiff's. Smith v. Kem'tck, 18 Law J. Rep. (n.s.) C.P. 172; 7 Com. B. Rep. 515. (6) Right of Action. (1 ) For Consequences of wrongful Excavation. Case, for breaking and entering a coal mine whilst in possession of S, and before the plaintiifs were possessed of it, and getting coal therefrom, and causing an aperture to be made therein, and the declaration alleged that though the defendant, after the plaintifis became possessed of the mine, was requested to stop up the aperture, yet he had neglected to do so, whereby water deluged and damaged the plaintiffs' mine. Plea, that H, the former owner of the plaintifls' coal mine, brought an action on the case against the defendant for breaking and entering the mine, in possession of S, and making excavations, and carrying away coal MINE. 429 therefrom, and thereby injuring his reversionary estate, and that several sums were. on that occasion awarded and paid to H and to S, and to the plain- tiffs, in respect of the injuries sustained, by them respectively by the matters in the declaration in that cause alleged, and that the breaking and en- tering in the present action was part and parcel of the grievances in the said action of H mentioned, and in respect of which such damages were award- ed, and that the same were so awarded and paid in respect of such damages and all consequential damages to arise or happen in consequence thereof. The plaintiffs new assigned that the defendant, after the commencement of the first action, and after the making of the award in the plea mentioned, kept and continued the aperture open and unfilled up and neglected to divert or turn off the water, whereby it flowed into the plaintiffs' mine. To the new assignment the defendant pleaded the action brought by H, and the award in his favour, and averred that the grievances newly assigned were merely consequential damages arising to the plain- tiffs by reason of the matters and injuries in the declaration in the said action by H alleged. The plaintiffs set out the award, and replied absque hoc, that the damages were consequential damages, aris- ing to the plaintrfis by reason of the matters and in- juries iu the declaration in the action by H alleged. At the trial it was proved that the coal mine was demised to the plaintiffs by S, in 1839, and that at that time H was mortgagee, S being mortgagor in possession, and that before the demise to the plain- tiffs the defendant broke and entered and took away the boundary coal ; that in 1840 the plaintiffs worked the mine till they came to the place where the excavations were made by such breaking and entering, and the water came in and continued to flow in ever since; that according to the custom of mining the defendant, whose mine was on the rise, had a right to work to the extremity of his mine without leaving any barrier. It further appeared that, in 1841, H, the mortgagee, brought an action against the defendant for the breaking and entering above mentioned,.and that the cause was referred to an arbitrator, with liberty to the now plaintiffs and S to become parties to the reference ; that sub- stantial damages were awarded to H and the now plaintiffs, and nominal damages to S : — Held, that on the above facts, the defendant was entitled to a verdict on not guilty, and on the issue raised on the plea to the new assignment. Clegg v. Dearden, ir Law J. Bep. (n.s.) Q.B. 233 ; 12 aB. Kep. 576. (2) Against the Hundred. The lessees of a mine constructed a wooden trough, by means of which water was conveyed from a distance to a pool half a mile distant from their mine, being as near as the nature of the ground would admit of. The water so brought was used for the purpose of washing the ore ob- tained from the mine : — Held, in an action by the lessees against the hundred for the felonious de- struction of such trough, that it was an " erection used in conducting the business " of the plaintiffs* mine within the meaning of the 7 & 8, Geo. 4. c. 31. s. 2. Barwell v. Hundred of Winterstolce, 19 Law J. Kep. (m.s.) Q.B. 206. (c) Under Local Custom. A custom for a miner or bounder to enter and work land, in search of minerals, (such working not having been commenced or prosecuted by the owner or other person), rendering a portion of the produce to the lord or owner of the soil, and giving due notice of his proceedings, is not an illegal or unreasonable custom ; and the interest so acquired by virtue of the custom is, if the bounder continues in possession and works the mine, such an interest in the mine as may be recovered in ejectment ; but such customary right cannot exist unless there be a bond fide continuing by the bounder to search for ore: and, therefore, where the plaintiff de- clared on his possession of a certain " tenement," to wit " the right to dig and get ore found and being within certain tin bounds," and charged the defendant with disturbing him, and carrying away the ore, &c., — Held, that although the statement of the plaintiff's right might properly describe that which existed when he first took possession of the bounds under the custom, yet in order to make out his right as claimed he must shew a bond fide continuing to work the mine, and that the annual renewal by new cutting the turves, however useful for ascertaining the limits, could not be considered as equivalent to such working. Held, also, that such a claim was to be tried as a custom limited in local extent, and not as the local law of a particular district. Rogers v. Brenion, 17 Law J. Rep. (n.s.) aB. 34 ; 10 Q.B. Rep. 26. (B) Authority and Liability of Dieectors AND Managers. A certain number of persons formed themselves into a company or association, to raise a fund for working mines in America, and 6,000i. was sub- scribed in shares of lOOJ. each. The deed by which the company was formed was dated November ], 1833, and it provided, that the directors should have the power of creating and issuing new shares from time to time, and that the shares should be assign- able. Bills of exchange having been drawn on the company by their agent in America, which" they re- quired funds to meet, an agreement, dated December 24, 1835, was entered into by three of the directors with the plaintiffs, for borrowing the sum of 5,800/. from them, which sum was accordingly advanced by the plaintiffs. In an action by them against certain of the shareholders, of whom A was one, to recover the sura so advanced, — Held, that the fact of A having, on the 17th of December 1835, attended a special general meeting of the company, at which resolutions were passed relating to the sale of certain of the company's mines, in order to provide for the payment of the bills, was sufiBcient evidence to go to the jury, to fix him with liability as a shareholder, though A did not sign the deed, nor was he proved to he the proprietor of any shares, or to have attended any other meeting, or to have done any other act in connexion with the company. Held, also, that his attendance at that meeting, together with the nature of the business transacted at it, shewed sufficient authority in the directors to enter into the contract declared on, on behalf of A and the other shareholders present. Held, lastly, that the association could not be 430 MINE— MISDEMEANOUR. considered a nuisance and public grievance at common law, it not having been found such by the jury on the pleas raising that question. Harrison V. Heaihorn, 12 Law J. Rep. (N.s.) C.P. 282 ; 5 Man. & G. 322 ; 6 Sc. N.R. 735. The defendants agreed by deed to form themselves into a mining company ; that one B should be the resident director or manager of the mine; that he should employ workmen, provide all needful imple- ments, materials and machinery, and so direct the mine as most effectually to promote the interests of the company ; that he should transmit to the secre- tary his accounts monthly of the sums paid for wages, salaries, materials, and otherwise, together with a statement of all debts and liabilities due from the company : provided always, that he should not expend or engage the credit of the company for any sum exceeding 501. in any one month, without the express authority, in writing, of the managing direqtors; — Held, that under this deed B had no authority to bind the company by the acceptance of bills of exchange. Held, also, that a managing director who was represented at a meeting of directors by proxy was not bound by a resolution of the directors present at such meeting, authorizing the resident director to accept bills for the company. Brown v. Byers, 16 Law J. Rep. (n.s.) Exch. 112; 16 Mee. & W. 252. A, one of many co-adventurers in a mine, assumed the entire management of it, and, without the direc- tion of his co-adventurers, opened an account with a banker in the narne of the adventurers, and over- drew that account to a considerable amount. In assumpsit by the bankers against B and F, two of A's co-adventurers in the mine for the balance of their account, — Held, that there was no implied authority to one adventurer from his co-adventurers in a mine to pledge their credit for money borrowed by him for the purposes of the mine. Ricketts v. Bennett, 17 Law J. Rep. (n.s.) C.P. 17 ; 4 Com. B. Rep. 686. (C) Mining Leases. A lease of alum mines gave the lessee the right to obtain alum from certain coal wastes. A sub- sequent lease of the coal mines provided that nothing thereby granted should injure the rights of the parties who held the alum mines. The alum existed in the coal wastes. The coal lessees could not thoroughly work the coal without removing the pillars which supported the roof; but by doing this, the alum would berendered impossible to be reached : — Held, that the coal pillars could not be removed. The Edrl f^f Glasgow v. Hurlet and Campsie Alum Co., 3 H.L. Cas. 25. To an action of trespass for breaking and entering a coal mine, and carrying away the coals, the de- fendants pleaded, setting out a deed made between J S of the one part, and Joseph, Matthew, and James J of the other part, whereby J S granted, bar- gained, sold, and confirmed to Joseph, Matthew, and James J, their executors, &c., all the coal mines, veins and seams of coal of J S under his closes, (naming them), with full and free liberty to them, their executors, &c., at all times during the term thereby granted to dig for and get the same in a fair and workmanlike manner; that in consideration of i20l. paid by them to J S, by yearly instalments until the end of twelve years, they should have the liberty of sinking pits on the said closes for getting coals at any times thereafter during the terms there- inbefore granted ; that J S granted to Joseph, Mat- thew, and James J, their executors, &c., that they, their executors, &c. should enjoy the liberty of getting coals for any time or term of years computing from the time of their beginning to sink until six acres should be gotten, and at the expiration of the term of twelve years, the full quantity of six acres being not then gotten, to have liberty to get the re- mainder, and when all the coals were gotten to the quantity of six acres, the business of getting coals to be carried on until such time as all the coals in the closes were gotten, paying 70/. per acre, &c. Averment, that Joseph, Matthew, and James J en- tered generally into the coal mines ; that they won and dug the six acres before the expiration of the twelve years ; that Joseph J died ; that James J also died, and devised all his estate in the said coal mines to Robert, James, and William J, whom he appointed his executors, and that they as such de- visees elected to take the aforesaid estate by way of use under and by vi rtue of the statute for transferring uses into possession, and then elected that the said indenture should operate and enure under the said statute, whereupon they became entitled to the said coal mines for the residue of the said term. The plea then alleged an entry of the plaintiffs under colour of a certain demise upon -the coal mines, whereupon the defendants, there still remaining eighteen acres of the coals unworked, as the servants of the said executors entered the said coal mine and dug and carried away the said coals : — Held, assuming the grant of the indenture to be a bargain and sale by way of use, that to make it operate under the Statute of Uses an election to that effect was necessary, and that to render such election valid it must have been made not by the executors, but by the bargainees themselves, the survivors or survivor, and therefore that the plaintiffs were entitled to judgment. Qttare — Whether under the present grant, the original parties having discontinued working, their executors could after a considerable lapse of time again enter as if they were the termors, until the whole of the coal had been gotten. Haigh v. Jaggar, 18 Law J. Rep. (n.s.) Exch. 125 ; 3 Exch. Rep. 54. MISDEMEANOUR. [See Indictment.] A bench warrant for the arrest of a defendant on a charge of misdemeanour, concluded thus — " To the end he may become bound, and find suffi- cient sureties," not stating before whom the pri- soner should be taken for the purpose of being hailed : — Held insufl5cient, and that the Court was bound to discharge the prisoner arrested on such warrant Regina v. Downey, 15 Law J. Rep. (n.s.) M.C. 29; 7aB. Rep. 281. In all cases of misdemeanour punishable by imprisonment, the Court of Queen's Bench has power to order the defendant to find sureties to keep the peace for a time certain. Dunn v. Regina, 18 Law J. Rep. (n.s.) M.C. 41 ; 12 Q..B. Rep. 1031. MISTAKE— MONEY HAD AND RECEIVED. 431 MISTAKE. [See Deed, Reforming.] A bill was filed to obtain a re-assignment of some leasehold tenements, whi6h had been assigned to a purchaser for the residue of a term of years to be computed from a speciiied time. It was after- wards discovered that the term did not commence till several years later, and that the lease would existfor twelve years longer than bad been supposed: — Held, that the vendors were not entitled to Sny relief. Okill v. Whittaker, 16 Law J. Rep. (n.s.) Chanc. 454; 2 Ph. 338! 1 De Gex & S. 83. A declaration of trust as to a sum of stock, pro- ceeding upon a clear mistake of title, as recited in the deed, — Held, not to affect the rights of the party really interested, even though he had executed the deed ; no intention appearing on his part to part with bis interest in or to deal otherwise with the stock than to join in declaring the trust thereof according to the then presumed state of title. Ashurst v. Mill, Mill V. Ashurst, 18 Law J. Rep. (N.s.) Chanc. 129; 7 Hare, 502. MONEY HAD AND RECEIVED. [See Company, Liability of Promoters — Plead- ing — Set-off — ^Vendob and Pwrchaseb.] (A) When maintainable generally. (B) Pkivitt. (C) Failure of Consideration. (D) Money ALLOWED by Mistake on Settle- MENT OF Account. (E) Money paid in Ignorance of Facts.- (F) By Tenant in Common against Co-te- nant. (G) By Administrator foe Debts due to In- testate. (A) When maintainable generally. On the 26th of January 1846, the sheriff, under a fi. fa., sued out by the plaintiff, seized the defen- dant's goods. At the plaintiff's request the sale was deferred. On the 9th of May, the plaintiff paid all expenses up to that date, and then wrote to the officer in possession, " Provided the defendant satisfies all future claims, the salemay be postponed." The officer remained in possession till September, and, after a peremptory order from the plaintiff, sold the goods on the 20th of that month. On being ruled, the sheriff returned, on the 24th of October, that after deducting various sums for expenses (among which was an item of 20/. possession money) he had Sil. ready to pay to the plaintiff. The plain- tiff applied to the Court to order the sheriff to pay him the sum of 201. possession-money, as well as the sum of 34i. : — Held, that the plaintiff, by his communications with and directions to the officer, did not thereby discharge the sheriff, and that the proper course to enforce the sheriff's liability was hy summary application, and not by an action for money had and received. Botten v. -Tomlinson, 16 Law J. Rep. (n.s.) C.P. 138. Defendant, being employed by the owner to sell a certain farm, agreed by memorandum in writing to sell the farm to the plaintiff for 2,700/., without naming the seller. The plaintiff paid the defendant 100/. deposit in part of the purchase^ money, and two days afterwards signed a contract for sale by S (the owner) to himself, whereby he agreed to pay on its execution 100/; as a depdsit, for which Sundertook to pay interest till the com- pletion of the purchase. 'The contract was after- wards rescinded for want of title' in S, but the de- fendant before he had notice of the rescission paid S SO/., retaining the other 60/. under an agreement with S to give him (the defendant) half of any amount he might get for the farm above 2,600/., but the retention of the 50/. was without the consent of S :— Held, that the plaintiff could not recover in an action against the defendant for any part of the 100/. Hurley v. Baker, 16 Law J. Rep. (n.s.) Exch. 273; 16 Mee. & W. 26. The defendants purchased in their own names railway scrip for the plaintiff, deliverable on the 29th of August, for 148/. 10s., which sum the plain- tiff paid the defendants on the 26th of August. On the 22nd of August the railway company called in the scrip for registration, and the share certificates were not delivered until December, and in the mean time a call was made in respect of the shares, which was paid by the holder. The plaintiff having repudiated the shares, the defendant declined to take theni from the holder, and they were sold at a loss exceeding the 148/. 10s., and the defendants paid such loss to the holder : — Held, that they being liable to the original holder for such loss, and the plaintiff not having supplied funds to meet the call, an action for inoney had and received could not be maintained by him against the defeii- dants for the 148/. 10s. M'Ewen v. Woods, 17 Law J. Rep. (n.s.) Q.B. 206; 11 Q.B. Rep. 13. Where the defendants agreed to execute certain works, the price to be paid by instalments, but if they made default it was agreed that they should forthwith, on demand, pay to the plaintiffs all the sum advanced; arid afterwards being unable' to perform them, it was agreed that the plaintiffs should complete them, and as a security to them for any advances they might make beyond the balance due to the defendants, they should have a lien on certain shares of the defendants in the plaintiffs' business : — Held, that the plaintiffs could not recover such advances by action for money paid or money had and received ; there lieiiig no liability to repay until the ultimate balance was ascertained, and then only after demand. Royal Mail Steam- Packet Co. v. Acraman, 2 Exch. Rep. 569. The plaintiff, a merchant in London, consigned certain cottons to the defendant and his partners, commission agents at Bombay, with directions to sell the same and remit the proceeds to the plaintiff in good bills on London. The goods were accord- ingly sold by the defendant and his partners in Bombay in August 1847, and produced eight rupees and upwards per piece, but no reitiittances either in money or bills having been made to the plaintiff, the present action was commenced against the de- fendant who had come over to England : — Held, first, that the plaintiff was not prevented from re^- covering in an action for money had and received, by reason of the proceeds having been received not in English but in foreign money. Secondly, that there was no rescinding of the contract on the de- 432 MONEY HAD AND RECEIVED. fendant's part ; and that the action for money had and received would not lie. Ehrensperger v. Ander- son, 18 Law J. Rep.(N.s.)Exch. 132; 3 Exch. Rep. 148. One partner opened an account in the name of the firm, and, as a commissioner under an act, borrowed money of the bank, undertaking " not to remove his funds to the extent of the advance until it was repaid :" — Held, that, assuming that this was a partnership account, the firm could not recover the balance standing to their account in the bank as money received for their use, the advance not having been repaid. Brownrigg v. Raej 5 Exch. Rep. 489. A mercantile firm at Calcutta, by letter dated the 16th of January 1841, requested the defendants, their correspondents in London, to hold a sum of money, payable on the 19th following, out of remit- tances and consignments on their general account, at the disposal of the plaintiff, a merchant at Liver- pool, and a creditor of the Calcutta firm. On the same day the Calcutta firm wrote to the plaintiff, informing him of the directions they had given to the defendants. On the 12th of March 1841 the defendants wrote to the plaintiflT " to advise him of the request of the Calcutta firm," adding — " at the present time we are considerably in cash advance for the firm, and the consignments and remittances hitherto advised will, we think, fall short of the engagements we are under on their account. We have, however, registered the ahove, and should remittances or consignments come forward to enable us to meet their wishes, we shall lose no time in advising you." On the 1.4th of March 1841, the defendants wrote to the Calcutta firm, in answer to their letter, that the state of their account would not warrant the defendants in meeting the requisi- tion for the present ; but should they be in a posi- tion to meet it before November they would do so. By letter on the 8th of January 1842, the Calcutta firm revoked their order for the appropriation of the money: — Held, that the correspondence did not create an absolute contract on the part of the defen- dants to pay to the plaintiff the amount in question out of the remittances and assignments ; and that, consequently, he could not sue them for money had and received for his use. Malcolm v. Scott, 5 Exch. Rep. 601. (B) PmviTY. Where the holder of a ticket in a Derby lottery sold it to the plaintiff before the race, and the horse named in it was ultimately declared to be the winner, — Held, that the plaintiff could not sue the defendant, the stakeholder, in an action for money had and received, for the amount to which the holder of the ticket was, by the conditions of the lottery, entitled, there being no privity between them. Jones V. Carter, 15 Law J. Rep. (n.s.) Q.B. 96; 8 as. Rep. 134. In an action for money had and received, brought to recover sums deposited with the defendant as the treasurer of a money club, it appeared that the money had been deposited not by the plaintiff, hut by his son, a minor, who was a member of the club, and who had made several payments himself, but had afterwards run away from his service, and the payments were then continued by his sister from money furnished hy her mother. There was no evidence that the defendant knew anything of the plaintiff: — Held, that the proper question for the jury was whether there was any privity of contract between the defendant and the plaintiff, and that a .direction that if the money deposited was the money of the plaintiff, he was entitled to recover, was wrong. Bluck v. Siddaway, 15 Law J. Rep. (n.s.) Q.B. 359. A legacy having been left to the plaintiff the defendant, who acted as agent for the executor, stated, in a letter to a third party, that he would remit the plaintiff's legacy in any way the latter might suggest. He afterwards paid 24i. to the plaintifi", having deducted 6tl7s. 6d. for his trouble and expenses, and, afterwards, sent him an account, stating the reason of the deduction : — Held, that the plaintiflT was not entitled to recover this sum in an action for money had and received. Barlow v. Browne, 16 Law J. Rep. (n.s.) Exch. 62 ; 16 Mee. & W. 126. In an action for money had and received, brought by plaintiff, as administrator of Jane V, against defen- dant, as executor of Ann V, it appeared that Jane and Ann were sisters, Jane being the elder. The plaintiff's case was, that Jane had lent money to one E, who gave his promissory note for the amount, payable to Miss V. After the death of Ann, who survived Jane, defendant, as the executor of the survivor, sued E upon the note, alleging it to be payable to both sisters jointly, an alteration to that effect having, as it was said, been made in the note. E settled the action, and paid the amount of the note to the defendant: — Held, that the plaintiflf could only support this action by affirming the act of the defendant in obtaining payment of a note payable to hoth sisters, but as he would have no right to receive payment of such a note, an action for money had and received to his use would not lie. Vaughan v. Matthews, 18 Law J. Rep. (n.s.) QB. 191 ; 13 a.B. Rep. 187. (C) Failuee of Consideration. Debt for money had and received. Plea, that after the accruing of the debt, the defendant exe- cuted an annuity deed granting the plaintiff an annuity, which said writing obligatory the defen- dant then delivered to the plaintiff, and the plaintiff then accepted and received in full satisfaction. Re- plication, that no memorial of the said annuity deed was enrolled within thirty days, and that, after the thirty days, part of the annuity became due ; that the plaintiff thereupon brought an action on the deed, and that the defendant pleaded that no me- morial was enrolled, and that the annuity was therefore void, and the plaintiff thereupon elected that the said indenture should be null and void, and discontinued the action : — Held, on special demur- rer, to be a good answer to the plea ; and that the plaintiff, by shewing that, by the default or act of the defendant, the annuity deed had become no deed at all, was entitled to recover the original con- sideration-money for the deed. Turner v. Broume, 15 Law J. Rep. (n.s.) C.P. 223 ; 4 Dowl. & L. P.C. 201 ; 3 Com. B. Rep. 157. The defendant having bought a personal chattel at a sheriff's sale, the plaintiff afterwards offered and the defendant accepted 51. for his bargain, and the plaintiff paid the advanced price to the defendant. MONEY HAD AND RECEIVED. 433 Afterwards the chattel was claimed hy a third party under a superior title, and the plaintiff was pre- vented from taking possession of it. Both parties knew that the sale took place under an execution ; — Held, that under the circumstances there was no implied warranty of title by the defendant; and that the plaintiff could not recover back the price paid by him, as Upon a failure of consideration. Whether the vendor of a personal chattel is bound to refund the price if he has no title, quiere. Chapman v. Speller, 19 Law J. Rep. (k.s.) U.B. 239. An agreement recitpd that the defendant had, as lie was advised, legally put an end to a lease granted to S H of a farm, by entering thereon by reason of the bankruptcy of S H, pursuant to a power in the lease; and it was thereby agreed that the defendant should grant a lease of the farid to the plaintiff at a yearly rent, payable quarterly. The lease was to commence on a day certain, ifthe defendant could then legally make it, or as soon as he was in a situation to do so ; the rent to commence from the commencement of the term, or on possession being given, which should first happen. The plaintiff was to pay the defendant soot on possession being given to him, as a bonus for the lease so to be granted. The plaintiff was admitted into possession, and occupied the farm for two years, and paid 2501. in respect of the bonus. The defendant was unable to grant the lease, the commission of bankruptcy of S H having been superseded. The plaintiff brought an action against the defendant for not making the lease, averring in the declaration that the defendant was in a situ- ation to grant the lease, and that a reasonable time for granting it had expired ; and he also claimed the 2501. as money had and received to his use: — Held, that the recital in the agreement was primd facie evidence against the defendant that he had power to grant the lease j but that, such recital purporting to be founded on the supposed bank- ruptcy of S H, the evidence was answered by proof that the commission against him had been super- seded. Held, also, that the granting of the lease being the consideration for the bonus, the plaintiff was entitled to recover back the 2501. as money paid on a consideration which had failed, although he had had a beneficial occupation for two years. Wright v. Colls, 19 Law J. Rep. (n.s.) C.P. 60 ; 8 Com. B. Bep. 150. The plaintiffs, in London, ordered from the de- fendant, at Singapore, first 25 tons and then 150 tons of gum, at 18*. per owt., all charges included. The defendant sent invoices and bills of lading of these two quantities as shipped at Singapore, which invoices and bills were handed to the plaintiffs in exchange for their acceptances for the respective amounts according to the invoices, and before the arrival of the goods the plaintiffs paid the amount of their acceptances. When the goods arrived, they were found to be 11^ percent, deficient in weight, part of which deficiency was attributable to. evapo- ration during the voyage, and the rest to the fact, that the weight of the baskets and leaves in which the gum was packed was included in the invoice weight. At Singapore .the gum in question is usually purchased jby gross "weight, including the Digest, 1845—1850. baskets and leaves, but in the London market it is bought at the net weight, deducting packages:- — ■ Held, that there was a failure of con^iideration, and that the plaintiffs were entitled to recover the excess above the price of the net weight of the gum, at 18s. per cwt., from the defendant, in an action for money had and received. Devauxv. Conolly, 19Law J. Repi (n.s.) C.P. 71 ; 8 Com. B. Bep. 610. (D) Money allowed by Mistake on Settlet MENT of Account. Upon the settlement of an account between A and B, a balance was struck and paid by A to B : — ■ Held, that B was not entitled to recover as money had and received a sum which had been, by mistake, allowed upon such settlement as due to A, such sum never having passed between the parties other- wise than by such allowance, Lee v. Merrett, 1 5 Law J. Bep". (n.s.) Q.B. 289 ; 8 aB. Bep. 820. (E) Money paid in Ignorance of Facts. The defendant having issued execution against one H, on the 25th of April lodged a,fi. fa. against the goods of H, with the plaintiff, the sheriff of L.; Prior to the seizure of the goods, which took place on the 27th of April, the defendant had notice of an act of bankruptcy committed by H. On the 11th of May the plaintiff, the sheriff, executed an assignment of the goods of H to the defendant for 2561., by an instrument, which expressed that the defendant had paid that sum, and the plaintiff then made a return of fieri feci. A fiat in bankruptcy having issued against H in August, the assignees sued the plaintiff, and recovered from him the value of the goods of H, with costs. The plaintiff thereupon brought the present action for money had and received, to recover the 256?. from the defendant. Held, first, that as between themselves, the plain- tiff and the defendant were in the same situation as if the plaintiff had sold to the defendant and had received the money; the evidence shewing that the money was treated as paid over to the defendant. Secondly, that if the money was not the plaintiff's money, still he was entitled to recover the money, which he ought to have received as soon as he had been compelled to pay for the goods seized by the real owner. Thirdly, that the sheriff was not es- topped in another action by his return of fieri feci from saying that the then title of the debtor was defeated by matter subsequent. Lastly, that the money having been paid by the plaintiff necessarily in ignorance of the facts, and without any miscon- duct, he was not prevented from recovering it by' the fact that the defendant had in the mean time paid the money to him, and therefore could not be placed in the same situation. Slandish v. Ross, 19 Law J. Bep. (n.s.) Exch. 185; 3 Exch. Bep. 527i (F) By Tenant in Common a&ainst Co-tenant. One tenant in common of real property cannot maintain an action for money -had and received against his co-tenant, his remedy bging by an action of account un4er the 4 Ann. c. 16. s. 27. Thomas v. Thomas, J 9 Law J. Rep, (n.s.) Exch. 175 ; 5 Exch. Rep. 28. 3K 434 MONEY HAD AND RECEIVED— MONEY PAID. (G) By Administeatok for Debts due to In- testate. Money had and received will lie by an adminis- trator against a stranger for debts due to the intes- tate received by him between the time of the death of the intestate and the grant of administration, as well as for money arising from the sale of his goods. A died in May 1848. B, a stranger, took pos- session of his goods, and sold them, and received debts due to him, and conducted his funeral. In July 1848 letters of administration were granted to C : — Held, that C might recover against B in an action for money had and received, both for the amount of the debts wrongfully received and for the produce of the goods wrongfully sold by him. Welchman v. Sturgis, 18 Law J. Rep. (n.s.) Q.B. 211; 13 Q.B. Rep. 552. MONEY LENT. "Where the defendant, a commercial traveller, was authorized by the plaintiff to deduct certain sums from the amount he might receive on his account, to be repaid out of the commission the defendant was to be paid by other employers, — Held, that the sums might be recovered under a count for money lent. Shepherd v. Philips, 2 Car. & K. 722. In assumpsit for money lent, &c., it appeared that, nine years ago, the plaintiff's testatrix trans- ferred 1,000/. il. per cent, stock to the defendant, who possessed other of the same stock, and who afterwards sold out the whole, and paid sums equal to interest on the testatrix's stock at 5L per cent, until her death. Upon application by the executor, treating the transaction as a loan, the defendant asserted that he was employed by the testator to purchase an annuity, and that he had done so, but no purchase of any annuity was shewn: — Held, that there was evidence to go to the jury to support the Count for money lent. Howard v. Danbury, 2 Com. B. Rep. 803. MONEY PAID. [See Debt, Action of. — See also Pollock v. Stables, 17 Law J. Rep. (n.s.) Q.B. 352; 12 Q.B. Rep. 765 ; title Company, (A) (i) (2).] The action for money paid is maintainable in every case in which there has been a payment of money by the plaintiff to a third party, at the re- quest of the defendant, with an undertaking, express or implied, to repay the amount ; and it is immaterial whether the defendant is relieved from a liability, by the payment, or not. Where an auctioneer was employed to sell an estate by auction, which was bought in at the sale, and the Commissioners of Excise refused to remit the duty thereon, and ultimately compelled the auctioneer to pay it, — Held, that he might recover the duty from his employer in an action for money paid. Brittain v. Lloyd, IS Law J. Rep. (n.s.) Exch. 43; 14 Mee. & "SV. 762. "Where a tenant pays property-tax assessed on the premises, and omits to deduct it in his next pay- ment of rent, he cannot afterwards recover the amount as money paid to the use of the landlord. Camming T. Bedborough, 15 Mee. & "W. 438. The plaintiff accepted a bill for 25/. for the accommodation of E, who was. pressed at the time by the defendant, a sheriff's officer, for seven guineas, claimed as being due for possession money. F was to get the bill discounted by the defendant or elsewhere, and to give the plaintiff the surplus above the seven guineas. He deposited it with the defendant as a security for that sum, the defendant knowing the circumstances, and that the plaintiff had had no value for his acceptance. The defen- dant indorsed it over, and kept the proceeds. The holder sued the plaintiff, who thereupon paid him the whole amount of the bill: — Held, that the plaintiff had no right of action against the defen- dant as for money paid to his use on a request im- plied by law ; but that his remedy was against F on an implied contract to indemnify the plaintiff for lending him his, the plaintiff's, acceptance. Asprey v. Levy, IS Mee. & "W. 851. The plaintiff having a claim against a proposed company agreed with the defendant (a member of the managing committee) to sue other members of the committee who refused to contribute so as to relieve the defendant to the extent of the amount thus recovered : — Held, that the sum paid by the plaintiff to his o^n attorney for his costs in bring- ing these actions was properly recoverable from the defendant as money paid to his use. Bailey v. Maeaulay, 19 Law J. Rep. (n.s.) Q.B. 73; 15 Q.B. Rep. 533. The plaintiff being indebted to D gave him an order on M & M, who refused to pay it, and told D that they would pay the amount to the defendant, to whom D was indebted in a larger sum. They accordingly credited the defendant with the amount. The defendant gave the plaintiff a letter of indem- nity against any steps which D might take against him for the amount. D afterwards brought an action against the now plaintiff, which was defended in his name by the present defendant. Judgment having been recovered against the^'plaintiff, he paid a sum of money to save himself from arrest: — Held, that, under the circumstances, a request by the defendant to the plaintiff to pay the money must be implied, and that an action for money paid to the defendant's use would lie, notwithstanding the special agreement to indemnify. Lewis v. Campbell, 19 Law J. Rep. (n.s.) C.P. 130; 8 Com. B. Rep. 541. The plaintiff drew and indorsed a bill of exchange for the accommodation of the defendant, the accep- tor, which was dishonoured when due, and he sub- sequently patd the holder a sum of money in dis- charge of his liability thereon, without having had notice of dishonour, and without any express re- quest from the acceptor :— Held, that he could not recover the amount from the acceptor as money paid to his use. Sleigh v. Sleigh, 19 Law J. Rep. (N.s.) Exch. 345; 5 Exch. R»p. 514. MONEY TAKEN FROM A PRISONER— MORTGAGE. 435 MONEY TAKEN FROM A PRISONER. A defendant committed to take his trial at the assizes for assaulting a constable, had a sum of 22, 3s. 8d. taken frum him by the constable who conveyed him to prison, to pay for (as was alleged) the expenses of conveying him to the prison, and his maintenance in prison till the trial, this being the ordinary practice in the county of Stafford:— Held, that the practice was quite wrong, and the Judge at the assizes directed the money to be re- stored to the defendant. Regina v. Bass, 2 Car. & K. 822. MORTGAGE. [See Charge.] (A) Constitution and Extent. (B) Equitable Mortgage. (C) Rights of the Mortgagee and oteebs CLAIMING under HIM. (D) Priority. (E) Tacking. (F) Redemption and Reconveyance. (G) Foreclosure. (H) Accounts. (I ) Merger. (K) Costs. (L) Practice. (M) Mortgagee Acts. (A) Constitution and Extent. [See Trust and Trustee, Trustee and Mort- gagee Acts.] By indentures, dated in December 1826, an estate was conveyed to C by way of mortgage for the term of 2,000 years, and, subject thereto, to such uses as A and B should jointly appoint, with remainder in default of such appointment to A for life, with re- mainder to B in fee. By indentures, dated in De- cember 1839, A, B and C conveyed the estate to D, (who had paid off the mortgage debt created by the deeds of 1826), in fee, by way of mortgage, with a proviso, that if A and B or either of them, their or either of their heirs, should pay the mortgage debt, D would convey the estate to A and B and their heirs ; and a declaration that, as between A and B, the mortgage debt should he considered as a charge on the estate, and that A should pay the interest in his lifetime. B died in the lifetime of A : — Held, that notwithstanding the proviso for re- demption contained in the deed of December 1839, the estate, subject to A'&life estate, was vested in B absolutely. Hipkin v. Wilson, 19 Law J. Rep. (k.s.) Chanc. 305. (B) Equitable Mortgage. [ Wilmot V. Pike, 6 Law J. Dig. 452 ; 5 Hare, 14.] A deposited the title deeds of two estates with W & Co., as a security for past and future advances, and accompanied the same with a memorandum. Subsequently to the date of the deposit, B and C recovered judgment against A, and obtained pos- session of the estates by writ of elegit. Upon a hill by W & Co. praying relief as equitable mortgagees. — Held, that W & Co. were entitled to'payment of their debt, in preference and priority' to the subse- quent elegit creditors, notwithstanding the 1 & 2 Vict. c. 110. ss. 1 1, IS, Whitumrthy. Gaugain, 15 Law .7. Rep. (n.s.) Chanc, 433; 1 Ph. 728. A, deposit of title-deeds primA facie creates an equitable mortgage upon the whole property. jCom- prised in them. 'i'l , A debtor deposited title-deeds with his creditor until his account should not exceed 100/., wheii they were to be restored to him. He died iiidebted to the creditor in 274/. : — Held, that the creditor|s lien extended to the whole 274/. QMtsre — Whether the depositof title-deeds without a legal security will make a debt bear interest which does not in its nature bear interest, i Ashton v. Daliffn, 2 Coll. C.C. 565, ; A made a lease of laud to B. B made an equi- table mortgage of the lease to C, and C was for some time in possession of the property, and paid some rent to A. C subsequently gave back the possession to B. A Has no equity to compel C to take a legal assignment of the property. Moore v. Greg, 18 Law J, Rep. (n.s.) Chanc. 15. A , lessee of a factory deposited the lease by way of equitable mortgage and, upon the landlords' distraining for rent in arrear, the depositees of the lease paid the rent in arrear to the landlords, entered into possession of the factory, sold some of the ma- chinery including some fixed to the freehold, and otherwise acted as owner of the lease, and were accepted by the landlords as such owners: — Held, on demurrer, that the landlords had no equity to compel them to take alegal assignment of the lease. Moore v. Greg, 2 De Gex & S. 304, (C) Rights of the Mortgagee and others claiming under him. ^Wiltshire v. Rabbitts, 5 Law J. Dig. 452; 14 Sim. 76.] ' Certain stock, of which A, B, C, and D were trustees, was sold out, and the proceeds lent to C and D, upon the security of the title-deeds of pro- perty belonging to C and D, as tenants in common, the deposit being accompanied with a memorandum of agreement to execute a legal mortgage. C having obtained the deeds from B, in whose cus- tody they were deposited, made a second equitable mortgage of his mpjety to S, who, at the time of taking his security, had no notice of the prior charge. C became bankrupt, and the security being insufficient, S (*ho had then notice of the prior charge)' took a conveyance, under the bank- ruptcy, of C's moiety in satisfaction of his charge. On bill by A against B, D (C being dead),'the cestui que trust of the stock, and the second ,morb^ gagee, claiming tO' have his charge satisfied in priority to S, — Held, that the acquisition by S of the legal estate would not alter the relative position of the incumbrancers, the conveyance being taken from the assignees of C after notice of the - express trusts with which it wa.s affected in his hands; secondly, that the allowing the mortgagoi: to have possession of the title.^deeds was not of itself frau- dulent, so as to postpone the first mortgagee; and, no fraudulent intent being, charged, the Court declined to direct an inquirjry and made the usual foreclosure decree, but without costs. AUen v. 430 MORTGAGE. Knight, 5 Hare, 272; 15 Law J. Rep. (n.s.) Chatic. 430; affirmed 16 Law J. Rep. (n.s.) Chaiic.370. A few weeks after the death of a mortgagor and before probate of his will had been obtained, the mortgagee proceeded to exercise a power of sale of a reversionary interest. Several communications were taking place at the time between the solicitors of the mortgagee and the solicitors who acted on behalf of the family of the mortgagor, and who protested against the sale as unnecessary and op- -pressive, and offered to pay all the principal money, interest, and costs as soon as an assignment could be prepared. It was not shewn that there was any fraud in the transaction, or that the reversion- ary interest was sold at an undervalue. A bill, filed by the executrix of the mortgagor, to set aside the sale, was dismissed, with costs, reversing the decision of the Court below. Matlhie v. Eduiards, 16 Law J. Rep. (n.s.) Chanc. 405 ;. reversing Jones V. Matthie, Coll. O.C. 465. A suit was instituted to ascertain the rights of the plaintiff and others to certain property : the plaintiff pending the suit made three mortgages of his share to different persons who were brought before the Court by supplemental bill. A decree "Was made declaring the plaintiff entitled to one- fifth of the estate, and directing the costs to be paid as between party and party out of the aggre- gate fund. The first mortgagee now presented a petition for payment of his principal, interest, and costs. The plaintiff claimed the extra costs as a prior charge ; this was resisted by the second mortgagee: — Held, that the plaintiffwas notentitled to the extra costs, but that the second mortgagee was entitled to take the fund, leaving the plaintiff's costs in that respect unpaid. Smith v. Plummer, 18 Law J. Rep. (n.s.) Chanc. 456. The circumstance that a mortgagee, with power of sale, has entered into a contract to sell a portion of the property comprised in the security for a sum greater than the amount due on the mortgage, held, not a sufficient ground for restraining him from suing on the covenant for paynfient contained in the mortgage deed. Ifilles v. Levett, 1 De Gex & S. 392. The statute 1 & 2 Vict. m. 110. =. 68. does not make it the duty of a mortgagee as against the provisional assignee of an insolvent mortgagor, to obtain an order from the Insolvent Court for a conveyance of the equity of redemption, and an offer by the provisional assignee to facilitate pro- ceedings in such an application does not entitle him to his costs in a subsequent suit against him for foreclosure. Grigg v. Sturgis, 5 Hare, 93. A, who took an estate by conveyance from his father, afterwards mortgaged it with a power of sale in default of payment within three months after notice in writing given to A, or left at his last or usual place of abode. The conveyance to A was subsequently declared void as against creditors. The mortgagee afterwards affixed a notice demand- ing paj'ment on the door of the last known place of abode of A, and a short time before the expiration of the three months, entered into a contract to sell the property : — Held, that the right of the mortga- gee was paramount to that of the creditors, and that the notice to A was well served ; and that the con- tract for sale was not invalid, though made before the expiration of the three months. Major v. Ward, 5 Hare, 598. A mortgagor covenanted with the mortgagees to insure the mortgaged premises against fire in their joint names. After his decease the mortgagees entered into possession, and insured the premises : — Held, that they were not entitled, as a matter of course, to add the amount of the premiums for such insurance to the mortgage debt, and charge it against the mortgaged premises. Dobstm v. Land, 19 Law J. Rep. (n.s.) Chanc. 484. A mortgaged three houses to B, and afterwards contracted to sell one of them to C, who paid the purchase-money, but did not obtain a conveyance, and had constructive notice of the mortgage. C afterwards paid off B and took a transfer of his mortgage, and filed a bill against the devisee of A, and several mortgagees under subsequent mortga- gages by A. A decree was made for specific per- formance by the devisee of A of the contract of sale as to the one house, and for the successive fore- closure of all the subsequent mortgagees and the devisee of A, in default of their redemption of the other houses. Sober v. Kemp, 6 Hare, 155. In trespass qnare clausum /regit, the plaintiff made title under a mortgage deed of the 6th of March 1840, by. which the mortgagor, H, demised premises to the plaintiff from thenceforth for a cer- tain term, subject to a proviso that the demise should cease and be void if H paid principal and interest by the 6th of March 1841, and interest at stated periods in the mean time; and to another proviso, empowering plaintiff to sell (after thi^ee months' notice), if default should bemade in payment of principal and interest at the times named. Then followed covenants (among others) by H to plaintiff, for principal and interest at the days appointed, and that, at any time after default made in such payment, it should be lawful for plaintiff peaceably and quietly to enter upon the premises, and from thenceforth, for the residue of the term, to hold the same and take the rents and profits without lawful interruption from H or any other person, &c. On pleadings in trespass, setting forth the deed, and shewing that plaintiff had entered upon the mortgaged premises after the execution of the deed but before the 6th of March 1841, and before default in payment, and raising the question whether or not he had a right so to enter, — Held, that the deed gave power to the mortgagee to enter before default and before the day named for any payment. Sogers v. Graxebrook, 8 Q/B. Rep. 895. A lease made by a mortgagor held not to be binding on a purchaser of the legal estate from the mortgagee and of the equitable estate from a party deriving it from the mortgagor, though he had received rent, but that he might recover in ejectment after notice, or sue for use and occupa- tion. Doe d. Downev, Thompson, Downev. Thompson, 9 Q.B. Rep. 1037. Where a mortgage deed contained a power for the mortgagee to enter and distrain upon the mortgaged premises for interest, if unpaid for twenty -one days, in like manner as for rent reserved Bn a lease, and the mortgagee had entered amd distrained at a period later than the day of the demise laid in the declaration, but for interest accruing due before the MORTGAGE. 437 day of the demise, it was held to he no recognition of the defendant as tenant, and that ejectment might he maintained. Doe d. iVilkinson v. Goodier^ 16 Law J. Rep. (n.sO Q-B. 435; 10 Q.B. Rep. 957. A declaration in covenant for rent set out an indenture of the year 1820, hy which, after the recital of a mortgage deed of 1818, containing an assignment hy Y of certain premises to J E S, for the residue of a term of 5,000 years, subject to redemption on payment hy Y to J E S of 1,2001, with interest, J E S demised the premises to R L for a term at the request of Y, he, the said R L covenanting for himself, his assigns, &c., to pay the rent during the term demised, and the continu- ance of the recited mortgage to J E S, and after payment and satisfaction of the mortgage to Y, his executors, &c. It was then stated that in 1821 J E S assigned to G H S, subject to R L's lease j and that G H S assigned one moiety to the plaintiff on the 15th of December 1843, and the other on the 18th of February 1835 ; that R L's term he- came Vested in the defendant, and that after the defendant became possessed of the residue of such term (to wit), on the 25th of March 1844, two years' rent became in arrear to the plaintiff. Plea, that before the rent became due J E S was paid and satisfied the principal and Interest due ou the mortgage out of monies arising from the sale of part of the premises ; and that J E S by indenture acknowledged the payment out of such monies, and released Y from all claims, &c. : — On special demurrer, the Court of Queen's Bench held the plea bad for duplicity, and the declaration good. The Court of Exchequer Chamber affirmed the judgment, and held that the plea was bad for du- plicity, and also for not sufficiently shewing that the mortgage debt was discharged and the estate exonerated. Also that the covenant in the declaration to pay Y, &c. until payment and satisfaction of the mort- gage ran with the land, and did not become a cove- nant in gross till the happening of the event. That the payment of the mortgage money was a condi- tion in defeazance, which ought to have been pleaded by the defendant ; that it sufficiently appeared in the declaration that the rent became due after the assignments to the plaintiff, because on demurrer the dates of the assignments must be taken to be true, and that on the 25th of March 1844 the plaintiff was entitled to half a year's entire rent, and a moiety of the other year and a half yeai's rent; and that the Court below having power to assess the damages, the declaration was good. Whilaker v. Harrold, 17' Law J. Rep. (u.s.) ft.B. 313; 11 aB. Rep. 163. (D) Pkioritt. A having a mortgage for 1,150/., agreed to join with the mortgagor in assigning the mortgaged tenements to another person, who was to advance 7501., which was to he paid to A, and the mortgagor was to execute to A another mortgage for the residue of her debt, so as to make A second incumbrancer. A deed of assignment was accordingly executed, but the mortgagor afterwards refused to execute a further mortgage to A. The mortgagor afterwards procured S to pay off the mortgage debt of 750/., and the mortgagee signed an undertaking to execute a re-assignment. A filed a bill to enforce her lien : — Held, that having proved the agreement between herself and the mortgagor by parol evidence, she was entitled to a lien for the residue of her debt, hut that the 750!. was the first charge upon the estate. Banks v. WhittaU, 17 Law J. Rep. (N.s.)Chanc. 14; 1 De Gex & S. 536 ; affirmed 17 Law J. Rep. (n.s.) Chanc. 362. • A mortgagor and mortgagee joined in, assigning the mortgaged lands to A. The deed recited that the former mortgage deed had been deposited by the first mortgagee with J as security for 1,000/. No such deposit had at that time been made, hut the deed remained in the possession of the first mort- gagee, and was afterwards deposited by hirn with J as a security for 200/.: — Held, that A's mortgage was the prior charge upon the mortgaged lands,, in preference to the claim of J ; and the ,Conrt being of opinion that J had notice of A's mortgage prior to his advance, although J had denied that fact, he was also ordered, in default of payment of A's mort- gage debt, to deliver up to A the, former mortgage deed. Whether the delivery up of the deed would have been ordered if J had not had notice of A's mort- gage^^-juffire. Fraxer v. Jones, 17 Law J. Rep. (n.s.) Chanc. 353 ; 5 Hare, 475. A deposited a lease of a public-house with B, hy way of security for a debt, and subsequently ob- tained it from B, on a representation that it was required to be produced before the Justices for the purpose of obtaininga licence, and signing an under- takiiig to restore it. A then - deposited this lease with C as a security for money advanced by C :— Held, that B's equity was prior to that of C. Ex parte Reid re Buckland, 17 Law J. Rep. (n.s.) Bankr. 19. A having areyersionary interest in personalty which he had mortgaged first to B, and next to C, agreed to sell it to D for 1,500/., and D having at his request paid off B out of the 1,500/., he agreed that until the sale should be completed, D should stand in the place of B, and have thefull benefit pf her security : — Held, that B's debt was extinguished ,hy the payment made to her by D, and that D had no priority over C. fVatts v. Symes, 16 Sim. 640. By a charter-party, dated in April 1845, made between B and Co. the owners, and M & Co., it was agreed that M & Co. should charter the ship F at a certain rate, the freight to be payable by certain instalments at fixed periods, and the remainder at the termination of the voyage. By a separate, hut contemporaneous instrument, it was agreed be- tween the same parties that the speculation should be at their joint risk. The charter-party remained in the hands of B & Co., who, in December fol- lowing, deposited it with their bankers, as a security for money advanced. The bankers in March 1846 gave notice to M & Co. of the deposit, and claimed, the freight due and to become due thereunder. Several payments were then so made by M & Co. to the bankers in accordance with the charter- party. B & Co. afterwards became bankrupt. In August 1846 the ship returned, and the adventure proving a losing one, M & Coj then first informed the bankers that it was' at the joint risk of them- selves and B & Co. :— Held, that M & Co. hy their conduct had precluded themselves from insisting 438 MORTGAGE. as against the bankers on their prior equity, and the order for an injunction to restrain the bankers from proceeding upon an action at law for the whole of the unpaid freight, was dissolved. Mangles v. Dixon, 19 Law J. Rep. (n.s.) Chanc. 240; I Mae. & G. m ; 1 Hall & Tw. 542. A testatrix bequeathed a sum of \fiOOl. to trus- tees, in trust to invest the same, and to pay the annual produce during the life of M F H into her proper bands, or to her order for her separate use. The testatrix died in 1838, and, by deed, dated the 24th of October 1840, M F H, in consideration of aOOl, granted an annuity of 30i to J H, payable half-yearly during M F H's lifetime, out of the dividends and interest to accrue on the legacy of 1,000^, or the securities for the same. This an- nuity was afterwards assigned to trustees for J H. By another deed of like date, and made between C H and the several parties to the other deed, C H covenanted with J H to pay to her the annuity of 30(. as often as default should be made in pay- ment thereof by M F Jcl until the legacy should be invested by the testatrix's executor, and it was by the same deed agreed that C H should stand in the place of J H, as regarded the interest and dividends to accrue due to the extent of any sums that might be paid by him to J H previously to the investment of the legacy. C H paid divers sums to J JI under his covenant, and in November 1840 the executor received notice of J H's security, and in 1846 he received notice of a subsequent mortgage executed by M F H of her interest in the same dividends and interest to S, but no express notice was given to the executor of the deed to which C H was a party until May 1848. In July 1848 the legacy of l.OOOi., less the duty, and the interest thereon, amounting to SoQl. 10s., were paid into court by the executor under the statute 10 & 11 Vict. c. 96, to an account entitled " The account of M F H and her incumbrancers": — Held, that C H was entitled to priority over S to the extent of the payments mad^by him to J H. Held, also, that the expenses attending the payment into court under the statute 10 & 11 Vict. c. 96, must be paid by his executor out of his testatrix's estate. In re CawOwrnc, 18 Law J. Bep. (n.s.) Chanc. 116; 12 Beav. 56. Stock stood in the names of D and L in trust for K. for life, with remainder to A absolutely. A by will bequeathed the stock to B, and appointed D, one of the trustees, her sole executor. After A's death B assigned all his estate and effects to L and another upon trusts for the benefit of his creditors, but no notice of this assignment was given to D ; and after- wards B assigned the particular stock to C by way of mortgage, and notice of the last assignment was forthwith given to D. Upon bill by C, it was held that the legacy not having been assented to, notice to the executor was necessary, and that notice to the trustees alone was not sufficient, and that con- sequently C was entitled to priority. Jlolt v. Dewell, 15 Law J. Rep. (n.s.) Chanc, 14; 4 Hare, 446. (E^ Tacking. A having mortgaged an estate to B and C in succession, agreed to sell it to D free from incum- brances ; part of the purchase-money was to be paid down and the rest on the completion of the purchase. During the investigation of the title A induced D, who was ignorant of the mortgages, to make further payments on account of the purchase- money, and having also raised a further sum from E on the security of his contract, without giving him notice of C's mortgage, became insolvent and absconded. D thereupon, with notice of all that bad happened, paid off C's mortgage out of the balauce of the purchase-money remaining due, and E, to secure himself, took an assignment of B's mortgage; but the balance of purchase-money not being sufficient to pay both E's charge and what E had paid to B, — Held, that E was not entitled to tack his security to B's mortgage, first, because his security was on the p-urcbase-money, not on the estate, and secondly, because, though E, when he advanced the money, had no notice of any parti- cular incumbrance except B's, he knew that he was dealing for a supposed balance out of which D, having contracted for the estate free from incum- brances, would be entitled to pay off any incum- brances to which the estate might be subject, and therefore the equities of D and E were not equal. Lacey v. Ingle, 2 Ph. 413. H C mortgaged the entirety of freehold, and part of copyhold, hereditaments to secure payment of 6,500i. M C, who was the owner of two-thirds of the freeholds, received two-thirds of the 6,500t, and he and his wife joined in collateral securities for payment of the whole sum. H C afterwards paid 5001. of the mortgage debt, and, subject thereto, conveyed his one-third of the freeholds to secure payment of 12, OOOZ. M C subsequently mortgaged his two-thirds of the freehold hereditaments to secure payment of 2,106/. The first and last mortgages were assigned to G B T, who filed his bill for redemption or foreclosure : — Held, — affirm- ing the decree of the Vice Chancellor of England — First, that G B T was not entitled to tack- the last mortgage to the first. Secondly, that the accounts of the rents and profits of the mortgaged premises possessed by G B T should be taken against him, with annual rests, if they should be found to have exceeded the interest on the mortgages. For form of a decree directing successive redemp- tions or foreclosures, and also splitting the equity of redemption, seep. 245, infra. The separate estate of M C's wife was not affected by her joining in the securities. Thorneycroft V. Crockett, 2 H.L. Cas. 239. (F) Redemption and Reconveyance. [See Insolvent Deetoe.] [Broum v. Cole, 5 Law J. Dig. 455 ; 14 Sim. 427.] A mortgaged an estate and delivered the title- deeds to B. Some years after A gave notice of his intention to pay off the mortgage at the end of six months, but did not pay the money till after that time, owing to B not having offered any satisfactory indemnity in respect of having lost some of the title-deeds. B then brought ejectment for the estate, whereupon A filed a bill to redeem. The Court decreed a redemption, and ordered that a sum which A had paid for interest on the mortgage money after the expiration of the six months should be repaid to him ; that B should give him an in- demnity to be approved by the Master, and pay the MORTGAGE. 439 costs of tlie ejectment and suit. Midleton v. Eliot, 15 Sim. 531. In 1843 A mortgaged freeholds and leaseholds to B for 200/. In 1845, reciting that mortgage, he charged the property with the further sum of 400/., which he then owed B, and assigned other property to B as a security for that sum, and empowered B to sell the property and to retain the 400/. out of the proceeds : — Held, that the property assigned in 1845 was redeemable on payment of the 400/. only. Watts y.Symes, 16 Sim. 647. In a suit to redeem agaiiist a devisee of a mort- gage, an account oi the rents received by the devisor may be obtained without his being represented on the record. Trulock v. Robey, 15 Sim. 277. In a suit to redeem against a mortgagee in pos- session, the Court will not direct the Master to fix ■and charge the defendant with an occupation rent, unless the plaintiff alleges and shews not only that defendant has been in possession of the mortgaged estate, and in receipt of the rents and profits of it, but also that he has been in the actual occupation of it, or of part of h> semble. Trulock v. Robey, 15 Sim. 265. A husband and wife, by deed acknowledged, demised freeholds of the wife to a mortgagee by way of trust, the trusts being to apply the rents and profits in .payment of certain premiums on insurance, and of the interest on the mort- gage debt, and then in reduction of the prin- cipal, until it should be paid off. The husband took the benefit of the Insolvent Act : — Held, in a suit for redemption instituted by the assignee in insolvency agaiust the mortgagee, that the latter was chargeable with the surplus rents which he permitted to be received by the insolvent's wife for her maintenance. But there being ground for supposing that the Court would have made such a provision for the wife, the Court, although the balance was found against the mortgagee, decreed payment without costs. Clark v. Cook, 3 De Gex & S. 333. A notice by a mortgagee to a mortgagor under the 3rd section of the 7 Geo. 2. c. 20. to deprive the latter of the benefit of an application to redeem, made to a court of common law, under the provi- sions of that statute, should state enough to enable the Court to form an opinion as to the nature of the ground upon which the right to redeem is disputed, and to judge whether or not a case for the exercise of its jurisdiction properly arises. A mere general statement in such a notice that the mortgagee in- sisted that the mortgagor had no right to redeem, and that the mortgaged premises were chargeable with other principal sums than appeared on the face of the mortgage-deed or were admitted by the mortgagor, is not sufficient. Doe d. Harrison v. Lmuih, 18 Law J. Rep.(N.s.) ft-B. 278. The statute 7 Geo. 2. c, 20. s. 1, which enables a mortgagor to obtain a reconveyance of the mort- gaged property on payment of the interest, princi- pal, and costs of suit, applies to those cases only in which the mortgagee is not in possession, and in which he has not attempted to exercise the right of sale. Where therefore the defendant had mortgaged certain premises to the plaintifi^, with a power of sale on default of payment, in pursuance whereof the plaintiff, with the defendant's concurrence, advertised the property for sale, but failed to obtain. a bidder, and afterwards brought an action on the defendant's covenant to pay ; the Court refused to compel the plaintiff to reconvey the mortgaged premises, and deliver up the defendant's title deeds,:, except on the terms of the latter paying the costs of the abortive sale, of the reconveyance, and of shew- ing cause against the rule. Sutton v. Rowlings, 18 Law J. Rep. (n.s.) Exch. 249 ; 3 Exch. Rep. 407. (G) FonEOLOSUKE. Form of decree of foreclosure where the. mort- gagee held two mortgages ; by one of which, pro- perty, belonging partly to A and partly to B, was conveyed to secure money advanced to A and B in different proportions, with a proviso for redemption, on payment of the money by them, or . either of them ; and, by the other, property belonging to A, and partly comprised in the first mortgage, was covenanted to be conveyed to secure the debt of A. Higgins v. Prankis, IS Law J. Rep. (n.s.) Chanc. 329. h: In the case of a mortgage of an estate, accom- panied by the mortgagor's bond and covenant to pay the amount advanced, the mortgagee, after absolute foreclosure and subsequent sale by him of the estate for less than the amount due to him, will not be permitted to go in under a decree for ad- ministering the deceased mortgagor's estate, and prove for the deficiency. Lockhart v. Hardy, 15 Law J. Rep. (n.s.) Chanc. 347 ; 9Beav. 349. A mortgaged to B, who filed a bill of foreclosure, and B, pending the suit, assigned to C, who mort- gaged to D, and became insolvent. D filed a sup- plemental bill to have the benefit of the suit for foreclosure : — Held, that he was entitled to such relief. Coles v. Forrest, 10 Beav. 552. A B mortgaged leaseholds, and; afterwards spe- cifically bequeathed them to trustees in trust for' C, D, and E : — -Held, thatC, D, and E were proper parties to a bill to foreclose. Coles v. Forrest, 10 Beat. 552. • Where a mortgage is made to two for money lent partly by each, one of the mortgagees may file a hill of foreclosure, making the other mortgagee a defendant, and the plaintiff is in such case entitled to the usual decree of foreclosure, on default of pay.i ment of the whole mortgage debt in the proportions due to the plaintiff and defendant • respectively, together with their respective costs. Davenport v. Jarnes, 7 Hare, 249. The plaintiff obtained the common decree for foreclosure, and afterwards the order absolute, which last-mentioned order was enrolled. Upon motion by the defendant for the enlargement of the timei fixed by the order absolute for the payment of the mortgage debt, it was held, that the enrolment of the order need not be vacated, and that the Court was not precluded from enlarging the time. Ford v. Wastell, 17 Law J. Rep. (n.s.) Chanc. 368 ; re- ver.<;ing s. c. 16 Law J. Rep. (N.s.) Chanc. 372 ; 6 Hare, 229. A suit having been instituted to foreclose a mortgage, it was ascertained that the mortgagee had destroyed the mortgage deed and attested copies of other documents relating to the title. The Court held that the expenses of procuring fresh deeds and 440 MORTGAGE. attested copies must be paid by the representatives of the mortgagee, and directed a reference to the Master to ascertain what further damage had been caused by reason of such destruction of the docu- ments, and that such amount was to be set off against the mortgage money. Hornby v. Matcham, 17 Law J. Rep.(N.s.) Chanc. 471 ; 16 Sim. 325. An estate was mortgaged to A for a term of 500 years. A filed a biU of foreclosure against the persons entitled to the equity of redemption and the reversion, some of whom were infants. By con- sent it was ordered that the Master should inquire whether a sale in fee would be for the benefit of the infants, and if he should so find, that the property should be so sold. The property was sold under the decree ; but realized less than the mortgage debt : — • Held, that the defendants were entitled to the differ- ence in value between the term and the fee. Poster V. Eddy, 18 Law J. K.ep. (n.s.) Chanc. 151. The mortgagor of an estate devised it to trustees upon trust to sell, with a power to give receipts to purchasers. A bill of foreclosure being filed by the mortgagee against the trustees only, — Held, that a decree in this suit would not bind the cestuis que trust under the will of the mortgagor. Chamberlain V. Tkacker, 18 Law J. Rep. (n.s.) Chanc. 489. [See ante (E) Tacking.] (H) Accounts. By the decree, made in a suit to redeem a mort- gage, the Master was directed to take an account of what was due to the defendant (the mortgagee), and also of the rents and profits received by him. The father of the mortgagee had, for several years before his death, been in possession of the mortgaged estate : — Held, that, under the terms of the decree, the Master ought to calculate the amount due to the defendant without deducting any of the rents and profits received by the mortgagee's father. Trulock V. Roby, 15 Law J. Rep. (n.s.) Chanc. 343. Where a mortgagee receives rents between the report and day of payment, it is not the practice, on directing the accounts to be continued and" the time to be extended, to order the mortgagor forth- with to pay the arrears of interest and costs, Buchanan v. Greenway, 12 Beav. 355. A judgment creditor, in possession under an elegit of lands belonging to the debtor, instituted a suit for the sale of the property : — Held, that such creditor was bound to account as mortgagee in pos- session. Bull V. Faullmer, 17 Law J. Rep. (h.s.) Chanc. 23 ; 1 Ue Gex & S. 685. Mortgagee in possession who has opened and worked mines charged with receipts, but disallowed his expenses. Thorneycroft v. Crockett, 16 Sim. 445. [See ante (C), Tacking.] (I) Mergee. A, on her father's death, became seised of real estates as his heir, and entitled under his marriage settlement to a sum lent to him on the mortgage of the estates by the trustees of the settlement. A, by a deed, executed shortly before her will, charged the estates, and the sum secured on them, with an annuity, and otherwise shewed that she intended the mortgage to be kept on foot for the purpose at least of securing the annuity. By her will, she devised the estates after payment of her own debts, and after her father's affairs should have been set- tled, to B, and died intestate as to her residuary personal estate : — Held, that as against her next- of-kin, the incumbrance created on the estate by her father must be considered to have merged in it, Suiabey v. Swabey, 15 Sim. 106. (K) Costs. [See Costs, Mortgages.] The costs of the petition and order under the 1 Will. 4. c. 60. for the reconveyance of a mortgaged estate to the mortgagor or his representatives, on payment of the mortgage money, must be borne by the mortgagor or his estate, although such proceed- ingsare rendered necessary by the mortgagee having devised a legal estate in the mortgaged premises to three trustees, one of whom could not be found. King V. Smith, 6 Hare, 473. Upon a motion to restrain a mortgagee from selling the mortgaged property, an order was made by consent to refer it to the Master to take an ac- count of what was due to the mortgagee for principal, interest, and taxed costs, then properly incurred ; but reserving the costs of the suit. The mortgagee was found to be entitled to a much smaller sum than was mentioned in the mortgage ; and hy the order made on further directions, the mortgagee was ordered to transfer the mortgage debt, as well as the mortgaged premises, and to pay the costs of the suit: — Held, upon appeal, that the mortgagor was not entitled to have a transfer of the mortgage debt; and that, after the course adopted ty the parties upon the making of the first order, the costs of the suit must follow the ordinary practice, and be paid by the mortgagor. Dunston v. Paterson, 16 Law J. Rep. (n.s.) Chanc. 404; 2 Ph. 341. The mortgage of a mesne incumbrancer extended over the whole of certain estates, parts of which had been previously mortgaged to other persons, and parts of which were also subsequently mort- gaged. The mesne incumbrancer filed his bill for an account, and for redemption of the prior and foreclosure of the subsequent mortgages, and a de- cree was made hy consent of all parties interested that the whole of the estates should be sold ; that the proceeds of the sale should be paid into court, and apportioned according to the value of the parts of the estates comprised in the several mortgages : and that the priorities of the incumbrances should be ascertained on further directions. No question was raised as to the incumbrances or their priorities, but only as to the costs : — Held, that each of the prior mortgagees was to be paid his principal, interest, and costs out of the sum in court apportioned in respect of his mortgage, and not out of the general fund. Lee v. Lockhart, Wild v. Lockhart, 16 Law J. Rep. (n.s.) Chanc. 519 ; 10 Beav. 320. (L) Practice. A judgment creditor cannot sustain a bill, for a general administration and account, against a prior incumbrancer, unless the bill contains an ofier to redeem; as redemption is the only relief, in equity, to which a subsequent incumbrancer is entitled, as against a prior mortgagee. Semhle — If the bill is not for redemption, but for a totally different object, and is quite incapable of MORTGAGE— MORTMAIN. 441 being used as a bill of redemption, an offer at th bar, to redeem, will not sustain it as such. The practice of the Chancery Courts in Jamaica, is to decree a sale, instead of a foreclosure. Bill by A, the mortgagee of real estates, in Jamaica, against the executors of B, the mortgagor, and other persons claiming under B's will. The bill stated that there were judgments to a large amount against the mortgaged estate, but did not make the judgment creditors parties, and prayed for an account, and payment of what should be found due upon the mortgage, or, in default, that a competent part of the estate might be sold, and payment made thereout. C( a judgment creditor, subsequent to A's mortgage, then filed a bill against the executors of B, and those claiming under his will, and also against A, the prior mortgagee, on behalf of herself and all other creditors of B. By the bill, she insisted that her judgment gave her a prior lien to A, as against part of the mortgaged estate alleging that the judgment was given in respect of the purchase-money of such part of the estate, still remaining unpaid; she charged collusion between A and the executors of B in respect of their management of the mortgaged estates and in the accounts, and prayed for a declaration of the priority of her lien over A's mortgage, as to part of the estate, and a due administration of the per- sonal estate; and that, if the personal estate should prove insufficient, she should be first paid out of the proceeds of the estate on which she claimed a lien, and that in case A should consent to join in the sale of the other real estates, he should be paid what, on taking the accounts, should be found due to him. A filed a general demurrer for want of equity, on the ground that there was no oflTer to redeem; which the Court overruled. A's suit being set down for hearing, C filed a petition, entitled in both causes, praying that the hearing of A's suit might be postponed until her cause was ready for hearing, and that they might be both heard together, or that she might be at liberty to intervene in A's suit. The Court made an order, granting her leave to intervene, and to object to the mortgagee's accounts. By the decree, made in A's suit, it was referred to the Master to take the accounts, and further directions were reserved. C opposed the accounts, and afterwards took exceptions to the Master's report. The Court, upon the argument upon the exceptions, refused to make an order, until it should be deter- mined, at the hearing of C's suit, whether she had a valid claim on the mortgaged premises. At the hearing of C's suit, she failed to establish her priority over A's mortgage, or to prove collusion between him and the executors of B, and the bill was dismissed, as against A, with costs, but_a decree was made in that suit, directing certain general administration accounts. A's suit was subsequently heard upon further directions, in the absence of C, and the Master's report was confirmed, and a decree was made for payment of what was thereby found due to A. — Held, on appeal, — 1st. That as C had proved her judgment debt, she was entitled to a decree for relief against B, the obligor's executors; but that, as she had not offered to redeem, the bill was properly dismissed as against A, the prior incumbrancer. — But, Digest, 1845—1850. 2ndly. That the dismissal of the bill, as against A, because she had not asked for proper relief, did not necessarily. draw after it the disallowance of C's- exceptions ; that having established her debt, and the order for leave to intervene being in existence, she had a right to have her exceptions disposed of, and the orders confirming the Master's report, and on further directitts, made in her absence, were reversed. Queere — Whether a judgment creditor is a neces- sary party to a bill filed by a mortgagee, where the practice of the Court is to decree a sale instead of a foreclosure. Gordon v. Horsfall, 5 Moore, P.C. 393. The 7 Geo. 2. u. 20. enacts, that " where any action shall be brought on any bond for payment of the money secured by such mortgage or perform- ance of the covenants therein contained," the per- sons entitled to redeem may pay to the mortgagee the principal, interest, and costs, and the Court may, by rules of the same court, compel such mortgagee to deliver up all deeds, &c. to the mort- gagor : — Held, that the statute was applicable to an action of covenant on a mortgage deed, and that a Judge at chambers; as well as the Court, had power to order the delivering up of the deeds. All powers possessed by the superior courts at common law, as well as those given by statute to the Court in general terms, without any special limitation, may be exercised by a single Judge, as the delegate of the Court. Smeeton v. Collier, 17 Law J. Rep. (n.s.) Exch. 57 ; 1 Exch. Rep. 457 ; 5 Dowl. & L. P.C. 184. On a bill by first mortgagee against mortgagor and second mortgagee, the plaintiff should prove the second mortgage, otherwise he can only take an inquiry at the first hearing. Guardner v. Boucher, 13 Beav. 68. (M) Mortgagee Acts. [See Trust and Trustee, Trustee and Mort- gagee Acts.] MORTMAIN. [See Charity.] A testator devised houses to trustees to sell the same, and to apply the proceeds in payment of legacies to religious and charitable societies. He also gave legacies to various parties, and made his brother residuary legatee : — Held, that the trust estate was not void under the Statute of Mortmain, 9 Geo. 2. 0. 36. Doe d. Chidgey v. Harris, 16 Law J. Rep. (N.s.) Exch. 190; 16 Mee. & W. 517. A testator bequeathed the residue of his personal property and effects to trustees, for the establish- ment of a charitable receptacle for old men, if the same could be done,hut if no such institution could be conveniently established, then to be disposed of for certain other charitable purposes: — Held, that the primary object of the testator was the acquisi- tion of land for charitable purposes, and the bequest was, therefore, void under the Statute of Mortmain. Attorney General v. Hodgson, 15 Law J. Rep. (n.s.) Chanc. 290; 15 Sim. 146. Shares in the London Dock Company and the 3L 442 MORTMAIN— MUNICIPAL CORPORATION. West India DockCompanyarenotwitHn the statute, 9 Geo. 2. c. 36. s. 3. Hilton V. Giraud, 16 Law J. Rep. (N.s.) Chanc. 285. Dock and canal companies were seised of very considerable real estates, yielding a large net in- come, which was divisible among the proprietors of the respective companies. The shares were, by the several acts of incorporation, declared to be per- sonal estate, and transmissible and distributable as such, and not of the nature of real property: — Held, that such shares were not within the Mort- main Act. Held, also, that bonds of the companies, given for money borrowed under the powers of the acts by way of mortgage of the undertaking, and to secure payment of an annual sum, were not within the Mortmain Act. Walker v. Milne, 18 Law J. Hep. (n.s.) Chanc. 288; 11 Beav. 507. A testator gave his shares in the Northumberland and Durham Bank, and money due upon railway debentures of the Newcastle and Carlisle Railway Company, to trustees, for the benefit of certain charities : — Held, that the bank shares were within the Statute of Mortmain; hut the railway deben- tures, being merely a promise to pay money upon the credit of the undertaking, were not a charge upon land, and therefore not within the Mortmain Acts. Mgers v. Perrigal, 18 Law J. Rep. (n.s.) Chanc. 185; 16 Sim. 533. The Court will make a decree for the appoint- ment of new trustees of lands for a charitable use, although the deed originally declaring the use be not enrolled under the Mortmain Act, if the trus- tees in whom the legal estate is vested admit the trust, and do not object that the deed is void under the statute, but submit to act under the direction of the Court. Attorney General v. Ward, 6 Hare, 477. Shares in the London Dock Company and in the East and West India Dock Company, held not to he interests in land within the Statute of Mortmain, 9 Geo. 2. c. 36. Hilton v. Giraud, 1 De Gex & S. 183. order really was made in respect of a mortuary and, therefore, secondly, that the two Justices had no jurisdiction ; and that a warrant of distress, founded on the order, was illegal, /iyrton v. Abbott, 18 Law J. Rep. (n.s.) a.B. 314. MORTUARY. A mortuary is not an "oblation'' or **ohven- tion" within the 7 & 8 Will. 3. c. 6, and is, therefore, not recoverable before two Justices of the Peace. An information before two Justices stated that A and B, as executors of C, "the oblations, obven- tions, and other customary dues and payments," arising within the parish of W and due from them as such executors to J T, J M W and W W, had not paid, &c. By an order of the same Justices, reciting the above information, and a summons and hearing of the said A and B, the said Justices de- termined that there was justly due from the said A and B, as such executors as aforesaid, to the said J T, J M W and W W, the sum of 10s. for and in respect of, and being the amount of the " oblations, obventions, and other customary dues and pay- ments," and ordered the payment by the said A and B, as executors, of the said sum of 10s. : — Held, first, that evidence was properly admitted to shew that under the general words " oblations, obventions, and other customary payments," the MUNICIPAL CORPORATION. [See Action — Bridge — Charity — Penalties — Perjury — Principal and Surety — Rate — Quo Warranto.] (A) General Points. (B) Qualification of Mayor. (C ) Election of Councillors and Corporate Officers. (D) Compensation for Loss of Office. (E) Borough Justices — Jurisdiction. (F) Borough Fimd. (G) Gaol. (o) Appointment of Keeper, (b) Maintenance of Prisoners in. (H) Quarter Sessions, Grant of. (1) Bond by, for Money lent. A police superannuation fund authorized in boroughs by the 1 1 Vict. c. 14 ; 26 Law J. Stat. 29. Boroughs in certain cases relieved from contribu- tion to county expenditure by the 12 & 13 Vict, c. 82; 27 Law J. Stat. 158. Town councils enabled to establish public libra- ries and museums by the 13 & 14 Vict. c. 65 j 28 Law J. Stat 128. (A) General Points. New municipal corporations succeed to the debts and duties of the old corporations, and may be liable for former breaches of trust and costs of obtaining redress. Attorney General v. Leicester, 9 Beav. 546. The proper appellation of the corporation of a city, since the Municipal Corporation Act, is, "the mayor, aldermen, and citizens of the city." Attor- ney General v. Worcester ( Corporation of), 15 Law J. "Rep. (n.s.) Chanc. 398 ; 2 Ph. 3. (B) Qualification of Mayor. It is no objection to the qualification of a person elected to fill the ofiBce of mayor of a city under the 5 & 6 Will. 4. e. 76, that his name has been omitted from the citizen list for the municipal year in which he was so elected, it appearing that he had been duly chosen a councillor of the city on the 9th of November in the preceding year, his name being enrolled in the burgess list of the then cur- rent municipal year, and that he had continued to hold the ofBce of councillor, and to he entitled to he upon the citizen roll, up to the time of his elec- tion as mayor. Regina v. Dixon, 19 Law J. Rep. (N.S.) Q.B. 363; 15 Q.B. Rep. 33. (C) Election of Councillors and Cokpobate Officers. Where certain acts of a corporation are to be per- formed at a special meeting of the members of that MUNICIPAL CORPORATION. 443 corporation, all the persons entitled to be present thereat must be summoned, if they are within a rea- sonable summoning distance. The omission to summon any one so entitled, renders the acts done at such meeting, in his absence, invalid. A finding in a special verdict that « person entitled to be present at a special meeting of a cor- porate body was not summoned, and that he was at the time within summoning distance, throws on the party supporting the validity of the acts done at such meeting the onus of shewing a sufficient cause for his not being summoned. The election of treasuier for the county of the city of Dublin was vested by the 49 Geo. 3. c. xx. in the " board of magistrates of the county of the said city," and was directed to take place at the Sessions Court of the city, by vote o^ the magis- trates there present : — Held, that the K-ecorder of Dublin was a member of that board, and. ought to have been summoned to a meeting of the magis- trates summoned for that election, and that the omission to summon him rendered the election which took place in his absence invalid. Smyth v. Darley, 2 H.L. Gas. 789. ' Upon an election of four councillors, oh the 1st of November 1841, to fill three ordinary vacancies, and one extraordinary vacancy for a shorter period than three years, the voting papers contained the names of four candidates, without distinguishing which was intended to fill the extraordinary vacancy. Upon the trial of a quo warranto the Judge told the jury that the alderman and assessor ought to have obtained the information which enabled them to declare whether a candidate was elected to fill an ordinary or the extraordinary vacancy from the voting papers alone : — Held, upon bill of exceptions, that this direction was right. Where an election was held to fill three ordinary vacancies and one extraordinary vacancy; and the •voting papers contained the names of four candi- dates, but did not specify the person intended to £11 the latter vacancy, such voting papers were held to be void. iSemftfe— that under the 5 & 6 Will. 4. c. 16, the election of councillors to fill ordinary vacancies and to fill extraordinary vacancies are perfectly distinct, and one election cannot be held to fill vacancies of both descriptions. Rowley v. Regiva, 14 Law J. Hep. (N.s.) a.B.62; 6 Q.B. Rep. 668. ■ [See post, (H) Quarter Sessions.] (D) Compensation for Loss op Office. Where the Lords of the Treasury had awarded an annuity of 107^. as compensation for the loss of the office of town clerk, the Court refused to order a peremptory mandamus to the town council to secure that sum by bond under the corporate seal, where it did not appear, from the writ or return, that the corporation had had any opportunity of questioning the amount awarded. Where the removal, by the town council, is for misconduct, the Lords of the Treasury have no power to inquire whether there was a sufiScient ground for the amotion, under section 66. of the 5&.6 Will. 4. c. 76. The misconduct must be strictly shewn to have taken place in respect of the office from which the party is dismissed. ■ Regina v. Mayor, Sfc. of New- bury, 10 Law J. Rep. (n.s.) Q.B. 250 ; 1 G. & D. 388. ' In order to entitle a person to claim compensa- tion under the 5 & 6 "Vict. c. Ill, as an officer of a division of a county, in which a borough, to which a charter of incorporation has been granted, is situated; he should be clearly shewn to be an oflScer of the entire division. And; therefore, where it was proved that the Manchester division of the ooniity of L consisted of forty-three townships; and that O M had for many years acted as clerk to the Justices of: that division, attending at the New Bailey; at Salford (one of those townships), where the greater part of the business was transacted ; but that, among the forty-three townships, there were others at which Justices attended and held petty sessions, at which they employed other persons as clerks, — Held, that O M was not entitled to com- pensation as an officer of a division of a county. Held, also, that the clerk to the stipendiary magistrates appointed under the statute S3 Geo. 3. c. 72, is not an officer of a borough, county, or division of a county within the S- & 6 Vict, c. ill. Regina V. Council of Manchestei^, 16 Law J. Re^. (N.s.) Q.B: 27 s 9 Q.B. Rep. 458. ' ' The Lords Commissioners of the Treasury, upon an appeal to them, Under the 6 & 7 Will. 4. c. 76. s. QQ, by C S, who undcr'the provisions of that act, had been' first re-apfointed and continued in the office of town clerk of the city" of Lichfield,! and afterwards, on the 20th of January 1844, removed from such office, made an order directing Oompen- sation to be paid to the said C S for the loss of such office by way of a certain annuity, to commence from the 9th of September 1835. This • order the Lords Commissioners subsequently declared had been made by mistake, and amended, by altering the date of the commencement of the annuity to the time from which C S ceased to hold theoffice of townTclerk: — Held, that the Lords Commissioners had power I only to direct that the annuity, should commence from the time when C S ceased to hold the office, and therefore that the order as it ori- ginally stood was had, and could not be enforced. ■ Semble, also, that supposing the first order could have been mad^, the mistake was one which the Lords Commissioners might ■ afterwards properly amend. Regina v. Mayor, i;c. of Lichfield, 19' Law J. Rep. (N.s.) QiB. 537. '■' (E) Borough Justices — JuiiispiOTioN. By a local paving act, 41 Geo. 3. c. cxxvi.j re- lating to the parish of B (which parish becamepart of the borough of Bath, by the 5&, 6 Will. 4. c. 76), the rate assessed is directed to be paid by the occu- piers of houses, who are thfereby required to ipay them to the collectors appointed under the act, and the rate is to be enforced by distress warrant of a Justice of the county of Somerset. The ancient charter of the borough of Bath had a non-intro- mittant clause; andunder the 5 & 6 Will. 4. c; 76. 8. 111. a separate Court of Quarter Sessions was granted to the borough : — Held, that all jurisdiction -of the county Justices' within the parish of B was taken away. ' ■ ' . ■ r ' ' i Held, also, that the non-paymeiit of paving rates, assessed on an occupier of a house in the. parish of 444 MUNICIPAL CORPORATION. B, is "an offence committed within the borough against the provisions of the local act ;" and that, under the 7 Will. i. & 1 Vict. c. 78. s. 31, it is cognizable by the borough Justices. In re Bathwick Paving Act, 18 Law J. Rep. (n.s.) Q.B. 301. (F) BoRovGH Fund. Where the town couneil made an order for pay- ment out of the borough fund of 100/. on account of costs incurred with the sanction of the town council in petitioning the Court of Chancery with respect to the appointment of the charity trustees, under the Municipal Corporation Act, 5 & 6 Will. 4. u. 76, — Held, that such an order was illegal. The town council cannot make an order for pay- ment of interest due on a bond given under the 67th section of the act, as the act makes no pro- vision for payment of interest, and does not con- template the payments which it is given to secure being deferred. "Where the members of a corporation have, as such, occupied a particular pew in the parish church, the repairs of it may be properly charged on the borough fund. Regina v. Mayor, Sfc. of Warwick, 15 Law J. Rep. (n.s.) Q.B. 306 ; 8 Q.B. Rep. 926. The town council of a borough dismissed a cor- porate officer, and afterwards disallowed him any compensation for his office, on the ground that he ■had .been guilty of such misconduct as would have justified his dismissal. A mandamus was subse- quently granted to assess compensation; and, on the return, issues were raised, involving the question of misconduct; on all these traverses a verdict was -found for the Crown : — Held, that the town council were, nevertheless, well justified in ordering the payment of the costs out of the borough fund, it appearing that the belief of such misconduct was bondjide entertained by them. Held, secondly, that a resolution by the corporation to retain the attorney to take steps in opposition to the rule nisiior a mandamus, coupled with an order that the return should he filed, was a sufficient •authority to him to try the issues. Held, lastly, that it was no objection to the order that it appeared by the affidavits to have been made for a sum on account, before the delivery of a bill. Regina y. Town Council of Lichfield, 16 Law J. Rep. (N.s.) Q.B. 333 ; 10 Q.B. Rep. 534. Three persons were indicted at the assizes for the county of S for forging the will of C D. It ap- peared that C D died in the borough of O, and that one of the prisoners took away the deeds, &c. of the deceased to his own house, which was in the county of S, but not in the borough of O ; that the forged -signatures of the testatrix andofoneof the witnesses were written in the borough of O, and that the offence was completed in the county of D, where the forged signature of the second witness was written. The borough of O did not contribute to -the county rate, but had a borough fund of its own : — Held, that the order for payment of all costs and expenses of the prosecution was properly made on the treasurer of the borough of 0. Secondly, that a mandamus would lie to the trea- surer to compel payment Regina v. Hayu-ard, 17 .Law J. Kep. (n.s.) Q.B. 223; nom. Regina v. Trea- surer qf Oswestry, 12 Q.B. Rep. 239. (G) Gaol. (a) Appointment of Keeper. The borough of Leeds was incorporated by charter of Car. 2, which granted a gaol, and appointed the mayor for the time being or his deputy-keeper of the said gaol. There was formerly a lock up, for temporary confinement only of offenders, within the borough, the keeper of which was appointed by the corporation. In 1815, a prison, with a residence for a gaoler, was erected under local acts of 49 and 55 Geo. 3, which vested the prison and all matters appertaining thereto in the Justices of the borough, who were empowered to make rules for its regula- tion, and to appoint the gaoler. This prison was only used for temporary confinement, felons- and others committed for ])unishment having always been sent to York Castle or the Wakefield House of Correction, which have always been used as the common gaols of the borough, and to the expense of which the borough has always contributed. These local acts saved all rights, &c. of the corporation, A new gaol for the borough was subsequently built under the provisions of the gaol acts, from the 4 Geoi. 4. c. 64. to the 2 & 3 Vict e. 56, and of the 7 Will. 4. & 1 Vict. c. 78. s. 37, by the town council of the borough : — Held, that the right of appointing the gaoler to this new gaol was vested in the Justices of the borough, in whom the powers as to regula- tion of gaols (which includes the appointment of gaoler) are vested by the 7 Will. 4. & 1 Vict, c. 78. s. 38. The appointment of a keeper of a borough gaol is a matter " relating to the business of a court of criminal judicature," within the 6 & 7 Will. 4. e. 105. s. 8. Regina y. Lancaster, 16 Law J. Rep. (n.s.) M.C. 139 ; 10 Q.B. Rep. 962. (6) Maintenance of Prisoners in. In April 1839, prior to the grant of a separate Court of Quarter Sessions to the borough of Bir- mingham, situate within the county of Warwick, a resolution was come to, and duly entered in the minutes of the town council, for paying the sum of lid. per head per day for one year, for the maintenance ofthe borough prisoners in the county gaol and house of correction, there being no gaol or house of cor- rection in the borough, and this resolution was agreed to by the county Justices. In September 1839, after the grant of the Court of Quarter Ses- sions, an account was made out and allowed on the above principle. In January 1841 the county Jus- tices resolved that the borough Justices had no power to commit to the county house of correodon, and such prisoners were detained at expense and inconvenience to the borough, till county Justices could attend to commit them. In consequence of doubts as to the validity of the charter of the borough of B, and other circum- stances, no other accounts were sent in, in refer- ence to the above charges, till September 1842, when an account was sent in to the council charg- ing for prisoners confined in the gaol and house of correction, at the rate of llrf. per head up to the 30th of June 1842. The statute 5 & 6 Vict. c. 98. passed on the 10th of August 1842 : — Held, that in pursuance of that statute such accounts were rightly altered, so as to charge the actual expense MUNICIPAL CORPORATION— MURDER AND MANSLAUGHTER. 445 of the 'borougli prisoners instead of the lid. per head per day — the statute rendering the horough liable to such charge of the actual expenses, both prospectively and retrospectively,! and that no de- duction could be made in respect of the prisoners committed by the borough Justices to the county house of correction, subsequently to January 1841. The statute 5 & 6 Vict. c. 1 10. provided that the gaol of the city of Coventry should be a gaol of the county of "Warwick, to be purchased and paid for by the county out of the monies in the hands of the treasurer; — Held, that the horough of Bir- mingham, which had a separate Court of Quarter Sessions, was liable to pay its proportion ■ of the county rate for the purchase of the gaol. Regina V. Mai/or, Sfc. of Birmingham, 17 Law J. Rep. (n.s.) M.C. 56; 10 a.B. Rep. 116. (H) Qoahtek Sessions, Grant OF. , . The borough of W having petitioned for a grant of a separate Court of Quarter Sessions, under the 5 & 6 Will. 4. c. 76. s. 103, received a letter from the Secretary of State informing them that the Crown had made the grant, and within ten days from the receipt of this letter (but before thfe actual grant had passed the great seail), the town council appointed B. coroner of the horough, not under seal, who exercised the office, and was recognized as coroner by the town council repeatedly, and within ten days after the actual grant of the Quarter Ses- sions had been received by the council. A general quarterly meeting was held on the 9th of November, "when a mayor was elected, and other general business transacted, and the meeting was, by a resolution then passed, adjourned to the 16th of November, on which day a resolution was passed by the council, removing R from the ofBoeof coroner and appointing G in his stead. No notice was given of this meeting, except the ordinary three days* -notice required by section 69, which did not specify the business to be transacted at the meeting: — Held, that the office was full, as, even if the council had no right to appoint until after the 'actual grant of the Court of Quarter Sessionsj the recognition of B as coroner by them, within ten ■days after the actual grant, was a good ratification of the prior appointment. Held, also, that the election of G was invalid. Held, also, that under the 5 & 6 "Will. 4. o. 76. s. 69. no notice need be given of such business transacted at the adjourned meeting of the 16th of November as had -been entered upon on the 9th of November, but that notice ought to he given of any other business transacted at the adjourned meeting. Qutere — Whether a coroner of -a. borough is a " corporate officer" within the 6 & 7 Vict. c. 89. s. 1. Regina v. Grimshaw, 16 Law J. Rep. (n.s.) Q.B. ■385; 10 Q.B. Rep. 747. (I) Bond by, por Money lent. A bond given after the 6 & 6 Will. 4. c. 76, and before the 6 & 7 Will. 4. c. 104. and the 7 Will. 4. & 1 Vict. c. 78, by a municipal corporation for money borrowed is good at law, although under ■the 92nd section of the first act it cannot- be' en- forced against the borough fund. - To a count for money had and received, the de- fendants pleaded that they were a corporation under the 5 & 6 Will.' 4. c. 76, and that after that act and before the 6 & 7 Will. 4. e. 104. and the 7 Will. 4. & 1 Vict. c. 78. it was illegally agreed that the plaintiff should lend the defendants money, and the defendants should give a bond ; that the money was lent and the bond given, and the money had and received in pursuance of this illegal contract: —Held, that the plea was bad on special demurrer, as amounting to the genferal issue. ' ' '^' Semble — thatit would be a good plea in bar, that no execution could issue on ai judgment for the plaintiff in an action. Pallister v. Mayor, S[C. of Gravesend, 19 Law J. Rep. (n.s.) C.P. 358. MURDER AND MANSLAUGHTER. [See Poisoning.] (A) What IS Murder. , ,,, (B) What IS Manslaughter. .; ,. , (C) Trial when Ofeenge committed aarqad. (D), Indictment. (a) Cause, of Death, . (6); Finding on, ' , ., , , ,. (E) Evii)ENCE. (A) What is Murder. , , ,,, On- the 26th of February 1845, the Felicidad'e, a Brazilian schooner, fitted up as a slaver, surrendered to the armed boats of H.M.S. Wasp. She had no slaves on board. The captain and all his crew, except Majavel, and three others, were taken out of her and put on board the Wasp. On the 27th of February, the three others were taken out and put on board also. Cerqueira, the captain; was sent back to the Felioidade, which was' then manned with sixteen British seamen, and placed under the command of Lieut. Stupart. The lieutenant was directed to steer in piirsuit of a' vessel seen from the Wasp, which eventually turned out to be the Echo, a Brazilian' brigaritine,' -having slaves oh hoard, and commanded by Serva, one of the pri- soners. ■ After a chase of two days arid Wights, the Echo suri:endered, ami was then taken possession of by Mr. Palmer, a midshipman, who went on bo'ard her, and sent Serva and eleven of the crew of the Echo to the Felicidade. The next morning Lietit. Stupart took command of the Echo, and placed Mr. Palmer, and nine British seamen, on board the Felicidade in charge of her and of the prisoners (charged' in the indictment). The prisoners shortly after rose on Mr. Palmer and his creW, killed them all, and ran away with the vessel. ' She was recap- tured by a British vessel, and the prisoners brought to this country to take their trial for murder. The jury found them guilty. On a case reserved for the opinion of the Judges, several points were taken by the counsel for' ^be prisoners ; the conviction was held wrong. Regina v. Serva, 1 Den. C.C. 104; 2 Car. & K.53. If a pei-sBn intending to procure abortion, does an act which causes a child to be born so much earlier 'than the natural time that 'it is'born in a state ntiuch less capable of living, and afterwards dies, in con- sequence of its exposure to the external world, the person who, by this misconduct, so brings the 446 MURDER AND MANSLAUGHTER. child into the world, and puts it thereby in a situa- tion in which it cannot live, is guilty of murder ; and the mere existence of a possibility that some- thing miglit have been done to prevent the death, would not render it less murdEr. Regina v. West, 2 Car. & K. 784. If a man finds his wife in tlie act of committing adultery, and kill her, this will be manslaughter only ; but if a man takes away the life of a woman even his own wife, because he suspects, however strongly, that she has been engaged in some illicit intrigue, this will be murder. Regina v. Kelly, 2 Car. &K. 814. (B) 'What is Manslaughteb. If each of two persons be driving a cart at a dangerous and furious rate, and they be inciting each other to drive at a dangerous and furious rate along a turnpike road, and one of the carts run over a man andkill him, each of the two personsis guilty of man- slaughter, and it is no ground of defence, that the death was partly caused by the negligence of the deceased himself, or that he was either deaf or drunk at the time. Generally, it may be laid down, that, where one by his negligence .has contributed to the death of another, he is guilty of manslaughter. Regina \, S-jiindall, 2 Car. & K. 230. "Where an engineer, who had charge of an engine which was worked for the purpose of keeping up a supply of pure air in a mine, neglected his duty, so that the engine stopped and the mine thereby be- came charged with foul air, which afterwards ex- ploded and caused the death of on^ of the miners, — Held, that in such a case the engineer could not be convicted of manslaughter on an indictment which did not allege a duty in him which he had neglected to perform. Regina v. Barrett, 2 Car. & K. 34-3. If it be the duty of a person as ground bailiff of a mine to cause the mine to be properly ventilated by causing air-headings to be put up where neces- sary, and by reason of his omission in this respect ■ another be killed by an explosion of fire-damp, such person is guilty of manslaughter, if, by such his omission, he was guilty of a want of ordinary and reasonable precaution, and if it was his plain and ordinary duty to have caused an air-heading to have been made, and a man using reasonable dili- gence would have done it. It is no defence in a case of manslaughter that the death of the deceased was caused by the negligence of others, as well as by that of the prisoner j for, if the death of a de- ceased be caused partly by the negligence of the prisoner, and partly by the negligence of others, the prisoner and all those others are guilty of man- slaughter. Regina v. Haines, 2 Car. & K. 368. (C) Tktal when Offence committed Abroad. Under the statute 33 Hen. 8. c 23, a British subject was triable in this country for the murder of another British subject, committed on land within the territory of a foreign independent king- dom. In such a case, the indictment sufficiently shewed the parties to be British subjects, by stating, in the usual manner, that the deceased was in the peace of the king, and concluding against the peace of the king. Such an indictment need not conclude contra formam staiuti. Rex v. Sawyer, 2 Car. & K. 101. (D) Indictment. (a) Cause of Death. An indictment for murder stated that the pri- soner M S, " a certain musket, then and thera charged and loaded with gunpowder and one leaden bullet, &c., to, against and upon M G, &c., did shoot, discharge, and send forth, and hurt the said M G with the leaden bullet aforesaid, out of the musket aforesaid then and there by the force of the gunpowder so shot, discharged, and sent forth as aforesaid, the said M G, in and upon, &c., -giving to the said M G, then and there, with the leaden bullet aforesaid, so as aforesaid shot, discharged, and sent forth out of the musket aforesaid, by the said M S, one mortal wound," &c. ; — Held, that the cause of death was sufficiently shewn. Regina v. Slokes, 17 Law J. Rep. (n.s.) M.C. 116 ; 1 Den. C.C. 307; 2 Car. & K. 536. '<■ Second count of indictment charged J O'B that he on the 27th of May feloniously and of his malice aforethought, struck deceased with a stick, of which said mortal blow deceased died on the 29th of May; that T K, D D, &c., on the day and year first afore- said, at the parish aforesaid, feloniously and of their malice aforethought, were present aiding and abet- ting the said J O'B the felony last aforesaid to do and commit; and the jurors, &o., say that the said J O'B, T R, D D, &c., him the deceased in manner and form last aforesaid, feloniously and of their malice aforethought, did kill and murder. Third count charged T R, that he, on the 27th of May, a certain stone feloniously and of his malice aforethought, cast and threw, and with the said stone so cast and thrown struck deceased, of which said mortal blow deceased died on the 29th of May ; that J O'B, D D, &c. &o. (same as above). Objection, first, that the indictment was incon- sistent in charging the principals in the second degree with committing the felony at the time of the stroke, whereas it was no felony till the time of the death. Second, that the general verdict of guilty left it uncertain which was the cause of the death, the stick or the stone ; and that therefore no judgment could he entered on either. Held, first, the form of the indictment good; second, the alleged generality of the verdict imma- terial, the mode of death being substantially the same. Regina v. 0' Brian, 1 Den. C.C. 9. In a case of manslaughter, the cause of the death and the death occurred in the county of S, and the body after death was removed to the city of L ; the coroner of L held the inquest, and J E was tried for the manslaughter on the inquisition. Semble, that the inquest was properly held under the statute 6 & 7 Vict. c. 12, although that statute is a little obscurely worded. An indictment against a medical practitioner charged that he made divers assaults on the deceased (a patient), and applied wet cloths to his body, and caused him to be put into baths : — Held, that this was a proper mode of laying the offence, although all that was done was by the consent of the de- ceased ; and that the indictment need not charge an undertaking to perform a cure, and a felonious breach of duty. MURDER AND MANSLAUGHTER— NEGLIGENCE. 447 An indictment for manslaughter charged that J E caused R D to become mortally sick, of which mortal sickness, especially of a mortal congestion of the lungs and heart, occasioned by the means aforesaid, he died : — Held, that this properly charged a death from a mortal congestion caused by those means. Regina v. Ellis, 2 Car. &; K. 470. (6) Finding, A and B were indicted for the murder of C, by shooting him with a gun. In the first count A was charged as principal in the first degree^ B as pre- sent, aiding and abetting him j in the second count, B as principal in the first degree, A as aiding and abetting. The jury conyicted both, but said that they were not satisfied as to which fired the gun : — • Held, first, that the jury were not bound to find the prisoners guilty of one or other of the counts only. Secondly, Maule, J. disseniiente, that,^ notwith- standing the word " afterwards" in the second count both the counts related substantially to the same person killed and to one killing, and might have been transposed without any alteration of time or meaning. /Jegino v. -Downing, 1 Den. C.C. 52. (E) Evidence. , An indictment for murder, by inflicting a mortal wound, is supported by proof of a blow, which caused an internal breach of the skin, though ex- ternally there were only the appearances of a bruise. Qniere — Whether such an allegation would have been sufficient in an indictment on the statute for cutting or wounding, with intent to murder, &c. Regina v. Warman, 1 Den. C.C. 183 ; 2 Car. & K. 195. insufficient, for not stating the party to be a soldier, and a person who ought to be with his regiment ', andithe prisoner was discharged. ' ■ ' An information, at the suit of the Attorney Gene- ral, under section 62.' of the S3 Geo. 3. c. 52. is in the nature of a criminal charge, and a capias under section 141iin respect of it, is criminal process ; no privilege, therefore, from arrest on such a charge exists, to a person redeundo, on hisidischarge upon habeas corpus from an illegatcustody, as such privi- lege only exists in the case of civil process. ' Whether affidavits will be received, not to contra- dict the return to a, habeas corpus, \i\ii\n explanation of the circumstances and situatiop of the party in custody — qaare. In re jOotiglas, 12 Law J. Rep. (n.s.) Q.B,.49. ' . ' tl MUTINY. Section 22. of the 5 & 6 Vict. c. 12. (the Mutiny Act) enacts " That it shall be lawful for the coB^ stable of any place, where any person reasonably suspected to be a deserter shall be found, or if no constable can be met with, for any officer or soldier in Her Majesty's service, to apprehend such sus- pected person, and cause him to be brought before any Justice living in or near such place, and acting for the same or any adjoining county, who hath thereby power to examine such suspected person ; and if by his confession, or by testimony, &c., it shall appear that such suspected person is a soldier, and ought to be with the corps to which he belongs, such Justice shall cause him to be conveyed to some public prison," &c. To a writ of habeas corpus, the return set out the following warrant : — " Metro- politan Police District, to wit. To the Governor of Tothill Fields Bridewell or his Deputy. Receive the body of Archibald Douglas herewith sent you, brought before me, J H, Esq., one of Her Majesty's Justices of the Peace in and for the said district, and charged upon the oath of J E B and others, with being a deserter from the Honourable East India Company's 49th Regiment of Infantry) con- trary to the statute, &c. Him therefore safely keep in your said custody, until he shall be discharged by due course of law j and for so doing this shall be your sufficient warrant. Given under my hand, &c.: Signed," &c. : — Held, that the warrant was »(lc. NEfJLIpENCE.v, : :. !!:-'.! [See Action — Sheriff — ■Wharfin(1be;]|^ (A) Cause OF Action GENEKALLY. ■ ■ >' (o) Negligence in Execution cf Public Worlcs where Plaintiff knoumvglif incurs Danger. (J)) Breach of Duty to fence off Area. . (c) Ability toavoid Injury. (d) Where Plaintiff contributes to the Injur;/. - (e) Primd facie Evidence of Negligence. (B) Liability of Employers. (a) For Acts of Contractors and their Work- men. (6) To their Servants for Negligence of fellow Servants. (C) Liability to Representatives of de- ceased Persons. , (A) Cause of Action generally. .' (a) Negligence in, Execution of Public Works wkef^ plaintiff knowingly incurs Danger. , Where the Commissioners of Sewers made a trench in the outlet from a mews, putting up no fencej and a cabman attempted to lead hiS horse over some rubbish piled up by them on the side and the horse fell and was killed, — Held, that the plaintiff was entitled to recover, although he had at some hazard brotight his horse out of the stable, and that it was properly left to the jury whether or not the plaintiff had persisted, after warning, -in running upon a great danger. Clayards v. Detluck, 12 a.B. Rep. 439. (6) Breach of Duty to fence off Area. The declaration alleged that the defendant was possessed of a messuage with the appurtenances near to a public footway, in front of which said messuage and part of the appurtenances thereof, and close to and by the side of the said footway and abutting upon the same, there was a large hole or area, which hole, &c. by reason of the possession of the said messuage with the appurtenances, the defendant ought to have fenced off, so as to prevent damage to passengers, &c. : — Held, that the obliga- tion of the defendant to fence off the area was pro- perly described in the declaration. 448 NEGLIGENCE ; (A) Cause of Action generally. A trespasser may have a right of action for an injury sustained whilst in the act of trespassing. £arnes v. Ward, 19 Law J. Bep. (n.s.) C.P. 195. [Seeyos<(C).] (c) Ability to avoid Injury. Case for so negligently and unskilfully navigating a vessel on the river Thames, of which the defen- dant had the care and management, that she struck against and damaged a wharf and jetty helonging to the plaintiff. Plea, amongst others, that the wharf and jetty were a construction within the flow of the tide and below low-water mark, and ohstructed part of the bed and course of the river, ■which was a common and public navigable river and highway for all the Queen's subjects to navigate over and along at their free will and pleasure ; that the said wharf and jetty had been constructed by the plaintiff, and unlawfully and wrongfully obstructed the navigation over the said part of the river to the common nuisance of the Queen's subjects, and that they could not & pass, &c. without damaging the said wharf and jetty, as in the declaration mentioned ; that the plaintiff had notice of the premises, but wilfully continued the said nuisance ; that the defendant had occasion to pass with the said vessel over the said part of the river, and in so passing did the alleged damage, and that he managed and navigated the said vessel with all the skill and care which would have been due and proper, had not the said part of the river been obstructed as aforesaid, and that he did no unnecessary damage. Replication de injurid, and a verdict for the defendant : — Held, that the plea, though in substance suffi- - ciently proved at the trial, was bad for not alleging a necessity to navigate the vessel over the part of the river where the nuisance existed, nor even that the defendant's right course was over such part of the river, and that he could not have avoided the nuisance by taking any other course with reason- able convenience, and, therefore, that the plaintiff ■^s entitled to judgment non obstante veredicto. Dimes V. Petley, 19 Law J. Rep. (n.s.) Q.B. 449 ; 15 Q.B. Rep. 276. A passenger in a public conveyance, injured by the negligent management of another conveyance, cannot maintain an action against the owner of the latter if the driver of the former, by the exercise of proper care and skill, might have avoided the acci- dent which caused the injury. Thorogoodv. Bryan, 18 Law J. Rep. (n.s.) C.P. 336; 8 Com. B. Rep."ll5. {d) Where Plaintiff contributes to the Injury. A gas company supplied a house with gas by- means of a short pipe from their main, communi- cating with fittings within the house belonging to the owner during his occupation, and also during the subsequent occupation of his tenant. There was a meter and a stop-cock, of which the key was hung by its side within the house, but there was no stop-cock between the outside of the house and the main. Upon the tenant quitting, he sent notice to the company that he would no longer be liable for gas-rate. Ten days after he quitted, an explo- sion took place, in consequence of the escape of the gas within the house, by which it was much in- jured, and .1 person going into the house found the gas issuing from the pipe above the meter and the stop-cock, which had not been turned so as to prevent the passage of the gas. There was ground to believe that the upper part of the pipe bad been removed by some dishonest person : — Held, that the owner could not, on these facts, recover compensation for the damage done from the com- pany in an action on the case for negligence, as the plaintiff was, by his omission to close the stop-cock within the house, contributary to the mischief, and as there was no obligation imposed on the company by their act of parliament or the law to place a stop-cock on the outside of the house. Held, also, that this defence was admissible under the plea of not guilty. Holden v. Liverpool New Gaslight Co., 15 Law J. Rep. (n.s.) C.P. 301 ; 3 Com. B. Rep. 1. In an action brought by a passenger upon an omnibus .against the owner of another omnibus for injuries sustained by the negligent management of the last-mentioned ^omnibus, it appeared that the two omnibuses were racing at the time, and that the defendant's omnibus struck that upon which the plaintiff was riding, and caused it to swing against a lamp-post, by which the plaintiff was in- jured. Had the omnibus, which was struck, not been proceeding at so great a speed, it might have been pulled up after the collision, and the accident have been prevented : — ^Held, that the Judge was not bound to direct the jury that, if the mischief was in part occasioned by the misconduct of the person driving the omnibus upon which the plain- tiff was, he was not entitled to recover, Rigby v. Hewitt, 19 Law J. Rep. (n.s.) Exch. 291 ; 5 Exch. Rep. 240. It is no answer to an action for negligence, that part of the injurious consequences would not have occurred had the plaintiff not been guilty of some negligence. The plaintiff, a passenger on board a steamer, was injured by the falling of its anchor in conse- quence of a collision with a steamer belonging to the defendant. There was conflicting evidence as to the propriety of the mode in which the anchor was carried, and also whether the plaintiff had not placed himself in a dangerous position : — Held, to be a misdirection to direct the jury that the plain- tiff was not entitled to recover if there was negli- gence in the stowage of the anchor, or in placing himself in the position he did, although the colli- sion occurred from the negligence of the defendant's steamer. Quare — per Pollock, C.B., whether a man who is guilty of negligence is responsible for all the con- sequences of that negligence although such conse- quences could not have been reasonably foreseen or expected. Greenland v. Chaplin, 19 Law J. Rep. (n.s.) Exch. 293 ; 5 Exch. Rep. 243. (e) PrimA facie Evidence of Negligence. In an action for negligently setting fire to a barn by a spark from a locomotive engine, evidence is admissible that other engines of the company emit- ted sparks which flew to a distance, in order to shew the possibility of the fire having been caused by such a spark. The fact of a fire having been caused by a spark from a steam-engine is jirimd facie evidence of NEGLIGENCE ; (B) Liability op Employees. 449 negligence in the owner of the engine. Piggot v. Eastern Counties Rail. Co., 15 Law J. Rep. (n.s.) C.P. 235 ; 3 Com. B. Rep. 229. (B) Liability op Employees. (a) For Acts of Contractors and their Workmen. By the statute 3 Vict. c. 55. s. 5. no act of the Commissioners of the Dartford Creeks shallbe valid, unless made or done at a meeting under the act : and all the powers of the act shall be executed by the majority of the commissioners present at a meeting, not less than three being present. By section 12. the commissioners shall and may be sued in the name of their clerk. The commissioners passed resolutions that their engineer should pre- pare specifications with a view to the performance of a contract for certain works, and that tenders should be invited for the same.. At a meeting, at which seven commissioners were present, they unanimously agreed to accept a tender sent in by B. Three commissioners only were named in the con- tract with B, which was prepared by their secretary, and by none of them was it signed. B did the works specified in the contract, (inter alia) a bank, which he erected of insuflScient materials. Water was prematurely admitted, which sunk the bank and damaged the plaintiff's land: — Held, first, that the contract was made in execution of the office of the commissioners, and that work done under that contract was work done by them as commissioners, for which they might properly be sued in the name of their clerk. But, secondly, that the bank which failed being a part of the works specified and de- scribed in the contract, B, the contractor, and not the commissioners, was liable for the damage done to the plaintiff! Allen v. Hayward, 15 Law J. Rep. (N.s.) Q.B. Q9 ; 7 aB. Rep. 960. A company held not liable for injuries caused by the negligence of their contractor's workmen in constructing a bridge. Reedie v. London and North- western Rail. Co., Hobbit v. London and North' Western Rail. Co., 4 Exch. Kep. 244. (6) To their Servants for Negligence of fellow Servants. A master is not in general liable to an action at the suit of his servant for injuries sustained in con- sequence of the negligenceof a fellow-servant acting in his master's service ; but the master would be liable if the servant guilty of negligence was not a person of ordinary skill and care. In an action by the administratrix of J H, under Lord Campbell's Act, 9 & 10 Vict. c. 93, the de- claration stated that one J H was in the employ and service of the defendants, and while he was such servant, and in the discharge of his duty as such servant, he became a passenger upon a railway of the defendants, in a carriage belonging to the de- fendants, drawn by an engine under the guidance, government and direction of the defendants, to wit, by their servants, and that there was then upon the same railway another engine and carriage of the defendants, under the guidance, government, and direction of the defendants, to wit, by their servants, yet the defendants behaved and conducted them- selves so negligently, carelessly, and improperly in Digest, 1845—1850, and about the guidance, government, and direction of the first-mentioned engine and carriage, and also in and about the guidance, government, and direction of the other engine and carriage, that the last- mentioned engine and carriage came into collision with the carriage first mentioned, and J H was thereby killed. Plea, that the collision took place solely by the carelessness, negligence, unskilfulness, and default of the said servants of the defendants in the declaration mentioned, and that the said engines and carriages were at the time when, &c. respec- tively under the guidance, &c. of the said servants, who were then severally fit and competent persons, and the said negligence was wholly unauthorized by the defendants, and without the leave, licence or knowledge of the defendants: — Held, on special demurrer, first, that the plea was not bad as being only an argumentative denial of the alleged cause of action ; and, secondly, that no cause of action was shewn upon the record. Hutchinson v. York, Newcastle and Berwick Rail. Co , 19 Law J. Rep. (N.s.) Exch. 296 : 5 Exch. Rep. 343. A servant injured by the negligence of a fellow servant in the course of their common employment, is not entitled to sue his master for compensation if such fellow servant was a person of skill and care. Therefore, where an action was brought under Lord Campbell's Act, the 9 & 10 Vict. c. 93, to recover damages, the deceased having been killed by the fall of some scaffolding which had been erected by persons of competent skill in the em- ployment of his master who was not guilty on that occasion of negligence, — Held, that the action was not maintainable. Wi^more v. Jay, 19 Law J. Rep. (N.s.) Exch. 300 ; 5 Exch. Rep. 354. (C) Liability to Representatives of Deceased Persons. The defendant, who was in possession of land which abutted on an immemorial public highway, built a house thereon, and excavated an area in front of the house, and left it open adjoining the highway. A, to whom the plaintiff was adminis- trator, walking with ordinary care along the highway, fell down the area and was killed : — Held, that the defendant was liable to an action for damages by the plaintiff as administrator of A under Lord Campbell's Act, the 9 Si 10 Vict. c. 93. Barnes v. Ward, 19 Law J. Rep. (n.s.) C.P. 195. An action on the statute 9 & 10 Vict. c. 93, for compensating the families of persons killed by ac- cidents, can only be maintained in cases where the deceased could have maintained the action, if alive ; therefore, if in an action where the death is alleged to have been caused by the negligence of the defen- dant's servants, it be. shewn that deceased by his own negligence or carelessness contributed to the accident, the defendant would be entitled to a verdict. The rule as to this, in actions on this statute, is the same as if the injured party himself had brought the action. Tucker v. Chaplin, 2 Car. & K. 730. [See ante, (B) (6).] 3M 450 NEWCASTLE-UPON-TYNE— NUISANCE. NEWCASTLE-UPON-TYNE. [See Poet Duties.] NEWSPAPER. L, the proprietor . of a newspaper, had engaged the plaintiff to write articles for it. The defendants had been proprietors, but had ceased to he so before the contract was entered into, but their names ap- peared as proprietors in the declaration required to be filed by the 6 & 7 WiU. 4. c. 76, which makes a copy of such declaration conclusive evidence of the truth of the matter set forth, and of their con- tinuance to the time in question. The jury having found that the contract was made by L on his own behalf, without authority from the defendants, and that the plaintiff did not at the time know the de- fendants to be proprietors, — Held, that the defen- dants were not liable on the contract. Holeroft v. Hoggins, 15 Law J. Hep. (n.s.) C.P. 129 ; 2 Com. B. Rep. 488. NEW TRIAL. [See Practice.] NEXT-OF-KIN. A testatrix having three daughters, gave one third to each for life, with remainder to their children respectively, with cross-remainders between them, with an ultimate limitation to her own next-of-kin and legal personal representatives : — Held, that the class of next-of-kin was to be ascertained at the death of the testatrix, and that they took as joint tenants. Baker -v. Gibson, 12 Bear. 101. NOTICE. [See Action — Charge — Contract — Sessions.] R U, under the will of her late husband being seised of certain real estates, subject to a legacy of 2,0001. to E S, upon her subsequent marriage with J W in 1843 settled these estates to certain uses, whereby they became ultimately vested in J W in fee. To a bill by the husband of E S, claiming under an alleged agreement in writing, in 1835, between R U and E S, whereby E S before her marriage agreed to release her legacy, and R U, in lieu thereof, agreed to assure or devise to her cer- tain parts of the same real estates, J W hy his answer admitted that, before his marriage with R U, he was informed by her that hy agreement between her and E S, E S had given up her right to the legacy, and iu lieu thereof R U had left her part of the said estates ; but he denied all knowledge of the alleged agreement of 1835, or of any other binding agreement, and insisted that he was a purchaser for value without notice: — Held, that J Whad that knowledge which should have led him to further inquiry; and was affected with construc- tive notice of the plaintiff's equitable title under the agreement, if such existed; and the Court directed issues to ascertain the facts. Penny v. Watts, 19 Law J. Rep. (n.s.) Chauc. 212; 1 Mac. & G. 150; 1 Hall& Tw. 266. Notice of a charge to an indefinite amount, though inaccurate as to the particulars or extent of the charge, is sufficient to put upon inquiry a party dealing with the property charged, and to give priority to the true amount of the charge as against the party who received the incorrect notice, but made no inquiry. Gibson v. Ingo, 6 Hare, 124. The lease contained a covenant against assign- ment without the licence of the lessors j the pur- chaser inspected the lease and an indorsement upon it, from which it appeared that a licence was ne- cessary, but he alleged that he did not observe the covenant, and only looked at the term and rent : — Held, that he had notice of the covenant. Smith v. Capron, 19 Law J. Rep. (n.s.) Chanc. 322. NUISANCE. [See Common — Negligence.] (A) Remedy by Action. (B) Rights and Liabilities of Owners of Real Property. Provisions for the removal of nuisances made by the 9 & 10 Vict. c. 96 ; 24 Law J. Stat. 242. The act for the removal of nuisances and the pre- vention of contagious diseases renewed and amended by the 11 & 12Vict. c. 123 ; 26 Law J. Stat. 327. The Nuisances Removal and Diseases Preven- tion Act 1848 amended by the 12 & 13 Vict. c. 11 1 ; 27 Law J. Stat. 259. (A) Remedy by Action. A count in the declaration which states the plaintiff's possession of a messuage adjoining to and abutting on a public navigable river, and that by reason thereof the plaintiff was entitled to the full and free use of the navigation of the said river, for the purpose of passing, &c. and of conveying their servants, goods, &c., from the said messuage, and that the defendant wrongfully placed planks and logs, &o. upon the said river, and upon that part of it which was near to the said messuage, and thereby prevented the plaintiff from having the full use of the navigation of the river, per quod the plaintiffs had been put to expense in the conveyance of their servants, goods, &c. hy a longer and less convenient route, discloses a sufScient ground of action at the suit of an individual. But a count which states that certain messuages were in the possession of tenants of the plaintiffs, and alleges a similar ob- struction, and that the plaintiffs were injured thereby in their reversionary interest, is had as shewing no act which per se imported any damage to their reversionary interest ; and a verdict having been entered generally for the plaintiffs on a decla- ration containing both counts, and the jury having found no damages on the count alleging their pos- session of the messuages, — Held, that the judgment ought to be arrested generally. Dobson v. Black- more, 16 Law J. Rep. (N.s.) Q.B. 233; 9a.B. Rep. 991. In an action on the case for a nuisance arising from the smoke issuing from buildings in the NUISANCE— OUTLAWRY. 451 occupation of the weekly tenants, — Held, that the action was rightly brought against the lessor ; and, secondly, that the entering of smoke discharged from defendant's chimnies into plaintiff's house amounted in contemplation of law to a nuisance ; but that the fact of all buildings erected on the locality on which defendants were being declared common nuisances by statute was not per se sufficient to entitle the plaintiff to a verdict in a civil action, in which the nuisance complained of arose from the smoke. Rich v. Basterfield, 2 Car. & K. 257. In an action for a nuisance, an architect ac- quainted with the locality may be asked if the nuisance depreciated the value of the houses in the neighbourhood. Gauntlett v. Whitworth, 2 Car. & K. 720. (B) Rights and Liabilities of Owneks op Real Pbopertt. If a mere stranger erect a building upon land belonging to another, the owner of the land is jus- tified in pulling down the building for the purpose of ejecting the intruder ; and the fact of the latter being at the time in the building will not be any ground for maintaining an action of trespass against the real owner. Burling v. Read, 19 Law J. Kep. (N.S.) Q.B. 291 ; 11 Q.B. Rep. 904. A, the owner of a house, with a fire-place and chimney, demised it to a tenant from week to week. The tenant lighted fires, and from the position of the chimney the emission of the smoke was a nuisance to B, the occupier of an adjoining house. More than one week elapsed, during which this nuisance continued, and A did not determine the tenancy. B brought an action against A for causing and continuing this nuisance, to which A pleaded not guilty, and not possessed: — Held, that on both issues A was entitled to the verdict. 1. The owner of real property is not responsible for a nuisance committed and continued thereon by the tenant in possession. ' 2. If the owner of land demise it with an existing nuisance thereon, he is responsible for the continu- ance of that nuisance during the term ; so if he be a party to the creation of a nuisance after the demise; but he is not responsible for a nuisance so created, though such nuisance be a probable con- sequence of the user of the land as demised. 3. An omission on the part of the owner of land to determine the tenancy after the creation'by the tenant of a continuing nuisance thereon, is not equivalent to a fresh demise of the premises so as to make him responsible for such nuisance. Rich v. Basterfield, 16 Law J. Rep. (n.s.) C.P. 273 j 4 Com. B. Rep. 783. NUL TIEL RECORD. [See Judgment, (I) Judgment recovered.] OATHS. [See Perjury.] Certain officers of the Court of Chancery autho- rized to administer oaths and take declarations and affirmations by- the 11 Vict. c. lOj 26 Law J. Stat 23. OFFENDERS. The law as to the custody of offenders amended by the 10 & 11 Vict. c. 67; 25 Law J. Stat. 216. The trial and punishment of juvenile offenders provided for by the 10 & 11 Vict. c. 82; 25 Law J. Stat. 237. Provisions made for offences against the person of the sovereign or the government by the 1 1 Vict. c. 12; 26 Law J. Stat. 26. ORDNANCE ACT. The 5 & 6 Vict. c. 94, for the vesting and pur- chase of lands for the Ordnance services, and for the defence and security of the realm, enacts, in section 19, that in the event of owners of lands re- fusing, Src. to treat with the Ordnance officers for the purchase of lands, two Justices may put the latter into immediate possession of the lands ; and a jury being summoned, shall " find the compen- sation to be paid, either for the absolute purchase of such lands, or for the possession or use thereof:" — Held, that under this act the jury were not authorized to award the expenses of witnesses, counsel, &c. to a party whose lands had been taken for the purposes of the act. In re the Principal Officers of the Ordnance and Laws, 17 Law J. Rep. (N.s.) Exoh. 126; 1 Exch. Rep. 441. OUTLAWRY. (A) Proceedings to. (B) Teste. (C) Right opOutlawto TAX Attorney's Bill. (D) Reversal of. (A) Proceedings to. A ca. sa. issued on the 7th of July 1846, return- able "immediately after the execution thereof," under the statute 3 8c 4 "Will. 4. o. 67, s. 2. ■ This writ was returned non est inventus on the 21st of January 1847: — Held, that such writ could not be considered as returnable for the purpose of proceed- ing to outlawry, and that a writ of exigi facias, which issued on such ca. sa,, returnable the 8 th of May, was irregular. Lewis v. Holmes, 16 Law J. Rep. (n.s.) Q.B. 430; 10 a.B. Rep. 896. Proceedings to outlawry cannot be founded on a writ of ca. sa. made returnable immediately after execution, pursuant to the 3 & 4 Will. 4. c. 67. s. 2. Levy V. Hamer, 19 Law J. Rep. (n.s.) Exch. 304; 5 Exch. Rep. 518. An affidavit for a distringas to outlawry, stating that the answers to the attempts made to serve the defendant with the writ of summons at his last known residence here were, that the defendant is abroad, that all reasonable means and diligence have been ineffectually used to serve the defendant personally, and that the deponent believes the de- fendant keeps out of the way to avoid service, is sufficient ; a less degree of particularity being re- quired on such an application than on moving for a distringas to compel appearance. 452 OUTLAWRY— PARISH AND PARISH OFFICERS. A Judge's order for a distringas was made and dated oil the 12th of October upon a defective affi- davit ; the affidavit was amended and re-sworn on the 13th, and the order was then delivered out as of the 12th. Upon a motion to rescind the order and subsequent proceedings thereon, the Court allowed the date to be altered to the 13th upon pay- ment, by the plaintiff, of the costs of the amendment and of the application to rescind the order. Diclcy. Beavan, 8 Com. B. Rep. 621. In an affidavit for a distringas to proceed to out- lawry, it should appear that a copy of the writ of summons has been left at some place where it ia probable that being so left it may come to the de- fendant's knowledge. Vernon v. Pouncettf 3 Dowl. & L. P.C. 744. (B) Teste. The proper teste of a writ of allocatur exigent is on the day on which the previous writ is returnable, and not on the quarto die post. Cox v. Sevan, 19 Law J. Rep. (n.s.) C.P. 49 ; 8 Com. B. Rep. 334. In proceeding to outlawry by writ of summons and distringas, the first exigi facias is properly tested on the day on which the distringas is returned. Dick V. Beavan, 8 Com. B. Rep. 621. (C) Right or Outlaw to tax Attobney's Bill. A party outlawed held not entitled to apply to have his attorney's bill taxed, although part thereof was for business done for himself and his testatrix jointly. In re Mander, 6 U.B. Rep. 867. (D) Reversal of. The defendant was convicted on a plea of guilty to an indictment which had been removed into this court by certiorari, and was outlawed for not ap- pearing to receive judgment. A writ of error was afterwards brought to reverse the outlawry, and errors were assigned as well with respect to the process of outlawry, as also with respect to the goodness of some of the counts of the indictment. It being admitted that the proceedings in out- lawry were erroneous, the Court would not go into the question of the goodness of the conviction. Wright v. Regina, 16 Law J. Rep. (N.a.) Q.B. 10. It is no ground for setting aside a writ of error coram nobis to reverse an outlawry, that theattow.^ ^j for the plaintiff in error has not made an aff.^^St'^ that he has the authority of the outlaw to issue such writ, nor that the outlaw has not entered an appearance to the original action. Cornewall v. Ives, 17 Law J. Rep. (n.s.) Q.B. 103 ; 5 Dowl. & L. P.C. 399. Where it did not appear on the record or process of outlawry for non-appearance to an indictment for treason, that proclamation had been made or a writ of proclamation issued pursuant to the 4 & 5 W. & M. c. 22. s. 4, judgment was reversed at the instance of a co-heir of the party outlawed after the lapse of above 100 years. Ti/nte v. Regina, 1 a.B. Rep. 216. Scmhle- — that an outlaw brought before a Judge by summons, is entitled to be heard without revers- ing his outlawry. In re Pyne, 5 Com. B. Rep. 407. Practice as to reversal of judgment of outlawry, after trial of writ of error coram vobis and verdict for the plaintiff Beavan v. Cox, 19 Law J. Rep. (n.s.) C.P. 304. PARENT AND CHILD. [See Infant.] Order made, on a petition presented, under the 2 & 3 Vict. c. 54, for a mother to have the custody of one of her children, who was under two years of age, and access to her other children, where she and her husband were living apart from each other under the circumstances stated in the petition. Whether the Court has jurisdiction to give costs under the act — qutsre. In re Bartlett, 15 Law J. Rep. (n.s.) Chanc. 418 i 2 Coll. C.C. 661. The Court has jurisdiction, on the petition of a parent or guardian, to order infants to be restored to the proper custody without a bill being filed. A mother had removed her infant children, and was residing with them at some place which was not known to the husband; but the trustees of her marriage settlementwere in communication with her, and remitted dividends to her. The husband ob- tained a writ of habeas corpus against the trustees for the delivery of the children. The trustees stated, that the children were not in their custody or under their controul. The Court refused to make any order against the trustees, although they were aware of the residence of the mother ; nor would it controul their right to transmit the dividends to her. In re Spence, 16 Law J. Rep. (N.s.) Chanc. 309; 2 Ph. 247. Mr. T married Miss N in July 1845, fliid deserted her in February 1846. In June 1846,(4 child of the marriage was horn. After the separation, Mrs. T went to the house of her mother, and Uhere she and her child were maintained. Mr. T after the sepa- ration resided at an establishment.X called "The Agapemone," in which a number of /fier^lMs forming a kind of sect lived. It was avoWed by M^. T that he, in common, with the other membersX of the establishme^j^-'-'^iMered psayer to God as iianne- cessary an'"' "ojl^^^RB'ted that they did notv in ^^IJ^r '^^'nis '^^\^ plaintrj _ or acknowledge V to^.tween \q naviga.l^ion and 1850, Mr. T ^J"^'?- no^^iUKen the srSisjng^ Jiotice of his wife or cliild ; but in the spriiij,^_fromat year he made an attempt to possess himselK^Hjhe child by force. The Court ordered that, iindei^LNl,.e circumstances, Mr. T should be restrained from removing, or ob- 'vaining possession of his child. Thomas v. Roberts, 19 Law J. Rep. (n.s.) Chanc. 506. PARISH AND PARISH OFFICERS. Provisions for the payment of parish debts, the audit of parochial and union accounts, and the allowance of certain charges therein by the 11 & 12 Vict. c. 91 ; 26 Law J. Stat. App. vi. Doubts as to the appointment of overseers in cities and boroughs removed by the 12 Vict. c. 8; 27 Law J. Stat. 8. The 5 & 6 Vict. c. 109, as to the appointment and payment of parish constables, amended by the 13 Vict. i;. 20 ; 28 Law J. Stat. 30. Parish officers having received information that a person was a pauper lunatic likely to do mischief, ordered A B, in whose house he lived, and who ap- peared to have the care of him, to remove him to the V. orkhouse. A B accordingly, with others, took him PARISH AND PARISH OFFICERS— PARLIAMENT. 453 forcibly to the workhouse, where he was detained a week, and then discharged by a magistrate. He then brought actions against the parish officers, in one of which damages were recovered. The trustees of the parish under a local act, charged the damages and costs in these actions against the poor-rates. The rates so charged were afterwards allowed in open vestry, and the charges paid. Upon an infor- mation against the trustees for the purpose of com- pelling them personally to refund the money so paid as for a breach of trust, the Court dismissed the in- formation, holding that the parish officers had not participated in the forcible removal, and that having acted reasonably in the discharge of their duty they were entitled to be allowed the payment so made by them. The 32nd Order of August 1841 applies to in- formations filed against individual members of a body of public trustees, charging such individuals with a breach of trust. Attorney General v. Pearson, 2 Coll. C.C. 581. (B) PARLIAMENT. 1. POWERS AND PRIVILEGES. 2. RETURNING OFFICER. 3. REGISTRATION CASES. (A) List of Votehs. (a) Particulars. (b) Amendment. Notice of Claim. (a) Form and Contents. (&) Service. (c) Duplicate, {d) Amendment. (C) Notice of Objection. (a) Form and Contents. (b) Service. Qualification. (a) In Counties. (6) In Cities and Boroughs. Practice. (a) Notice of Appeal. (6) Entry of Appeal. (c) Delivery of Paper Boohs, {d) Appearance of Parties. (e) Form of Case in Consolidated Appeali {/) Inferences drawn from Case. (D) (E) Doubts as to the law for the trial of controverted elections removed by the 11 Vict. c. 18 ; 26 Law J. Stat. 34. The tinies of payment of rates and taxes by electors regulated by the 11 & 12 Vict. c. 90 ; 26 Law J. Stat. App. v. The law for the trial of election petitions amended by the 11 & 12 Vict. c. 98 ; 26 Law J. Stat. 241. 1. POWERS AND PRIVILEGES. Trespass for assault and false imprisonment. Plea — that before and at the time when, &c., and during all the time in the declaration and plea mentioned, a parliament was sitting at Westminster j that certain matters came on to be discussed In the House of Commons, in respect of which it was con- sidered necessary by the said House that the plaintiff should be examined at the bar of the House touch- ing those matters J that it was ordered by the House, in pursuance of and according to the ancient usages and privileges of the House of Commons and the law and custom of parliament, that the plaintiff should attend the House forthwith, of which he had notice; that the plaintiff wilfully and contemptuously refused to obey the said order, and concealed himself, for the purpose of avoiding attendance on the House, of which the said House had notice, and, thereupon, in order to compel the attendance of the plaintiff at the bar of the said House, to be examined on those mat- ters, it was ordered and resolved by the said House, according to the ancient usages and privi- leges of the said House, and the law and custom of parliament, that the plaintiff should be sent for, and brought before the said House, in cus- tody of the serjeant-at-arms attending the said House, and that the Speaker of the said House should issue his warrant accordingly ; whereupon the said Speaker, in pursuance of the order and resolution last mentioned, and in pursuance of and according to the ancient usages and privileges of the said House, and the law and custom of parlia- ment, issued his warrant accordingly, whereby, after reciting that the House of Commons had that day ordered that the plaintiff should be sent for in the custody of the serjeant-at-arms attending the said House, he required and authorized the serjeant-at-arms then attending the said House to take into custody the body of the plaintiff; that the defendant was then serjeant-at-arms attending the said House, and that the said warrant was duly delivered by the Speaker to the defendant to he by him executed in due form of law, by virtue and in execution of which said warrant the defendant arrested the plaintiff, and did, in order to bring him before the said House, in execution of and obedience to the said warrant, force and compel him, &c. (justifying the trespasses complained of). On demurrer to this plea, it was held by the Court of Exchequer Chamber (reversing the judgment of the Court below). That the warrant of the Speaker of the House of Commons, having issued in a mat- ter over which the House had jurisdiction, was to be construed on the same principles as a, mandate or writ issued out of a superior court, acting ac- cording to the course of common law, and was, therefore, valid as a defence to the action, without assigning any specific cause on the face of it. Another plea merely justified underan order for the plaintiff to attend the House, without assigning the cause of the order, and alleged a disobedience of this order, and that a warrant issued, as in the former plea : — Held, that as this plea did not shew affirma- tively that the warrant issued in a matter over which the House had no jurisdiction, it was good. Held, also, that the recitals in the warrant must be read in connexion with the mandatory part, and thatitthereforeauthorized the defendant not only to take the plaintiff, but also to bring him to the bar of the House. The House of Commons has power to institute inquiries, and order the attendance of witnesses, 454 PARLIAMENT; (A) List op Voters. and, in case of disobedience, to bring them in cus- tody to the bar, for the purpose of examination. If there is a charge of contempt and breach of privilege, and an order for the party charged to attend the House and answer, and a wilful disobe- dience of that order, the House has power to cause such party to be taken into custody, and brought to the bar to answer the charge. The House of Commons alone is the proper judge when these powers, or either of them, ought to be exercised. Gosset v. Howard, 16 Law J. Rep. (N.s.) Q-B. 345; 10 Q-B. Rep. 411. 2. RETURNING OFFICER. In an action against the returning officer of a borough, the declaration stated, that the plaintiff was a burgess, and that his name was on the register of voters for the borough, and that he was entitled to give his vote at an election then holden, and tendered his vote, yet the defendant refused to permit him to give his vote, and would not receive or allow it: — Held, that a plea that the plaintiff was not a burgess duly qualified or entitled to vote at the election, concluding to the country, was bad. Semble — that a count stating that the defendant, nevertheless, well knowing the premises, " hut con- triving, and wrongfully, fraudulently, and wilfully and maliciously intending to injure the plaintiff," did wholly refuse to receive the vote of the plain- tiff, or to admit and allow the same to be entered and recorded ; but, on the contrary thereof, caused the plaintiff's vote to be entered in the column of the poll-books for votes received as tendered only ; and when he cast up the votes at the final close of the poll, and declared its state, wholly refused, neglected, and omitted to reckon and include the plaintiff's vote, sufficiently stated, that the defen- dant acted maliciously, even on special demurrer. Quare — Whether, at such an election, the re- turning officer is not acting merely ministerially ; and, consequently, whether it is necessary, in order to support the action, that the defendant should have acted maliciously. By the 6 & 7 Vict. c. 18. s. 82. no scrutiny shall be allowed by or before any returning officer, A declaration alleged that plaintiff offered his vote for choosing a burgess, but that the defendant, a returning officer, ordered and allowed a scrutiny, and adjudged and determined after such scrutiny that theplaintiffwas not then entitled to give his vote ; whereby the plaintiff was not only delayed in the exercise of the privilege, but was then wholly de- prived of his privilege, and a burgess was elected without any vote of the plaintiff: — Held, first, that the words after the " whereby" were a sufficient averment of matter of fact, and were not merely an inference drawn from preceding allegations; se- condly, that the matter of fact so averred shewed a sufficient injury and damage, and which might have resulted from holding the scrutiny. Pryce v. Belcher, 15 Law J. Rep. (N.s.) C.P. 305 ; 4 Dowl. & L. P.C. 238 ; 3 Com. B. Rep. 58. The plaintiff was on the register of voters for the borough of A, and tendered his vote for one of the candidates at a contested election for a member to serve in parliament for that borough ; the return- ing officer, mistaking the duty required of him by section 81. of the 6 & 7 Vict. c. 18, allowed a scrutiny upon, and finally refused to receive and record the plaintiff's vote. The plaintiff had ceased to reside at A, or within seven miles thereof, for some time before the election, and was, therefore, not entitled to vote under the 79th section of the same act. In an action on the case against the returning officer, — ^Held, that a person on the re- gister of voters, hut having lost his right to vote by the provisions of the 6 & 7 Vict. c. 18. s. 79, cannot recover damages against a returning officer (no malice existing) for refusing to receive his vote at the poll. Semble — In such case the returning officer might be prosecuted for the breach of a public duty. Pryce v. Belcher, 16 Law J. Rep. (n.s.) C.P. 264 ; ' 4 Com. B. Rep. 866. 3. REGISTRATION CASES. (A) List OF Voters. (a) Particulars. Upon a list of voters for a county, a party was described in the register under the head " place of abode" as " travelling abroad :" — Held, that the description was sufficient. Walker v. Payne, 15 Law J. Rep. (N.s.) C.P. 38 ; 1 Barr. & Ar. 541 ; 2 Com. B. Rep. 12. Where a party was upon the register for a county, and it was objected, before the revising barrister, that the situation of the property was insufficiently described upon the register for the purpose of being identified, — Held, that under section 40. of the 6 Vict. c. 18. this was a question for the barrister, and he having found that the description was suffi- cient, the Court refused to interfere with his deci- sion. Wood V. Overseers of Willesden, 15 Law J. Rep. (n.s.) C.P. 41 ; 1 Barr. & Ar. 527 ; 2 Com. B. Rep. 15. (&) Amendment. The abode of a party claiming a city vote, was described as " Greenwich" instead of " Queen Square," both places being within seven miles of the city. The qualification of the claimant was rightly described: — Held, that this was such "an insufficient description" as was amendable by the revising barrister under section 40. of the 6 Vict, c. 18, upon the matter being supplied to his satis- faction. Luckett V. Knowles, 15 Law J. Rep. (N.s.) C.P. 87; 1 Barr. & Ar. 730; 2 Com. B. Rep. 187. The qualification of a voter for a borough, who was duly objected to, was described in the over- seers' list in the third column as " House in succes- sion,"^ in the fourth column as " Butcher Row." It was proved before the revising barrister that the voter had occupied two houses during the twelve months next previous to the 31st of July, one in Coleham, the other in Butcher Row, and he then applied to the barrister to amend the description of his qualification by altering the word " house" in the third column to "houses," andby adding" Cole- ham" in the fourth column, which the revising bar- rister refused to do : — Held, that the revising barrister has no power under the 40th section of the 6 Sc 7 Vict. c. 18. to amend in such manner as to add to the subject-matter of the qualification PARLIAMENT; (C) Notice or Objection. 455 described in tlie list. Onions v. Bawdier, 17 Law J, Rep. (n.s.) C.P. 70 ; 5 Com. B. Rep. 65. [See the next case.] (B) Notice of Claim. (a) Form and Contents. A party claiming a borough vote in respect of the occupation of two houses in immediate succession, in his notice to the overseers (sent in pursuant to the 6 Vict. c. 18, Schedule B. No. 6.) described under column three his " nature of qualification," as " house," and under column four, " street, &c. where property is situate," specified the two houses in respect of which he claimed : — Held, that this was a sufficient description, as column three was intended to point out the general nature of the qualification, which was to be more particularly described in column four ; and per Coltman, J., the barrister had the power to amend in case it had been necessary. Hitchins or Hutchins y. Brown, 15 linw J. Rep. (n.s.) C.P. 38; 1 Ban. & Ar. 545; 2 Com. B. Rep. 25. (J) Service of. The statute 6 Vict. i;. 18. s. 4. enacts, " That per- sons desirous of being put upon the register of voters shall give or send to the overseers, on or before the 20th of July, a notice in writing ;" the 20th of July happening to be a Sunday, — Held, that the notice might legally be given on that day. By section 64, where respondents do not appear, the appellant must prove a service of a notice of appeal : — Held, that an objection to the sufficiency of the service was waived by the respondent's ap- pearance. Rawlins V. Overseers of West Derby, 15 Law J. Rep. (n.s.) C.P. 70 ; I Barr. & Ar. 599 ; 2 Com. B. Rep. 72. , (c) Duplicate. Where a notice of claim addressed to the over- seer was duly posted, so that by due course of post it would have arrived at the place to which it was addressed on the 20th of July, but by an acci- dent it did not arrive until the 22nd, — Held, that the duplicate notice properly stamped was sufficient evidence of the claim being in time. Held, also, that there is no difference in this respect between a notice of objection, posted under the 6 Vict. c. 18. s. 100, and a notice of claim, posted under section 101. Bayley v. Overseers of Nantwich, 1 Barr. & Ar. 642; 2 Com. B. Rep. 118. (etj Amendment. A notice of claim to be placed upon the register of voters for a county was directed to and served upon the overseers of the "township of S." There was, in fact, no such township, but the overseers , who acted for the district called the township of S, and on whom the notice was duly served, had, by notice duly published, required all claimants to send their notices of claim to them. S was situate in the parish of M, and the overseers acting for the (so-called) township of S were overseers of the parish of M. The revising barrister altered the words "township of S," in the direction of the notice, to the " parish of M," and inserted the claimant's name in the register : — Held, that the notice of claim was sufficient, was properly served, and that the revising barrister had properly exercised his power of amendment. Elliott v. St. Mary's Within, 16 Law J. Rep. (N.s.) C.P. 101; 4 Com.B. Rep. 76. (C) Notice of Objection. (a) Form and Contents. A person giving notice of objection, described himself as of No. 398, High Street, Cheltenham, which was his place of abode. On the register he was described as of "Cheltenham," only: — Held, that the notice of objection was valid. Pruen v. Cox, 15 Law J. Rep. (n.s.) C.P. 17 ; 2 Com. B. Rep. 1 ; 1 Barr. & Ar. 514. The statute 6 Vict. c. 18. sched. B, s. 10, gives a form to be served on an overseer of a notice of objec- tion to a person on the list of voters for a city, claim- ing in respect of property. To this form, this note is attached : " If more than one list of voters, the notice of objection should specify the list to which the objection refers :" — Held, that where there was more than one list made out by the overseers, if the list was not specified, the notice of objection was void. Barton v. Ashley, 15 Law J. Rep. (n.s.) C.P. 36 ; 1 Barr. & Ar. 518 ; 2 Com. B. Rep. 4. The notice of objection to a borough voter, in the statute 6 Vict. c. 18. sched. B. Nos. 10, II, gives 'the following form of signature to the notice : " A B, of [place of abode], on the list of voters for the parish of ." An objector's place of abode being wrongly described on the list of voters, he, in the signature to his notice of objection, gave his true place of abode, and not the abode mentioned in the register: — Held, (Maule, J. dissentiente,) that the notice was correctly signed. Knowles v. Brooking, 15 Law J. Rep. (n.s.) C.P. 197 ; 1 Barr. & Ar. 755 ; 2 Com. B. Rep. 226. A person giving notice of objection was described on the list of voters for the parish of Fisherton Anger, as " C A. Place of abode, Fisherton Street; Nature of qualification, House and garden ; Street, lane, or other like place in the parish where the property is situate, Fisherton Street." The notice of objection was signed " C A, of the parish of Fisherton Anger, in the said borough, on the list of voters for the parish of Fisherton Anger:" — Held, that the notice of objection was sufficient. Wills v. Adey, 15 Law J. Rep. (n.s.) C.P. 205 ; I Barr. & Ar. 782 ; 2 Com. B. Rep. 246. The notice of objection to a borough vote should state on which of the lists of voters, where there is a list of freemen, the objector happens to be ; and a notice, therefore, signed by a person on the freemen's list in a borough, describing himself as R F " on the list of voters for the borough of L," — Held bad. The defect in such a notice is not an " inaccurate description," and aided by section 101. of the 6 Vict, c. 18. Farrer v. Edsworth, 16 Law J. Rep. (n.s.) C.P. 132; nom. Eidsforth v. Farrer, 4 Com. B. Rep. 9. The objector in a notice of objection to a county voter, described himself as of " The Oaks, on the register of voters for the parish of St. Woolos." The objector's name was on that list, as having his place of abode in that parish, and his qualification was described as " The Oaks"; — Held, that the desciip- 456 PARLIAMENT; (C) Notice or Objection. tion in the notice of objection, in tlie absence of the mention of any parish and county, or other recog- nized division, was insufficient, and that the re- vising barrister could not couple the list of voters with the notice, for the purpose of rendering certain the objector's place of abode. IVooUett v. Davis, 16 Law J. Rep. (n.s.) C.P. 185; 4 Com. B.Rep. 115. A notice of objection to a voter for a borough was in the following form :— " To Mr. C S, 1 Olney Place. Take notice, 1 object to your name being retained on the list of voters for the borough of Cheltenham. (Signed) J F of No. 5, Sherborne Street, on the list of voters for the parish of Chel- tenham": — Held, that the description of the ob- jector's place of abode, No. 5, Sherborne Street, meant Sherborne Street, Cheltenham, and was a compliance with the requirements of the 17th sec- tion of the Registration Act. Whether a notice of objection designates on the face of it an objector's place of abode, is a question of law. Whether such designation is sufficiently particular, is a question of fact. Sheldon v. Flatcher, 17 LawJ.Kep. (n.s.) C.P. 34; 5 Com. B. Rep. 14. (6) Service of. Under the statute 6 & 7 Vict. c. 18. ss. 7, 100, and 101, it is sufficient for the party sending a notice of objection either to a voter or overseers, to post it with a postmaster, and with the formalities and address prescribed by section 100, in such time that, in the ordinary course of post, it would be delivered at the place to which it is directed within the period limited by the act ; and the effect of such notice will not be avoided by the circumstance that, in consequence of a delay on the part of the post-office, it is not delivered until after the day mentioned in section 7. for the delivery of such notices. Under section 101. the duplicate stamped by the postmaster is conclusive evidence of the due service of the notice, if properly directed, on the overseers. Bishop v. Helps, 15 Law J. Rep. (n.s.) C.P. 43 ; 2 Cora. B. Rep. 45 ; 1 Barr. & Ar. 572 : s. p. Hiekton v. Antrobus, 1 Barr. & Ar. 586, n. In the date of the notices of objection served on the overseers, and the party objected to, pursuant to the 17th section of the 6 & 7 Vict. c. 18, the year must be inserted, otherwise they will be insuf- ficient. A notice of objection, under that section, was served on one churchwarden of a parish. The list of voters had been made out by the overseers and signed by them and his fellow churchwarden only ; — Held, that the service of the notice was suffi- cient. Beenlen v. Hockin, 16 Law J. Rep. (N.s.) C.P. 49; 4 Com. B.Rep. 19. In the list of voters for a borougl), made out by the overseers, the place of abode of a voter was described as at" Lower Mitton," and his qualify- ing property to be an " office and wharf," in " Lichfield Street." A notice of objection, ad- dressed to the voter at Lower Mitton, was left at the office and wharf, which are situate in Lower Mitton. The voter did not reside at the office and wharf, nor had he any residence in Lower Mitton : — Held, that the service of notice was insufficient. Allen v. Greensill, 16 Law J. Rep. (n.s.) C.P. 142; 4 Com. B. Rep. 100. Where the notice sent by post had directions both on the outside and in the inside, and the paper produced as a duplicate to prove the service, con- tained the direction in the inside but none on the outside, the Court held that the paper was not a duplicate, and that the service was not proved. Birch V. Edwards, 17 Law J. Rep. (n.s.) C.P. 32; 5 Com. B. Rep. 45. The service of a notice of objection on a borough voter was stated by the revising barrister to have been made by putting the notice and leaving it within the entrance door of the voter's place of abode between nine and ten o'clock of the night of the 25th of August: — Held, that the time and mode of service were insufficient; and that whether a notice of objection had been properly served is a question of fact to he determined by the revising barrister. Watson v. Pitt, 17 Law J. Rep. (n.s.) C.P. 143; 5 Com. B. Rep. 77. An assistant overseer appointed in general terms under the 59 Geo. 3. c. 12. is an overseer within the 6 & 7 Vict c. 18. o. 17, and a notice of objection to a borough voter, served upon such an assistant overseer, on the 25th of August, is a good service of the notice of objection. Points v. Attwood, 18 Law J. Rep. (n.s.) C.P. 19 ; 6 Com. B. Rep. 38. A notice of objection sent by post, and delivered in the ordinary course of the post upon a Sunday, is valid. Colville v. Lewis, I Barr. & Ar. 608 ; 2 Com. B. Rep. 60. Sending a notice of objection to the party ob- jected to by the post, pursuant to the directions of the 6 & 7 Vict. c. 18. s. 100, is a sufficient substi- tute for giving the notice to the party, or leaving it at his place of abode, as required by section 7. Where, therefore, a notice was posted, under sec- tion 100, in sufficient time to have reached the party according to the ordinary course of post, on the 25th of August, — Held, that such service was sufficient to call upon the party to prove his quali- fication, notwithstanding that the actual delivery was accidentally delayed until the 27th. And held, that the provisions of section 100. are equally ap- plicable to notices to overseers, directed, as pro; vided by section 101, to their usual places of abode. Hiekton v. Antrobus, 2 Com. B. Rep. 82. (D) (Qualification. (a) In Counties. An hospital was founded in 1673, by th^ D of N, and real property was conveyed to trustees, for the benefit of poor pensioners residing in it. One of the ordinances regulating the hospital declared, that whenever more than \00l. remained in the treasury, the surplus should be equally distributable among the pensioners. A private act of parliament, regulating the hospital, enacted, that instead of having the surplus revenues divided among the original number of pensioners, additional pensioners were to be chosen ; and the trustees, under the direction of the D of N, were directed, from time to time, to add as many more pensioners as the revenues of the hospital would allow; and the trustees were to pay the pensioners such fixed sti- pends as they should think fit; and "to lessen, increase, vary, change, and alter such weekly sti- pends as they should find requisite, so that the stipend should at no time be reduced below 3s. 6d. PARLIAMENT; (D) Quahfication. 457 a week." The pensioners were also 'entitled to receive coals and certain clothing; but the case found that the 3s. 6rf. a week and the coals and clothing would be insufficient to confer the franchise; the pensioners were actually in the receipt of 10s., besides the coals and clothing: — Held, that the pensioners were not absolutely entitled to more than 3s. 6d. a week, besides the coals and clothing, and, therefore, were not entitled to the franchise. The rents of the hospital were derived from pro- perty in Nottinghamshire and Yorkshire, and were paid into the treasure-house, and each pensioner received his pension indiscriminately from the joint rents : — 5ein6fe^that each pensioner would be con- sidered as receiving his pension rateably from each county, in proportion -to the whole property in each county. Ashmore v. Lees, 15 Law J. Kep. (u.s.) C.P. 65; 1 Barr. & Ar. 554; 2 Com. B. Rep. 31. A bond fide conveyance of freehold property by a father to two of his sons in consideration of natural love and affection, for the purpose of conferring on them votes for a county, under which possession was taken by them, is- not void by reason of the statute 7 & 8 Will.' 3. c. 25. s. 7. Newton v. Har- greaves, 15 Law J. Rep. (n.s.) C.P. 154 ; 1 Barr. & Ar. 690 ; 2 Com. B. Rep. 163. A freehold rent-charge was granted by deed in January 1845, the first payment of which was to be made in January 1846; — Held, that until the receipt of the rent, or it had become due, the grantee had not a possession within the statute 2 & 3 Will. 4. c. 45. s. 26, and therefore was not entitled to be registered as a voter in respect thereof, in the year 1845. Murray v. Thorniley, 15 Law J. Rep. (N.S.) C.P. 155; 1 Barr. & Ar. 742; 2 Com. B. Rep. 217. A bond fide purchase of freehold property by a number of persons as tenants in common, from one vendor, for an adequate pecuniarj' considera- tion, actually paid, the avowed and only object of which on both sides is, to multiply voices in the election of members of parliament for a county, if it be made without any secret reservation or trust, confers on the purchasers the right to be registered on the list of voters, and is not a transaction within the prohibition of the statute 7 & 8 Will. 3. c. 25. Alexander v. Newman, 15 Law J. Rep. (n.s.) C.P. 134; 1 Barr. 8e Ar. 657 ; 2 Com. B. Rep. 122: s.p. Riley v. Crossley, IS Law J. Rep. (n.s.) C.P. 144 ; 1 Barr. & Ar. 682 ; 2 Com. B. Rep. 146. ■ Where certain parties purchased houses and land to acquire for themselves votes, for the purpose of multiplying voices for the election of members for a county, and to split and divide the interest in the houses and land so purchased, and such object was known to, and acquiesced in by the vendor's soli- citor, in whose hands the property had been placed for sale, but it did not appear that the vendor was aware of the object of the purchasers, or that either he or his solicitor had any such purpose, — Held, that the purchasers were entitled to be registered, and the transaction did not fall within the prohibi- tion of the statute 7 & 8 Will. 3. c. 25. Hoyland V. Bremner, 15 Law J. Rep. (n.s.) C.P. 133 ; 1 Barr, & Ar. 611 ; 2 Com. B. Rep. 84. B had an interest of greater annual value than 40s. but under lOl., in a tenement in an ancient borough, situated within a barony. The tenement DiOEST, 1845—1850. was held upon a burgage tenure, subject to the payment of rent; and by the custom of the hurgh, tenements were conveyed by deed, without livery of seisin or enrolment, and, where the party was married, without the separate examination of the wife. No presentment or admittance upon aliena- tion was necessary at a,ny lord's court, though with respect to other tenements in the barony where the same custom prevailed as to conveyances, admit- tance was necessary : — Held, that the above facts did not shew that B was seised of tenements of copyhold, or of any other tenure, except freehold; that it must be presumed, therefore, that he was seised of the freehold, and was therefore, entitled to a vote for the county. Basher v. Thompson, 16 Law J. Rep. (n.s.) C.P. 57 ; 4 Com. B. Rep. 448. A rent-charge which had originally been created in 1838, payable on the 29th of September and 24th of March, and had been paid up to the 29th of September 1845, was conveyed by the owner in Jan- uary 1846, to A, in trust for B and others. The first payment was made to A in the month of May fol- lowing : — Held, that under these circumstances B was not entitled to be registered in the list of voters in respect of it, not having had six months' posses- sion of it within the meaning of the statute 2 8r 3 Will. 4. c. 45. s. 26. Hayden v. Overseers of Tiver- ton, 16 Law J. Rep. (N.s.) C.P. 88 ; 4 Com. B. Rep. 1. A voter's qualification in a county register was described in the third and fourth columns respect- tively, as " land above 501." " Own occupation." Within the twelve months next before the 31st of July, he changed his occupation, and took the ad- joining land, which was sufficiently designated by the description in the old register, and he did not send in any new claim: — Held, that the name of the voter must be erased from the register. When the right to vote depends upon the occu- pation of premises in immediate succession, the whole of the subject-matter composing the qualifi- cation must be fully described in the register. A county voter who claims under section 73. of the 6 Vict. u. 18, must always send in a new claim to vote. Burton v. Gery, 17 Law J. Rep. C.P. 66 ; 5 Com. B. Rep. 7. By letters patent, the whole management of a lunatic's property, both real and personal, was granted to a comtnittee, who was directed to render a yearly account of the estate to the Court of Chancery. The committee occupied land of the lunatic worth 393 Z. per annum. He described himself as tenant, and debited himself with that sum as rent^ in the yearly account rendered to and allowed by the Court of Chancery : — Held, that the committee did not occupy as tenant lands or tene- ments, within the meaning of the 20th section of the Reform Act. Burton v. Langham, 17 Law J. Rep. (n.s.) C.P. 253 ; 5 Com. Rep. 92. A mortgagor of freehold premises in possession of the rents and profits is not entitled to be regis- tered as a county voter, under the 6 & 7 Vict. c. 18. s. 74, unless he receives therefrom 40s. by the year beyond all charges. Monthly payments of interest made by a mem- ber of a building society, instituted under the Building Societies Act, the 6 8j 7 Will. 4. u. 32, for money lent by the society, and for the repayment 3N 458 PARLIAMENT; (D) Qualification. of vphicU the freehold premises of the memher are pledged as a security, are a charge on the freehold, within the statute 8 Hen. 6. c. 7. Copland v. Bart- lelt, 18 Law J. Rep. (n.s.) C.P. 50; 6 Com. B. Rep. 18. The occupier of a house, as tenant, within a borough of the clear yearly value of lOi., who also occupies in a distinct part of the borough " land to the value of 40*. by the year above all charges" of which he is owner in fee, is entitled to be regis- tered as a voter for the county as well as for the borough. Capell v. Overseers of Aston, 19 Law J. Rep. (N.s.) C.P. 28 ; 8 Com. B. Rep. 1. A mortgagor in possession held not entitled to vote, under the 6 & 7 Vict. c. 18. s. 74, as his estate was not of the value of 40s. per annum beyond the interest payable; the mortgage was made to secure only the principal money, but it was found as a fact that interest had been regularly paid. Lee v. Hutchinson, 8 Com. B. Rep. 16. (6) Jn Cities and Boroughs. Section 30. of the Reform Act enacts, " that where an occupier, not upon the poor-rate, claims to be rated, he shall, upon so claiming, and actually paying or tendering to the overseers the full amount of the rates then due, he deemed to have been rated." An occupier, claiming to be rated under this section, asked the overseer whether any rates were due, who replied, he did not know ; the occupier then said, "If there are, I am prepared to pay them," upon which the overseer said, "I will see to it;" and the occupier then went away. He had at the time sufficient money in his pocket to have paid the rates : — Held, that this was not a tender of the amount within the meaning of the above section. Per Tindal, C.J. — An overseer has, in such a case, no power to dispense with a tender. Semble, per Maule, J. — All the precision required under a plea of tender would not be necessary under this statute. Bishop v. Smedlei/, 15 Law J. Rep. (N.s.) C.P. 73; ] Barr.&Ar. 6i4; 2 Com. B. Rep. 90. It is enacted by the 2 Will. 4. u. 45. s. 32, " that every person who would have been entitled to vote in an election for any city or borough, either as a burgess or freeman, or, in the city of London, as a freeman and liveryman, if that act had not been passed, shall be entitled to vote, provided such person shall be duly registered ;" and it then pro- vides, " that no person who shall have been admitted a burgess or freeman, otherwise than in respect of birth or servitude, since 1831, .shall be entitled to vote as such in any such election for any city- or borough as aforesaid, or to he so registered as afore- said:'' — Held, that this proviso does not apply to the city of London, where the voters must be both freemen and liverymen, and where, therefore, they do not vote as burgesses or freemen, nor are so registered. Croucher v. Browne, 15 Law J. Rep. (n.s.) C.P. 74 ; 1 Barr. & Ar. 621 ; 2 Com. B. Rep. 97. The name of a tenant occupying a house No. 3, was inserted in a rate as for No. 4, by mistake : — ■ Held, that this was a misdescription, within the meaning of section 75. of the 6 Vict. u. 18, and that tlie insertion of the tenant's name upon the rate was a sufficient calling upon him to pay, within the meaning of that section. By agreement between the landlord and tenant, the landlord paid the rates, and the tenant paid an increased rent: — Held, that the payment of the rates by the landlord was a payment by the tenant. Semble — that this was a sufficient rating of the tenant, and payment of the rate by him, within the meaning of section 27. of the Reform Act. Cook v. Luckeit, 15 Law J. Rep. (n.s.) C.P. 78 ; 1 Barr. & Ar. 647 ; 2 Com. B. Rep. 168. A party, whose qualification was houses in suc- cession, was on the list of voters for a borough, but the list omitted to mention the number of the first house which he had occupied : the revising barrister having decided that the number ought to have been stated, and having expunged the voter's name, — Held, that his decision was right It did not appear that the number had been sup- plied to the barrister; and, per Erie, J. — If the number had been supplied before the barrister had completed the revision of the list, he ought to have added the number, and retained the voter on the list. Flounders v. Dormer, 15 Law J. Rep. (n.s.) C.P. 81 ; 1 Barr. & Ar. 588 ; 2 Com. B. Rep. 63. " Part of a house" is a sufficient description of the nature of a party's qualification as » borough voter. The landlord occupied one part of the house, and the appellant the other part; the landlord's name was upon the rate with " house" opposite to it. The appellant's name followed immediately afterwards, but unconnected by bracket with the landlord's name, and nothing was carried out opposite to it in the other columns of the rate : — Held, that this was a sufficient rating. Judson v. Luckett, 15 Law J. Rep. (n.s.) C.P. 163; 1 Bar. & Ar. 707; 2 Com. B. Rep. 197. By the 2 Will. 4. c. 45. s. 30. an occupier may claim to be put on the rate, and the overseer is thereupon required to put his name on the rate " for the time being." A rate made under a private statute was headed " A rate for thirteen weeks from the 16th of September to the 16th of December:" a party, after the 16th of December, having made claim to he put on the rate, held, that the above rate was the rate "for the time being," until a new rate was made and allowed and published. Bushell V. Luckett, 15 Law J. Rep. (n.s.) C.P. 89 ; 1 Barr. & Ar. 635; 2 Com. B. Rep. 111. Section 27. of the 2 Will. 4. c. 45. gives the right of voting for boroughs to the occupiers of houses of the " clear yearly value of not less than Wl." — Held, that the meaning of these words was " clear yearly value to the tenant of lOi.," and held, that " the fair annual rent," without deducting therefrom either the landlord's insurance or the landlord's repairs, was the proper criterion of the " clear yearly value." Colvill V. Wood, 15 Law J. Rep. (N.s.) C.P. 160; 1 Barr. & Ar. 721 ; 2 Com. B. Rep. 210. A revising barrister found that a house was let to ii tenant for 12i. Is. per annum, that the landlord paid the rates by composition, and that if these rates were deducted from the rent, they would leave a clear annual amount of more than 10/., but that if the tenant paid the rates, the assessment would be higher, and would reduce the clear amount below 10/., and upon these facts decided that the tenant PARLIAMENT ; (D) Quaiification. 459 was not entitled to vote as a 10!. householder: — Held, that this was a question of fact, of which the barrister was the sole judge, and with which this Court could not interfere. Per Erie, J. — The "clear yearly value" is the amount for which the tenement would fairly let, deducting what a tenant would fairly have to pay. Cmgan v. Luckett, 15 Law J. Rep. (n.s.) C.P. 159 ; 1 Barr. & Ar. 716; 2 Com. B. Uep. 182. Where an occupier had claimed to.be rated under section 30. of the 2 Will. 4. u. 45, in respect of a house to which the owner was rated, the overseers placed his name on the rate immediately under that of the owner without a connecting bracket, and left a blank opposite his name in the other columns of the rate, without (as the overseer stated) any inten- tion of rating him for anything: — Held, that this was a sufficient rating ; that the blank shewed that the party was rated in respect of the premises pre- viously mentioned, and that the overseer's intention was immaterial. Pariente v. Luckett, 15 Law J. Rep. (n.s.) C.P. 83 j 1 Barr. & Ar. 700 ; 2 Com. B. Rep. 177. A house was let to the respondent and five others, and was of sufficient value to confer upon them the franchise. It appeared, in evidence, that the h'ouse was used for the purpose of the Anti-Corn Law League, and that the rent and servants' wages were paid out of the funds of that association, various members of which transacted the business of the association upon the premises. The six lessees, also, who were members of the association, and contributed towards the funds, when in London, transacted there partly their own business and partly that of the association. There was no evidence that the other members of the association had any right to come upon the premises without the consent of the six lessees: — Held, first, that this was a sufficient occupation by the six lessees to confer the franchise ; secondly, that this was not a joint occupation with the other members of the association. Luckett v. Bright, 15 Law J. Rep. (n.s.) C.P. 85 ; 1 Barr. & Ar. 737 ; 2 Com. B. Rep. 193. It is enacted, by section 32. of the Reform Act, that " no person who shall thereafter be elected, made or admitted a burgess or freeman otherwise than in respect of birth or servitude, shall be en- titled to vote as such," &c. The burgesses of a borough consisted of four classes. They were entitled to be admitted into the fourth class in respect of birth (and also for other causes), and into the third class from the fourth class by seniority, but into the second and first classes by election by the members of those classes from the third and second classes respectively. Before the Reform Act the right of voting for members was in the first class only : — Held, that the members of the first - class who had been admitted into it since the Re- form Act, and who had obtained admission into the fourth class by birth, were not " elected otherwise than in respect of birth," and were, therefore, entitled to vote in the election for a member for the borough. Gale v. Chubb, 16 Law J. Rep. (n.s.) C.P. 54 i 4 Com. B. Rep. 41. A voter occupied a house and shop on the oppo- site sides of a yard, inclosed all round, except for a passage, which was open to the street. Two persons resided in the yard besides the voter, and had a right to the use of part of the yard ; — Held, that the house and shop could not be joined, to give a qualification to vote. Powell v. Price, 16 Law J. Rep. (N.s.) C.P. 139 j 4 Com. B. Rep. 105. A party who was entitled to vote for a borough previous to the 2 Will. 4. c. 45, by residing with!.. the borough, and being rated and paying scot and lot any time before an election, omitted to pay his rates for the year 1845, and had in consequence not been registered for that year ; but had paid all rates before the 31st of July 1846:— Held, that the previous omission had not deprived him of his qualification. Nicks v. Field, 16 Law J. Rep. (n.s.) C.P. 61 ; 4 Com. B. Rep. 63. A shed described by the revising barrister as standing against a wooden paling, but not fastened thereto ; six posts put into the ground, support a tarpauling which forms thereof; one of the sides is boarded up with boards nailed to tlie posts ; the shed is used to put barrows, posts, &c. into, and wharfage is paid for the use of it: — Held, that the shed so described is a "warehouse" or "other building" within the 27th section of the Reform Act. if'atson V. Cotton, 17 Law J. Rep. (n.s.) C.P. 68 ; 5 Com. B. Rep. 51. A party claiming to vote occupied a counting- house in a house in which the landlord and others had counting-houses. There were a wooden gate and a door at the outer entrance, which were open all day, but shut by night. A clerk of the land- lord's lived on the premises to protect them, and kept the keys of the gate and door, which could be locked and unlocked only on the inside. It was the clerk's duty to open the gate and door to any of the occupiers, if required to do so, none of them having keys :■ — -Held, that this was an occupation as tenant by the claimant, which entitled him to a vote. Downing V. Luckett, 17 Law J. Rep. (n.s.) C.P. 31; 5 Cora. B. Rep. 40. T occupied rooms in a house in which the land- lord also occupied a shop and parlour, but did not sleep. Each party had a key to the outer door, which stood open all day, but was shut at night T was held entitled to a vote for members of parlia- ment as the tenant of " a building," under the 2 Will. 4. c. 45. s. 27. Toms v. Luckett, 17 Law J. Rep. (n.s.) C.P. 27 ; 5 Com. B. Rep. 23. A coachhouse and stable (of the yearly value of 101.) under the same roof, with no internal com- munication except two grated windows looking from one into the other, and with separate outer doors, is a building within the 27th section of the Reform Act, and confers a vote for a borough. Jol- liffe V. Rice, 18 Law J. Rep. (n.s.) C.P. 25; 6 Com. B. Rep. 1. A voter for a borough had not paid a poor-rate unappealed against, but which had not been allowed by two Justices, and his name was thereupon erased from the list of voters: — Held, that a poor-rate not duly allowed is a nullity, and non-payment thereof does not disqualify a claimant from being regis- tered as a voter for a borough. Fox v. Davies, 1 8 Law J. Rep. (n.s.) C.P. 48 ; 6 Com. B. Rep. 11. Before 1832 the election of a member of parlia- ment fo;: the borough of Bewdley was vested in the bailiff, burgesses and twelve capital burgesses, who were required to he residents within the borough including the Far Forest, and who ap^ 460 PARLIAMENT; (E) Practice. pointed the bailiff and burgesses. Far Forest is a detached part of the parish of E, and situate within the old borough. By the 2 & 3 Will. 4. c. 64. s. 37. "the detached part of a parish shall not be included within a borough if by reason of including it the boundary of such borough would not be continuous, unless such detached part heretofore formed part of the borough for the purpose of the election of mem- bers of parliament:" — Held, by Williaws, J. and Cresswell, /., that 'the proviso in section 37. of the 2 & 3 "Will. 4. c. 64. was inserted to preserve exist- ing personal rights of voting, none of which de- pended upon the retention of Far Forest, and there- fore it was not included within the present borough. By Maule, J. and Wilde, C.J., that as the capital burgesses (who appointed those who elected mem- bers of parliament) must have resided within the borough including Far Forest, Far Forest, although detached from, was included within the present borough. Palmer v. Allen, 18 Law J. Hep. (n.s.) C.P. 265 ; 6 Com. B. Rep. 51. A freeman entitled to vote for a member of par- liament, who has been excused by Justices from the payment of the poor-rate, on the ground of poverty, under the 54 Geo. 3. c. 170. s. 11, is not disqualified under the 2 Will. 4. c. 45. s. 36, as having received parochial relief or alms. - Mashifer v. Dmm, 18 Law J. Rep. (n.s.) C.P. 13; 6 Com. B. Rep. 30. The occupier of a house, as tenant, within a bo- rough of less than the yearly value of 10/., who also occupies within the borough "land to the value of 4O5. by the year above all charges" of which he is owner in fee (the value of the house and land taken together amounting to more than the clear yearly value of \M.) is entitled to be registered as a voter for the county, hut not as a voter for the borough. Unity of title in the subject-matter of the quali- fication is essential to confer upon the occupier the right of being registered as a voter for a borough under the 2 Will. 4. c. 45. s. 27. Barton or Burton V. Overseers of jlston, 19 Law J. Rep. (n.s.) C.P. 28 J 8 Com. B. Rep. 7. (E) Practice. (a) Notice of Appeal. The statute 6 Vict. c. 18. s. 64. enacts, that "no appeal shall be heard in any case where the re- spondent shall not appear, unless the appellant shall prove that due notice of his intention to pro- secute such appeal was sent to the respondent." The same section enacts, that "if it shall appear to the Court that there has not been reasonable time to give notice, the Court may postpone the bearing of the appeal:"— Held, that under this statute, a waiver of notice by the respondent was insufficient, and that the appellant must prove an actual notice : hut, under the above circumstances, the Court post- poned the hearing. Newton v. Overseers of Mobber- ley, 15 Law J. Rep. (h.s.) C.P. 154; 2 Com. B. Rep. 203. The first day appointed for hearing registration appeals was the 12th of November; the appellant served the notice of his intention to prosecute his appeal on the 2nd of November: — Held, that the respondent not appearing, the Court could not, on the 16th of November, when it was called on, hear the appeal ; and in the absence of any proof that the appellant had not had reasonable time to give such notice, the Court could not postpone the hear- ing. Norton v. Town Clerk of Salisbury, 16 Law J. Rep. (N.s.) C.P. 9; 4 Com. B. Rep. 32. Where a respondent in a registration appeal does not appear, and the appellant has omitted to serve notice of appeal ten clear days before the day ap- pointed for the hearing, the Court will not postpone the hearing to give time for a fresh service of notice, even where the illness and death of an attor- ney are alleged as a cause for the omission. A motion by a respondent on a previous day in the term, for leave to deliver paper books, and a statement by his attorney of his intention to appear, is not a constructive appearance by the respondent. Adey v. Hill; Grover v. Bontemps ; Pring v. Est' court, 16 Law J. Rep. (N.s.) C.P. 63; 4 Com. B. Rep. 38. When an appeal from the decision of a revising barrister is called on, and the respondent does not appear, the appellant must prove the service of a ten days' notice on the respondent, or shew a suffi- cient excuse for the omission ; otherwise, the appeal must be struck out. Allworth v. Dore, 17 Law J. Rep. (n.s.) C.P. 142 ; 5 Com. B. Rep. 87. The notice of appeal given to the master, must be signed by the appellant himself, and not by an agent ; when, therefore, the appeal had been tendered in due time, but had been rejected for the defect, the Court, upon its being supplied, refused to re- ceive it nunc pro tunc; the power to postpone, given by section 64, only applies to the notice to the re- spondent. Petherbridge v. Ash, 4 Com. B. Rep. 74. The notice of intention to appeal must be given ten clear days before the first day appointed for hearing appeals; where not so given, although the respondent did not appear, the appeal was dismissed. Clarke v. Beaton, 5 Com. B. Rep. 76. A revising barrister decided a case on Saturday the 30th of October, and allowed an appeal. This Court appointed the llth of November for hearing appeals, and the appellant gave notice on Tuesday the 2nd of November of his intention to prosecute the appeal ; — Held, that the appellant had not rea- sonable time to give notice ten days at least before the day of hearing, and that the notice given was sufficient to bring the appeal before the Court within the proviso to section 64. of the 6 & 7 Vict, c. 18. Palmer v. Allen, 18 Law J. Rep. (N.s.) C.P. 265; 6 Com. B. Rep. 51. It is not necessary for an appellant, in an appeal against the decision of a revising barrister under the 6 Vict. c. 18, to give any notice of the day ap- pointed by the Court for hearing appeals. The ten days' notice in section 64. of that statute is the only notice required fTon\ an appellant. Powell v. Caswall, 19 Law J. Rep. (n.s.) C.P. 27 ; 8 Com. B. Rep. 14. Where the respondent does not appear, the ap- pellant must produce an affidavit of notice of appeal, under the 6 Vict. t. 18. b. 64. Colville v. Lewis, 1 Barr. & Ar. 608 ; 2 Com. B. Rep. 60. (6) Entry of Appeal. A consolidated appeal from the decision of a revising barrister was presented to one of the Mas- PARLIAMENT; (E) Pbactice-P ARTIES TO SUITS. 461 ters of the Court within the time prescribed by the 62nd section of the 6 Vict. c. 18. The appeal was not indorsed as required by the 42nd section of the act, which regulates the forms to be followed in single apc'^s, and in consequence thereof the MasreT refused to receive and enter the appeal: — Helfi, that the regulations of the act, in respect of single appeals, under the 42nd section, apply to consolidated appeals under the 44th section, and that the Master had acted rightly. Semble — In stating cases of appeal, the form pre- scribed by the act should be strictly followed. WanMyn v. Woollett, 16 Law J. Rep. (n.s.) C.P. 144; 4 Com. B. Rep. 86. The case submitted to the Court under the sta- tute 6 Sz 7 Vict. c. 18. s. 44, should be signed, on the back thereof, by the revising barrister, even though it be a consolidated appeal, and the Court cannot otherwise receive it. But held, that liberty might be given to enter the appeal nmic pro tunc, time being given to procure such signature, where it had been omitted by the barrister, and he was absent from town, no laches being imputable to the appellant; and the right of the respondent to object thereto on the hearing being reserved. Pring v. Estcourt, 16 Law J. Rep. (n.s.) C.P. 10 ; 4 Com. B. Rep. 73. (c) Delivery of Paper Books. An application .was made to deliver the paper books nunc pro tune in an appeal under the Regis- tration Act. By the practice of the court the paper books should have been delivered four days before the hearing: — Held, that the Court will enforce the established practice, unless a sufficient reason be given in excuse of a departure ther«from. Palmer V. Alien, 17 Law J. Rep. (n.s.) C.P. 55 ; 5 Com. B. Rep. ]. The Court under particular circumstances allowed the paper books to be delivered by the re- spondents nunc pro tunc. Colville v. Wood, Colville V. Town Cleric of Rochester, 1 Barr. & Ar. 517. _{S) Appearance of Parties. Where the respondent appeared, but not the appellant, the decision was affirmed, with costs. White r. Pring, 8 Com. B. Rep. 13. (e) Form of Case in Consolidated Appeals. If cases are included in a consolidated appeal, under the 6 & 7 Vict. c. 18. s. 44, which do not depend upon a decision on the same points of law, the Court has no jurisdiction to hear the appeal. A revising barrister granted appeals against his decisions in respect of five voters for a borough, and declared that such appeals ought to be conso- lidated. After stating the facts applicable to each voter, and the reasons upon which his decisions were founded, the case concluded, " If the Court should be of opinion that the occupation and resi- dence of each or any of the appellants was suffi- cient, the names of all or such as the Court shall think fit are to be retained on the register, otherwise to be expunged:" — Held, that the appeals were improperly consolidated, as the decision on one would not govern the rest; that the Court had no jurisdiction to entertain any of the appeals, and that the case must be struck out. Prior v. Waring, 17 Law J. Rep. (n.s.) C.P. 73 ; 5 Com. B. Rep. 56. (/) Inferences from Case. The question whether there has been fraud in the making of a grant or conveyance, for the purpose of conferring on the grantee a qualification to vote, is one of fact for the revising barrister ; and where it is not found by him the Court will not infer it. Newton v. Overseers of Mobherley, 1 Barr, & Ar. 695 : s. P. Newton v. Overseers of Crowley, Ibid. 697; 2 Com. B. Rep. 207. The decision of the revising barrister will be affirmed, if it do not appear from the facts stated in the case reserved, that his decision was wrong. Watson v. Cotton, 17 Law J. Rep. (n.s.) C.P. 68 ; 6 Com. B. Rep. 51. PARTIES TO ACTIONS. [See Bills and Notes.] A declaration in assumpsit alleged that in con- sideration that the plaintiif and W D would sell and assign to the defendant their copartnership business, the defendant promised the plaintiff to pay him all the money he had advanced in respect of the co- partnership, and for which the co-partnership was accountable to the plaintiff. The declaration then averred performance by the plaintiff and W D, and that the plaintiff, at the time of the promise, had advanced a sum of money in respect of the co-part- nership, for which the co-partnership was, at the time of the promise, accountable to him, alleging as a breach, the non-payment of that sum by the defendant: — Held, that the declaration disclosed a sufficient consideration to entitle the plaintiff to sue alone. Jones v. Robinson, 17 Law J. Rep. (n.s.) Exch. 36 ; 1 Exch. Rep. 454. PARTIES TO SUITS. [See Administration — Akeitkation, Award — Company — Foreign Prince — Pleading, in EauiTY, Bill, Demurrer.] (A) Necessary or Proper Parties. (a) Generally, (&) Administration Suits. (c) Creditors^ Suits. (d) Mortgage Suits. (e) Suits against Trustees. (B) Joinder ov. (fl) Generally. ib) Plaintiff suing on behalf of himself and others. (c) Effect of Decree in improperly constituted Suit. (C) Objections as to. (A) Necessary or Proper Parties. (a) Generally. [See Partners, Actions and Suits. Several persons entered into an agreement for purchasing and selling a certain article on their 462 PARTIES TO SUITS ; (A) Necessary oe Proper Parties. joint account, and the proportions in which the profits were to be divided, or the loss borne, were fixed by the agreement. The transactions were chiefiy managed by one of the parties, and a loss was ultimately sustained. To a bill, filed by the party who had chiefly managed the transactions, to obtain payment from one of the other speculators, of his share of the loss, which bill alleged that all the other parties had settled the claims against them, — it was held, that all the persons who had entered into the agreement were necessary parties. Hills V. Nash, 15 Law J. Rep. (n.s.) Chanc. 107 ! 1 Ph. 594. A judgment had been obtained against a party who afterwards took the benefit of the Insolvent Act : — Held, that the judgment creditor was a necessary party to the conveyance of his real estate to a purchaser, notwithstanding the 1 & 2 Vict. c. no. s. 61. Hotham v. Somerville, 9 Beav. 63. To a bill filed, by the alleged agent of a foreign country, in respect of property belonging to the government of that country, a demurrer was allowed on the ground that that government was not a party to the suit. Schneider V. Lizardi, 15 Law J. Rep. (N.s.) Chanc. 435; 9 Beav. 461. In a suit by the trustees of a composition deed to compel the assignment or to perfect the transfer of a portion of the trust property, the cestui que trusts are not necessary parties ; but a purchaser to whom the trustees had contracted to sell the property in question is a necessary party. Alexan- der V. Cana, 1 De Gex & S. 415. A suit abated by the marriage of one of three female plaintiffs and a bill of revivor was filed by the other co-plaintiffs against her and her husband only : — Held, that all accounting parties should be made defendants. Jones v. Powell, H Beav. 398. Shareholders in an incorporated navigation company filed a bill to restrain the committee of management from entering into or carrying into effect an agreement with the trustees of a projected railway company, for amalgamating the two under- takings. On the motion for the injunction, it ap- peared from the defendants' affidavits that the corporate seal of the navigation company had been aflBxed to the agreement: — Held, that the railway trustees were necessary parties to the suit ; and the motion was ordered to stand over with leave to amend the bill by making them parties. On the motion being renewed on the amended record, the Court refused the injunction, the navigation com- pany and the committee undertaking not to apply any further part of the funds in any manner not authorized by the navigation acts, unless under the authority of parliament, and all the defendants undertaking to consent to the plaintiffs being treated as persons entitled to oppose the railway bill in parliament. Queere — Whether a cestui que trust can have an injunction to restrain his trustees from assenting to a bill in parliament. Parker v. River Dunn Navi- gatim Co., 1 De Gex & S. 192. Bill against husband and wife for specific per- formance of an agreement made by the husband to sell an estate to the plaintiff. The ground alleged for making the wife a co-defendant was, that she claimed an interest in the purchase-money, and had taken forcible possession of the title-deeds, which she refused to part with unless her claim- was satisfied : — Held,' that she was improperly made a defendant, and a demurrer for want of equity was allowed. Muston v. Bradshaw, IS Sim. 192. A defendant having died before appearing to the bill, his representative was brought before the Court by means of a bill to which none of the defendants in the first suit were made parties: — Held, upon an objection as to parties, that all the defendants in the first suit ought to have been made parties in the second suit. Foster y. Foster, 18 Law J. Rep. (N.s.) Chanc. 356; 16 Sim. 637. The acceptor of a bill of exchange who had by the hands of the drawer, as his agent, paid the bill after it became due to an indorsee for value, with- out procuring it to be delivered up, filed his bill against such indorsee and a subsequent indorsee, charging that the bill had been indorsed to the latter without consideration and in order to recover the money from the plaintiff a second time, and praying that an action commenced against him for the amount might be restrained, and the bill delivered up to be cancelled. A demurrer for want of the drawer as a party to the suit was overruled. Earle v. Holt, 5 Hare, 180. Husband and wife sued for {inter alia) an account of the rents of her copyhold estate. The wife died : — Held, on demurrer, that it was not necessary to make her personal representatives a party to a bill to revive the suit. Jones v. Skipworth, 9 Beav. 237. By marriage articles any property of the wife accruing during the coverture was to be settled in trust, after the death of the husband and wife, and in certain events, for the next-of-kin of the wife. A bill was filed by the wife against her husband and the trustee for the execution of the articles : — Held, that the parties who would be the wife's next- of-kin if she was then dead, were not necessary parties. Fowler v. James, 16 Law J. Rep. (n.s.) Chanc. 266; 1 Ph. 803. To a bill by a company against the holder of a cheque alleged to be fraudulently drawn by three directors seeking to have it delivered up and an injunction agaiustan action, — Held, that the drawers ought to be parties. Derbyshire, Staffordshire and' Warwickshire Rail. Co. v. Serrell, 2 De Gex & S. 353. An equitable mortgage having been made by deposit of a lease, the mortgagee discovered that the mortgagor had assigned the lease by voluntary settlement in trust for his wife and children. On the death of the mortgagor, a bill was filed to have the settlement declared void as against the mort- gagee, and the wife and children and trustee were made defendants: — Held, that the personal repre- sentatives of the settlor were not necessary parties to the suit. Bostock v. Shaw, 15 Law J. Rep. (n.s.) Chanc. 257. A bill was filed by a shareholder on behalf, &c. to prevent directors from making a part only of the railway, abandoning the rest, and for an indemnity. There were several classes of .share- holders : — Held, not necessary that the several classes should be separately represented on the record. Dumville v. Birkenhead, Lancashire and Cheshire Junction Rail. Co., 12 Beav. 444. A and B referred a matter in dispute between them to the arbitration of C, and C made his award. PARTIES TO SUITS ; (A) Necessabt or Pkopeb Parties. 463 Bill by A against B and C to set aside the award on equitable grounds, but without proving corrup- tion, partiality, or fraudulent or unfair conduct on the part of C : — Held, that C was improperly made a party to the suit. Hamilton v. Bankin, 19 Law J. Kep. (n.s.) Chanc. 307. It having been found necessary to wind up the affairs of a friendly society and distribute its funds, pursuant to the trusts of the deed constituting it, several of its members were appointed trustees for that purpose ; the monies to be paid to the trustees, of whom the plaintiff was the survivor, were to be deposited with certain bankers and carried to the account of the society : the bankers were to pay such sums as the two solicitors, F and W, by their respectfve cheques on the bankers, countersigned by two members of the society named, should re- quire to be paid. The principal part of the fund was distributed in that manner, and the balance in the bankers' hands was irregularly drawn out and invested in the names of F and W, and the two members appointed to countersign the cheques. On a bill being filed by the last survivor of the trustees of the fund against F and W, and the personal representatives of the two members appointed to countersign the cheques, praying the restoration of the fund by F and W, with a view to its future administration, but not seeking the administration of it by the Court, an objection for want of parties taken by F's answer, on the ground that all the members of the society ought to be before the Court, was disallowed. Horsley v. Fawcett, 16 Law J. Rep. (n.s.) Chanc. 457. (6) Administration Suits. A and B having been co-executors, and A having survived B, the representatives of A, many years after the testator's death, filed a bill against the representatives of B to recover assets of the tes- tator alleged to have been possessed by B. The bill did not state that any debts or legacies of the testator were unpaid, or that there was any residuary legatee, or that the plaintiff or any other person was beneficially interested in the assets. There was, however, in fact, a residuary legatee, and the defen- dants, by their answer, objected that such legatee ought to have been made a party to the suit : — Held, that the objection was valid. Adams v. Barry, 2 Coll. C.C. 285. A fund was alleged to have been carried in an administration suit to a separate account. In an- other suit to give effect to an assignment of a share pf the fund, — Held, that the personal representa- tive of the testator was a necessary party. The ultimate limitation of a legacy was to a party's "personal representatives or next-of-kin": — Held, that both classes must be made parties to a suit affecting the fund. Salmon >. Anderson, 9 Beav. 445. Where the suit involves the administration of the estate and distribution of the residue, the devisees in trust do not, under the 30th Order of August 1841, sufficiently represent the persons beneficially interested. Jones v. How, 7 Hare, 270. As a general rule, a pecuniary legatee is not a necessary or proper party to a bill for an account of the personal estate ; but having regard to the nature of the questions which are raised by the bill, the position of the parties and the particular circuni- stances of the case, a residuary legatee and devisee of the testator's estate«harged with the payment of one of the legacies may make the pecuniary and specific legatee a party to a bill filed against the executors, praying a declaration that subsequent payments of the testator to the legatee were in the nature of an ademption of legacies given by will or codicil of prior date. Demurrer by the legatee, for want of equity, overruled. Marquis of Hertford V. Zichy, 15 Law J. Rep. (n.s.) Chanc. 58 ; 9 Beav. 11. W M, by his will, gave all his personal estate to Sarah M for life, remainder as she should by will appoint. Sarah died in 1820, and by her will, without noticing the power, bequeathed the pro- perty in question, and her executors distributed the same under her will. The plaintiffs, as sole next- of-kin of W M, filed their bill against Sarah's executors for an account of W M's estate. Pre- liminary inquiries being directed, the Master found that the plaintiffs and A B were the next-of-kin. The cause being at issue, A B was brought before the Court, by a supplemental bill, to which she was sole defendant : — Held, that as a material question arose between co-defendants, Sarah's executors ought to have been parties to the supplemental suit. Jones V. Howells, 15 Law J. Rep. (n.s.) Chanc. 115. The plaintiff, under a will, claimed a fund over which the testatrix had a power of appointment with a gift over in default of appointment. The defendants (who were trustees of the fund) did not admit that the will was an effectual appointment: — Held, that although the plaintiff's title was not admitted, the persons entitled in default of appoint- ment were necessary parties, and the Court, under Order V. of the 9th of May 1839, directed pre- liminary inquiries to ascertain who were such per- sons. Johns V. Dickinson, 5 Hare, 130. The Attorney General does not, as a party in the cause, sufficiently represent the estate of an ille- gitimate person who died intestate, so as to enable the Court to .dispense with a legal personal repre- sentative of such person, duly constituted in the ecclesiastical court as a party. Bell v. Alexander, 6 Hare, 543. Where a bill was filed by a party claiming to be entitled to three-fourths of an ascertained sum, it was held that the representative of the person entitled to the remaining one-fourth was a necessary party. Hunt v. Peacock, 16 Law J. Rep. (n.s.) Chanc. 497. Three persons carried on business in partnership. Two of them died, and the executors of one of them (R) entered into an agreement to purchase the shares of the other two. A bill was afterwards filed by some of the residuary legatees of B for an account of his personal estate, against the other residuary legatees and his executors, and also against the surviving partner and the executors of the other deceased partner: — Held, that under the special circumstances of the case, both the last- named parties were properly made parties to the cause. Law v. Law, 16 Law J. Rep. (n.s.) Chanc, 375. To a suit by three out of four residuary legatees to recover three-fourths of a sum of stock which had been transferred to the Commissioners for the reduction of the National Debt, under the 56 Geo. 464 PARTIES TO SUITS ; (A) Necessary ob Proper Parties. 3. c. 60. the fourth legatee is a necessary party. Hunt V. Peacock, 1 7 Law J. Rep. ( U.S.) Chanc> 163 ; 6 Hare, 361. The husband of one of the next-of-kin of an in- testate had, previously to the death of the intestate, taken the benefit of the act for the relief of insol- vent debtors. A suit was instituted for the admin- istration of the estate of the intestate:— Held, that the assignee of the husband was a necessary party to the suit. Wiatfordv. Moore, 17 Law J. Rep.(ir.s.) Chanc. 129. A testator bequeathed a legacy to A, and gave all the residue of his estate to his wife. She be- came the sole executrix, and afterwards married again and died ; and her second husband possessed himself of all the testator's residuary estate. A bill was filed by the representative of the legatee against the second husband,- stating that all the other lega- cies of the testator and all his debts were paid ; that the defendant had a considerable amount of assets in his hands, and that he refused to take out administration either to the testator or to his late wife. A demurrer to the bill, upon the ground that a personal representative of the testator and of his executrix was necessary, was allowed. Penny v. Watts, 16 Law J. Rep. (N.s.) Chanc. 146; 2 Ph. 149. Upon the question of admission of assets, the circumstances under which the payment of a legacy was made are material. • The testator, by deed, conveyed property to trus- tees, upon trust for the testator for life, and after his death to sell and apply the proceeds in pay- ment of all his debts, so as to relieve and discharge all his other estate; the surplus proceeds to go to volunteers ; — Held, that the parties entitled under the ultimate trusts of this deed, being interested in the general accounts, were necessary parties to a creditors' suit for administering the testator's estate; but that the Court might in its discretion make a decree for administration in their absence. Savage v. Lane, 17 Law J. Rep. (N.s.) Chanc. 89; 6 Hare, 32. A testator, on the marriage of his daughter A, covenanted with the trustees of the settlement to leave by will to A an aliquot share of the real and personal estate of which he should die possessed. The testator, having survived A, died, and by will left all his real and personal estate to trustees, upon trust to convert and collect and stand possessed of the proceeds for benefit of all his children, exclu- sively of A, and empowered his trustees to give efi[*ectual receipts for any money payable under his will. To a bill by the husband, administrator of A, against the trustees and executors, praying an account of the testator's estate, and that A's share be conveyed and assigned to plaintiff, the cestui que trusts under the will were held to be necessary par- ties. Jones v. How, 17 Law J. Rep. (n.s.) Chanc. 369 ; 7 Hare, 267. A testator, by his will, gave an annuity to his wife A, and gave all the residue of his real and personal property to his son B ; hut directed that, in the event of the death of B under twenty-five, his real and personal property should go to his own right Keirs, executors, and administrators. B, who was an infant, was the testator's heir-at-law, and B and A would have been entitled to his per- sonal property under the Statutes of Distribution, if he had died intestate. A bill was filed by B against A, and against C, D, and E, who were the persons who would have been entitled to the testa- tor's real and personal property, if he had died intestate and without issue, for the administration of his estate! — Held, first, that the Court would, at the hearing of the cause, decide the question whether C, D and E ought to' remain parties to the suit; and, secondly, that, from want of interest, they ought not so to remain ; and the bill was dis- missed against them accordingly. Wilkinson v. Garrett, 15 Law J. Rep. (n.s.) Chanc. 416 ; 2 Coll. C.C. 643. In a suit by persons interested under the will of a testator, to administer his real and personal estate, it is not necessary to make the heir-at-law a party, or to prove the wilL Marriott 7. Marriott, 15 Law J. Rep. (n.s.) Chanc. 422. Where testator devised* all his real estate to his widow, his heir is not a necessary party to a suit to administer his real estates under the 3 & 4 Will. 4. u. 104. Bridges v. Hinxmam, 16 Sim. 71. A suit was instituted by legatees whose interest might on a contingency vest in the next-of-kin, against the executors alone. The next-of-kin were brought before the Court by supplemental bill : — Held, that the executors were not improper parties to the supplemental bill. Parker v. Parker, 9 Beav. 144. Persons who claim specific portions of properties ■ in the possession of another at the time of his death, are not necessary parties to a suit for the adminis- tration of his estate. Barker v. Rogers, 7 Hare, 1 9. Trustees authorized to carry on a trade permitted it to be carried on by their agents; — Held, that the agents were not necessary parties to a bill for the administration of the estate. Ling v. Colman, 10 Beav. 370. One of two executors who were stated to have possessed the assets jointly died before a suit was instituted for the administration of the testator's estate: — Held, that his representative was not a necessary party. Clark v. Webb, 16 Sim. 161. Where a pecuniary legacy is given to a legatee in such terms as to leave the construction of the will in this respect doubtful, it is irregular to make the legatee a party to a suit for the administration of the estate of the testator. Crackenthorp v. Joun- ing, 19 Law J. Rep. (n.s.) Chanc. 133. (c) Creditors' Suits. In a suit since the 30th Order of August 1841, to establish the claims of creditors of a testator against his real estate devised, legatees, whose lega- cies are charged on such real estate, are not neces- sary parties where there are devisees in trust having the powers specified in the order. Ward v. Bassett, 5 Hare, 179. Where property was conveyed to four trustees for such of the creditors of a firm as should execute the deed, and twenty-six creditors (including the four trustees) executed the deed, a suit, instituted seventeen years afterwards by some of the creditors on behalf of themselves and the others, was sus- tained against the trustees, they objecting that it was defective for want of the other creditors as parties. PARTIES TO SUITS ; (A) Necessary ob Propee Parties. 4C5 In such a suit, where one of the trustees died after answer, the other trustees are not necessary parties td the bill of revivor, or revivor and supple- ment, against the representatives of the deceased trustee. The author of the trust or his personal represen- tative is a necessary party to such a suit; and he is not regularly or properly - party thereto by being defendant to a hill of revivor or revivor and supple- ment against the representative of a trustee who died after the institution of the suit, even though all the trustees are (unnecessarily) parties to such hill of revivor or revivor and supplement; he must he made a party to the original bill or to a bill in which the trustees are all properly defendants. Bateman v. Margerison, 6 Hare, 496. A, being embarrassed, conveyed by ? deed his property to trustees to sell and pay his creditors, parties thereto, in proportion. He afterwards in- stituted a siiit against one of the creditors for the purpose of taking the accounts of such creditor, and to cut down the amount of his debt. The other creditors were served with a copy of the bill :■ — Held, that as the other creditors were bound by the pro- ceedings, the suit was not imperfect for want of p.irties, and a decree was made without prejudice to the right of the other creditors to any sum the plaintiff might recover on taking the accounts. Clarke v. Tipping, 9 Beav. 284. (d) Mortgage Suits. An eqaitable mortgagee having taken from the administratrix of the mortgagor a legal mortgage containing a power of sale, and having filed his bill to enforce specific' performance of a sale under the power, the Court declined to entertain the suit in the absence of the administratrix and the parties beneficially interested under the mortgagor. Sanders V. Richards, 2 Coll. C.C. 568. Under a local turnpike act, a mortgagee of the tolls, who took possession, was hound to pay the interest on all the mortgages pari passu, but the principal was only to be paid by means of a sink- ing fund. Under the general Turnpike Act, a mortgagee in possession was authorized to pay the principal as well as the interest. Some mortgagees took possession, and one of the trustees of the road filed a bill against them for an account: — Held, that the other mortgagees, being interested in the question as to the payment of the principal monies, were necessary parties to the suit. Watts v. Lord Eglinton, 15 Law J. Rep. (n.3.) Chane. 412. In a suit between a part owner and managing owner of a ship and the mortgagees of the shares of other part owners to determine the question of right to the freight and earnings of the ship, the same being claimed by the plaintiff towards the expenses of repairs and outfit preparatory to the voyage, and by the mortgagees as applicable in the first instance to the payment of their debt, the assignees of the mortgagors, the other part owners, were held to be necessary parties, and not to be entitled to their costs. Greenv. Briggs, 6 B.a.re, 632. A having a life estate with remainder over in strict settlement, subject to a mortgage of the settled property for 1,000 years, demised the pro- perty for a term of 200 years if he should so long Digest, 1845—1850. live. A purchaser of the term of 200 years filed his bill to redeem the termor of 1,000 years, who was the first mortgagee of the estate : — Held, that A was a necessary party. Hunter v. Macldaui, 5 Hare, 238. In a suit^)y the devisee of a mortgagor to redeem, where the defendant, the alleged mortgagee, claims an absolute title by virtue of the Statute of Limita- tions, legatees whose legacies are, under the will of the mortgagor, charged on the mortgaged premises, are necessary parties. Batchelor y. Middleton,6 Hsive, 78. The plaintiff, in a bill to redeem, transferred the mortgaged property pendente lite : — Held, that the suit could not proceed in the absence of the trans- feree. Johnson v. Thomas, 11 Beav. 501. The trustees of a dissenting chapel mortgaged it under their powers, and the deed contained a power of sale. The mortgagee conveyed it to A B, and in a suit by the trustees, insisting that A B was mortgagee and not a purchaser from the mortgagee, — Held, that some of the subscribers were neces- sary parties. Minn V. Slant, 12 Beav. 190. (e) Suits against Trustees. A testator appointed three persons his executors, who proved the will. One of them died, and a bill was filed by the residuary legatees of the testator against the survivors, alleging that the executors had committed a breach of trust, and praying that the two survivors might be held liable, and for the administration of the testator's estate. One of them by his answer submitted, that the representa- tives of the deceased executor ought to be made parties to the suit : — Held that, notwithstanding the 32nd Order of August 1841, the representatives of the deceased executor ought to be parties to the suit: — Hall v. Austen, 15 Law J. Rep. (n.s.) Chanc. 384 ; 2 Coll. C.C. 570. A testator appointed his widow and two others trustees. The widow married and died, leaving her husband, and assets of her separate estate. In a suit for breaches of trust against the husband and the other trustees, it was held that the personal re- presentative of the widow oughuto be a. party to the suit, and that this defect was not removed by waiver of any relief against the widow's assets, or against all the trustees in respect of breaches of trust before her marriage. Shipton v. Rawlins, i Hare, 619. In a suit to execute the trusts of a will devising real estate to trustees for certain persons for life, and after their decease for sale, with power to give discharges for the proceeds and the rents and profits, and with a direction to stand possessed of the monies to arise thereby, upon trust for the children of the tenants for life, the trustees and the tenants for life being defendants, but there being no poiver of sale until after the death of the tenants for life, the Court, notwithstanding the 30th Order of Au- gust 1841, directed that the children of the tenants for life should be made parties. Cox v. Barnard, 5 Hare, 253. A trust fund, to which two parties were entitled in equal shares, had been improperly sold out. One of the parties was the legal personal representative of the testatrix, under whose will the trust was ^ 30 466 PARTIES TO SUITS; (B) Joinder of. created, and filed a bill against the defaulting parties and the other cestui que trust : — Held, upon de- murrer, that the other cestui que trust was properly made a party. Lenaghan v. Smith, 16 Law J. Rep. (N.s.)Chanc. 376; 2 Ph. 301. A widow concurred in a breach of trust, but her interest in the testator's estate had been separated: — Held, that she was not a necessary party to a suit by the cestui que trust, not seeking to charge her interest, and that the trustees seeking to charge her interest raust make their equity efl^ective by some proceeding of their own. Ling v. Colman, 10 Beav. 370. Suit by surviving trustee to recover back trust funds wrongfully misappropriated by defendants: —Held, that the cestuis que trust were not necessary parties. Horsley v. Fawcett, 1 1 Beav. 568. In 1834 A, by deed, assigned certain leasehold farms, with the live and dead stock thereon, and certain debts and personal chattels, scheduled to the deed, to B and C in trust for the plaintiffs. A retained possession of the deed and the trust pro- perty till his death in 1838. In a suit for an ac- count of the trust premises, the trustees by their answer stated, that they had taken the whole of the farming stock, &c. upon the premises at A's death, but that they were now advised that it was very doubtful whether, under the provisions of the deed, they were entitled to the whole, and they submitted that the executor of the settlor was a necessary party : — Held, that as the bill claimed no more than the property comprised in the trust deed, and the answer did not charge that the settlor had mixed up the settled property with his own, his executor was not a necessary party. Gaunt y. Johnson, 18 Law J. Rep. (n.s.) Chanc. 45 ; 7 Hare, 154. A person, not a trustee, who is a party to a breach of trust committed by a trustee, may or may not, at the option of the plaintiff (a cestui que trust), be made a defendant to a suit against the trustee in respect of such breach. Bateman v. Margerison, 6 Hare, 499. (B) JOINDEK OF. (a) Generally. A testator bequeathed some articles of furniture to his wife for life, and after her decease to his daughter, and gave the residue of his estate for the separate use of his daughter for her life, and made her his executrix, who proved the will. The bill, which was filed by the daughter and her husband against the widow, stated that she had, as agent of the daughter, possessed herself of divers parts of the testator's estate, and prayed for an account against the widow, and that she might give security for the furniture: — Held, that there was not a misjoinder of plaintiffs. Lazarus v. Colbeck, 17 Law J. Rep. (n.s.) Chanc. 129. A testator bequeathed the residue of his estate to trustees, upon trust for such of his three daughters as should attain twenty-one or marry under that age; and he declared that, if all his said three daughters should die under twenty-one and unmarried, the trust funds should go to the persons who, under the Statute of Distributions, would then he entitled thereto. The testator left his widow and his three daughters, who were all infants and unmarried, and his only children, him surviving. A bill was filed by the widow and the three daughters against the trustees, for the administration of the estate. A demurrer for misjoinder of plaintiffs, the widow being co-plaintiff" with the children, and also upon the ground that she was not a necessary party to the suit, was overruled. Roberts v. Roberts, 17 Law J. Rep. (n.s.) Chanc. 174; 2 Ph. 534 ; 2 De Gex & S. 29. A married woman being entitled to a share of the produce of the estate of a testator, joined her husband in selling and assigning it to a purchaser. The assignors and assignee having joined in a suit for its recovery, it was dismissed at the hearing for misjoinder, but the objection not having been pre- viously taken, no costs were given. Padwick v. Piatt, 11 Beav. 503. Parties having adverse or inconsistent rights in the subject-matter of a suit cannot be joined as co- plaintifl's. Nor can a party who has no interest be joined as a plaintiff' with one who has. Therefore, where one of the next-of-kin of an intestate, after assigning her distributive share of his estate, is joined, as co-plaintiff* with the assignees in a bill against the administrator and the other next-of-kin, for an account and payment, there is a misjoinder of plaintiffs, of which the defendant may take advantage at any stage of the cause, and such misjoinder will, even on the hearing, be suffi- cient to occasion a dismissal of the bill. In a suit in which an assignor and the assignees of an equitable interest are made plaintiffs, an issue directed to try the validity of the deed of assign- ment is improper, as being an issue between co- plaintiffs, and not between them and the defendant. Fulham v. Mac Carthy, 1 H.L. Cas. 703. (6) Plaintiff suing on behalf^f himself and others. [See Company (A).] After a railway project had been abandoned, and the directors had returned some of the share- holders II. 8*. per share on their deposits, one of the shareholders who had received that sum filed a bill on behalf of himself aud all the other shareholders except the defendants (the directors), praying an account of receipts and payments of the defendants as directors, that the balance which should be found due might be paid into court and applied, first, in paying U. &s. per share to the shareholders who had not received that sum, and that the residue might be divided among the share- holders in proportion to their shares. Two of the defendants stated in their answer that the share- holders whoreceived the II. 8s. did so in full satisfac- tion of their claims on the funds of the company : — Held, that the bill ought to have been filed on behalf of the shareholders who had received the payment, and that the others ought to have been made defendants. Lovell v. Andrew, IS Sim. 581. A bill by A on behalf of himself and all other shareholders of a company provisionally registered (except the defendants) against the provisional committee, and praying relief on the ground that the concern had been immaturely brought to an PARTIES TO SUITS ; (B) Joindeb op. 467 end by reason of the fraud and mismanagement of the defendants, charged that the other shareholders were unknown to the plaintiff, and if known would be too numerous to be made parties to the suit. Demurrer for want of parties overruled. Wihon v. Stanhope, 2 Coll. C.C. 629. Where there is a common object, and the inter- ests of all are identical, a bill may be sustained by individual shareholders of a company, on behalf of themselves and all other shareholders. The rule that a suit by individual shareholders complaining of an injury to the corporation cannot be maintained if the plaintiffs have the means of procuring a suit to be instituted in the name of the corporation, applies equally whether the matter complained of be absolutely illegal or merely void- able by a majority of the shareholders. Moxley v. Alston, 16 Law J. Rep. (n.s.) Chano. 217 j 1 Ph. 790. The plaintiff filed a bill on behalf of himself and all other the shareholders in a company against the defendant, who was one of the committee of manage- ment, and stated that he had paid up his deposits, but that in consequence of other shareholders not having paid their deposits, the undertaking became abortive ; that the company was dissolved, and the directors, the names of whom were unknown to the plaintiff, had handed over the funds to the defendant. The bill prayed an account generally, and a decla- ration that the plaintiff and all the other shareholders were only liable to pay so much of the expenses as they would have been justly liable to if all the deposits had been paid up. Demurrer allowed, on the ground that all the shareholders had not an interest identical with that of the plaintiff, and because the other directors were not made parties. Leave to amend refused. Clarice v. Archibald, 17 Law J. Rep. (n.s.) Chanc. 140. Demurrer allowed to a bill filed by plaintiffs on behalf of themselves and other shareholders in a company, because it did not state that plaintiffs were shareholders. Banks \. Parker, 16 Sim. 176. Semble — There is not suflScient precision in the class purported to be represented by a plaintiff who sues on behalf of himself, and all other shareholders in an incoi^porate company, " except such of the said shareholders as are respectively represented by those shareholders hereinafter named defendants." Edwards v. Shrewsbury and Birmingham Sail. Co., 2 De Gex & S. 537. (c) Effect of Decree in improperly constituted Suit. A testator, in 1807, executed a deed of tailzie of his Scotch estates, limiting the same to various relatives, with clauses rendering the estates of the successive heirs substitute inalienable. In 1808, the testator devised his English estates to three trustees in strict settlement, and gave them his residuary personal estate in trust, to lay out the same in the purchase of estates in England or Scot- land, and to settle the purchased English estates to the uses contained in his will, and the purchased Scotch estates to the uses expressed in the deed of tailzie. By the will, power was given to the person entitled to the actual possession of the devised estates to appoint new trustees, on any of the trus- tees dying or declining to act. The testator died in 1812. On the death of J D, the first party bene- ficially interested in the estates, there was a very large residuary personal estate, and he was suc- ceeded in the estates by his son J D D, the heir substitute in possession under the deed, and tenant in tail under the will. A. very considerable part of the residuary personal estate was invested by the trustees in the purchase of Scotch estates, and a small part only in the purchase of English estates, and these estates were respectively settled to the uses expressed in the deed and will. The trustees having died, and the representative of the last sur- viving trustee desiring to be discharged, a bill was filed in 1833 by the next friend of J D D, an infant, complaining that the trusts had not been properly executed, and amongst other things, seeking the appointment of new trustees, and a declaration of the Court that the residue of the personal estate ought to be invested in the purchase of real estates in England. The earliest of the heirs substitute after J D D interested in the estates were not par- ties to the suit, though others more remotely inter- ested therein were, as also the representative of the last surviving trustee. A decree was made in 1833, whereby a reference was directed for the appoint- ment of new trustees, and it was declared that the personal estate remaining uninvested ought to be invested in the purchase of real estates in England. J D D, having attained his majority in 1836, ex- ecuted a disentailing deed, and shortly afterwards the uninvested personal estate was ordered to be transferred to him. He died in 1840 without issue. In 1841, a bill was filed by A D F, the next sub- stitute heir in possession under the Scotch deed of tailzie, praying that the decrees and proceedings in the suit instituted on behalf of J D D might be declared irregular, and that the plaintiff might be relieved therefrom: — Held, that A D F was not bound by the decree in the suit of J D D, and that the heirs substitute under the deed of tailzie were not substantially represented in that suit, and that his present bill was a proper bill; that the new trustees had been irregularly appointed in the suit of J D D ; and that the personal estate directed to be transferred in 1836 to J D D ought to be re- stored out of his assets, and that it ought to be in- vested in English and Scotch estates in equal moieties, although a much larger sum had already been invested in Scotch estates than in English. Fordyce v. Bridges, 16 Law J. Rep. (n.s.) Chanc. 81; 10 Beav. 90; affirmed, 17 Law J. Rep. (n.s.) Chanc. 185; 2 Ph. 497. (C) Objections as to. [See Administbation, Limited Grant of.] Where a cause is set down upon an objection for want of parties, the defendant begins. Attorney General v. Gardner, 2 Coll. C.C. 564. A submission whether certain persons ought not to he made parties to the suit, may be properly set down as the objection for want of parties under the 39th Order of August 1841. Barker v. Rogers, 7 Hare, 19. The decision of the Court under the 39th Order of 1841 on an objection for want of parties, is not final. Welhamv. Welham, 10 Beav. 247. 468 PARTIES TO SUITS— PARTITION. Where the question of parties depends on the determination of the question in the cause, the Court will not decide it under the 39th Order of August 184-1, but will reserve it until the hearing. Lewis V. Baldwin, 1 1 Beav. 363. A cause cannot be set down on an objection for want of parties under the 39th Order of August 1841, if the objection is founded on a fact stated in the answer but not in the bill. Clark v. fVebb, 16 Sim. 161. In a bill by a debtor who had conveyed pro- perty to a trustee for the benefit of his creditors to have the trusts of the deed administered, charging that one of the creditors had forfeited his debt by a breach of covenant, it was held that the creditors, parties to the deed, other than the trustee and the creditor charged with the breach of covenant, were sufficiently made parties by being served with copies of the bill under the 23rd Order of August 1841. A court of equity will declare and give effect to a forfeiture where it is incidental to the administration of a trust. Duncombe v. Levy, 5 Hare, 232. The surviving trustees and executors under a will filed their bill against M, the executor of a deceased trustee and executor O, named in the same will, seeking payment from the estate of O of a sum of money, consisting of rents of part of the testator's residuary estates, admitted by the answer of M to have been in O's possession at his death. O was also one of several residuary legatees and devisees named in the will ; and the bill prayed payment to the plaintifl^s of that sum, and that the defendant might admit assets for that purpose, or that the usual accounts might be taken against O's estate in respect of his receipts: — Held, that the plaintiffs were not entitled to any such reliefer account as was prayed by the bill, except in a suit properly constituted for administering the estate and carry- ing into execution the trusts of the testator's will. Chancellory. Morecraft, 17Law J. Rep. (n.s.) Chanc. 11; 11 Beav. 262. In 1823 the defendant granted an annuity to D, and the plaintiff guaranteed the due payment of the annuity ; and in consideration of such guarantie, the defendant, who was tenant in tail in remainder of certain real estates expectant upon the death of his father, covenanted with the plaintiff that he would, on the decease of his father, suffer a reco- very of the entailed estates in favour of the plaintiff, as a security against any loss he might sustain by reason of his guarantie. The plaintiff being com- pelled to pay the arrears of the annuity, filed his hill, after the death of the defendant's father, against the defendant alone, praying a specific performance of the covenant to suffer a recovery; the defendant, by his answer, objected'that certain creditors upon judgment"; entered up against the defendant prior to the death of his father, but subsequently to the deed of covenant, had acquired by force of the statute 1 & 2 Vict. c. 110. charges upon the estates prior to the plaintiff's claim, and that such judg- ment creditors were necessary parties to the suit. The objection was disallowed, on the ground that it went to the merits, and was not an objection for want of parties. Pelre v. Duncombe, 17 Law J. Rep. (N.s.) Chanc. 370 ; 7 Hare, 24. A charity was founded some time in the 12th century, and was commonly called " The Master, Brethren and Sisters of the Hospital of St. John the Baptist." In the time of Charles II., the master- ship of the hospital and the lands, &c., belonging to it were granted to the corporation of Chester, The leases of the hospital lands had never been granted by the corporation under their common seal ; but, in the leases, the corporation were described as being the master of the hospital, and the rents were reserved to the master, brethren and sisters. An information was filed against the corporation of Chester and the parties who had been appointed trustees of the charity estates under the Municipal Corporations Reform Act to ascertain the charity lands and to have a scheme for the due regulation of the charity ; to which information the master, brethren and sisters of the hospital were not made parties as a corporate body. It was decided by the Court that they did not form a corporate body; and consequently an objection, that they ought to have been made parties to the information as a corporation, was not sustained. The objection that the hospital ought to have been a party to the information as a corporate body, was not taken by the corporation of Chester until several years after the decree had been made. Whether such an objection, if validj would be al- lowed to be taken by such a party after such a lapse of time — quesre. Attorney General v. CorpO' ration of Chester, 1 Hall & Tw. 46. The execution of the deed of partnership of a company by one only of several co-plaintiffs, suing on behalf of themselves and the other partners, is not sufficient to sustain the suit if the objection is taken in limine ; but the Court will give the other co-plaintiffs an opportunity of proving that they sustain the character in which they claim. Clay v. Rufford, 19 Law J. Rep. (n.s.) Chanc. 295. Suit by plaintiffs for the administration of the estate of A, an intestate. The plaintiffs claimed to be the next-of-kin of A, as being the children of B, a sister of A, but stated that B had had other children, C and D, who, by reason of illegitimacy, had no interest. The administrator, by his answer, submitted that C and D ought to he made parties. The cause being set down on an objection for want of parties, the objection was ordered to stand for the hearing. Pike v. Barber, 19 Law J. Rep. (u s.) Chanc. 373. PARTITION. Commissioners have no power to award sums to be paid for owelty of partition. Mole v. Mansfield, 15 Sim. 41. In a suit for partition it appeared that the estate was vested as to one moiety in A in fee, and as to the other in B in fee, but in trust for infants : — Held, that a conveyance from B and the decree of the Court would give A a good title to the tene- ments allotted to him; and therefore that it was not necessary for the infants to convey when they came of age. Cole V. Sewell, 17 Sim. 40. PARTNERS. 469 PARTNERS. [See Feadd, Relief against — Fbauds, Sta- tute OF, Note ia Writing — Company — Pbactick — Specific Pebfokmance.] (A) Pahtnersiiip. (a) Constitution and Effect of, (1 ) In general. (2) Participation of Profits. (6) Dissolution of . (1) What amounts to. (2) Notice to dissolve. (3) Cause of Dissolution. (4) Agreement to dissolve. (c) Construction and Validity of Contracts creating it. (d) Accounts. (B) Rights and Liabilities. (C ) Powers and Disabilities. (D) Actions and Suits. (A) Partnebship. (a) Constitution and Effect of. (1) In general. A, P and B, members of the provisional com- mittee of a projected joint-stock company, hired some premises on the 11th of April 1846, as joint tenants, for the offices of the company, who took possession on the 7th of April following. On the 29th of September 1846, the deed of settlement was registered, having been executed by A and P, which recited that the company was indebted to P in 550t for money advanced by him for the forma- tion of the company, and rent of offices, and named A and P as two of the directors. The rent being in arrear, the lessors sued A, P and B on the de- mise, and, after verdict, levied 130/. for debt and costs, on A, the plaintiff. In an action by A against P for his proportion, — Held, that no part- nership existed between the parties, and that A was entitled to recover contribution from P. Boulter V. Peplow and Boulter v. Brooke, 19 Law J. Rep. (n.s.) C.P. 190. The plaintiff alleged that a partnership had been constituted between himself and the defendant, who was a general merchant, by a memorandum in which the defendant agreed to pay the plaintiff loot per annum in consideration of his general services in business ; and in addition to this, the plaintiff was to receive one-fifth of the net profits on all new business entered into through the plain- tiff, including all the net profits of insurance. The defendant denied the partnership, and alleged that the plaintiff was engaged as a clerk only : — Held, that this memorandum constituted a partner- ship, and that the plaintiff was entitled to a re- ceiver. Katsch V. Sckenck, 18 Law J. Rep. (n.s.) Chanc. 386. An equal partnership implies not only an equal participation de facto in profit and loss, but a right in each partner to claim and insist on such parti- cipation. Thus, although in a case where parties had participated equally in profit and loss, the law would, in the absence of any contract, or any deal- ing from which a contract might be inferred, pre- sume an equal partnership; yet the presumption would not arise if the books of the concern and the dealings of the parties shewed that such could not have been the terms on which the business was carried on. Stewart v. Forbes, 1 Mao. & G. 137; 1 Hall & Tw. 461. In May 1843 A and B agreed by parol to be- come jointly interested in certain lands for the pur- pose of a building speculation. The lease of the lands was taken in B's name, and A and B con- tinued in joint occupation of the lands till July 1843, when B assumed exclusive possession and ejected A. From July 1843, B, at his sole labour and expense, carried on operations upon the land by preparing it for building purposes and erecting houses thereon, A never asserting any title thereto until January 1845, when he claimed an equal in- terest with B. Upon B repudiating A's title, a bill was filed by A for specific performance of the parol , agreement: — Held, that assuming A's title to have been good originally, he had debarred himself from asserting that title by making no claim for eighteen months after his exclusion, during all which time he had permitted B to carry on the undertaking at his own cost and risk ; and the bill was dismissed, with costs, except so far as the same were increased by the defendant setting up the Statute of Frauds or denying the parol agreement or part perform- ance thereof. Cornell v. Watts, Watts v. Cowell, 19 Law J. Rep", (n.s.) Chanc. 455 ; 2 Hall & Tw. 224. (2) Participation of Profits. E, one of the defendants, being concerned in a colliery, entered into an agreement with J for opening a tally shop near it, for the purpose princi- pally of supplying goods to the workmen. E built the shop, and his name was placed over the door. J managed the shop. E received, in the first in- stance, 71. per cent, and afterwards 51. pex cent, on the amount of all sales to his workmen, and J re- ceived all the rest of the profits. The plaintiffs were the assignees of bankers with whom J had opened an account, and who had advanced money to J for the purchase of goods for the shop. There was no evidence to shew that credit was in fact given to E. The jury having found that there was no sharing of profit and loss between E and J, and that credit was not given by the bankrupts to E, — - Held, that the verdict was not against the evidence; that as credit was given to J alone, E could only be made liable on the ground of an actual partner- ship between him and J ; and that E's taking 51. per cent, on the sales to his workmen did not as a matter of legal inference render him liable as a partner to third persons, but was in the nature of a commission on certain sales supposed to be effected through his influence over 'his workmen. Pott v. Eijton, 15 Law J. Rep. (n.s.) C.P. 257; 3 Com. B. Rep. 32. N agreed with L to sell him a newspaper of which he was the proprietor, for 1,500/., to be paid by annual instalments, with interest, during a - period of seven years, N guaranteeing to L the clear yearly profit of 150/. over and above the an- nual instalments. In consideration thereof, L agreed to pay all surplus profits over and above ttie 150/. per annum to N, until they should amount to 500/., and if they amounted to more than the latter 470 PARTNERS ; (A) Partnership. sum, L agreed to pay besides the purchase-money and 500;. the then existing liabilities ; but if they did not amount to 500^., then N was to pay tlie lia- bilities. And it was agreed that N should receive the surplus profits till they amounted to 5001., and that all additional surplus profits should belong to L : — Held, in an action for paper and other neces- saries, supplied subsequently to the date of this agreement, to L's order, for the purpose of con- ducting the newspaper, and which were used for it, that N was a partner, and was liable to satisfy tlie demand. Barry v^ Neskam, 16 Law J. Rep. (n.s.) C.P. 21 ; 3 Com. B. Rep. 641. A participator in the profits of a particular trans- action is a partner quoad third parties, and must be taken to have authorized everything done by his partners in carrying out that particular transaction. A document, by which F and F agreed to give the defendant a share of the profits in a particular adventure, though insufficient in itself to constitute a partnership for want of mutuality, was held good evidence, along with evidence of interferende by the defendant, to prove that he was a partner. Ilei/koe v. Burge, 19 Law J. Rep. (n.s.) C.P. 243. {b) Dissolution. (1) What amounts to. By articles of partnership it was agreed that if the defendant should by illness be obliged to quit India for more than a year, the books should be made up to the end of the partnership year, and a valuation made of the stock. The defendant be- came an incurable lunatic on his way to India, and was sent back on his arrival there in 1841 : — Held, that the articles contemplated a dissolution, and tliat the event having happened, there should be a dissolution from the end of the partnership year 1842, and not from the decree. Bagshaw v. Parker, 10 Beav. 532. A partner having excluded his co-partner, an in- junction was granted to restrain him from obstruct- ingorinterfering with his co-partner in the exercise and enjoyment of his rights under the partnership articles. Upon a disagreement, one partner by letter pro- posed to the other either to retire or to refer to arbitration. The other partner in answer said he concurred in the retirement, but subject to a con- dition as to taking the accounts : — Held, that the partnership was not dissolved. Hall v. Hall, 12 Beav. 414. The defendant had had dealings with A and B, as partners, and afterwards entered into a con- tract with one in the presence of the other, and received letters relating thereto signed in the name of the firm : in an action by B, A was called as a witness to prove that he had ceased to be a partner prior to the contract, and that he made it as agent for B : — Held, that the jury were warranted in finding that the contract was with B alone, although there was no direct evidence of the dissolution of the partnership. Cox v. Hubbard, 4 Com. B. Rep. 317. (2) Notice to dissolve. G was a shareholder and director of a joint-stock bank, and attended the weekly meetings of the board, but his being a director gave him no ma- nagement or interference in the banking accounts, which, together with the business of the bank, were managed by the manager ; G was also a member of a co-partnership, which had opened an account with the bank, and of which the defendant was also at that time a member. The defetidant having afterwards retired from the co-partnership, and having given no notice to the bank of his retire- ment, and the co-partnership having become in- debted to the bank, — Held, that the defendant was liable to the bank for the debts of the co-partner- ship, and that G's knowledge of the defendant's retirement was not an actual or constructive notice of that fact to the bank. Powles v. Page, 15 Law J. Rep. (N..S.) C.P. 217 ; 3 Com. B. Rep. 16. The plaintiff and the defendant entered into partnership, and an agreement was made that six months' notice should be given by either of the parties wishing to dissolve the partnership. The defendant became insane, and the plaintiff served him with notice for dissolving the partnership: — Held, that this notice was sufficient. Robertson v. Lockie, IS Law J. Rep. (n.s.) Chanc. 379 ; 15 Sim, 285. (3) Cause of Dissolution. Decree for a dissolution of partnership on the ground of insanity, as from the date of the decree. Sander v. Sander, 2 Coll. C.C. 276. (4) Agreement to dissolve. By agreement, a partnership between two solici- tors was to be dissolved, the accounts taken, and the continuing partner to pay an annuity quarterly, for three years, to the retiring partner. The latter died before the expiration of the third year, without having received any part of the annuity : — Held, on bill, filed within six years from his death, but after six years from the quarter-day preceding it, that the annuity was part of the agreement ; and that his representative was entitled to specific per- formance of the whole of the agreement, irrespec- tive of the question whether he was or not barred by the Statute of Limitations from recovering the annuity in a court of equity. Murray v. Parker, 19 Law J. Rep. (n.s.) Chanc. 530. By the deed of dissolution of a firm of three partners one of whom retired, the two continuing partners covenanted for themselves, their heirs, executors, &c., that they or one of them would pay the outgoing partner certain specified sums: — Held, that this only constituted a joint liability at law, and could not be otherwise construed in equity, and a demurrer to a creditor's bill filed by the out- going partner against the executrix of one of the covenanters who died before the other, was al- lowed. Wilmer v. Currey, 2 De Gex & S. 347. (c) Construction and Validity of Contracts creating it. A declaration stated, that by a certain indenture the defendant covenanted to pay the plaintiff 400^. in equal moieties on the 11th of November and the 11th of May, and that it was agreed that the drugs, stock-in-trade, utensils, and shop fixtures in certain premises should be valued by a person to be named by the plaintiff and the defendant, and one moiety of the amount paid immediately upon such valua- PARTNERS; (A) Paktnebship. 471 tion, and the residue at the expiration of a year. Avermeot, that the said drugs, &c. were valued by one L, named by the plaintiff and the defendant, at 1902. Breach, that the defendant refused to pay the second moiety of the 4002. on the 11th of May, and also the residue of the 1901. at the^piration of the year. Pleas, set-oiffor money had and received, money paid, and on an account stated, and that the said drugs, &c. were not valued by a person named by the plaintiff and the defendant; on which issues were joined. It appeared in evidence that L was agreed upon by the plaintiff and the defendant to value the drugs, stock in trade, utensils, and shop fixtures, and that, after the valuation was complete, except as to the drugs, 701. was agreed on by the parties as the value of the drugs, and 501. as the value of a horse and gig belonging to the plaintiff, which sum, together with the rest of the valuation, amounted to 190/. : — Held, that the jury were rightly directed that if the horse and gig were part of the stock-in-trade, or were treated as such by the parties, the plaintiff was entitled to a verdict on the last plea. The indenture was put in evidence, by which it appeared that the plaintiff agreed to sell the defen- dant his business for 900i, of which 500/. was to be paid immediately, and the residue by equal moieties on the 11th of November and the 11th of May; and, in consideration thereof, the plaintiff granted to the defendant all his interest, &c. in the busi- ness, subject, as to one twelvemonth from the date thereof, to the stipulation thereinafter contained. The plaintiff then covenanted that he would not carry on his business within three miles of the present place of business : and then followed a stipulation that the plaintiff should introduce the defendant to the business, and during one year continue to reside in the place where it was carried on, and attend to the practice as he had theretofore done ; and, in consideration of the premises, the defendant agreed to allow the plaintiff, during such period of one year, one moiety of the clear profits of the said concern, to be paid at the expiration thereof: — Held, that the effect of the deed was to assign all the interest in the business from the plaintiff to the defendant from its date, and that the above stipulation did not create a partnership during the year, between the parties, but wis merely a mode of paying the plaintiff for his services, and that under the plea of set-off the defendant was entitled to give evidence of money received to his use, by the plaintiff, in the course of the business. Rawlinson v. Clarke, 15 Law J. Rep. (n.s.) Exch. 171 ; 15 Mee. & W. 292. Where by the partnership deed the executors or administrators of a party dying were entitled to succeed to his share on giving notice within three months from his decease, — Held, that notice given by the widow within the time, but who did not take out letters of administration till some months after, was an effectual notice within the meaning of the deed. Holland v. King, 6 Com. B. Rep. 727. W S, an attorney, held the office of clerk of the peace, clerk to magistrates, clerk to Commissioners of Land and Assessed Taxes, clerk to Commissioners of Sewers, clerk to Deputy- Lieutenants, steward of manors, coroner, secretary to Consei-vative Associa- tion, and clerk to a polling district. By articles of partnership it was recited that W S held " many offices, clerkships and stewardships of manors," and it was agreed that the defendant should enter into partnership with W S, and that the emoluments of the ofiices, &c. should be distributed as partner- ship profits; and it was provided, that if W S died during the partnership, and no son of his should have been admitted, the defendant should be inter- ested in the moiety of the partnership, and the executors of W S should be entitled to the profits of the other moiety as part of the personal estate: — Held, first, that the articles of partnership were not void at common law, as infringing the statutes 5 & 6 Edw. 6. c. 16. and the 49 Geo. 3. c. 126, which provide against the sale of offices. Secondly, that the clause providing that the executors should be entitled to the moiety of the profits was not contrary to the Attornies Act, 22 Geo. 2. c. 46. s. 11, confirming Candler v. Candler, 6 Madd. 141. Sterry v. Clifton, 19 Law J. Rep. (N.S.) C.P. 237. (rf) Accounts. A club consisting of numerous members, and having property, was dissolved ; and eleven mem- bers were appointed to wind up the aftairs of the club. Two of the most active of the eleven mem- bers, accordingly, sold the furniture and effects of the club, and out of the proceeds paid some of the debts of the club. A bill being filed by a member, on behalf of himself and all other members of the club, except the defendants, against the two directors, seeking an account of the receipts and payments by them, and payment of the balance to the plaintiff, or as the Court should direct, but not asking that the affairs of the club might be wound up, — it was held, that the plaintiff was entitled to a decree for an account ; and that the Court would, in case a balance should be found due from the defendants after taking the accounts before the Master, devise a mode of distributing the same amongst the parties entitled. Richardson \. Hastings, 16 Law J. Rep. (N.s.) Chanc. 322; 11 Beav. 17. The promoters of two competing railways agreed to consolidate, and appointed the plaintiff and -de- fendant solicitors of the proposed company, who accepted the office without making any definite arrangement as to the division of the business, or the profits, and a, much larger proportion of the work was done by the defendant than by the plain- tiff. In a conversation between them, before the principal part of the work was done, the plaintiff stated as the result of his inquiries in like cases, that the allowanceforoffice expenses and personal trouble in such limited partnerships between solicitors was made by each party retaining, besides his expenses and disbursements, from 10 to 25 per cent, on the amount of the net charges for the business done, and which principle he considered satisfactory: the defendant replied there could he no misunder- standing about it between honourable men. Upon a bill by plaintiff, claiming an account and division of profits of the business done by the company upon the footing of an equal co-partnership, and offering to allow 25 per cent, upon the work done separately, to the partner who did it, the Court under the circumstances decreed accordingly, ff'ebsterv. Bray, 7 Hare, 159. 47: PARTNERS. ■\Vliere the accounts of a partnership between two had been carelessly kept, and after the death of one, the other furnished to the executors of the deceased partner an account current of the partner- ship dealings, which afforded them the only evidence to charge the surviving partner, — Held, that they were entitled to use it for that purpose in a suit instituted by the surviving partner to have the accounts taken, without being bound by the entries on the credit side of the account current. Murehouse V. Neuton, 3 De Gex & S. 307. In 1828 A, B,C and three other persons became co-partners, as colliers, in equal sixth shares, and took a lease of certain mines for twenty-one years. In 183S A died, and his widow and administratrix thenceforth to the end of tlie term continued to carry on the business of the partnership. In !84'0 B & C, without the privity of the rest of the firm, obtained for themselves exclusively a reversionary lease of the same mines. On the expiration of the original lease in 1849, B & C, being in exclusive possession, gave notice of dissolution, and claimed a rigiit to purchase the partnership stock. The administratrix of A then filed her bill for a dis- solution, and the usual accounts, and for a declara- tion that the renewed lease formed part of the part- nership assets, and for a receiver. On a motion for a receiver, — Held, affirming the decision of the Court below, that the plaintiff, as the representative of her husband, had a primd facie interest in the renewed lease ; and a receiver was ordered of her one-sixth, including such renewed lease. In 1839 the administratrix and her children, by deed, joined in assigning all the intestate's estate to arbitrators named for the purposes of partition, and in the same year the arbitrators allotted all the intestate's " colliery shares " to the children abso- lutely ; — Held, that the plaintiiF, as administratrix of her husband, was under liabilities and had duties to perform respecting the partnership, from which she could not discharge herself by the assignment; and that therefore she had, notwithstanding, suffi- cient interest to sustain the suit; and that the children were not necessary parties. Clegg v. Fisk- wick, 1 9 Law J. Kep. (n.s.) Cbanc. 49 ; 1 Mac. & G. 294 ; 1 Hall & Tw. 390. (B) Rights and Liabilities. The plaintiff and the defendant carried on busi- ness as partners on the plaintiff's premises : the duration and terms of the partnership were not de- finitely settled. On the 26th of December, the plaintiff served the defendant with a notice of disso- lution. On the 2nd of January, the defendant broke and entered the shop, &c. of the plaintiff, where the partnership concerns were carried on and the books kept, for which entry the plaintiff declared in trespass, and the defendant pleaded not possessed : — Held, that the plaintiff was entitled to recover. A partnership at will exists between A & B, the business being carried on on the premises of A. Such partnership is put an end to by a notice of dissolution, and A can maintain trespass for a sub- sequent entry by B on that part of his premises where the partnership business had been transacted. Benham v. Gray, 17 Law J. Rep, (n.s.) C.P. 50; 5 Com. B. Rep. 138. A, in 1847, agreed with B to supply him with bricks whenever he wanted them, for 28s. per 1,000, ready money. In 1828, B and C became partners; and after that, B from time to time ordered bricks of A, which were used for a partnership purpose: — Held, that C, as the partner of B, was liable to A for the price of these bricks, each order being a new contract; but if the contract of A and B had been for the supply of a certain number of bricks, at so much per 1,000, a subsequent partner would not have been liable. If there be a partnership to-carry on a work, that would give each partner authority to make such contracts as would be proper for the completion of the work ; and whether a contract be so or not, is a question for the jury. B and C entered into partnership by an un- stamped agreement, which was in the hands of J S. A sued B and C as partners, for goods sold, and applied to J S to take or send the agreement to the Stamp Office that A might get it stamped; J S refused to do so, and a Judge at chambers would not order him to do so, as he held the agreement for B and C, and did not in any way hold it for A. Dyke v. Brewer, 2 Car. & K. 828. One of two partners procured the discount of a promissory note of the firm, on an agreement for a mortgage of shares belonging to the firm in certain ships and their freight, and of the policies of assur- ance effected by the firm on the shares. A mort- gage deed was prepared, purporting to be made by both partners, but was only executed by one. At the time of the execution of the deed, one of the ships was lost; but this fact was not then known to the parties : — Held, that the security was binding on the firm notwithstanding the execution of the deed by one partner only, and passed the insurance money although the deed was not registered ac- cording to the shipping acts. Qucere — Whether insurance brokers have a lien on a policy effected by them for the general balance due from their principal. Ex parte Bosanquet, re Boyd, 1 De Gex, 432. A trader, by his will, appointed his partner and other parties executors, and authorized his partner to purchase his share of the trade, premises and stock ; and if he declined to do so, the trade was to be carried on for the benefit of the testator's wife and family. A valuation was made, and the sur- viving partner took possession of the whole part- nership property under circumstances which in- duced the Court to set aside the sale as invalid. The surviving partner, and subsequently hisson and legatee, carried on the business for several years, and the son ultimately became bankrupt. The partnership property was then sold, and the pro- ceeds paid into court: — Held, that the representa- tives of the deceased partner were entitled to one moiety of the fund in court, and also to a lien on the other moiety for sums which were found by the Master to be due to them from the estate of Wil- liam ; and that their claim ought to be satisfied in preference to the debts of the creditors of the bank- rupt, the case not being affected by the question, whether any of the partnership stock was or was not in the order or disposition of the bankrupt. Stocken v. Dawson, 17 Law J. Rep. (u.s.) Chanc. 282. PARTNERS. 473 (C) Powers and Disabilities. One partner cannot authorize an attorney to enter an appearance and submit to judgment for a co- partner. The co-partner having been taken in execution upon the judgment, and never having been served with a summons, or been cognizant of the action, the Court set aside the appearance and other pro- ceedings, with costs. Hambridge v. De la Crouee, 16 Law J. Rep. (n.s.) C.P. 85 ; 4 Dowl. & L. P.C. 466 ; 3 Com. B. Rep. 742. After evidence has been given of a partnership between S & A, a printed circular issued by S in the name of the firm and from the place of business, is evidence against A. Where Thomas Seymour and Sarah Ayres car- ried on business in the name of " Seymour & Ayres," and Seymour signed a promissory note, "Thomas Seymour, Sarah Ayres:" — Held, that this was a sufficient signature in the name of the firm, and was binding upon Ayres. Semble, per Maule, J., if A and B carry on busi- ness in the nseme of B & Co., a signature by A with the true names of the partners A and B, will be binding on B. Norloifv. Seymour, 16 Law J. Rep. (n.s.) C.P. 100 ; 3 Com. B. Rep. 792. (D) Actions and Suits. IDeeks v. Stanhope, 5 Law J. Dig. 506 ; 14 Sim. 57.] To an action for money had and receiiwd, the defendants pleaded, as a set-off, that the plaintiffs were partners, and that before the money had been received by the defendants, G, one of the plaintiffs, applied to the defendants, who were auctioneers, to sell some property, and that the defendants, at the time of the application, and at the time of the selling, and at the time when the set-off accrued, believed G to be the sole owner of the property, and had no notice that the plaintiffs had any interest in it ; that the money in question was received upon the sale of the property ; and that after G had so employed the defendants, and before the defendants had notice that G was not the sole owner, G be- came indebted to the defendants for money lent, &c. Replication, that at the time of the selling of the property, the defendants knew that G was not the sole owner of it: — Held, on demurrer to the repli- cation, that the plea was bad ; that it did not shew that G appeared as sole owner, with the consent or by the default of the other plaintiffs; and that it amounted merely to a set-off of a debt due from one partner to a demand from several partners. Gordon V. Ellis, 15 Law J. Rep. (n.s.) C.P. 178 j 3 Dowl. & L. P.C. 803 J 2 Com. B. Rep. 821. The answer in Chancery of one who has been a partner in a firm, but who had retired from the firm, and ceased to have any interest in it before the commencement of that suit, is not admissible in evidence against the continuing partners of the firm, although it relates to transactions which occurred with the firm at the time when the retired partner was a member of it. Parker v. Morrell, 2 Car. & K. 599. A joint fiat in bankruptcy issued against two partners, pending a suit by one of them against the other and a third person who had previously retired Digest, 1845—1850. from the business, to set aside the partnership agreement on the ground of fraud and misrepresen- tation on the part of both defendants, and for re- payment of the monies which the plaintiff had brought into the concern under that agreement. The assignees obtained leave from the Court of Re- view to prosecute the suit against the retired part- ner, and proceeded by supplemental bill, in which the creditors' assignees were plaintiffs and the official assignee and the retired partner defen- , dants: — Held, that the creditors' assignees, who represented not only the original plaintiff on whose behalf relief was sought, but also the bankrupt partner, who was an original defendant against whom relief was sought, could not sustain the suit against the retired partner. Semble — that the suit might have been prosecuted by assignees appointed to represent the separate estate of the plaintiff in the original suit. Quare — whether, if it had appeared in evidence in the suit that the defendant, the retired partner, was alone or otherwise answerable for the fraud, the Court could have, made a conditional decree im- posing terms upon the plaintiffs as representing the bankrupt who was originally charged as defendant. Robertson v. Southgale, 6 Hare, 536. A trader directed his trustees with all convenient speed to convert into money his residuary estate, but he provided that three or (in case of any sub- stantial reason) seven years might be allowed for withdrawing his capital from the business in which he was a partner. Parties beneficially interested in the will filed a bill against the surviving partners and the legal personal representatives, insisting that the administratrix had improperly allowed the capital to remain in the business beyond the pre- scribed period, and asking for a share of the profits made while it so remained. The defendants pleaded that before the testator's death a valuation was made, when his share appeared to be 63,000i. ; and that a year after his death it was agreed that the new firm should take to the stock on^ payment to the administratrix of 63,000^., for which sum they should purchase the testator's share. They gave a bond for 40,000i and placed the residue at her disposal, which was drawn out from time to time at her pleasure. The surviving partners insisted by their plea that they had become purchasers of the share for a valuable consideration and without notice -of the trusts of the will : — Held, that this was a valid defence to the claim to participate in the profits. Chambers v. Howell, 11 Beav. 6. Articles of partnership between two persons for twenty-one years made various provisions for carry- ing on the firm in case of the death of either of the partners, but none for the case of the representatives of a deceased partner refusing to be concerned in the business with the surviving partner. In a suit by the executors of a deceased partner against the survivor for a dissolution, it was held that specific performance could not be decreed against the exe- cutors, and the partnership was dissolved, subject to any legal right which the surviving partner had for breach of covenants in the articles. Downs v. Collins, 6 Hare, 418. Effect in equity of an execution against the share of one of two partners in the partnership stock. Habershon v. Blurton, 1 De Gex & S. 121. 3P 474 PATENT. PATENT. [For Registration of Deligns, see Coptkight. And* see Pleading, in EauiTY, Demurrer.] (A) When valid or void. (B) Specification, Consteuction and Vali- dity OF. (C) Renewing, Confiiiming, and Extending. (D) Repealing. (E) Licence to use. (F) Assignment to Trustees for Creditors. (G) Infringement. (H) Actions. (a) Pleading. (i) Costs. (A) When valid or void. [Cooke V. Pearce, 5 Law J. Dig. 507 ; 8 Q.B. Rep. 1044.] A patent was taken out for " a new and improved mode of manufacturing silk, cotton, linen and wool- len fabrics." The specification, and a disclaimer, subsequently filed under the statute 5 & 6 Will. 4. 0. 83, set forth that the patentees claimed the mode hereinbefore described of producing or preparing stripes of silk, cotton, woollen, or linen, or of a mix- ture of two or more of these materials, in such a manner that the weft or lateral fibres of both cut edges of each stripe are all brought up on one side, and into close contact with each other, and the re- weaving of such stripes with the whole fur or pile uppermost, into the surfaces of carpets," &c. It appeared that one of these processes was old. The Judge directed the jury that if one was new, the patent could be supported for the combination of them, and would only be invalid if there had been a public use of both before the date of the patent : — Held, that this direction was erroneous, and that the patent was void. Templeton v. Macfarlane, 1 H.L. Cas. 595. The user of an invention in England, prior to the date of letters patent granted for Scotland, will in- validate the Scotch patent. The Judicial Committee of the Pfivy Council, under the 5 & 6 Will. 4. u. 83. s. 2, refused to confirm a Scotch patent, the inven- tion being used in England before the date of the Scotch patent. In re Robinson's Patent, 5 Moore, P.C. 65. Case for the infringement of a patent. Fifth plea, that one D was the inventor of the subject-matter of the patent, and used the same in France; that D was an alien, domiciled abroad, and employed one B, as agent, to procure the said letters patent in his own name, in trast for D, and communicated the invention to B ; that B, thereupon, brought into this country the knowledge of the invention, and was nootherwisethefirstinventor; and thatB,afterwards, as agent for D, procured the letters patent upon trust for D, being such alien, and not for his own use :— Held, on special demurrer, that the plea was bad in substance : that a person who has imported an invention into this country, where it was not known before, is the first inventor, within the statute of Jac. : secondly, that it does not affect the patent that the party importing it is merely an agent for the inventor ; thirdly, nor that it was taken out in trust for aliens residing abroad. The sixth plea, after stating as in the fifth plea, stated that D, by agreement, assigned to the govern- ment of France the invention in question, and that thereby, according to the laws of France, the inven- tion became the property of the King of the French, who became entitled, by the laws of France, to pub- lish the invention as well in France as in Great Britain. The seventh plea, after stating as in the sixth plea, stated, that the King of the French pub- lished the invention to the people of France, for the benefit of all nations: — Held, that both these pleas were bad in substance, as containing no answer to the allegation in the declaration that B was the first and true inventor within this realm. The title of the invention was, " a new or im- proved method of obtaining the spontaneous repro- duction of all the images received in the focus of the camera obscura:"- — Held, that it was not ambi- guous or repugnant. Beard v. Egerton., 15 Law J. Rep. (n.s.) C.P. 270 ; 3 Com. B. Rep. 97. A person availing himself of information from abroad is an inventor within the 21 Jac. 1. u. 3. s, 6. Nickels v. Ross, 8 Com. B. Rep. 679. Where by a patent previously granted to B, the same object for which a patent was afterwards granted to A was effected by a similar method, with a trifling addition, but the object might he effected without such addition : — Held, that the two patents were substantially the same, and that A's patent was void. Dobbs v. Penn, 3 Exoh. Rep. 427. Before the date of the patent, part of the garan- cine (colouring matter) in madder had been obtained by boiling, but the spent (boiled) madder still con- tained gforancine ; the whole of the^arancine had also been obtained by a known process. The patent was for the application of the latter process to spent madder :— Held, that it was not a new manufacture. Steiner v. Heald, 2 Car. & K. 1022. (B) Specification, Construction and Validity of. It is a question for the jury, whether or not the specification in a patent describes with sufficient accuracy the material of which the proposed article is to be made ; that question being raised by the issue. Bichford v. Skewes, 10 Law J. Rep. (N.s.) Q.B. 302; 1 G. & D. 736. In an action of covenant upon a deed of licence to use a patent for making buttons, the issue being whether certain buttons made by the defendant were made under the licence, the specification stated the invention to be the application of such fabrics only wherein the ground is produced by a warp of "soft or organzine silk such as is used in weaving satin" and claimed the application of such fabrics to the covering of buttons as have the ground woven with " soft or organzine silk'" for the warp : — Held, that the proper meaning of the word " or" being disjunc- tive, it ought to be so construed, unless there were anything in the context or the facts proved to give it a different meaning; and that the Judge ought not to have told the jury absolutely, that unless the buttons were made of organzine silk they were not within the patent, but that the words " soft" and "organzine" were capable of being construed to mean the same thing, if the jury were satisfied that there was only one description of silk, viz., organ- zine, used for weaving satin, at the date of the PATENT. 475 patent. Elliott v. Turner, 15 Law J. Kep. (n.s.) C.P. 49 ; 2 Com. B. Rep. 446. The terms of the specification of a patent are to be read altogether, and a fair and reasonable interpre- tation given thereto ; then, if it be sufficiently plain to be understood by an operator of fair intelligence, the specification is good. A specification of the daguerreotype patent stated, " the process is divided into five parts, the first con- sists in polishing and cleaning the plate with nitric acid, to prepare it for receiving the sensitive coating upon which the action of light traces the design, the nitric acid is to be applied three times, and the plate rubbed dry with cotton. When the plate is not intended for immediate use, the first part of the operation may be done at anytime ; it is, however, indispensable just before the moment of using the plate in the camera to put at least once more some acid on the plate. The second operation is applying the sensitive coating (iodine) to the plate. The third, is submitting to the camera the prepared plate to the action of the light to receive the images." It was proved that the application of acid after the plate had been iodized would render the process abortive: — Held, that the direction in the specifica- tion "just before the moment of using the plate in the camera acid is to be put upon the plate*' was to be confined to a direction as to the first operation ; that the passage in which that direction occurs was not of universal application, but applied only when the plate was to be partially prepared and put by for future use ; and that the patentee did not intend any separate operation to intervene between the application of iodine and the introduction of the plate into the camera obscura. Beard v. Eger- ton, 19 Law J. Rep. (N.s.) C.P. 36; 8 Com. B. Rep. 165 ; overruling the decision at Nisi Pri\xs, 2 Car. & K. 667. Case for infringement of a patent. Fourth plea, that the patentee did not particularly describe the nature of his invention ; sixth plea, that the inven- tion described was diflerent from that for which the patent was granted. The patent was granted with a title for "improvements in the manufacture of gas, and in the apparatus used when transmitting and measuring gas." The specification, enrolled, re- cited a patent, with a title for "improvements in the manufacture of gas, and in the apparatus used therein and "when transmitting and measuring gas ;" and in the body of the specification, claim was made for improvements in the apparatus used when transmitting and measiiring gas, and also for im- proved modes of manufacturing apparatus used in making gas, but not used in transmitting or measuring gas : — Held, that by reason of the vari- ance between the invention described in the specifi- cation, and that comprised in the patent, the speci- fication was insufficient, and the patent void. Held, also, that the objection was raised either by the fourth or by the sixth plea. Croll v. Edge, 19 Law J. Rep. (n.s.) C.P. 261. In a patent for " a process or method of combin- ing various materials so as to form stuccoes, plasters and cements, and for the manufacture of artificial stones, marbles, &o. used in buildings," the specifi- cation, after stating the invention to consist in pro- ducing certain hard' cements of the combination of the power of gypsum, powder of limestone and chalk, with other materials, such combinations being (subsequent to their mixing) submitted to heat, described the method or process of making a cement from gypsum to consist in mixing with powdered gypsum strong alkali (for instance, best American pearlash) dissolved in a certain propor- tion of water, this solution to be neutralized with acid (sulphuric acid being the best) ; the mass to be kept in agitation, and the acid to be added gra- dually till the efiervescence should cease ; and then a certain proportion of water to be added (if other alkali were used, the quantity to be varied in pro- portion to its strength); and the mixture having been brought to a proper consistence by the further addition of powdered gypsum, to be dried in moulds, and finally subjected to a furnace capable of pro- ducing a red heat. The description of the mode of making the cement differed little from that of the preceding process. The specification, after pro-- ceeding to state the mode of using the cement so made, stated in conclusion that other acids and alkalies besides those before mentioned would answer the purposes of the invention, though not so well ; and that the inventor claimed the method or process thereinbefore described : — Held, that the specification was bad; for that either the inventor claimed all acids and alkalies or those only which would answer the purpose ; in the former of which cases, as some acids and alkalies would not answer the purposes of the invention, the specification was therefore bad ; and in the latter case it was bad for not specifying those acids and alkalies which would be found to succeed. Stevens v, Keat- ing, 19 Law J. Rep. (n.s.) Exch. 57 ; 2 Exch. 772. (C) Renewins, Confirming, and Extending. Persons using the invention in the interval are not liable to an action ; and those who have in- vested capital in it may be heard before the Privy Council. New letters patent were granted to the plaintiff below on his securing to W (the original inventor) an annuity, so long as the new letters patent should last ; but if he could not secure the annuity, then, upon signification by Her Majesty, &c., the new letters patent should cease. The declaration stated that, from the making of the said letters patent thence hitherto the said annuity has been duly secured to W, according to the true intent and meaning of the said letters patent: — Held, good after verdict. Ledsam v. Russell, 1 6 Law J. Rep. (n.s.) Exch. 145 ; 16 Mee. & W. 633. The assignees of letters patent may, under the 1st and 4th sections of the 5 & 6 Will. 4. c. 83, lawfully obtain a renewal of such patents. The statute does not authorize the Judicial Com- mittee of the Privy Council to impose terms as conditions on which patents are to be renewed. The authority of tiie committee is limited to report- ing on matters as between the public and the party applying. There is nothing in the statute to fetter the dis- cretion of the Crown in the renewal, except the length of time for which tbat renewal is to be granted, and which must not exceed seven years. An application for a renewal is " prosecuted with effect" within the terms of the statute, if the party 475 PATENT. applying obtains the report of the Judicial Com- mittee of the Privy Council before the expiration of the original patent. The Crown is not restricted as to the time within which it may act upon such report, and renewed letters patent are not void because they are dated after the expiration of the original letters patent. If the Judicial Committee should impose a con- dition on a party applying for the renewal of a patent, such party need not, in an action for the infringement of the patent, aver that such condition was complied with before the patent was renewed. J.edsam v. Russell, 1 H.L. Cas. 687; confirming the decision of the Court of Exchequer Chamber, 16 Law J. Rep. (n.s.) Exch. 145; 16 Mee. & "W. 633. To entitle a patentee to a confirmation of letters patent, under the statute 5 & 6 Will. 4. c. 83. s. 2, the patentee must shew, that he believed him- self the first and original inventor. Upon an appli- cation for a confirmation of letters patent, it was proved, that the patent article was not publicly and generally known prior to the letters patent; but tliat sonie persons had systematically used an article, identical with the patent article, for several years prior to the grant of the letters patent, and that the subject of the patent was little more than an application of a well-known article in trade. Under such circumstances, held by the Judi- cial Committee, that it was not a case in which the statute was intended to apply, and their Lordships refused to recommend the confirmation of the letters patent. In re Card's Patent, 6 Moore, P.O. 207. Extension of term of letters patent granted to assignees of patentee. The inventor and patentee had lost largely by the patent, but his assignees had lately made very con- siderable profits, and from their position in the trade, were likely to command a very large sale of the patent article. The patent was of high merit, and of great service to the public safety. In such circumstances, a prolongation of the term was granted to the assignees for four years, upon con- ditions, first, that the assignees secured to the patentee half the profits derived from the sale ; and, secondly, that the patented article should be sold by the assignees to the public, at a certain fixed price. In estimating the profits made under a patent, the profits arising from the sale of the patented article for exportation must be included. In re Hardy's Patent, 6 Moore, P.C. 441. Where the executor of the surviving assignee of a patentee petitioned for an extension of the term of the letters patent, and it was established that a valuable consideration had been given for the assignment, and that the assignee had sustained considerable loss, the Judicial Committee, in grant- ing an extension of the term, refused to impose terms upon the petitioners, in favour of the patentee. In re Bodmer's Patent, 6 Moore, P.C. 468. A patentee entered into an agreement with certain parties to work the patent, but owing to disputes between them, the invention was not prosecuted until a short time before the expiration of the term of the letters patent ; in such circumstances, an extension was refused. In re Patterson's Patent, 6 Moore, P.C. 469. (D) Repkaling. The record of o. judgment on a scire facias to repeal letters patent for an invention, stated that the Lord Chancellor had delivered into the Court of Queen's Bench " a record had before the Queen in her Chancery, in these words," setting out the original writ oi scire facias, issuing out of Chancery and returnable there, which called upon B, the patentee, to shew why the letters patent therein set forth, and the enrolment thereof, should not be cancelled, vacated, and disallowed, and the letters patent restored into Chancery, there to be cancelled. It then set out the pleas in bar, the issues in fact joined thereon, and the proceeding to trial, and the postea returned into the Queen's Bench. It then concluded with final judgment given by the Queen's Bench, " that the said letters patent be cancelled, vacated, disallowed, annulled, made void and in- valid, and be altogether had and held for nothing, and also that the enrolment thereof be cancelled, and that the said letters patent be restored into her said Majesty's Court of Chancery in West- minster aforesaid, there to be cancelled. And the tenour of the said record so delivered by the said Lord High Chancellor into the said court of our said Lady the Queen before the Queen herself, and of all things had thereupon in the same court, is remanded into the said Chancery of our said Lady the Queen :" — Held, upon writ of error, that the Court of Queen's Bench had power to give such judgment. Bynner v. Regina, 15 Law J. Rep. (N.s.) Q.B. 412 ; 9 Q.B. Rep. 523. A scire facias to repeal letters patent was issued out of Chancery, returnable there; appearance entered, declaration filed, plea pleaded, and issue joined in the Petty Bag Office. The case was then sent to the Court of Queen's Bench for trial, and the entry there was, that the Chancellor, _with his own hand, delivered " a record." On motion (by a party bringing error) to amend by substituting the words "transcript of a record," — Held, that the entry did not require amendment. Regina v. Bynner, 9 Q.B. Rep. 529, n. To a declaration in scire facias to repeal letters patent, on the ground that the defendants (two in number) were not the first and true inventors, and that the invention was not new nor an improvement; one of the defendants, B, pleaded that before the suing out of the scire facias, the other defendant, S, assigned to him all his share in the letters patent, and the privilege thereby granted, and had notsince had any interest whatever in the said letters patent. That the said defendant, S, could not be compelled to plead or demur to the said writ and declaration ; and therefore the defendant B prayed judgment whether he ought to be compelled to plead or demur to the said declaration : — Held, upon demurrer, that both the defendants had been properly made defen- dants, the letters patent having been granted to them jointly. Held, also, that the joinder of too many defen- dants could not be made the subject of a plea in abatement ; and, therefore, that the plea was bad. Regina v. Betts, 19 Law J. Rep. (n.s.) Q.B. 531 ; 15 aB. Rep. 540. A scire facias to repeal certain letters patent was issued under the fiat of the Attorney General. PATENT. 477 The patentee applied to the Attorney General for the purpose of ohtaining his direction that all further proceedings in the action should be stayed, or that a. nolle prosequi should be entered. That applica- tion having been unsuccessful, the patentee applied to this Court for an order to stay the proceedings in the action : — Held, that the Court had no juris- diction to interfere in the matter ; that the writ of scire facias was not granted as of course, and that the Attorney General, when applied to for his fiat (without which the writ could not issue), has an important duty to perform. The Attorney General conducts an action of scire facias according to his own judgment and dis- cretion, and may, when he thinks iit, stay the pro- ceedings therein, or enter a nolle prosequi, and the controul which he exercises is subject only to the responsibility to which every public servant is liable in the discharge of his duty. The Lord Chancellor acting as a Judge in the Court of Chancery, either on the common law or equity side, has no authority in matters which depend on the discretionary exercise of the Royal prerogative. Semble — The Crown would not forbear to direct the necessary process to be taken in a case like the present, because the information was given by an alien, or by a person who had no special or direct interest in the matter, or was actuated by some improper motive. The practice of taking security in cases of this kind was introduced by the Attorney General alone, almost within living memory, and there is no instance of the Court interfering upon the subject j hut if it could be shewn to the Attorney General that the security had become or was insufficient, he would stay the process till it was made good. Regina V. Prosser, 18 Law J. Bep. (n.s.) Chanc. 35 j 11 Beav. 306. (E) Licence to use. A patentee, by deed, granted an exclusive licence to A, who covenanted to work the patent in a par- ticular mode. A then contracted to sell all his interest in the patent to B, C and D. On hill filed ^iy the patentee to restrain B, C and D from vio- lating the covenants and conditions of the deed of licence, they, by their answer, denied the validity of the patent, and alleged that they had discontinued the use of it. A motion for an injunction was ordered to stand over, with liberty to the plaintiiT to bring his action at law : — Held, that the plaintiff was not entitled to any admission from the defen- dants as to the validity of the patent, or as to their being licensees. Bidding v. Franks, 18 Law J. Rep. (n.s.) Chanc. 295 ; 1 Mac. & G. 56 ; 1 Hall & Tw. 220. (F) Assignment to Tbustees for Creditors. A voluntary assignment by the patentee, of letters patent, to trustees, for the benefit of creditors, more than twelve in number, is not such an assignment as will avoid the patent. M'Mpine v. Mangnall, 15 Law J, Rep. (n.s.) C.P. 298; 3 Com. B. Rep. 496. (G) iNrRINGEMENT. In an action for the infringement of a patent claimed to be for nine several improvements, the Court refused to make an order upon the plain- tiff for particulars of the infringement. Electric Telegraph Co. v. Nott, Electric Telegraph Co. v. Gamble, 16 Law J. Rep. (n.s.) C.P. 174 ; 4 Com. B. Rep. 462. In an action for the infringement of a patent, the plaintiff's specifications alleged that the inven- tion was described by a statement and a drawing annexed, and stated that it consisted in submitting hosiery and similar goods to the finishing process of a press heated by steam, hot water, or other fluid in the manner thereinafter described. The draw- ing was then described, from which it appeared that the invention consisted of two cast-iron boxes filled with steam, between the heated surfaces of which hosiery goods were introduced and subjected to pressure produced by hydraulic power. The pressure generally lasted three minutes, and might be produced either , by a screw or by hydraulic power. The specification then stated that the patentee was aware that woollen cloths had been pressed by boxes or surfaces heated by steam or water, and that stockings, &c. had been placed between plates of iron heated by fires or ovens ; that he did not therefore claim the finishing of such goods by heat generally, but what he did claim was the submitting of hosiery, &c. to the pressure of hot boxes or surfaces heated by steam, water, or other fluid as above described. The defendant's machine consisted of rollers heated by steam, between which woollen fabrics similar to those of the plaintiff were introduced and subjected to pressure. The jury found that the defendant's rollers were not a colour- able imitation of the plaintiff's patent: — Held, that the defendant had ^ot been guilty of an infringe- ment of the plaintiff's patent. Barber v. Grace, 17 Law J. Rep. (n.s.) Exch. 122; 1 Exch. Rep. 339. Upon the invasion of a patent right the party complaining has a right to the protection of an injunction, although the other party may promise to commit no further infringement, and may offer to pay the costs of preparing the hill ; and if the defendant do not, after injunction obtained, offer to pay the costs of it, the plaintiff may bring the suit to a hearing and will be entitled to the costs of suit. Quesre — Whether, in such a ease, the Court will give an account of damages. Geary v. Norton, 1 De Gex & S. 9. [See Injunction.] (H) Actions. (a) Pleading. Upon an issue of not guilty to an action for in- fringement of a patent, the question whether there was a fraudulent evasion of the patent does not arise. In determining whether a defendant has infringed a patent, no question arises as to his intention, but only as to his acts. A plea, that the plaintiff was not the first and true inventor, is proved by shewing a publication before the plaintiff's invention. A plea, that " before the letters patent, the inven- tion had lieen and was wholly, and in part publicly and generally known, used, practised, and published in England," sets up the single defence of user;—; 478 PATENT— PAWNBROKER. Knowledge and publication before the letters patent is no denial of the plaintiiFbeing the first inventor, and does not, therefore, render the plea double. Stead V. Anderson, 16 Law J. Rep. (n.s.) C.P. 250; 4 Com. B. Rep. 806. In case for infringement, the declaration alleged that plaintiff was the inventor, and the grant of the patent ; plea, non concessit ; — Held, that the plain- tiff having, at the trial, put in the letters and spe- cifications, and shewn the novelty of the inven- tion, was entitled to a verdict upon the issue joined by the plea. Nickels v. Ross, 8 Com. B. Rep. 679. {b) Costs. At the trial of an action for the infringement of a patent, the plaintiff obtained a verdict which was afterwards set aside, and a new trial granted. Be- fore the second trial the plaintiff became insolvent, and the defendants applied for security for costs : — Held, that in such case, the Court will not order a plaintiff to give security for costs, unless it can be fairly presumed that the action is adopted and promoted by his assignee. Stead v. Williams, 17 Law J. Rep. (n.s.) C.P. 109; 5 Dowl. & L. P.C. 497 ; 5 Com. B. Rep. 528. PAUPER. [See Practice, in Equity.] Liability to Costs of the Day. The plaintiff, a pauper, gave notice of trial, and on the day on which it was to be entered, the clerk to his attorney, having been detained at the Judge's chambers, issued by mistake « writ of distringas juratores, instead of habeas corpora juratorum. His error was pointed out to him, but before he could amend it and issue a Vfiitof habeas corpora the oflSce closed, and he was prevented from entering the record. The cause stood in the paper, and costs were consequently incurred by the defendants: — Held, that under the rule," 2 Will. 4. r. 10, the plaintiff ought to be compelled to pay the costs of the day. Nodges V. Toplis, 15 Law J. Rep. (n.s.) C.P. 195; 3 Dowl. & L. P.C. 786 ; 2 Com. B. Rep. 921. Where a pauper plaintiff, in an action of trespass against magistrates of the northern division of the county of Lancaster for a cause of action arising there, laid the venue in the southern division, and at the assizes withdrew the record, — Held, that the plaintiff ought to pay the costs of the day, though not dispaupered. Thompson v. Hornby, 16 Law J. Rep. (N.s.) aB. 152 ; 9 Q.B. Rep. 978. Where a pauper makes default in proceeding to trial in pursuance of notice, and is resident without the jurisdiction of the Court, — Held, that in an application for the costs of the day for notproceeding to trial, the defendant was entitled to make the pay- ment of the costs a condition precedent to further proceedings. Cross v. Port of London Assurance Co., 18 Law J. Rep. (n.s.) Q.B. 72. A plaintiff suing in formd pauperis, and conduct- ing himself vexatiously, may be called upon by the same rule to shew cause why he should not pay the costs of the day for not proceeding to trial, as well as be dispaupered. Bedwell v. Coulslring, 3 Dowl. &L. P.C. 767. Liability to Costs in India. The plaintiff instituted a suit, in formd pauperis, and by the terms of a deed of compromise, the de- fendants undertook to pay the costs, upon his enter- ing up the raxi-nama. The Courts in India sus- tained the compromise, and decreed the plaintiff to pay, out of the consideration-money to be received by him, the costs incurred subsequent to the deed of compromise. Such decree affirmed, on appeal. Munni Ram Awasty v. Sheo Churn Auiasly, 4 Moore, In. App. 114. Liability to Payment of Fee for signing Judgment. Where a plaintiff suing in formd pauperis lecoveis a verdict for any amount, the officer of the Court is bound to sign judgment on that verdict without payment of any fee. Hoare v. Coupland, 19 Law J. Rep. (N.s.) aB. 150. Power to settle Action. A pauper may settle the action, although the attorney will thereby lose his costs, unless it be clearly collusive. Francis v. Webb, 7 Com. B. Rep. 731. When Dispaupered in Ecclesiastical Court. A party having been admitted to sue as a pauper was, on facts respecting an income, proved against him by the proctor assigned to him, dispaupered. Lait V. Bailey, 2 Robert. 1 50. Prosecution of Indian Appeal by. 5emife— Although the Courts in India admit a party to appeal to England, in formd pauperis, yet the appellant ought to make a special application to the Queen in Council, for leave to prosecute such appeal in formd pauperis. Munni Ram Awasty V. Sheo Churn Awasty, 4 Moore, In. App. 114. PAVING ACTS. [See Statute, Constkuction of.] PAWNBROKER. Hours for receiving and delivering pawns altered by the 9 & 10 Vict. c. 98 ; 24 Law J. Stat. 250. A pawnbroker is not disqualified from lending a sum exceeding lOi. upon a deposit of goods, upon such terms as to interest as are allowed by the 2 & 3 Vict. u. 37. A pawnbroker advanced a sum of money, exceed- ing lOZ. upon a deposit of goods, with power of sale, and by the contract (executed in duplicate), stipu- lated for interest at the rate of 3d. per month for every 20s. lent ; and in case of sale that he should retain the surplus, if not claimed by the borrower within three years, and that the goods might be delivered up to any person who produced the dupli- cate, and paid the debt :— Held, that this contract was not invalid on the ground that the lender was a pawnbroker, and had reserved to himself the usual advantages stipulated for in a pawnbroking PAYMENT. 479 transaction. Fitch v. RochfoH, 18 Law J. Rep. (N.s.) Chanc. 458 ; 1 Mac. & G. 184 j 1 Hall & Tw. 255. PAYMENT. [See Pleading.] (A) Evidence, and Effect of. (B) Plea op. (a) When necessary. (6) In Satisfaction. (c) In Debt. (C) Payment into Court. (a) Plea of. (1) Under Statute. (2) In Debt. (3) Where there are concurrent Actions. (4) On Bill of Exchange. (5) To the further Maintenance. (J) Costs. ( A) Evidence, and Effect of. The statement in a deed of compromise, that the consideration money was paid, is not of itself, ac- cording to the practice of the native courts in India, conclusive evidence of such payment, and may be rebutted by evidence of non-payment. Where payment is denied and evidence of non- payment produced, the burthen of proof that the money was paid lies on the debtor. Persad v. Sing, 3 Moore, In. App. 347. Payment and acceptance of a sum, which is the amount of a debt certain, in respect of the omission to pay which the creditor is entitled to nominal damages, is sufficient evidence to support a plea of payment of the debt and damages. A person who accepts the amount of a debt in respect of the non-payment of which at the stipu- lated period he has become entitled to nominal damages, cannot, after the acceptance of the debt, sue for such nominal damages. A payment by one of several makers of a joint and several promissory note may be pleaded by any of the parties as a payment by himself. Beaumont V. Greathead, 15 Law J. Rep. (n.s.) C.P. 130; 3 Dowl. & L. P.C. 631 ; 2 Com. B. Rep. 494. Where after action brought the debt is paid and accepted in satisfaction, and costs are offered but refused, the damage is merely nominal indepen- dently of the costs, and the plaintiflF therefore can- not proceed for the costs. To an action on a cheque for 251. there was a plea of payment of &01., after action brought, in satisfaction of the debt, damages and costs. It was proved that after action brought the defendant paid the amount of the cheque, and offered to pay any costs, which offer the plaintiff refused, saying that he would pay them himself: — Held, that the de- fendant was entitled to a verdict on the plea. Thame v. Boast, 17 Law J. Rep. (n.s.) a.B. 339 ; 12 Q.B. Rep. 808. A post-office order, sent in answer to a demand for payment, in which the payee was described by a wrong name, which he kept, although informed at the office that he might have the money at any time by signing it in the name described: — Held, not evidence to support a plea of payment. Gordon V. Strange, 1 Exch. Rep. 477. (B) Plea of. (a) When necessary. Payment cannot be given in evidence under a replication of " never indebted." to a plea of set-off. Miller v. Jtlee, 3 Exch. Rep. 799. (6) In Satisfaction. An averment that a bill of exchange was given " for and on account of and in payment and dis- charge" of a debt, is not equivalent to an averment that the bill was given in satisfaction of such debt, and therefore where a plea with such averment further stated that the bill so given was afterwards altered, and shewed that in consequence thereof it became ineffectual, and the plaintiff traversed the fact of alteration, upon which issue the defendant had a verdict, judgment non obstante veredicto was awarded to the plaintiff. M'Dowall v. Boyd, 17 Law J. Rep. (n.s.) Q.B. 295. (c) In Debt. In an action of debt a plea of payment before action brought, in full satisfaction and discharge of all the causes of action in the declaration men- tioned, is a plea to the damages as well as to the debt. Tristan v. Barrington, 16 Law J. Rep. (n.s.) Exch. 2 i 16 Mee. & W. 61 j 4 Dowl. & L. P.C. 273. (C) Payment into Coukt. (a) Plea of. (1) Under Statute. To an action for assault and battery the defen- dants pleaded payment of 251. into court, pursuant to the Reg. Gen. Trinity term, the 1 Vict. r. 7, to which the plaintiff replied damages ultra, and issue being joined thereon, the defendant obtained a ver- dict: — Held, that as this plea to an action for as- sault and battery, although prohibited by the 3 & 4 Will. 4. c. 42. s. 21, might be pleaded under other statutes, the plaintiff was not entitled to judgment non obstante veredicto. Justices and other officers paying money into court under particular statutes are not bound to state in their plea the character in which they make the payment. Jston or Ashton v. Perkes, 15 Law J. Rep. (N.s.) Exch. 241 ; 15 Mee. & W. 385 ; 3 Dowl. &L. P.C. 655. (2) In Debt. A plea of payment into court, in an action of debt, in the form given by the Reg. Gen. Trinity term, the 1 Vict r. 7, is bad, if it omit to notice the damages ; it should be varied so as to include a payment into court on account of the damages. Louie V. Steele, 15 Law J. Rep. (N.s.) Exch. 244 ; 15 Mee. & W. 380 ; 3 Dowl. & L.P.C. 662. (3) Where there are concurrent Actions. The plaintiffs having brought one action against the defendant and another against T, two directors of the same railway, to recover the same sum of 480 PAYMENT— PERJURY AND FALSE STATEMENTS. money, T pleaded payment of 300/. into court, and the plaintiffs, without proceeding further against him, gave notice of trial in the action against the defendant. The Court, on an application by the defendant to stay proceedings unless the plaintiiFs would give the defendant the benefit of- the 300?. paid into court by T, allowed the defendant to plead payment into court of 300/. without actually paying in the same. Rendel v. Malleson, 16 Law J. Rep, (n.s.) Exch. 168 ; 16 Mee. & W. 828. (4) On Bill of Exchange. The first count of a declaration in assumpsit was on a bill of exchange for 261. 13s. 2d. The second count was for 30/. for money lent, and on an account stated. The defendant pleaded to the last count, except as to 10/. 95. 1^., non assumpsit, and as to the whole declaration, except 10/. 9s. Id., parcel of the first count, and 10/. 9s. Id. parcel of the last count, payment before action and a set-off; and as to 10/. 9s. Id., parcel of the first count, and 10/. 9s. Id., parcel of the last count, payment into court of 11/. : — Held, on special demurrer, that the plea was bad. A plea of payment into court of a less sum of money than the sum pleaded to, with no other answer to the difference than that no more damages have been sustained, is bad. Where a declaration contains a count on a bill of exchange, and also an indebitatus count, the latter relating to the sum which is the consideration for the bill, semble, that it would be correct to plead to both counts that the bill was given on account of the debt in the second count, and then to plead payment into court of the amount of the bill and interest Tattersallv. Parkinson, 16 Law J. Rep. (U.S.) Exch. 196; 16 Mee. & W. 752 ; 4 Dowl. «£ L. P.C. 522. Assumpsit by the drawer against the acceptor of bills of exchange amounting to 912/. Plea, that after the accruing of the causes of action, an account was stated between the plaintiff and the defendant of and concerning the said causes of action, and certain other demands of the plaintiff against the defendant, and certain other demands of the defen- dant against the plaintiff; and that 50/. and no more was found to be and was then due from the defendant to the plaintiff, which said sum the de- fendant paid to the plaintiff in satisfaction of the sum so due: — Held, on special demurrer, a good answer and well pleaded ; for the plea in effect set up the allowances in account by way of partial pay- ment and an actual payment of the residue. Cal- lander V. Howard, 19 Law J. Rep. (n.s.) C.P. 312. (5) To the fur titer Maintenance. Assumpsit for 500/. for goods sold, 500/. for work done, 500/. for money paid, and 500/. for an account stated. Breach, non-payment. Damages, 500/. Plea, to the further maintenance of the action, pay- ment into court of 230/. 3s., and no damages ultra, in respect of the causes of action in the declaration mentioned : — Held, on special demurrer, that the plea was bad, as affording no answer to the causes of action in the declaration mentioned, except as related to the sum of 230/. 3s. Grimsley v. Parker, 18 Law J. Rep. (n.s.) Exch. 290; 3 Exch. Rep. 610. (i) Costs. To debt for goods sold and delivered, the defen- dant pleaded, first, as to all but 16s., parcel, &c., nunquam indebitatus; second, as to that sum, pay- ment into court of 15s. The plaintiff replied by adding the similiter to the first plea ; and as to the second, that the plaintiff accepts the 15s. in full satisfaction and discharge of the cause of action in the introductory part of that plea mentioned, with prayer of judgment for his costs sustained in that behalf. The jury found that the defendants never had been indebted to the plaintiff to a greater amount than 15s. : — Held, that the plaintiff was entitled to costs on the replication to the second plea. Harrison V. Watt, 17 Law J. Rep. (n.s.) Exch. 74; 4Dowl. & L. P.C. 519 ; 16 Mee. & W. 316. PENALTIES. [See Coal Act — Conviction, Distribution of Penalty — Railway.] Under Merchant Seamen's Act, to whom payable. The 7 & 8 Vict. c. 112, relating to merchant sea- men, is an act relating to trade or navigation. There- fore, all penalties recovered under it are by virtue thereof payable to the Merchant Seamen's Society ; and are within the proviso of the 5 & 6 Will. 4. c. 76, which disentitles certain boroughs to penal- ties recovered under any act relating to " trade or navigation." The Seamen's Hospital Society v. Mayor, SfC. of Liverpool, 18 Law J. Rep. (n.s.) Exch. 371 ; 4 Exch. Rep. 180. When not cumulative, and how recoverable. By the London Coal Act, 1 & 2 Will. 4. c. Ixxvi. s. 57, a penalty not exceeding 5/. is imposed on the seller of coals for every sack that shall be found deficient, on its being weighed according to the act Twenty sacks were sent out to a purchaser at the same time under one contract, seventeen of which were found to be deficient in weight : — Held, that only one penalty was incurred in respect of such deficiency j and that an action of debt was main- tainable in the superior courts, notwithstanding the 77th section, whereby all penalties imposed by the act, not exceeding 25/., are to be levied and reco- vered before Justices of the Peace. Collins v. Hop- wood, 16 Law J. Rep. (n.s.) Exch. 124; 15 Mee. & W. 459. PERJURY AND FALSE STATEMENTS. [See Malicious Pkosecution.] (A) Perjury. (B) False Statements and False Oaths. (C) Evidence. (A) Pekjury. Where a trial has been had before the Secondary of London, it is properly described as being had before the sheriff to whom the writ is directed. Where two or more issues are joined on the record on such trial, it is properly alleged that they came PERJURY AND FALSE STATEMENTS. 481 on to be tried, though only one may have been tried in fact. Perjury may be assigned as to what a man has sworn that he thought or believed ; the diiEculty, if any, being in the proof of the assignment. A witness having sworn at a trial that he did not write certain words in the presence of D, it is a good assignment of perjury that he did write them in the presence of D. The presence of D may be a fact as material as the writing of the words. Regina V. Schlesinger, 17 Law J. Rep. (n.s.) M.C. 29; 10 Q-B. Rep. 670. An indictment for perjury contained four counts, stating that the defendant had retained U, an attor- ney, who had delivered his bill under the 6 & 7 Vict. c. 73, and that after the expiration of one month from such delivery, U had taken out a sum- mons before a Judge to get the bill taxed ; that the defendant, before shewing cause against the sum- mons, made an affidavit denying that he had retained XJ, and perjury was assigned on this statement, the indictment alleging that " it became and was mate- rial in shewing cause against the summons to ascer- tain whether the defendant did retain U." Each of the counts concluded, " and so the jurors, &c. did say that the said defendant, &o. did commit wilful perjury," &c. : — Held, that the word " month" was to be construed with reference to the 6 & 7 Vict. c. 73, and meant calendar month. Held, also, that it was sufficiently shewn that the Judge had jurisdiction to issue a summons on the application of the attorney, without negativing a prior application within the month by the party chargeable. ' Held, also, that the fact of the retainer of U by the defendant was a material ingredient in the inquiry. Held, also, that the conclusion of the counts might be rejected as surplusage. The record stated the venire to be to try whether the defendant was guilty of the perjury and misde- meanour aforesaid, and the entry of the verdict that " he is guilty of the perjury and misdemeanour afore- said, in manner and form," Sc., and a general judgment of imprisonment was given " on the pre- mises :" — Held, that " misdemeanour" being nomen colleciivum, the venire and verdict applied to all the counts, and that. the judgment of imprisonment was divisible. Ryalls v. Regina, 17 Law J. Rep. (n.s.) M.C. 92; 11Q.B. Rep. 78L On error to the Exchequer Chamber, the judg- ment was affirmed, and, held, by that Court that where dates in an indictment are laid under a vide- licet, the videlicet may be rejected after verdict, in order to support the indictment. One count of an indictment for perjury stated that the defendant had retained U, an attorney, who had delivered his bill under the 6 & 7 Vict. c. 73, to wit, on the 7th of August 1844 ; and that, after the expiration of one month from such delivery, to wit, upon the 25th day of April 1845, U had taken out a summons before » Judge to have the bill taxed. The perjury was charged to have been committed in an affidavit made by the defendant prior to the hearing of the summons, as to the re- tainer of U. There were three other counts in the indictment. The venire was to try whether the de- DiGEST, 1845—1850. fendant was guilty of the perjury and misdemean- our aforesaid, and the entry of the verdict was that "he is guilty of the perjury and misdemeanour aforesaid, in manner and form," &c., and a general judgment of imprisonment was given :— Held, that assuming tliat the word " month" meant lunar and not calendar month, as the Court of Queen's Bench had decided, and assuming that it was necessary to shew that a calendar month had expired before the application to tax, the count shewed that that time had expired, for the videlicet might be rejected. But semble, that it was unnecessary to aver that the calendar month had expired, for that the sum- mons having been issued by a Judge of one of the superior courts, it must be intended that he had jurisdiction to issue such a summons until the con- trary was shewn. Held, also, that perjury and misdemeanour were nomina collectiva, and that the venire and judgment were right. Ryalls v. Regina, 18 Law J. Rep. (n.s.) M.C. 69; 11 as. Rep. 795. The record of the proceedings in the Queen's Bench upon an indictment containing several counts for perjury in an affidavit to procure a defendant to be arrested and held to bail, after regularly setting for^h all the proceedings down to the finding of a verdict of guilty, and the prayer of judgment, went on to state that " because it appears to the said Court here that the said verdict so given against the said O W K as aforesaid was unduly given ; therefore the said verdict is by the Court here vacated and made void, and all other process ceasing against the jury before impannelled, the sheriiF of, &c, is commanded, so that he cause a jury anew thereupon to come, &c. by whom the truth of the matter may be the better known," &c. And then, after regularly carrying down the further proceed- ings to the finding of a second verdict of guilty, and a second prayer of judgment, it concluded thus: "it is considered and adjudged and ordered, Szc. that he, the said W K, for the offence charged upon him in and by each and every count of the in- dictment aforesaid, be imprisoned in the Queen's Prison for the space of eight calendar months," &c. : — Held, upon a writ of error by the party in- dicted, that the record in terms contained a suffi- cient entry of the award of a new trial, it appearing that the form adopted was the same as the prece- dents used and approved of in The King v. Mawhey, and followed in subsequent cases, and that the entry of the final judgment and sentence was sufficiently certain. Held, also, no objection that the record alleged that " it was presented as follows," instead of the present tense being used. Also, that it was no objection that the affidavit before a Judge to hold the defendant to bail upon which the perjury was assigned was sworn before the issuing of the writ of summons in the action. King V. Regina, 1 8 Law J. Rep. (n.s.) Q.B. 253. An affidavit of debt may still be made under the 1 & 2 Vict. c. 110. s. 8, as the 5 & 6 Vict. c. 122. a. 1 1 , by which other provisions are made for similar affidavits, is not necessarily inconsistent with the previous statute. Such affidavit is an affidavit by virtue of a statute "relating to bankrupts," and may, there- 3Q 482 PERJURY AND FALSE STATEMENTS. fore, be sworn before the registrar of the Court of Bankruptcy, or other person named in the 5 Sz 6 Vict. c. 122. ». 67. Such affidavit is a material matter upon which perjury may be assigned, although under the 1 & 2 Vict. 0. 110. s. 8, there is no power of making the person a bankrupt. Dunn v. Regina, 18 Law J. Rep. (h.s.) M.C. 41 ; 12 Q.B. Rep. 1031. (B) False Statements and False Oaths. An indictment, under the 6 & 7 Will. 4. u. 86. s. 41. (Registration of Marriages Act), charged that a clergyman had solemnized a, marriage, and was about to register in duplicate the particulars relating to the marriage, and that the defendant did wilfully make to the said clergyman, " for the pur- pose of being inserted in the register of marriage," certain false statements. The proof was, that the particulars were entered by the clerk of the church before the marriage ; that after the marriage the clergyman asked the defendant if they were correct, and that he then answered in the affirmative, and the clergyman signed the register : — Held, that the defendant was rightly convicted. Held, also, that it was not necessary upon an in- dictment under the act, to prove that the register- books used by the clergyman were furnished to him by the Registrar-General. It is purely for the discretion of the Judge at the trial, whether a plea may be withdrawn or not ; and the exercise of such discretion cannot be reviewed upon a case reserved. Regina v. Brown, 17 Law J. Rep. (N.s.) M.C. 145 ; 1 Den. C.C. 291 ; 2 Car. & K. 504. Any one act of fraud upon a public officer with intent to deceive, whereby a matter required by law for the accomplishment of an act of a public nature is illegally obtained, amounts to an indict- able misdemeanour, and it need not be alleged or proved either that the act was, in fact, accomplished, or that the party at the time of committing the fraud intended that it should be. Where, therefore, a party by means of a false oath made before the surrogate of a diocese and in- tended to deceive, obtained from that officer a licence for the solemnization of a marriage in fraud and violation of the 4 Geo. 4. c. 19, — Held, that he had been properly found guilty of a misdemeanour, al- though only part of the false oath charged in the indictment was sufficiently established in evidence ; and although it appeared that he was not the person going to be married. Held, also, that it was not necessary either to allege or prove that the marriage had been solem- nized, or that the party when he had made the false oath really intended that it should be, and that it was no objection that the licence was not alleged to be in writing. QuiBre — Whether perjury can be assigned upon such a false oath taken before a surrogate. Regina V. Chapman, 18 Law J. Rep. (N.s.) M.C. 152 ; 2 Car. & K. 846; 1 Den. C.C. 432. The statute 5 & 6 Will. 4. c. 76. s. 34. (Muni- cipal Corporation Act) makes it a misdemeanour for a burgess wilfully to make a false answer to any of the questions therein specified. The indictment charged (in the first four counts) that " the defen- dant falsely and fraudulently answered," &c. : — Held, bad, for omitting " wilfully." In the last two counts, that the defendant falsely, fraudulently, deceitfully and contrary to, and in fraud of the said statute, did personate one J H: — Held, first, that this was no offence under the statute, no offence so described being specified therein ; se- condly, that it was no offence at common law, either in itself; or as a violation (in effect) of a statutory prohibition, because (if it were) the statute in the same clause created the offence and provided the penalty. Regina v. Bent, 1 Den. C.C. 157; 2 Car. & K. 179. (C) Evidence. In cases of perjury, although an assignment of perjury must be proved by two witnesses, it is not necessary to prove by two witnesses every fact which goes to make out the assignment of perjury. A, to prove an alibi for B, had sworn that B was not out of his sight between the hours of 8 a.m. and 9 a.m. on a certain day, and on this perjury was assigned. Proof by one witness that between those hours A was at one place on foot, and by another witness that between those hours B was walking at another place six miles off,- — Held, to be suffi- cient proof of the assignment of perjury. Regina V. Roberts, 2 Car. & K. 607. In an indictment for perjury, it was alleged that A made his will, and thereby appointed B his executor: — Held, that the production of the probate was the proper proof of this allegation; hut, that it it had been necessary to prove that A had devised real estates, the original will must have been pro- duced and one of the attesting witnesses called. In an indictment for perjury, it was averred, that a suit was instituted in the Prerogative Court by C against B, to dispute the validity of a codicil to a will: — Held, that the production of the original allegations of both parties in the suit, signed by their advocates, and proof of the advocates' signa- tures, and that tj^ey acted as advocates in that court, such allegations being produced from the registrar of that court, was sufficient proof of the averment, and that the caveat need not be produced. On the trial of an indictment for perjury, assigned on an affidavit sworn in the Queen's Bench, proof of the defendant's signature to the affidavit, and proof that, under a jurat " sworn in open court at West- minster Hall, the 10th day of June 1846," the words " By the Court," are in the handwriting of one of the Masters of the Court, is sufficient evi- dence of the swearing of the affidavit in the Court of Queen's Bench, without any further proof tliat the Master was in court when the affidavit was sworn. Regina V. Turner, 2 Car. & K. 732. On an indictment for perjury, in the usual form, setting forth with proper innuendoes a copy of a deposition before a magistrate, written in the English language and signed by the defendant, he may be convicted on proof of a verbal deposition in the Welsh language, of which the written deposi- tion signed by him is the substance. Regina v. Thomas, 2 Car. & K. 806. PETITION OF RIGHT— PLEADING, AT LAW. 483 PETITION OF RIGHT. Where lands in a foreign state were invested in a line of feudatories in the claimant's father, who, in 1791, ceded them absolutely to the claimant, his eldest son, but continued in the management on his behalf, and both afterwards emigrated, in viola- tion of the new French revolutionary code of laws which had been imposed, and extinguished the former feudal law there, and by a decree the lands were declared confiscated in consequence of such emigration, the son, by a petition of right, claimed to be entitled to be compensated for his loss out of the funds paid by the French government under the conventions with this country in 1813, 1814 and 1815, and the 59 Geo. 3. c. 31, for ascertaining the validity and amount of claims of British subjects injured by the revolutionary government of that country ; the petitioner's claim had been rejected by the Commissioners and the decision confirmed by the Privy Council; the remainder of the fund applied continued, under the direction of the Lords of the Treasury, at the Bank of England, on the Government account: — Held, that a petition of right was not maintainable for money claimed as a debt or by way of damages ; and semble, for no other object than land or specific chattels ; that the case shewed no proof of the Sovereign having had a personal benefit from that which was sought to be received at her hands, and which proof would be requisite to support such petition ; and that upon the facts the petitioner had failed in proving that the property in respect of which the claim was made had been unduly confiscated by the new government imposed on France. Where the party had ceded his entire rights to his eldest son, a minor, but continued afterwards to manage the estates, — Held, that his declaration that he did so in the name of the latter made after such cession was admissible evidence in a suit relating to a claim by the son in respect thereof. In order to prove the foreign law of inheritance, a lawyer of that country, deposing that up to a cer- tain period it had been, &c., but had then been put an end to by a revolution, and subsequently by a decree of the thenJNational Assembly passed to that eflfect, the knowledge of which he had acquired in the course of his legal studies, — Held, admissible, and that it was not necessary to produce a copy of such decree. Baron de Bode's case, 8 O.B. Rep. 208. PHYSICIAN. [See ExECUTOE and Administeatok, Rights, Duties, &o. of] PIRATES. The law as to piratical vessels altered by the 13 & 14 Vict. c. 26 ; 28 Law J. Stat. 34. Bounties upon the capture of piratical prahus decreed in respect of their crews under the statute 6 Geo. 4. c. 49. The Serhassan, 2 Rob. 354. PLEADING, AT LAW. [See Infeeior Couet — Mastee and Servant -Reversion — Slander. ] (A) Commencement and. Conclusion. (B) MiSJOINDEE. (C) Material and immateeial Averments. (D) Videlicet. (E) Surplusage. (F) Certainty and Particulaeity. (G) Aegumentativeness. (H) Duplicity. (I) Divisible Allegations and distributive Issues. (K) Negativing Exceptions. (L ) Confessing and avoiding. (M) Admissions. (N) Pbofert. (O) Departure. (P) Defects cured by Verdict. (Q) Construction of Pleadings. (R) Declaration, General Form and Suf- ficiency OF. (S) Pleas in particular Cases. (o) In Bar. (6) Amounting to the General Issue. (c) Foreign Attachment. (d) Possessory Plea to Assault and Imprison- ment. (e) Judgment recovered. (/) No Consideration for Note, {g) Colonial Law. (A) Payment of Money by Broker. (i) Acceptance in Satisfaction. (T) Replication. (a) Of Non est factum to Plea setting out Deed, but not on Oyer. (&) De Injuri . (U) New Assignment. The Judges of the common law courts enabled to alter the forms of pleading, by the 1 3 Vict. c. 1 6 ; 28 Law J. Stat. 19. (A) Commencement and Conclusion. Debt on a promissory note for 15Z., with a count for SOI. on an account stated. First plea, to the first count, alleging special circumstances as to the making of the note, which shewed that it was given upon a misrepresentation o£ facts and without con- sideration. Second plea, as to the sum of \5l., parcel of the money and causes of action in the last count mentioned, that the making of the said pro- missory note in the first count mentioned was and is the said account stated in the last count mentioned, so far as the same relates to the said sum of \5l., parcel, &c.; and that the several allegations and statements by the defendant made in his first plea were and are true, modo et formd. On special demurrer to the second plea, on the ground, that professing to answer part of the count on the account stated, it nevertheless presented an answer to the cause of action in the first count also ; — Held, that the plea was good. Hammond v. Dayson, 15 Law J. Rep. (n.s.) Exch. 278 j 15 Mee. & W. 373. Plea, to the further maintenance of the action. 484 PLEADING, AT LAW. payment after action brought, and prayer of judg- ment if the plaintiffought further to maintain his action. Keplication (without any commencement of priBcludi non), a traverse of the payment : — Held, bad, on special demurrer. Futiioye v. Stevens, 18 Law J. Rep. (n.s.) Exch. 261 ; 3 Exch. Rep. 439. Plea in covenant, that the plaintiff ought not further to maintain his action, because the defendant brings into court 5s. and says that the plaintiff hath not sustained damages beyond that sum. Replication (without any commencement of prts- cludi non), damages a/fra; — Held, bad, on special demurrer. Howcuit v. Bonser, 18 Law J. Rep. (N.s.) Exch. 262 ; 3 Exch. Rep. 491. A plea of not guilty by three of several defendants in an action on the case, concluded thus, '* and of the defendants, Henry Whitehouse, Daniel Gardner and John Priest, put themselves upon the coun- try " : — Held, bad on special demurrer for uncer- tainty. Kempster v. Whitehouse, 19 Law J. Rep, (n.s.) Exch. 29. To a declaration in debt, containing a count on a bill of exchange for \2l. 10s., indorsed by the de- fendant to the plaintiff, and alleging that the defendant had due notice of dishonour, and a count for goods sold and delivered, the defendant pleaded, as to the first count, and as to \2l. 10s. parcel of the last count, that there never was more than 12Z. 10s. due from the defendant to the plaintiff in respect of the debts in the introductory part of the plea mentioned, and that the defendant after the accruing of tlie debt in the last count and intro- ductory part of the plea mentioned, indorsed to the plaintiff and the plaintiff received the said bill of exchange on account and in respect of the said debt and all causes of action in respect thereof, and that the defendant never had due notice of dishonour of the said bill of exchange as in the said first count alleged, concluding with a verification : — Held, on special demurrer, that the plea was bad. Day v. Smith, 16 Law J. Rep. (n.s.) Q.B. 425; 1.5 a.B. Rep. 584. \Sieepost,{C),RosUngv.Muggeridge and Ricketts V. Loftus.2 (B) Misjoinder. In assumpsit, the first count of the declaration alleged that F was indebted to the plaintiff, as executrix, in 3501., secured on mortgage ; that the plaintiff, as executrix, had commenced proceedings at law against F, which were pending, and had been put to divers costs in such proceedings, &c. ; and thereupon, in consideration of the premises, and that the plaintiff would stay the proceedings against F for twenty-one days, the defendant undertoolc and promised the plaintiff, that, within the twenty-one days, he would pay the 350^., and the plaintiff's costs. Averment, that the plaintiff did stay the proceedings accordingly, and breach in non-pay- ment-by the defendant to the plaintiff of the mort- gage-money and costs. The second count was upon an account stated with the plaintiff as executrix: — Held, a misjoinder. Webb v. Cowdell, 14 Mee. & W. 820. [See Esdaile v. Maclean, post, (F).] (C) Material and immaterial Averments. In an action against the surety on a bond under the statute 1*2 Vict. c. 110. s. 8. for the payment of a debt by H, or his rendering himself in any action that might be brought, the defendant pleaded that the plaintiff, having recovered judgment for the debt in the Queen's Bench, issued a writ of ca. sa. against H thereupon, and delivered it to the sheriff, and, before the return of the writ or any breach of the condition, H was taken and surrendered him- self, and was detained under it; whereupon H issued a habeas corpus cum causd, and, being taken before a Judge, was committed to the custody of the gaoler of the Court of Queen's Bench in execu- tion, and there detained until and after the return day of the writ, and which facts the sheriff returned to the writ of ea. sa. The plea further stated that H was always ready to render himself, and would have rendered himself, according to the practice of the court, but that he was prevented by the plaintiff in manner aforesaid from so doing: — Held, upon special demurrer, that the plea was bad for not averring distinctly that it was impossible for H to render himself, as the Court could not take notice that, by thepractice of the Court of Queen's Bench, he could not have done so, or that the facts themselves, according to the practice of that court, constituted a render. Hat/ward v. Bennett, 15 Law J. Rep. (n.s.) C.P. 315; 4 Dowl. & L. P.C. 228; 3 Com..B. Bep. 404. In replevin the plaintiff pleaded in bar to an avowry for the rent of a house, that before the defendant had any interest in the house, one F was seised in fee of the same, and devised to S his wife for her life, in case she should so long continue to be his widow, and not live with any other man, except a father or brother, a rent-charge of 251. issuing out of the said house, with power of distress; that F died seised, leaving his wife sur- viving, and that she continued seised of such rent- charge until the half-yearly payment thereof was in arrear to her, and that the plaintiff to prevent a distress upon his goods paid her the amount of the rent: — Held, on special demurrer, that the words in the will were a condition subsequent in de- feasance of the estate in the rent- charge, and not a condition precedent, and therefore that the plain- tiff was not bound to aver performance of the con- ditions, but that the breach thereof ought to be shewn by the defendants. Brooke v. Spong, 15 Law J. Rep. (n.s.) Exch. 94; 15 Mee. & W. 153. Assumpsit against the acceptor of two bills of exchange. First plea, as to 261. 10s. 2d., that the plaintiff ought not to maintain his action, because the defendant brings that sum into court, conclud- ing with a prayer of "judgment if the plaintiff ought further to maintain his action," &c. : — Held, on special demurrer, that the plea was bad in not stating in the commencement that the plaintiff ought not further to maintain his action. Second plea, that the defendant being unable to pay the plaintiff and his other creditors in full, it was agreed by the plaintiff and the other creditors that a sum of 4s. 6d. in the pound upon their debts should he paid by the defendant to the plaintiff and the other creditors, and that upon receiving the money the plaintiff and the other creditors should execute a release of their debts; that a release was prepared for execution, and that the creditors, except the plaintiff, received the com- PLEADING, AT LAW. 485 position and executed the release ; that the de- fendant had always heen ready and willing to pay the plaintiff the 4s. 6d. in the pound upon the plaintiff's executing such release, whereof the plaintiff had notice, and was requested by the de- fendant to accept the composition and execute the release, which the plaintiff refused to do, but brought the present suit to recover the full amount of his debt: — Held, that the plea was bad in omitting to state that the defendant offered to pay the composition-money or tendered a deed of re- lease to the plaintiff for execution. Rosling v. Mug- geridge, 16 Law J. Rep. (n.s.) Exch. 38 ; 16 Mee. & W. 181 ; 4 Dowl. & L. P.C. 298. The declaration stated that by certain articles of agreement the plaintiff agreed to sell, and the de- fendant to purchase, a piece of land, and the plain- tiff agreed to deliver an abstract of title and to deduce a clear title within a month from the sign- ing of the contract, or from being required so to do ; that the defendant agreed to pay a portion of the purchase-money on the signing of the contract, and the residue on or before a future fixed day, and to pay interest in the mean time half-yearly ; and that the plaintiff did, within one month from being required, deliver an abstract of title and deduce a clear title. Breach, non-payment by the defendant of half a year's interest. Plea, that the plaintiff did not deliver an abstract of title, and deduce a clear title in manner and form, &c. Upon demurrer, for immateriality and duplicity, — Held, that the plea was bad, for raising an immaterial issue, the delivery of the abstract and the deduction of title not being a condition precedent to the payment of the monBy. Quesre — Whether the plea was not also bad for duplicity, in denying both the delivery of the abstract and the deduction of the title. Dicker v. Jackson, 17 Law J. Rep. (n.s.) C.P. 234 ; 6 Com. B. Rep. 10.3. The declaration was in debt on a bond given by the defendants and L for 8,000/. to be paid by them to the plaintiffs, or Everett, on request, whereby and by reason of the non-payment, &c. The de- fendants, by their plea craved oyer, and set out the bond and condition and recitals. The condition was that the defendants and L should pay over sums of money assessed and collected by L, and that L should demand the sums assessed and pro- ceed against defaulters. Averment, that the de- fendants performed all things on their part to be performed. The plaintiffs replied, praying that the deed and condition might be enrolled, and being set out on enrolment, demurred, on the ground, that they were falsely set out by the defendants on account of the recitals being introduced, and that the plea of general performance was bad i^Held, first, that it was not necessary to state a request in the declaration. Secondly, that the allegation "by reason of the non-payment," &c. was a sufficient denial of pay- ment to the plaintiffs or Everett, after plea. Thirdly, that the plea was bad for not shewing performance by L as well as by the defendants. Fourthly, that the plea was bad for averring general performance, instead of shewing what was done in performance of the condition. Semble — First, that it is not the practice to de- mur for mis-recital on oyer. Secondly, that the effect of the enrolment is to make the matter set out part of the declaration. Kepp v. Wiggett, 17 Law J. Rep. (n.s.) C.P. 295 j 6 Com. B. Rep. 280. A declaration stated, that in consideration that the plaintiff had become tenant to the defendant of a farm, upon the terms that if the plaintiff should receive from the defendant notice to quit, and should have made expensive improvements upon the farm, for which the subsequent crops should not have compensated the plaintiff, the farm should, upon the determination of the tenancy, be looked over by two men, one to be appointed by each party, and that the persons so appointed should determine to what compensation the plaintiff should be entitled, the defendant promised the plaintiff that if the tenancy should be determined, and the plaintiff should have made improvements for which he should not have been compensated, the defendant would, at the plaintiff's request, appoint a person for such purposes. Averment, that the tenancy was determined by the defendant ; that the plaintiff had made improvements for which he had not been compensated ; that although the plaintiff, after the determination of the tenancy, appointed J D to de- termine the compensation, and J D was ready to act, of which the defendant had notice, and was then requested by the plaintiff to appoint some per- son on his behalf, yet the defendant did not nor would appoint some person in that behjilf : — Held, on special demurrer, that the declaration was ill in omitting to state that the plaintiff had requested the defendant to appoint a valuer before the com- mencement of the suit. Laiiimore v. Garrard, 17 Law J. Rep. (n.s.) Exch. 100 ; 1 Exch. Rep. ^09. A declaration in trespass to goods charged the defendant with taking and carrying them away, and also with converting them to his own use: — Held, that such conversion was merely matter of aggravation, and a plea to the whole declaration justifying the taking the goods and carrying them away, but omitting to Justify their conversion, was a good plea. Pratt v. Pralt, 17 Law J. Rep. (n.s.) Exch. 299; 2 Exch. Rep. 413. In an action for dismissing the plaintiff from the defendant's service before the expiration of a year, the declaration alleged that the plaintiff had always been ready and willing and offered to remain in the defendant's employ for a year. Plea, that the plaintiff did not offer to remain, &c. : — Held, that the plea raised an immaterial issue ; the gist of the averment in the declaration being the readiness, which implied the ability and willingness of the plaintiff to continue his services. Wallis v. Warren, 18 Law J. Rep. (n.s.) Exch. 449; 4 Exch. Rep. 361. Declaration in an action of account between the plaintiffs and the defendant, as tenants in common under certain deeds of lease, release and settle- ment, made on the marriage of W. Loftus, the father of the plaintiff's wife, and the defendant, and which were alleged to be in possession of the defendant, shewed, amongst other limitations, that the alleged tenancy in common was vested, subject to certain powers of limitation and appointment either by deed or will, reserved to the said W. Loftus in and by the said deed of release and settlement, and therein stated, and then averred the death of the said W. Loftus without having made any 486 PLEADING, AT LAW. such limitation or appointment, and tliat tliereby the plaintiffs became seised as tenants in com- mon with the defendant, &c. The defendant's third plea set out in terms the whole of the deed of release, and then alleged affirmatively, that the said W. Loftus by a certain indenture then brought into court, and the effect of which the plea set out, had made a valid appointment by deed, under and by virtue of one of the powers contained in the deed of release and mentioned in the decla- ration. Defendant in his fourth plea pleaded affirmatively that the said W. Loftus had by his last will and testament made a subsequent valid appointment (subject to the former appointment), under and by virtue of another of the powers con- tained in the deed of release, and mentioned in the declaration. Both pleas concluded with a verifica- tion : — Held, upon special demurrer, that the pleas were good. That the allegation in the declaration, that W. Loftus died without making any appoint- ment under the deed of release, was premature, and therefore that the defendant was not bound to tra- verse it. That even if such allegation had been necessary, and amounted to a direct allegation that W. Loftus had not appointed, still the rules of "pleading require that the defendant should, in rely- ing upon the exercise of the powers of appointment, shew how and to whom the appointments were made, so as to make his pleas an answer to the action. Eiclretts v. Loftus, 19 Law J. Rep. (h.s.) as. 94. A declaration in assumpsit set forth a special contract to take a portion of a ship's cargo on the ship's arriving at B, and after averring the plain- tiff's readiness and willingness to deliver the cargo at and after the ship's arrival, alleged as a breach that the defendant, before the arrival of the ship at B, discharged the plaintiff from delivering the cargo, and thenceforth continually afterwards re- fused to perform the agreement. The defendant, after pleading some pleas to the whole declaration, pleaded, thirdly, as to so much of the breach as related to the discharging the plaintiff from deliver- ing the cargo and to the refusing to perform the agreement that he did not discharge the plaintiff or refuse to perform the agreement. The fourth plea was pleaded as to so much of the breach as related to the defendant's having, before the arrival of the vessel, discharged the plaintiff from delivering the cargo, and refused to per- form the agreement, and averred, that before the arrival of the ship the defendant retracted his dis- charge and refusal. The fifth plea was pleaded as to the residue of the breach, and traversed the plain, tiff's readiness and willingness to deliver the cargo. The jury found for the plaintiff on all the issues but the fifth, and on that issue for the defendant. In the judgment roll the damages were assessed for the plaintiff " on occasion of the breach of promise in the declaration assigned (other than the part of the said breach in the fifth plea mentioned"). It also stated that the plaintiff was in mercy as to the issue found for the defendant on the fifth plea : — Held, that whatever be the construction of the word " residue" in the introductory part of the fifth plea, the assessment of damages was correct, and the judgment unimpeachable by the defendant. That if the term " residue" in the fifth plea meant that part of the breach not covered by the fourth plea, and if the fourth plea covered only that part of the breach which related to what took place before the arrival of the ship, the issue on the fifth plea was immaterial, as the third and fourth issues were found for the plaintiff, and the plaintiff ought to have bad judgment non obstante veredicto, and that the defendant was not entitled to complain of having judgment wrongly entered in his own favour. That if the " residue" meant that part of the breach not covered by either the third or fourth pleas, the residue amounted to nothing, as the third plea answered the whole breach, and that on that view the fifth plea was wholly irrelevant. M'Clure v. Ripley, 19 Law J. Rep. (n.s.) Exch. 194 ; 5 Exch. Rep. 140. A plea of justification in trespass qu. cl. fr. stated that the town and borough of Holt was and is an ancient town, and that the burgesses of the borough were from time immemorial a body politic and cor- porate, and then stated a grant to the burgesses of the town of Holt, their English lieirsand successors, and their tenants, of common of pasture for all their cattle within the said town of Holt levant and con- chant, to hold to the said burgesses, their English heirs and assigns, and their tenants several, at all times of the year, and then justified the acts charged, because the defendant, as a burgess and English successor, was entitled to the right of common. The replication traversed that the defendant was entitled to enjoy such right of common : — Held, that upon this issue evidence that the right of common had been extinguished by proceedings under the General Inclosure Act, was inadmissible. But held, also, that the plea was had after ver- dict, for not shewing that it was a grant to the cor- poration for the benefit of the individual burgesses. Parry v. Thomas, 19 Law J. Rep. (n.s.) Exch. 198; 5 Exch. Rep. 37. In an action on a charter-party the declaration stated, that by a charter-party made between the defendant, the ship-owner, and the plaintiffs, it was agreed that the ship should proceed to two ports in Sicily, or usual place of loading, on and after the delivery of her outward cargo, and there load from the plaintiffs' factors a full cargo and thence proceed to Bristol, and that the vessel should have her orders before leaving Messina. Averment, that the ship arrived at Messina. Breach, that the defen- dant within a reasonable time after the delivery of her outward cargo, and before the plaintiffs could have given orders for the ship to proceed to the said port, made a contract with other persons for the conveyance of goods from Messina, and therewith, and within such reasonable time as aforesaid, and before such reasonable time had elapsed, loaded his ship, and afterwards proceeded to London without taking on board the cargo agreed to be taken from the plaintiffs, and thereby wholly incapacitated and deprived himself of the power of fulfilling the charter-party, although the plaintifis within such reasonable time as aforesaid provided merchandise, and were ready and willing to load on board the said ship the said merchandise, and although the plaintiffs would have been ready and willing to have named and appointed, and given orders to the defendant to proceed to two ports, and to have there loaded a full cargo : — Held, that the declaration was PLEADING, AT LAW. 487 bad for not shewing performance by the plaintiffs of the conditions precedent of tendering a cargo, giving orders, and naming a port, or not shewing a suffi- cient excuse for non-performance thereof. Matthews T. Lowther, 19 Law J. Rep. (n.s.) Exch. 364; 5 Exch. Rep. 574. A declarationehargedthedefendants with breaking and entering theplaintiff'shouse, and breaking doors and locks, and seizing goods; they justified the seizing of goods under a fi. fa. : — Held, that the plea was bad, the breaking, &c., being not aggra- vation merely, but a substantive trespass distinct from the entering, and requiring to be justiiied. Curlewis V. Laurie, 12 (i.B. Rep. 640. To an action on an attorney's bill, the defendant pleaded that the plaintiff did not deliver " one month'Vbefore bringing the action a signed bill of his fees, " pursuant to the statute in such case made," " contrary to the form of the said statute." The 6 & 7 Vict. c. 73. s. 37. requires a bill to be delivered "one month" before bringing an action, and by the interpretation clause, "month " is de- clared to mean " calendar month :" — Held, on special demurrer, that the word " month " in the plea was to be taken to mean " lunar month ;" that the words "pursuant to the statute," &c. would not enable the Court to construe it as a " calendar month;" and that as the act required a delivery a "calendar month" before the action, the plea was bad as tendering an inconclusive and immaterial issue. Quare — if the plea was not also bad as being an argumentative averment that the plaintiff did not deliver one " calendar" month before bringing the action, a signed bill, &e. Parker v. Gill, 5 Dowl. & L. P.C. 21. [See Practice, Issuable Pleas. And see Williin- son, V. Ga&tcm, and Dietrichsen v. Giubilei, post, (H).] (D) Videlicet. When the time at which an event occurred is material, the date, though laid under a videlicet in pleading, must be proved as laid. ■ To a declaration in debt the defendant pleaded that after the accruing of the debt and before action, to wit, on the 22nd of November 1843, a petition for protection of the defendant from process was, according to the statute in such case made, pre- sented to the Court of Bankruptcy, and thereupon and before action, to wit, on the 29th of January 1844," a final order for protection and distribution was duly made in the matter of the said petition. Special demurrer, for that two acts were passed in 1842 and 1844 respectively, by the latter of which a petitioner was not protected from actions, but only from process against the person ; that the plea should have stated distinctly that the said order was made after the act of 1842 and before the act of 1844; that the dates therein being under a videlicet, it did not appear under which act the plea was pleaded, and if traversed proof of a final order made under either act would support the issue, &c. : — Held, that the date of granting the final order, though laid under a videlicet, was sufficiently posi- tive, and that the time was material, and must be proved as laid. Nash v. Brown, 18 Law J. Rep. (n,s.) C.P. 62; 6 Com. B. Rep. 584. (E) SOKPLUSAQE. A declaration in assumpsit upon a special agree- ment, after stating a sufficient breach by refusal to employ the plaintiff, contained an averment " that the defendant did not nor would pay " certain weekly wages according to the agreement (specifying them), " and did not nor would pay" certain sums (speci- fying them), by means of which, &o. The defen- dant demurred generally " as to the second and third breaches." The plaintiff having joined in demurrer, and it being admitted that, as breaches, they were insufficient, — Held, that the averments could not be treated as surplusage, and that the defendant was entitled to judgment. Liish v. Rus- sell, 19 Law J. Rep. (n.s.) Exch. 56; 4 Exch. Rep. 637. (F) Ceetainty and Particularity. To an action of trespass for false imprisonment, the defendant pleaded that a judgment was reco- vered against the plaintiff, and that a ca. sa. issued thereon, under which hfe was arrested. Replication, that the judgment was signed upon a warrant of attorney, and that the judgment and ca. sa. were set aside by a Judge's order, which was afterwards made a rule of court, on the ground that the war- rant of attorney was never delivered as a complete authority to do or suffer any of the acts therein specified, but as an escrow, to take effect in a cer- tain event which had never happened, and was to be kept by the plaintiff in his own possession till such event should happen; and that the defendants, by an improper contrivance, obtained and kept pos- session of it without the plaintiff's consent; that judgment was signed under colour of the said docu- ment, and the ca. sa. issued upon the judgment: — Held, on demurrer, first, that the replication was good, as it sufficiently appeared that the ca. sa. was set aside, not on the ground of its being erroneous, but on the ground of irregularity, or want of good faith. Secondly, that the replication was not bad in omitting to state that the order was made a rule of court ie/bre the commencement of the suit, inas- much as it was not necessary that that fact should be stated at all. Brown v. Jones. 15 Law J. Rep. (N.S.) Exch. 210; 15 Mee. & W. 191; 3 Dowl. &L. P.C. 678. Declaration in assumpsit, that the defendant and A were in partnership as attornies, and in consi- deration that the plaintiff would retain them, as such attornies, to conduct an action at the suit of B against L for negligent driving, the defendant and his partner promised to fulfil their duty as such attornies in and about prosecuting the said action, and recovering damages ; that the defendant and his partner did, under the said retainer, com- mence an action against L, and such pijoceedings were thereupon taken that B recovered judgment against L for 561. 15s. ; that afterwards the defen- dant and his said partner as such attornies as afore- said, for obtaining satisfaction of the said damages, sued out a writ of fi, fa., to which the sheriff re- turned that he had levied 91., part of the damages, and nulla bona as to the residue ; that the defendant and his said partner, as such attornies as aforesaid, for obtaining satisfaction of the said residue, issued a ca. sa. by virtue whereof L was imprisoned, and 488 PLEADING, AT LAW. paid the residue of tlie damages to the governor of the gaol, who paid the same to the defendant and his partner, as such attornies as aforesaid; that be- fore they received the same they sent, as such attornies as aforesaid, to the gaoler, a discharge of L out of custody, by virtue whereof he was dis- charged. Breach, that although the defendant and his partner received the said damages, and the plaintiff duly paid to them, as such attornies as aforesaid, their costs and charges of prosecuting the said action, yet they had not paid to B or the plaintiff the residue of the said damages : — Held, that this declaration was bad, on special demurrer, for not shewing distinctly that the -money was re- ceived by the defendant under his original retainer by the plaintiff in the action against L. Bevins v. Hulme, 15 Law J. Rep. (N.s.) Exch. 226; 15 Mee. 6 W. 88 ; 3 Dowl. & L. P.C. 309, 722. A declaration, containing counts on bills of ex- change by the indorsee against the indorser in the form prescribed by the Reg. Gen. Trin. term, 1 Will. 4, stated that the defendant promised to pay the bills, and commenced and concluded in the form of a declaration in debt. It also contained the indebitatus counts in debt : — Held, that there was no misjoinder. The declaration described a party to a bill of exchange by the initials of his christian name, without shewing that he was so designated in the bill :— Held, ill. A declaration, containing several counts on bills of exchange, each count of which described the bill, and then referred to it as "the said" bill of exchange : — Held, that as the words " the said " had reference to the last antecedent, the declaration was sufficiently certain even on special demurrer. Esdaile v. Maclean, 16 Law J. Rep. (n.s.) Exch. 71; 5 Mee. & W. 277. A declaration stated that the plaintiff had divers dealings with the defendants, and that divers ac- counts remained unsettled between them ; that the plaintiff had, for the accommodation of one of the defendants, accepted divers bills of exchange, and thereupon, in consideration that the plaintiff then delivered to the defendants three acceptances as follows; — 16Z. 6s. at two months, 211. 15s. 2d. at three months, and 261. Is. \\d., dated the 7th of April, at five months, as full settlement of debts, the defendants promised the plaintiff to return to him the acceptances drawn by the said defendant as follows: — 28;. 155. and 28;. Breach, that the defendants did not return the acceptances ; — Held, on special demurrer, that the declaration was ill for want of certainty. Webster v. Crouch, 17 Law J. Rep. (n.s.) Exch. 303; 2 Exch. Rep. 555. The full christian names of persons mentioned in pleadings should be stated therein, or a sufficient excuse shewn for the omission; if neither be done, the proper mode of objecting is by demurrer. "When, in pleading, a single vowel immediately precedes a surname, the Court will understand such vowel to be the christian name of the party. Kin- nersley v. Knott, 18 Law J. Rep. (n.s.) C.P. 281 j 7 Com. B. Rep. 980. A defendant in a suit was described by the initial letter of his Christian name only: — Held, that this was not a misnomer of the defendant, but an in- sufficient description of him, and that the ohjection might be taken on special demurrer. Miller v. Haigh, 18 Law J. Rep. (n.s.) Exch. 487. A declaration on a policy of a-ssurance stated that the defendants were assurers of ships, &o., and, " thereupon, the plaintiffs, by certain persons using and carrying on business, and in the said policy designated and described by the names, style, and firm of Dewar & Culliford, the agents of the plain- tiffs in that behalf," made with the defendants a certain policy of assurance, purporting that the said persons so using, and in the said policy desig- nated and described by the said name, style, and firm of Dewar & Culliford, as agents, as well in their own names as for others, so did make assur- ance. The declaration then stated, that the ship was stranded ; that the waters flowed over the corn, goods, &c., which became thereby wetted, damaged, and spoiled, whereby the plaintiffs sustained an average loss on the said corn, to'a large amount, to wit, to the amount of 800/., and thereby the said corn, 8:c. became of no use and value to the plain- tiffs: — Held, on special demurrer, first, thatthede- claration was bad for not stating the Christian names of Dewar & Culliford. Secondly, that it was not had on the ground that it did not shew the amount that the defendants became liable to pay by reason of the average loss; nor on the ground of its not stating with certainty whether the plaintiffs meant a total or only a partial loss. Sturge v. Rahn, 19 Law J. Rep. (n.s.) Exch. 119 ; 4 Exch. Rep. 646. In case for wrongfully working mines, whereby the plaintiff's house fell down, stating that the plaintiff was " of right entitled to have his dwelling- house so supported, in part by land between the house and the mines, without any hindrance," &c. : — Held, after verdict, a bad declaration for not stating the grounds on which the plaintiff was entitled to have his house supported by the land above the mines. Hilton v. Whitehead, 12 Ci.B, Rep. 734. The statement of the names of persons in plead- ing is not necessary, when it would, by reason of their number, lead to prolixity. The Court will take judicial notice that the rate- payers of a parish are so numerous that it would lead to prolixity to set forth their names in pleading. Kingsford v. Button, 1 L. M. & P. 479. In an action for assaulting the plaintiff, the de- fendants pleaded, that the plaintiff was beating " a certain boy whose name is to the defendants un- known," and that the defendants, to prevent his beating " the said boy," quietly laid their hands on him. Replication, that " the said boy" in the plea mentioned " was one Barnes W, and was and is the lawful son of the plaintiff," of the age of ten years, and that " the said Barnes W" refused to obey his lawful commands, whereupon the plaintiff moderately chastised him. Rejoinder, that the plaintiff, at the time when, &c., was beating " the said Barnes W" with more violence than was proper and reasonable. Rejoinder, that the plaintiff "did not beat" &c. the said Barnes W " with more vio- lence than was proper and reasonable." On the part of the plaintiff, evidence was given that the plaintiff, just before the defendants interfered with him, had been beating his son Barnes W, who was ten years old, with a strap, but not immoderately ; but the last witness for the plaintiff stated that the PLEADING, AT LAW. 489 plaintifFhad another son, aged eight. It was proved for the defendants, that, after the plaintifFhad heaten his elder son, Barnes W, he began beating the younger, when the defendants laid hold of him : — Held, that, on these pleadings, the issue was limited to the question of the excessive beating of Barnes "W, and that anything the plaintiff did to the younger boy was not in issue ; and the Judge at the trial would not allow any amendment as to the name of Barnes W, as the two boys had both been beaten, and if the issue had been different the plaintiff might have adduced other evidence as to the extent of the beating of the younger boy. fVinterburn v. Brooks, 2 Car. & K. 16. (G) Argumentativeness. To an action of trespass quare clausum /regit, the defendant pleaded, fourthly, that the close was the freehold of H, and that the defendants, as his servants, and by his command, committed the alleged trespasses. The plaintiff replied, that the defendants did not, as servants of H, and by hia command, commit the trespasses : — Held, on spe- cial demurrer, that the replication was bad as in- volving a negative pregnant. Jones v. Jones, 16 Law J. Rep. (n.s.) Exch. 299 ; 4 Dowl. & L. P.C. 494 ; 16 Mee. & W. 699. The declaration stated that the plaintiff agreed with the defendants to act as their salesman for a year, and not to be connected with any other house in disposing of their goods, and that the defendants agreed to pay the plaintiff 200/. for such servitude. Averment, that the plaintiff entered into the defen- dants' service, and was not connected with any other house, and had always until the expiration of one year from the making of the agreement, b6en ready and willing, and offered to remain in such employ. Breach, that the defendants would not suffer the plaintfff to act as their salesman during the remain- der of the year, hut discharged him from the per- formance of his agreement, and had not paid him the 200/. Plea, as to the non-payment of the 200i, that after the plaintiff ceased to be in the defendants' employ, and during the said year, he entered into the service of another house, and became connected with that house in disposing of their goods:^ — Held, on special demurrer, that the plea was bad, as amount- ing to an argumentative denial of the plaintiff's rea- diness and willingness to continue in the defendants' employment. Spotswood v. Barrow, 1 7 Law J. Rep. (n.s.) Exch. 98; 1 Exch. Rep. 804; 5 Dowl. & L. P.C. 373. A plea setting up in addition to the consideration stated in the declaration, another and not inconsis- tent consideration or condition, and shewing a non- performance of it by the plaintiff, is a plea in con- fession and avoidance. The declaration stated that in consideration that the plaintiff would leavfe a steam-engine on certain premises, of which he was tenant to the defendant, at the end of the term, the defendant promised to purchase it at a valuation, and that the plaintiff had left the engine on the premises, but that the defen- dant had not appointed a valuer. Plea, that the defendant made the promise upon the consideration that the plaintiff would deliver up possession of the premises and steam-engine at the end of the term, and that he had not done so: — Held, on special Digest, 1845—1850. demurrer, that the plea did not amount to the gen- eral issue, nor to an argumentative traverse of the allegation that the plaintiff had left the steam-engine on the premises ; but was a good plea. Weedon v, Woodhridge, 18Law J.Rep. (n.s.) Q,B.158 ; ISa.B. Rep. 462. But held, by the Court of Exchequer Chamber, reversing the judgment of the Clueen's Benchjthat thepleawas had ; thatif the word " leave" in the declaration meant merely " quitting thesteam- engine," the plea was an argumentative traverse of the contract declared on, and amounted to a plea of non assumpsit; that if "leave" meant " deliver up possession," the first allegation in the plea was merely a repetition of the alleged consideration, hut that the latter allegation, that the plaintiff did not deliver up possession was a traverse of the per- formance of the condition precedent, and ought to have concluded to the country ; that the first alle- gation in the plea denied the contract declared on ; that that allegation could not be looked upon as matter of inducement introductory to the second allegation, so as to permit the latter to be treated as the substance of the plea^ and that the plea could not be considered as giving implied colour, so as to render it good as a plea by way of confession and avoidance. Weedon v. Woodbridge, 19 Law J. Rep. (n.s.) Q.B. 217 ; 13 a.B. Rep. 470. To an action upon a foreign judgment obtained in France the defendant pleaded that he was not during the accruing of the cause of action resident in France or within the jurisdiction of the Court, or subject to the laws of France ; that he had not been served with any process or notice, or had any notice of any proceeding in the action before judgment, nor any opportunity of defending himself against the said claim, and that the proceedings were taken behind his back, without his knowledge, privity, or consent. Replication, that the defendant had bought shares in a company in France, and that it became neces- sary by the law of France for him to elect a domicile in France where the directors might notify to him the proceedings of the company ; that the defendant elected a domicile in Paris ; that the assets of the company being insufficient to discharge their debts, the defendant as one of the shareholders became liable to be sued by the plaintiffs for his share ; that a summons for that purpose was left at his elected domicile, but that he did not appear, but made default j and that by the law of France the plaintiffs recovered judgment against him ; — Held, that the word " notice" in the plea meant actual notice, and that the replication did not amount to an argumen- tative denial of the notice stated in the plea. Whether the plea was bad in omitting to state that the defendant was not a native in France, and had no property there — quare. Vallee v. Dumergue, 18 Law J. Rep. (n.s.) Excb. 398; 4 Bxch. Rep. 290. In case, the declaration stated, that the plaintiff was lawfully possessed of « mill, and by reason thereof of right ought to have and enjoy the benefit of the water of a watercourse which ran and flowed, by means of a weir therein erected a little above the plaintiff's mill, being kept at a certain height, unto the said mill of the plaintiff, for supplying it with water for the working thereof; and complained that the defendant wrongfully pulled down tlie weir, and placed and kept it at a lower height than it ought to have been, &c. The defendant pleaded, that, 3 R 490 PLEADING, AT LAW. before and at the times when, &c., he was the occu- pier of a certain close adjoining to the watercourse, and tliat he and all others the occupiers for the time being of the said close for twenty years next before the commencement of the suit, enjoyed, as of right and without interruption, the right of from time to time, as occasion required, removing a part of the weir, and placing and keeping it at a lower height than the rest, to such an extent and for such a time as was necessary for diverting enough of the water to irrigate the said close ; that, at the times when, &c. irrigation was necessary for the close, where- fore the defendant removed the said part of the weir, and placed and kept it at such lower height, to such an extent and for such a time as, and no more or longer than, was necessary for diverting thewater for the irrigation of the said close ; gva sunt eadem, Sic: — Held, that this plea was good; that it was not an argumentative traverse of the right alleged in the declaration, inasmuch as it set up a right w'hicli, under the statute 2 & 3 Will. 4. c. 71, was not complete until the commencement of the suit, and, therefore, was not inconsistent with the plain- tiff's right to have the weir at a greater height at the time of the act complained of. Ward v. Robins, 15 Mee. & W. 237. Plea in trover that the goods were deposited with the defendant as security for a debt due from the plaintiff, and non-payment of debt : — Held, bad on special demurrer, as being an argumentative denial of the plaintifTs right of possession at the time of the alleged conversion, Dorrington v. Carter, 1 Exch. Rep. 566. Plea in detinue that the plaintiff indorsed the bill to P, and that P indorsed the bill to the defendant : — Held, bad, as an argumentative denial of the plaintiff's property in the bill. Austin f. Kolle, 1 Exch. Rep. 586. [See Fearne v. Cochrane (H).] (H) Duplicity. To an action of trespass to a mill, fixtures and goods therein, the defendants pleaded that they were assignees of H, a bankrupt, to whom the mill had been demised for a term, and who had placed the fixtures and goods in it. Replication, that be- fore his bankruptcy, H demised to R for a term the mill, fixtures and goods, by way of mortgage ; that he entered, and by an agreement in 1840 be- tween R, H and the plaintiff, it was agreed that R and H should grant and execute to the plaintiff a lease of the premises for a term, at a rent, and that the plaintiff should accept the lease and execute a counterpart ; and that R and H should bargain and sell to the plaintiff, who should accept the fix- tures and goods at a certain price to be paid to them, whereupon the plaintiff entered : — Held, upon special demurrer, that the replication was neither double nor ambiguous ; that the defendants might have traversed both the mortgage and the agreement, and that if they had traversed the mort- gage alone, the plaintiff would not have been entitled to judgment non obstante veredicto, as the rejoinder would not have implied an admission of the plain- tiff's title ; and that the replication was good. Pim V. Grazebrook, 15 Law J. Rep. (n.s.) C.P. 32; 3 Dowl. & L. P.C. 454; 2 Com. B. Rep. 429. The declaration stated that, on the 15th of Octo- ber 1845, in consideration that A would enter into B's employ, and serve him for a certain time, to wit, from the day and year aforesaid, until, the ser- vice should be determined by due notice, upon certain terms, &c., B promised to retain and employ A upon the terms aforesaid. Averment, that A did, afterwards, to wit, on the day and year aforesaid, enter B's service, and hath always from the com- mencement thereof hitherto been ready and willing to continue in the said service, and during all that time tendered and ofifered himself to serve B, &c. Breach, that B did not continue A in his said ser- vice, but on the contrary thereof, afterwards, to wit, on the same day and year aforesaid, refused to suffer A to continue any longer in the said service, and wrongfully discharged A without any previous no- tice whatever in that behalf: — Held, on special demurrer, first, that it was unnecessary to aver that A gave no notice himself to determine the service. Secondly, that the contract declared on included the day on which it was made, and therefore that it sufficiently appeared that A's discharge took place after the commencement of the service. Lastly, that the declaration was not double, for alleging A's readiness and willingness, as well as his tender and offer to serve. fVilhinson v. Gaston, 15 Law J. Rep. (n.s.) Q.B. 339; 9 O-B. Rep. 137. The first count of the declaration stated, that, whereas the defendant had become and was tenant to the plaintiff of certain rooms and premises, on the terms of not causing any nails to he driven into the walls, or that, if any damage should arise from so doing, he, the defendant, should pay the costs of repairing the same on vacating the rooms ; and, in consideration thereof, the defendant promised the plaintiff that he would pay the costs of repairing all injuries occasioned by such driving; and that the defendant quitted possession. Breach, that the defendant pulled down and removed divers bells, and broke divers chimney-pieces and grates, and caused nails to be driven into the walls; that the costs of repairing the damages and injuries of the walls amounted to 1501., and that the defendant had not paid that sum to the plaintiff. The second count stated, that, in consideration that the plaintiff would permit a brass plate to be fixed on the outer door of the premises, the defendant promised the plaintiff to cause a new outer door to he fixed in the pre- mises at the expiration of the tenancy, and alleged that the defendant did not at any time cause a new outer door to be fixed in the premises. The defen- dant pleaded to the first count, that, after making the promise in the said first count mentioned, so far as relates to the driving of the nails, the defendant did pay the costs of repairing the injuries occasioned thereby. To the second count he pleaded, that, before any cause of action accrued, the defendant offered to the plaintiff to cause a new door to he fixed, hut that the plaintiff prevented the defendant from causing the said door to be so fixed, and that he discharged the defendant from carrying the said agreement into execution : — Held, first, that the first plea was had, in not answering the whole of the declaration ; secondly, that the second plea was bad for duplicity ; thirdly, that the breach to the first count was good, as the meaning of the contract was, that the defendant should pay to the plaintiff PLEADING, AT LAW. 491 the costs of damaging the chimnej'-pieces, &c,, and of repairing the walls. And, semble, that the declaration was not bad in omitting to state that the defendant became tenant to the plaintiff a/ his {the defendants) request^'b'aX. that, at all events, it was good on general demurrer. Dielrichsen v. Giubilei, 15 Law J. Rep. (n.s.) Exch. 73 ; 14 Mee. & W. 845 ; 3 Dowl. & L. P.C. 292. Plea, that the defendant made his promissory note in writing, and thereby promised to pay, to the plaintiff's order on demand, l,050i., and deli- vered the same to the pUintiff, who took and re- ceived it for and on account of the debt in the declaration, and all causes of action in respect thereof, and that afterwards a warrant of attorney was given in full satisfaction and discharge of the said promissory note, and of all causes of action in respect thereof, and of the causes of action in the declaration mentioned : — Held, not bad for dupli- city. Quaere — Whether bad as an argumentative plea of payment. Feame v. Cochrane^ 16 Law J. Rep. (N.S.) C.P. 161; 4 Dowl. & L. P.C. 797; 4 Com. B. Rep. 274. The declaration stated, that the plaintiff drew his bill of exchange, to wit, on the 16th of February 1846, which the defendant afterwards accepted, to wit, on the day and year aforesaid. The plea stated, that the defendant accepted the said bill whilst he was an infant, being at the time of its acceptance without a date; that the plaip tiff afterwards altered the bill by writing a date thereon, and that there never was any licence or ratification given by the defendant to such alteration, after he attained the age of twenty-one years ; verification : — Held, that the plea was a good plea, and that it disclosed only a single defence — infancy. Harrison v. Cotgreave, 16 Law J. Rep. (n.s.) C.P. 198; 5 Dowl. &L. P.C. 169 ; 4 Com. B. Rep. 562. In assumpsit for money had and received, a plea that the money was the amount of a prize in an illegal lottery held by the defendant, and that he paid over the amount to J S, whom he conceived to be the winner, and who was entitled to receive and to retain the money, is bad for duplicity. Homes v. Loclc, 1 Com. B. Rep. 524. In assumpsit against two executors, plea in abatement, the appointment of another, and proving the will, &c., by all : — Held, good on demurrer, for not stating that the other executor administered before the commencement of the suit, as dates might be assumed material on demurrer, when, if truly stated, they support the plea, and therel&re it was to be presumed that the administering was before the commencement of suit : and held, also, that the plea was not double, as the allegation of probate was only an inducement to the averment of admin- istration. Rgalls v. Bramall, 1 Exch. Rep. 734; S Dowl. & L. P.C. 753. [See ExECUTOB ; and also Dicker v. Jackson, ante, (C).] (I) Divisible Allegations and distributive Issues. To an action on a bill of exchange for 1201. 5s., the defendant pleaded, amongst other pleas, that the plaintiff and the defendant accounted together concerning the said causes of action, and all other claims and demands then being between them, and on that accounting, 601. was found to be due from the defendant to the plaintiff, which he paid, and the plaintiff received, in satisfaction. Replication, that the plaintiff and the defendant did not account to- gether of and concerning the said causes of action in the declaration mentioned and all other claims and demands then beiug between them, modo et Jormi. The defendant having demurred to this traverse specially, as being too large, and involving imma- terial matter, — Held, upon motion to set aside the demurrer as frivolous, that the allegation in the plea of the accounting was not divisible, and that the traverse was good. Sutton v. Page, 15 Law J. Rep. (n.s.) C.P. 249 ; 4 Dowl. & L. P.C. 171 ; 3 Com. B. Rep. 204. In assumpsit for non-delivery of railway shares the plaintiffs averred that they had "always from the time of making the agreement been ready and willing to accept the transfer of the shares." Plea, that " the plaintiffs were not always from the time of making the agreement ready and willing," &c. On special demurrer to the plea, — Held, that the allegation of time in the declaration was divisible ; that the traverse, therefore, was too large, and the plea bad. An interest in a partnership, though not assign- able at law, is a thing of value, and may, therefore, be the subject of a valid contract. Tempest v. Kilner, 15 Law J. Rep. (N.s.) C.P. 10; 2 Com. B. Rep. 300 ; 3 Dowl. & L. P.C. 407. Reg. Gen. Hil. term, 4 Will. 4. tit. 'Trespass,' rule 6. applies to actions on the case as well as tres- pass, and to declarations as well as pleas. And therefore where in an action on the case for disturbance of a ferry, the plaintiff alleged in his declaration that he was possessed of an ancient ferry for passengers and goods to and from A, from and to B, and the defendant pleaded not possessed and a traverse of the ancient and entire right of ferry ; and the jury found that there was a ferry from A to B only, — Held, that the verdict might be entered distributively for the plaintiff for so much as was proved at the trial. Giles v. Groves, 17 Law J. Rep. (n.s.) Q.B. 323; 12 Q.B. Rep. 721. (K) Negativing Exceptions. To a declaration for work and labour the defen- dant pleaded that the work, &c. consisted of an appraisement of personal property, which the plain- tiff appraised in expectation of reward to be there- fore paid by the defendant to him, without being duly licensed according to the 46 Geo. 3. o. 43 : — ■ Held, that the plea was sufficient, without stating that the plaintiff did the work as an appraiser, as it followed the words of the statute. Held, also, that the plea need not negative that the appraisement was for the purpose of ascertaining legacy duty. There is no difference, in respect of declarations and subsequent pleadings, as to negativing excep- tions in acts of parliament. Palk v. Force, 17 Law J. Rep. (N.s.) Q.B. 299; 12 0.6. Rep. 666. (L) Confessing AND AVOIDING. A declaration stated, in the first count, that it was agreed between the defendant and the plaintiffs, that the defendant should sell and deliver to the 492 PLEADING, AT LAW. plaintiffs certain iron rails to be raade and deli- vered of certain weights and shapes at a price stated, and the said rails to be inspected and certi- fied as then agreed on, and to be of a certain quality, and that the defendant did make and deliver cer- tain rails as and for rails of such quality ; and alleging as a breach that the rails were not of the said quality. The defendant pleaded that the said rails were, according to the agreement, to be in- spected by an agent of the plaintiffs, who was at liberty to approve and accept the same if he should think fit, and that the said rails were inspected and approved and accepted by such agent on delivery of the same : — Held, had, in substance, as not answer- ing the breach complained of, and only shewing performance of one of the stipulations of the con- tract set out in the said count. And, semble, that it was also bad in form, as amounting to the general issue. To the second count, which stated that the defen- dant promised to deliver rails fit and proper for the purpose of a certain railway, and alleging as a breach that the rails delivered were not fit and proper for such railway, the defendant pleaded a plea similar to the plea to the first count: — Held, that the plea was bad in substance, for the same reason as the plea to the first count; and, also, in form, as amounting to the general issue. Bird v. Smith, 17 Law J. Rep. (N.s.) Q.B. 309 ; 12 Q.B. Rep. 786. To an action on a bond, the defendant pleaded, that one J F made the bond, and the defendant also made it as his surety ; and that, after it was so made, the said J F being unable to meet his debts, entered into a deed with his creditors, of whom the plaintiif was one, by which deed he assigned all his . property upon trust, for the benefit of the plaintiff" and his other creditors, to certain trustees; and that the plaintiff" did by the said deed covenant with the said J F, that the plaintiff" would not at any time thereafter, commence or prosecute any action or other proceeding against the said J F for or by reason of any debt then due and owing by him to the plaintiff", and thereby the plaintiff gave time to the said J F in respect of the said debt and writing obligatory, in respect whereof the defen- dant was such surety. The plaintiff replied by setting out the deed in hac verba. The deed contained (inter alia) a proviso, that nothing therein contained should prejudice or affect any claim, demand or remedy which the several par- ties thereto and creditors of the said J F then had or should have by virtue of any mortgage, lien, charge or other incumbrance against any person who might be liable for the payment of any of the debts of the said J F, in the character of a surety or otherwise ; and it witnessed that, in considera- tion of the assignment thereinbefore made, the several parties thereto and creditors of the said J F covenanted with the said J F that they would not at any time commence or prosecute any action, suit, or other proceeding against the said J F for any debt then due from him to them ; and that, in case of any such action or suit being commenced or prosecuted by them, contrary to the terms of the deed, the deed might be pleaded as a general release in bar of any such action or suit. Verification : — Held, on special demurrer to the replication, that it was good, inasmuch as it admitted the e8"ect of the deed as alleged in the plea, but avoided it by the terms of the proviso. Stevens v. Stevens, 5 Exch. Rep. 306. [See Weedon v. Woodbridge, ante, (G).] (M) Admissions. Trespass for breaking and entering the plaintiff"'s close, and damaging the fences, hedges, &c. Plea, justifying the trespass, on the ground of a right of way; new assignment, that the action was brought for a trespass on a certain other portion of the said close (set out by abuttals). Plea to the new assign- ment, that, before the said time when, &c., and whilst the defendant so had the right to the said way in the said first plea mentioned, the plaintiff" obstructed the way in the said first plea mentioned, by digging a trench across the same, and because the defendant could not remove the obstruction, he did, for the purpose of avoiding the same, and using the way, depart out of the same, along the said other portion of the close in the new assignment mentioned, and because the said fences and hedges in the new assignment mentioned were standing on a portion of the close in the new assignment mentioned, and that without . breaking and damaging the same he could not go over the residue of the said close in which, &c. he did, necessarily, a little break and damage the said fences and hedges. Replication, de injurid: — Held, dissentiente Piatt, B., that the right of way, stated in the plea to the declaration, was not admitted by the new assignment; that the right was informally re-asserted in the plea to the new assignment, and being put in issue by the replication, the defendant was bound to prove it. Robertson v. Gantlett, 16 Law J. Rep. (n.s.) Exch. 156 ; 16 Mee. & W. 289; 4 Dowl. & L. P.C. 548. Debt on a joint and several bond for 5001. The condition, set out on oyer by the defendant, recited that one S had been appointed collector of taxes, and that the plaintiff had become surety for the payment of such sums as S should receive, that the plaintiff" consented to become surety on the con- dition that the defendant and S would indemnify him from all charges, &c. which he should incur as surety. Plea, that the plaintiff had not at any time since been in anywise damnified by reason of any- thing in the condition specified. Replication, that 5 received, as collector, divers sums of money, amounting in the whole to a large sum exceeding 5001, to wit, 2,000i, that S did not duly pay the said sums so received, nor any of them, but made default, by reason of which plaintiff afterwards was forced to pay to the receiver general a large sum, to wit, the sum of 500/., and thereby sustained damage to a large amount, to wit, 500?. Rejoinder, that the plaintiff was not forced to pay the said sum in the replication mentioned, or any part thereof. At the trial, no proof was given of the receipt of any money by S as collector ; but it was proved that S had not paid any over to the receiver general, and that the plaintiff" had been called on as a surety to pay the 500?., and, having been sued, had sub- mitted to a jndgment :— Held, that the receipt of 500Z. by S was not admitted on the pleadings, and that the plaintiff, in default of proof of the receipt, was only entitled to nominal damages. Held, also, that the defendant having been no PLEADING, AT LAW. 493 party to the judgment obtained against the plaintiff, the judgment was only evidence to shew that the plaintiif had been sued, or had been subjected to a bond fide pressure, but not evidence that he was legally liable to the extent for which the judgment was signed. King v. Norman, 17 Law J. Rep. (n.s.) C.P. 23; 4 Com. B. Rep. 884. A declaration in case stated that the defendant was employed by the Commissioners of Sewers to make a sewer in a public highway, that he kept and continued on the highway two iron gratings lying thereon, in the custody and care of the defendant, for forming the sewer, without placing any light, &c. to shew that the gratings were there. Plea, not guilty : — Held, that the averment that the gratings were in the custody and care of the defendant being immaterial was not admitted by the plea of not guilty, and that the material averment of the de- claration, namely, that the defendant kept and con- tinued the gratings on the highway without a light, having been negatived by the jury, the plaintiiFs ought to be nonsuited. Grew v. Hill, 18 Law J. Rep. (N.s.) Exch. 31 7 ; 3 Exoh. Rep. 801. (N) Profert. Profert of deeds set out by way of inducement is unnecessary. Except in deducing title, deeds may be set out in their terms, or according to their legal eifect. The declaration set out a deed of settlement, dated January 1809, on the marriage of J W with L W, whereby the profits of a policy were to be subject to the appointment of J W and his wife or the sur- vivor; and anotherdeed of settlement, dated March 1840, on the marriage of M L W, a daughter of the former marriage, with the defendant, in which, after reciting that J W died, leaving hi^ wife sur- vivor, without appointing, the defendant's wife assigned all her fortune to which she might become entitled under her mother's will to trustees for her own use during her life, and at her death for her children. No profert was made of either of these deeds. The declaration then stated, that by an indenture of the 12th of November 1842, profert of which was duly made, it was recited that L W, the mother of the defendant's wife, had died, and by her will, dated July 1840, had appointed 2,000t on the trusts of the deed of March 1840, or if she had no such power, to the defendant's wife; that the plaintiffs, as trustees under the deed of March 1840, received 2,000?. charged with the trusts of the deed, and considering that L W had no power to appoint to the trusts of the deed of 1840, the defendant's wife directed that the plain- tiffs .should stand possessed of the 2,000Z. on trust, to lend it to the defendant, and the defendant cove- nanted to indemnify the plaintiffs. It was then averred that the plaintiffs, on the 12th of Novem- ber 1842, lent the 2,0001. to the defendant, who had not repaid it ; that T S and others who, in 1845, became trustees under the deed of March 1840 in place of the plaintiffs, commenced a suit in Chan- cery against the plaintiffs, and petitioned the Master of the Rolls to order the plaintiffs to transfer to the Accountant General in trust in the cause, as much 31. per cent, consols as could have been bought for 2,0001. on the 12th of November 1842 ; that the plaintiffs being advised that they had no defence consented to such an order being made by the Master of the Rolls : — Held, that profert of the deeds of 1809 and 1840 was unnecessary, they being only matter of inducement. That the deed of 1840, as it did not deduce title, was well set out in its terms. That it was not necessary that the trust deed should be a valid assignment in law if it bound the fund in equity, which it had been held to do. That the consent given by the plaintiffs to the order of the Master of the Rolls did not defeat their right of action. Newborough v. Schroeder, 18 Law J. Rep. (n.s.) C.P. 200; 7 Com. B. Rep. 342. Replication bad for putting in issue matter which was only inducement to an acceptance in satisfac- tion, such acceptance being the material part of the pleas. Jonesv. Sawkins, 17 Law J. Rep. (n.s.) C.P. 92 ; 5 Com. B. Rep. 142 ; 5 Dowl. & L. P.C. 353. A declaration in covenant stated that by a deed made between W B of the tirst part, G D and S A of the second part, P V and W B of the third part, and the Thames Haven Dock and Railway Com- pany of the fourth part, and after reciting that J and V, on behalf of the company, agreed to pur- chase certain premises, it was witnessed that W B agreed with the said company, the defendants, to sell them certain messuages and lands, and that W B would deduce a good title to the heredita- ments, &c., and that W B would, on or before, &c., execute a proper conveyance of the said heredita- ments to the said company ; and the said company agreed with W B and his assigns to pay the said sum of, &C. Averment, that "W B became bank- rupt, and the plaintiffs became his assignees ; that both he and they were ready and willing to deduce a good title to the said hereditaments; that W B and his heirs and assigns were ready and willing, on payment by the company of, &c. to execute a proper conveyance of the said hereditaments to the company, and would have deduced a good title and would have executed a proper conveyance, but that the company discharged him and the plaintiffs from deducing such title and executing such convey- ance. Breach, that the company would not prepare such proper conveyance for execution or pay the sum of, &c. : — Held, on special demurrer, that the declaration was not bad in omitting to allege that the deed was sealed with the seal of the defendants, nor in omitting an averment of profert. Held, also, that the declaration was not bad on general demurrer, in omitting to allege the dis- charge of W B and of the plaintiffs from deducing title to be by deed. Qutsre — Whether the deducing of the title was a condition precedent. Brymer v. Thames Haven Dock and Rail. Co., 18 Law J. Rep. (n.s.) Exoh. 110 ; 2 Exoh. Rep. 549. (O) Depaetuee. In an action on a bill of exchange the declara- tion stated that certain persons using the name and style of J B & Co., by that name and designation drew a bill of exchange on Messrs. G & E W, and indorsed the said bill to the defendant, who indorsed it to the plaintiffs. The defendant pleaded that the plaintiffs were the persons mentioned in the decla- ration as using the name and style of .f B & Co. and as so making the bill ; that the indorsement of 494 PRACTICE, AT LAW. the bill to the defendant was in fact an indorsement by the plaintiffs in the said name and style of J B & Co., and that they so indorsed it to him hefore he indorsed the same to them ; and that, at the time of his so indorsing the bill to the plaintiffs, they were liable to pay the amount to him, according to their previous indorsement. The plaintiffs replied, stating an agreement between them and the defen- dant and G & E W, to forbear and give time to the defendant and G & E W for the payment of another bill accepted by G W, and indorsed by E W, the maker, to the defendant and by him to the plaintiffs, till the time for payment of the bill declared on had elapsed, and then averred that the plaintiffs had forborne accordingly : — Held, that the replication was bad, as being a departure from the declaration. Boulcott v. Woohott, 17 Law J. Rep. (n.s.) Exch. 149 ; 16 Mee. & W. 584. To an action on a charter-party, the defendant pleaded that at the time it was made the defendant represented to him that the ship was then at W, and that he entered into the charter-party confiding in that representation, and that the ship was not at the time, &c. at W. Eeplication, that the plaintiff, when he made the representation, believed it to be true, and that the ship at the time, &c. was in fact on her homeward voyage from W. Rejoinder, that the representation was contained in the charter- party, and was part of the contract :^Held, a de- parture from the plea. Quiere — if the statement of the place where the vessel was amounted to a warranty. Elliott v. Fon Glehn, 18 Law J. Rep. (n.s.) Q.B. 221. Indorsee against indorser of a promissory note made by E B, payable to M, and indorsed by O M to the defendant, and by the defendant in- dorsed to the plaintiff. Plea, that O M and the plaintiff were one and the same person. Replica- tion, that E B was indebted to the plaintiff in 2Zl., and thereupon it was agreed between E B and the plaintiff, that E B should give to the plaintiff the promissory note on account of such debt, and that the plaintiff should give (which he accordingly did) time to E B for payment of the said debt, until the promissory note became due and payable, provided E B would procure the defendant to indorse the promissory note to the plaintiff, by way of security and guarantee to the plaintiff, of all which premises the defendant had full notice, and assented and agreed thereto ; and therefore, and in pursuance of the said agreement, the plaintiff, without considera- tion or value, indorsed the note to the defendant, in order that the defendant might indorse the same to the plaintiff; and the defendant did indorse as al- leged in the declaration. Demurrer to the repli- cation : — Held, that the replication was not a departure from the declaration. Morris v. Walker^ 19 Law J. Rep.(N.s.) Q.B. 400 ; 15 a.B.-Rep. 589. (P) Defects cured by Verdict. Declaration on a written agreement (not under seal) by the plaintiff to let land to the defendant for two years, and by the defendant to make satis- faction for damage done to tenants by game on their farms, over which he was to be at liberty to preserve the game; the amount of damage to be settled by two referees, one chosen by each party, or by their umpire in case of disagreement. Aver- ment, that the defendant entered and enjoyed the exclusive right of shooting during the whole term agreed upon. Breach, that, although within a reasonable time one W M was chosen and nomi- nated on behalf of the plaintiff, and notice thereof given to the defendant, who was requested by the plaintiff to give the name and address of a referee on his behalf to act with thd said W M within ten days, or that in default the said AV M would as.sess the damage alone, yet the defendant did not nor would give notice to the plaintiff of any person chosen or nominated on his behalf, nor ever made any satisfaction for the damage done ; that, accord- ingly, W M alone assessed the damage, and that the defendant had not paid any compensation to tbe plaintiff: — Held, that, after verdict, the declara- tion sufficiently alleged a refusal by the defendant to nominate a referee. Held, also, that the agreement to make compen- sation was not void, although the right of shooting, being an incorporeal hereditament, did not pass by it. Held, also, that as the defendant was stated to have enjoyed the right of shooting during the whole period agreed for, the absence of an averment of a grant of such right as a condition precedent would not render the declaration bad. The jury found for the defendant, on an issue that the plaintiff did not notify to the de/endant his choice of an arbitrator within a reasonable time : — Held, to be an immaterial finding. Thomas v. Fred- ricks, 16 Law J. Rep. (us.) Q.B. 393; 10 Q.B. Rep. 775. (Q) Construction of Pleadings. To a declaration in case for obstructing a private right of way, a watercourse and a drain, the defen- dants pleaded that under a certain act of parliament of the 8 Vict, they were authorized to make a certain railway near the premises of the plaintiff; and in order to enable them to make the same according to the said act they agreed in writing, on the 25th of April 1846, with the plaintiff to purchase a portion of the plaintiff's land ; and whereas the works of the said railway would occasion injury to the plain- tiff's premises, it was thereby also agreed that the defendants should pay for the said portion of land such a sum of money as should compensate the plaintiff not only for the value, but also for aD such damage, &c. as should be incidental to making the said railway near the premises of the plaintiff. That by a deed of assignment the plaintiff, in con- sideration of 575;. then paid to her by the defen- dants, conveyed to them the said land for the pur- poses of the said railway ; and it was then agreed by the said deed of assignment that the 575/. so paid should be accepted, and was then accepted by the plaintiff for the purchase of the said land, and by way of full compensation for all damage, &c. whatsoever which could be sustained by reason of the exercise of the powers of the said act upon the said land, the said sum of 575t being the sum theretofore agreed to be paid to compensate the plaintiff, not only for the price of the said land, but all such damage, &c. as should be ificidental to the making the said railway. That the said grievances were part of the damage, &c., necessarily incidental to making the railway, and were part of the damage PLEADING, AT LAW. 495 sustained by the plaintiff by reason of tlie exercise of the powers of the said act. The replication craved oyer of and set out the deed of assignment, and the plaintiff demurred to the plea. The recital of the agreement of the 25th of April in the deed of assignment was, " that the plaintiff agreed to accept and the defendants agreed to pay 5751. for damage, &c." of a different kind from that stated in the plea: — Held, first, that the plea relied upon a justifica- tion under a contract, and not under the act of parliament. Secondly, that the legal effect of the agreement of the 25th of April, as recited in the deed set out on oyer, and as recited in the plea, was different in substance j that the variance was fatal, and the plea bad on general demurrer. Pil- grim V. Southampton and Dorchester Rail. Co.^ 18 Law J. Rep. (n.s.) C.P. 139; 7 Com. B. Rep. 205. To a declaration in debt in the ordinary form containing three counts, the defendant pleaded, secondly, *' and as to the residue of the said first and last counts," payment to the plaintiff of (to wit) 50/. after action, in full satisfaction and dis- charge " of the causes of action in this plea men- tioned." Theplaintiffsigned judgment for damages in respect of the first and last counts, which he contended where unanswered by the plea : — Held, that the plea was an answer to the residue of the sums claimed in the first and last counts respectively, and also to the damages accruing in respect of the detention of each of those sums respectively, inasmuch as the word *' count*' in- cluded the sum claimed as a debt, and also the damages for the detention thereof. Gell v. Burgess, 18 Law J. Rep. (n.s.) C.P. 153 ; 7 Com. B. Rep. 16. (R) Declaration, General Form and Suffi- ciency OF. In a declaration against a public officer of an insurance and loan company, the first count alleged that in consideration that theplaintiff at the request of the company had agreed to become their perma- nent attorney, the company agreed to retain and employ the plaintiff as such permanent attorney. Breach, that the company dismissed the plaintiff from the office without just cause, and appointed other persons solicitors to the company. The second count stated it was agreed between the company and the plaintiff, that from the lat of January then next the plaintiff as the attorney of the said company should receive a salary of lOOl. per annum in lieu of rendering an annual bill of costs for general business, &c. ; and in considera- tion that the plaintiff had promised to fulfil the agreement on his part, the company promised to fulfil the same on their part, and to retain and em- ploy the plaintiff as such attorney. Breach, that the company refused to employ the plaintiff as such attorney, and wrongfully dismissed him, and thence refused to employ him or to pay him the salary : — Held, that the word "permanent" in the first count did not confer any durable or special appoint- ment as attorney, and therefore, on non assumpsit, the defendant was entitled to the verdict. Held, that the agreement in^the second count implied no obligation to retain, &c. as therein alleged, that the promise was indivisible, and there was no consideration to support it. The Court ordered a verdict to be entered for the defendant on the first count, and on the second arrested the judgment. Elderton y. Emmens, 16 Law J. Rep. (n.s.) C.P. 209; i Com. B. Rep. 479. The first count of the declaration stated, that the plaintiff by A. B, "h attorney, complains of the defendant who h been summoned," and alleged as a breach in the count on the account stated, that the defendant ha not paid the same," &c. The second count was for work done and materials provided for the defendant "at h request": — Held, on demurrer, that the first and third counts were good, and that the second count was bad, Berdoe v. Spittle, 16 Law J. Rep. (n.s.) Exch. 258; 1 Exch. Rep. 175. A declaration in case stated that T was possessed of an undivided moiety of certain waste land, as tenant in common with A, and that T being so possessed, by a certain indenture granted to the plaintiff' liberty, power, and authority to dig, work, and search for clay, in all the said undivided moiety of the grantor in a certain parcel of the waste land, and to raise, wash, &c. such clay, and convert the same to the plaintiff's use, and to make pits and leats within the said undivided moiety, as the plain- tiff should think necessary for the more effectual exercise of the liberties, &c. thereby granted, to hold the said liberties, .&c. for a term of twenty-one years from September 1833. Averment, that at the time of the grant, and thence continually, there were within the parcel of waste land so described in the grant divers clay pits, &c., and certain leats necessary for washing and making merchantable the clay. That whilst the said grant was in full force, and after the plaintiff had so become entitled to use, exercise, and enjoy the liberties, &c. in the said indenture specified, and had in fact begun to use, exercise, and enjoy, and was actually using, &c. the same by and under the grant, by and with the assent of A, the co-tenant in common, the defendant wrongfully disturbed the plaintiff in the use of the said liberties, by destroying certain dams, lawfully and necessarily erected on the said parcel of waste land for the enjoyment and working by the plaintiff of the said clay pits, and diverted the said leats lawfully and necessarily made by the plaintiff in and about his clay pits, and in and about the washing and making merchantable the said clay. Held, on special demurrer, that the declaration was good. First, that the right of the plaintiff to maintain the action being founded on his possession, the statement as to his title was pleaded as matter of inducement only, and required no allegation of seisin in fee. Secondly, for the same reason, that it was unne- cessary to makeprofert of the indenture. Thirdly, that the breach was sufficiently stated. Fourthly, that the allegation as to the consent of the co-tenant was immaterial, and might be rejected as surplusage. Thriscutt v. Martin, 18 Law J. Rep. (n.s.) Exch. 291; 3 Exch. Rep. 454. A declaration stated that the defendant agreed that he and his wife should for three months per- form as equestrians on the stage and in the ring in all entertainments which might be produced at A, or elsewhere, under the direction of the plain- tiff, in such parts as the plaintiff should require, and should attend all calls and rehearsals; that 496 PLEADING, AT LAW ; (S) Pleas in particular Cases. although the plaintiff had an establishment at P under his direction, for equestrian entertainments, and although the plaintiff required the defendant and his wife to join the plaintiff's establishment at P for the purpose of performing in entertainments to be produced there, and although a reasonable time for joining elapsed before the suit, yet the defendant and his wife did not join or perform in the entertainments to be produced at P, &c. On demurrer, the declaration was held good, inasmuch as it sufficiently appeared that the requisition by the plaintiff was to appear and perform as eques- trians on the stage or in the ring. Held, also, that as the writ appeared to have been issued within three months from the making of the contract, it was sufficiently shewn that reasonable time had elapsed after the notice, and within the three months. Also, that the breach was good, shewing sub- stantially an entire refusal to perform the contract. Battyw. Melillo, 19 Law J. Rep. (n.s.) C.P. 362. Declaration alleging that defendant, as slieriff, contriving, &c., by and with the aid, counsel, and assistance of S, the other defendant, seized, &c., — Held, to shew no cause of action against S. Sedman V. Walker, 1 Exch. Rep. 589. In the general form of declaration given by the 8 & 9 Vict. c. If), s. 26, in actions for calls on shares, the allegation that the defendant is the holder of shares, means that he was the holder at the time the call was made. Belfast Rail. Co. v. Strange, 1 Exch. Rep. 739. In debt for calls, the declaration should follow the form given by the 8 & 9 Vict. c. 16. s. 25. New- port, Sfc. Rail. Co. V. Hawes, 3 Exch. Rep. 476. (S) Pleas in paeticulah Cases. (o) In Bar. To a declaration upon a promissory note made by the defendant, and payable on demand to the plaintiffs as executors, the defendant pleaded that contemporaneously with the making of the note an agreement in writing was made between the de- fendant and other persons, whose names were stated, and the plaintiffs, whereby it was agreed that the note should not become due and payable until E S attained the age of twenty-five, or, in the event of his death before that age, until certain monies become divisible under the will of C S. The plea then alleged that E S was still living, and that he had not attained the age of twenty-five, and further that the plaintiffs accepted the note upon the terms and conditions of the said agree- ment, and upon no other. Replication, traversing the agreement modo et formd, and verdict entered for the defendant upon that issue: — Held, upon writ of error, the Court below having given no decision on the point, that the plea was no bar to the right to recover upon the note, and 'that the plaintiff was entitled to judgment non obstante veredicto. Webb v. Salmon, and Wehb v. Spicer, 19 Law J. Rep. (n.s.) Q.B. 34. Plea, in debt, that after the accrual of the said debts by indenture of the 17th of May 1843, made between the defendant of the first part, J T and others of the second part, the plaintiff and divers other persons creditors of the defendant of the third part, the parties thereto of the second and third parts did grant unto the defendant a licence to carry on his trade for their benefit for five years .from the date of the said indenture, and it was agreed that if any of the parties thereto of the second and third parts should at any time during the continuance of the said licence, molest or inter- fere with the defendant, contrary to the meaning of the said indenture, the defendant should be for ever discharged from all debts then due to the creditor by whom such licence should be con- travened, and from all actions in respect of the same, and that the said indenture might be pleaded in bar to such debts accordingly. Averment, that the plaintiff at the time of becoming a party to the said indenture was a creditor of the defendant, and became a party thereto in respect of the said debt and causes of action in the declaration mentioned, and that during the continuance of the licence he did molest the defendant contrary to the meaning of the said indenture, by commencing this suit against him : — Held, on demurrer, that suing the defendant was a molestation within the terms of the covenant in the indenture ; that the covenant operated as a defeasance ; and that the plea was a good plea in bar. Gibbons v. Fouillon, 19 Law J. Kep. (N.S.) C.P. 74 ; 8 Com. B. Rep. 483. Covenant by the plaintiff as executor of P R on an indenture by the defendant and P R for the pay- ment of 700/. to P R. Profert. Plea, setting out the will and probate granted by the Archbishop of Can- terbury, that P R died in the parish of L ; that he was resident there at the time of his death, and that he then had the indenture there ; that the parish of L is a royal peculiar and out of the jurisdiction of the archbishop, whereby the proving of the will and granting of the. probate of all the goods of P R in respect of the debt and cause of action, which is of the value of 51., of right belonged to the Queen and not to the Archbishop; that the will was never proved before, nor were letters testamentary of P R ever granted by the ftueen, and the letters testa- mentary so produced in court and granted by the archbishop are of no effect against the defendant in respect of the said debt and cause of action, and save as aforesaid by the granting of these Jetters testamentary the plaintiff never was executor of P R:^Held, on demurrer, first, that the plea was a plea in bar, and not in bar to the further main- tenance of the action. Secondly, that the plea was good. Easlon v. Carter, 19 Law J. Rep. (n.s.) Exch. 173; 5 Exch. Rep. 8. (J) Amounting to the General Issue. [Littlechild v. Banks, 5 Law J. Dig. 531 ; 7 Q.B. Rep. 739.] iWilliams v. Vines, 5 Law J. Dig. 528; 6 Q.B. Rep. 355.] [Newport v. Hurley, 5 Law J. Dig. 531 ; nom. Newport v. Hardy, 2 Dowl. & L. P.C. 921.] In assumpsit, upon an agreement by the plain- tiffs to supply and the defendant to receive certain bales of wool, and breach, that the defendant re- fused to receive them, the defendant pleaded, that the wool to have been delivered was to have been according to sample, and that the wool tendered was inferior to the sample : — Held, on special demurrer, that the plea did not amount to the general issue. PLEADING, AT LAW ; (S) Pleas in partioulab Cases. 497 Sieveking v. Dutton, 15 Law J. Rep. (n.s.) C.P. 276 j 4 Dowl. & L. P.C. 197; 3 Com. B. Rep. 831. In assumpsit against a vendor for not delivering an abstract of title, the declaration set out certain conditions of sale, and among otliers, "that the vendor would deliver an abstract of title to the purchaser," and the breach stated that the defendant had not delivered to the plaintiif any abstract shewing such a good title as the plaintiff was entitled to require. Plea, that at the time of making the pro- mise, it was agreed as part of the contract, that the defendant should deliver an abstract, commencing with a conveyance from B to M, dated 1843 only, and that the defendant should not be required to furnish any other abstract, and by no means to go into any previous title, and that the defendant did furnish such an abstract : — Held, bad on special demurrer, as amounting to the general issue. Sharland v. Leif- child, 16 Law J. Rep. (u.s.) C.P. 217 ; 5 Dowl. & L. P.C. 139 ; 4 Com. B. Rep. 529. To an action for use and occupation of certain furnished rooms of the plaintiff, plea, that before the defendant held the said rooms under the plain- tiff, he held the same under one A B, as tenant thereof to A B ; that while the defendant was such tenant of A B, andbeforei&c; the said A B assigned to the plaintiff all her estate in the said rooms, &c. ; that the occupation in the declaration mentioned was a continuation of the tenancy under the said A B, and that the defendant paid to the said A B the money in the declaration mentioned, without any notice of the said assignment, nor did the defendant ever expressly promise the plaintiff to pay him the money in the declaration mentioned. Verification : — Held, that the words " nor did the defendant ever expressly promise" made the plea amount to the general issue ; but that theplea, without those words, was good. Cooke v. Moylon or Cook v. Moylan, 16 Law J. Rep. (N.s.) Exch. 253; 1 Exch. Rep. 67; 5 Dowl. & L. P.C. 101. An assault ex vi termini excludes consent ; there- fore, a plea of leave and licence to a declaration charging an assault is had as amounting to the general issue. Quare-^f it can be pleaded to an action for imprisonment. Christopherson v. Bare, 1 7 Law J. Rep. (n.s.) a.B. 109 ; 11 a.B. Rep. 473. In an action for money had and received to the plaintiff's use, non assumpsit puts in issue both the receipt of the money and the existence of the facts which make it a receipt to the use of the plaintiff. In such action the defendant pleaded, that the money claimed was paid to him and others, as mem- bers of a committee of management in a railway scheme, by way of deposits on shares allotted by them to the plaintiff, at his request, and that the plaintiff and the other shareholders agreed to form a partnership for carrying on the undertaking. That the plaintiff sought to recover his deposits, on the ground that the spheme had not been prosecuted for a time which he alleged to be unreasonable. That after the passing of the 9 & 10 Vict, c. 28. a meeting was duly held, at which it was resolved that the partnership should be dissolved, and the under- taking abandoned. That the affairs then became liable to be wound up as on the dissolution of a partnership by mutual consent. That the plain- tiff's claim was part of the affairs to be wound up, and that they had not been wound up, nor had a Digest, 1845—1850. reasonable time for winding them up elapsed at the commencement of the suit: — On special demurrer, this plea was held bad, as amounting to the general issue. Oteen V. Cliallis, 17 Law J. Rep. (N.S.) C.P. 266 ; 5 Dowl. & L. P.C. 802 ; 6 Com. B. Rep. 115. A declaration stated that it was agreed between the plaintiffs and the defendant, that the plaintiffs should sell to the defendant 1,000 barrels of flour, to arrive at Liverpool by the Hottinguer, from New York ; that should the vessel be lost before arriving at Liverpool the sale should be void. Averments, that the vessel was not lost, but did arrive at Liver- pool from New York, having on board 1,000 barrels of flour. Breach, that the defendant did not accept the said flour. Plea, that the Hottinguer was one of a line of packet ships sailing from New York to Liverpool at fixed periods, published and known beforehand amongst merchants at Liverpool; that the Hottinguer was to have set sail from New York for Liverpool three weeks before the said agreement, and was, at the time of the agreement, expected to arrive at Liverpool within a week after ; that it had been published and believed, amongst merchants at Liverpool, that the vessel was to arrive there in the course of the said voyage, which voyage was the voyage in this plea mentioned; that the plaintiffs had notice of the premises, and made the agreement with reference to the said voyage, and under the belief that the Hottinguer had sailed from New York ; that the said vessel had not, at the time of the agreement, nor did she at any time set sail upon the said voyage in this plea mentioned, but that another vessel had been substituted for her, by reason whereof the defendant refused to accept and pay for the said flour :■ — Held, that the plea stated a different contract from that alleged in the declaration, and was therefore bad, as amounting to non assump- sit. Mounsey v. Perrott, 17 Law J. Rep. (n.s.) Exch. 281 ; 2 Exch. Rep. 522. [See Libel — Statute.] (c) Foreign Attachment. A plea of foreign attachment, which stated the levying of the plaint against the plaintiff in the Lord Mayor's Court, before the commencement of the suit, but did not state that the scire facias to warn the defendant (the garnishee) was issued before the commencement of the suit, — Held, good. A foreign attachment executed pending the action in a suit in the Lord Mayor's Court commenced previously, may be pleaded to the further mainte- nance of the action. It is not necessary to aver in the plea, that a precept issued to the serjeant-at-mace to warn the defendant, the custom as stated not^ requiring any precept, and not being traversed. Webb v. Hurrell, 16 Law J. Rep. (n.s.) C.P. 187 ; 4 Dowl. & L. P.C. 824 ; 4 Com. B. Rep. 287. (d) Possessory Plea to Assault and Imprisonment. To trespass for assault and imprisonment the defendant pleaded secondly, to the assault, that he was possessed of a dwelling-house; that the plain- tiff was making a noise and disturbance there; and that the defendant moUiter manus imposuit to turn him out; fourthly, to the assault and imprison- ment, that the defendant was possessed of a tavern or alehouse, and the plaintiff conducted himself in a 3S 498 PLEADING AT LAW; (S) Pleas in paeticclar Cases. rude and quarrelsome manner in it, and assaulted the defendant and others, and afterwards and before, &C. remained standing in the street near the door of the bouse, using loud, menacing and disgusting lan- guage to the defendant and his family, who was within bearing, and by reason thereof many persons congregated about the house and made a riot and disturbance; and at thetime when, &c. the plaintiff was causing persons to congregate in breach of the peace, whereupon the defendant, after requesting him to go, gave him in charge to a police officer. To the second plea, the plaintiff replied that the house was a common alehouse, and that the plain- tiff was lawfully drinking there, wherefore he refused to depart; and that the defendant of his own wrong committed the trespasses : — Held, on demurrer to this replication, that it was insufficient, as it must betaken to' admit that the plaintiff was making a noise and disturbance, and was in that case no answer to the plea. Held, also, on demurrer to the fourth plea, that it was good, as sufficiently shewing matter amounting to a breach of the peace by the plaintiff. Webster v. Watts, 17 Law J. Rep. (n.s.) Q-B. 73; 11 a.B. Rep. 311, (e) Judgment recovered. To an action of debt, on simple contract, for 400/. the defendants pleaded as to iSl. 6s. 9d., parcel, &c. payment; and as to the residue (356Z, 13j. 3d.), that the_ plaintiffs impleaded the defendants for the said residue of the said cause of action in the declaration mentioned in an action on promises, and recovered 314/. 8s., as well for their damages in the said action, and in respect whereof the plaintiffs had im- pleaded the defendants as aforesaid, as for their costs. Replication, that the residue of the said causes of action in the declaration mentioned were not the causes of action in the said plea mentioned in re- spect of which the judgment was recovered. This issue was found for the defendants. On writ of error, brought upon judgment given for the plain- tiffs upon this issue non obstante veredicto, it was held (reversing the judgment of the Queen's Bench, 14Law J. Rep.(N.S.) Q.B. 150; 9 Q.B. Rep. 759; 5 Law J. Dig. 236),— First, that after verdict, the plea must be taken to mean that plaintiffs had re- covered a judgment in respect of all the damages which they sued for in the former action ; i. e., in respect of the same causes of action as constituted the residue of the causes of action declared upon, and that it amounted to an ordinary plea of judg- ment recovered. Secondly, that the plea was good in substance, whether the meaning of it were that plaintiffs re- covered as to part, and as to the residue it was found that no more was due, in which case the omission to plead the latter part of the judgment by way of estoppel would be mere ground of special demurrer ; or whether the true construction of the plea be (as, semble, it is) that plaintiffs having once sued in assumpsit for the same debt, and having had the amount assessed and adjudicated on, cannot again sue for the same amount. Stewart v. Todd, 16 Law J. Rep. (n.s.) Q-B. 327 ; 9 Q.B. Rep. 767. To an action for money received and on an ac- count stated, the defendant pleaded that the plain- tiff was indebted to him iu 149/. 14s. 6d., upon a judgment recovered in the Exchequer, which he, the defendant, was ready to verify by the record, and in 43/. 12s. on a promissory note, and in 500/. for work and labour, money lent, &c., and which said several sums exceeded the debt and damages. The plea then offered to set off the debt and damages, and concluded with a verification. The plaintiff replied, denying that he was indebted, by reason that as to 149/. 14s. 6rf. there was not any such record, with an offer to verify the same in such manner as the Court should direct, and by reason that as to the residue other than the said sura of 149/. 14s. 6d., the plaintiff was not indebted to the defendant, concluding to the country : — Semble — that the plea and replication were ill. Turnbullv. Pell, 18 Law J. Rep. (n.s.) Exch. 45-; 2 Exch. Rep. 793. (/) No Consideration for Note. To the first count of a declaration by the payee against the maker of a promissory note for 20/., payable on demand, the defendantpleaded, secondly, "that the plaintiff was illegally possessed of the defendant's goods, and wrongfully detained the same without any right so to do, and refused to give them up without the defendant would make his promissory note for 20/. payable on demand, and deliver the same to the plaintiff, whereupon de- fendant, in order to gain possession of his goods, made and delivered the said note to the plaintiff for the possession aforesaid ; and thedefendant avers that except as hereinbefore mentioned, there never was any consideration for the making of the said note : — Held, (^dubitante Williams, J.) that the plea was bad. The plea should have alleged the circum- stances under which the detention took place, or should have alleged expressly that the plaintiff knew there was no colour or pretence for his deten- tion of the goods. To the same count the defendantpleaded, that at the time of the making of the said note there were certain accounts between the plaintiff and thedefen- dant; that the plaintiff then alleged a balance was due to him on such accounts, and that the defendant, at the plaintiff's request, and on the faith of his said allegation, made and delivered the said note on ac- count of the said balance alleged to be due to the plaintiff; that the said note was made on condition that the plaintiff should not demand payment thereof unless a balance was really due ; and that, in fact, no balance was due as alleged by the plaintiff on the said accounts, nor was the defendant indebted to him in respect of the said accounts, and so the defendant says that, except as aforesaid, there never was any consideration for the said note, &c. : — Held, that the agreement not to enforce the note need not be alleged in the plea to be in writing ; that such alleged agreement did not negative the absolute contract stated iu the first count, and that the plea was good. Kearns v. Durell, 18 Law J. Rep. (n.s.) C.P. 28 ; 6 Com. B. Rep. 596. (g) Colonial Law. In an action of detinue for a deed the defendant pleaded that the plaintiff was indebted to him for business done as attorney for the plaintiff in New South Wales, and that the deed was delivered to him as such attorney, "by reason whereof" the PLEADING AT LAW ; (S) Pieas in pamiotjlab, Cases. 499 defendant was entitled to hold the same as a lien. Replication, that the defendant was not entitled to hold the deed as a lien : — Held, that the replication was bad, for traversing matter of law j that the plea was bad also, for not shewing that the lien claimed was not inconsistent with any charter, &c. as men- tioned in the 9 Geo. 4. u. 83. s. 24, whereby the laws of England were extended to New South Wales. Astley v. Fisher, 18 Law J. Rep. (n.s.) C.P. 59 ; 6 Com. B. Rep. 572. (A) Payment of Money by Broker. Declaration on a bill of exchange by drawer against acceptor. Plea, to the whole declaration, that the defendant retained the plaintiff to act as his broker in the city of London, and as such broker to enter into contracts in the city of London for the defendant in the purchase of stock and shares, and to pay in and about completing such contracts and purchases certain monies ; that in pursuance of such retainer, the plaintiff did, as such broker, in the city of London, enter into cer- tain contracts for the purchase of shares, and did, by virtue of such retainer as such broker, and as incidental thereto, pay for the defendant in and about completing such contracts and purchases, certain monies ; that the plaintiff was not at the time of the retainer and employment, and making such contracts and purchasing such shares, or paying such monies, a broker duly licensed within the city of London ; and that the bill was accepted by the defendant and received by the plaintiff on account of money due from the defendant to the plaintiff, for his having as such broker entered into the contracts and paid such monies, &c. : — Held, ill, on general demurrer, the payment of money not being incidental to the character of a broker, and the plea being an answer only to so much of the plaintiff's demand as consisted of a remuneration for his services as broker. Pidgeon v. Burslem, 18 Law J. Rep. (n.s.) Exch. 193 i 3 Exch. Rep. 465. («) Acceptance in Satisfaction. A plea stated that it was agreed between the plaintiffs and the defendants that the defendants should do certain specified things, and that the action and the causes of action included in the same should be settled, satisfied, discharged, and ter- minated by the arrangement and agreement before mentioned. It then averred performance by the defendants of some of the things specified, and as to the others averred that the defendants were ready and willing to do them and to perform the agree- ment : — Held, bad, as not shewing whether the per- formance of the agreement or the agreement itself was relied on as the satisfaction of the causes of action ; and also, that it was ambiguous Whether the agreement by which the action was to be ter- minated was the same or different from the agree- ment stated in the plea. Qutere — ^Whether the averment that the agree- ment was accepted in satisfaction is involved in the allegation that it was agreed that the action should be settled, 8zc. by the agreement. Flockton v. Hall, 19 Law J. Rep. (n.s.) Q.B. 1. In an action on a bii\ of exchange, drawn by W upon and accepted by the defendant, and by W in- ' dorsed to the plaintiff, the defendant pleaded that he accepted the bill and delivered it to W as a security for a certain loan, and that certain scrip of the de- fendant was deposited with and received by W as a collateral security with the said bill for repayment of the said loan, and upon the terms that any sums which should be received by W, or any person to whom he might indorse the bill, and deliver the scrip, for or in respect of the scrip, should be taken to be in satisfaction pro tanto of the bill ; that the plaintiff took the bill with notice of the agreement, and that while he held the bill upon the terms afore- said, W delivered to the plaintiff, and the plaintiff received, the scrip, upon and subject to the terms aforesaid ; that W indorsed the bill to the plaintiff after it became due, and that the plaintiff received it upon and subject to the same terms ; that the plaintiff had received in respect of the scrip a sum equal to the amount of the bill and all damages, and that the said sum was thereupon accepted in full satisfaction and discharge of the causes of action. The plaintiff replied, that the scrip was not delivered to or received by W upon the terms alleged. The defendant gave in evidence a memo- randum signed by W and dated the same day as the bill, stating that the defendant " has this day deposited with me 220 shares in the H Railway as a collateral security for the due payment of his acceptance:'' — Held, {dubitante Wigbtman, J.) that the evidence supported the plea. Malpas v. Cle- ments, 19 Law J. Rep. (n.s.) Q.B. 435. (T) Replication. [See Insolvent — Disohaege.] (fl) Of Non est factum to Plea setting out Deed, but not on Oyer. Where a deed is pleaded according to its sup- posed legal effect, a plea or replication of non est factum (the deed not being set out on oyer), not only puts in issue the fact of its execution, but the con- struction of it as alleged in the previous pleading. To an action on a promissory note made by the defendant he pleaded that the note was the joint and several note of the defendant and one C , and that the plaintiffs released C, "and thereby also released the defendant." The plaintiff replied non est factum. It appeared that in the deed of release there was a proviso that' it should not operate to discharge any one jointly liable with C to the debt: * — Held, first, that the legal operation of the deed was raised by the replication. Secondly, that the proviso qualified the release, and that it did not operate to discharge the defendant. North v. Wake- field, 18 Law J. Rep. (n.s.) a.B. 214 ; 13 Q-B. Rep. 536. (i) Be Injurid. [Simons v. Lloyd, 5 Law J. Dig. 536 ; 2 Dowl. & L. P.O. 981.] De injurid is a good replication to a plea justify- ing under a custom. To an action of replevin, the defendant pleaded a justification under a custom for the master forester of the forest or chase of D, in the name of the lord of the manor of the said forest or chase, to cause drifts to be made of all cattle found depasturing in the said forest and the uninclosed commons ad- joining, and to drive such cattle to a certain pound 500 PLEADING AT LAW; (T) Replication. situate in the locus in quo, in order to ascertain whether any of the cattle were estrays, and whether the commoners had surcharged the forest and com- mons, and averred that the plaintiff's cattle were driven and taken hy the defendant, on the occasion of a drift, made under the custom, and he was found to have surcharged. Replication (admitting the seisin of the lord of the manor) de injuria absque residua causa : — Held, that the replication was good. Quiere—i{ the plea was good. Mortimer v. Moore, 15 Law J. Rep. (n.s.) aB. 118 ; 8 Q.B. Bep. 294. Assumpsit on a bill of exchange by indorsee against acceptor. Plea, that the bill was accepted for the accommodation of the drawer and without any consideration ; and that, at the commencement of the suit, the plaintiff was the holder, without con- sideration. Replication, de injurld: — Held, good. Laforest v. Wall, 16 Law J. Rep. (n.s.) Q.B. 100 ; 9 Q.B. Rep. 599. "Where, in trespass for taking chattels, the defen- dant justified, under a heriot custom, by several pleas claiming heriots in respect of different tene- ments, and the plaintiff replied to all by one repli- cation of de injurid : — Semble, that the replication was good. Price v. Woodhouse, 16 Law J. Rep. (n.s.) Exch. 41 ; 16 Mee. & W. 1 ; 4 Dowl. & L. RC. 286. De injurid is a good replication to a plea of the Tippling Act, 24 Geo. 2. c. 40. s. 12, pleaded to a declaration for goods sold and delivered. Lans- dale V. Clarke, 16 Law J. Rep. (n.s.) Exch. 246; 1 Exch. Rep. 78 ; 5 Dowl. & L. P.C. 95. Trespass for breaking and entering plaintifTs dwelling-house, locking, &c. the doors thereof, ejecting the plaintiff, and seizing and converting his goods. Plea, justifying the trespasses (except the ejecting) under a distress for rent, alleging an im- pounding in the dwelling-house, and that the defen- dant in order to a safe impounding, necessarily locked, &c. the doors of the dwelling-house ; and a subsequent sale in satisfaction of the rent and costs of distress and sale. Replication, that the defendant, at &c., broke and entered the dwelling- house, and locked the doors, &c., of his own wrong, and for another and different purpose than the pur- pose in the plea mentioned, that is to say, for the purpose of ejecting, &c. the plaintiff from the dwell- ing-house, &c. Verification : — Semble — that the re- plication was bad, inasmuch as it raised an imma- terial issue on the intention of the defendant in entering, instead of traversing the entry for the* purpose of distraining, with a conclusion to the country. Semble — that the plea was not bad for want of an averment of notice of distress (with the cause of such taking) according to the2'Will.&Mary, sess. 1. c. 5. s. 2, nor for superfluously answering the con- version, that being matter of aggravation only. But held, that the plea was bad for not negativing the improper expulsion, and keeping out of posses- sion, of the plaintiff, by shewing that the house, or that part of it which was locked up, was necessary, or the most fit and convenient place for impounding the distress. Woods v. Durrani, 16 Law J. Rep. (n.s.) Exch. 313; 16 Mee. & "W. 149. To a declaration against the maker of a pro- missory note, indorsed hy W to the plaintiff, the defendant pleaded a set-off due to him from W before the indorsement to the plaintiff, and that W in order to deprive the defendant of his set-off, fraudulently indorsed to the plaintiff, in order to enable the plaintiff to sue on the said note as agent of W, and that there was no consideration for the indorsement to the plaintiff, and that the plaintiff sued as agent of W according to the said fraud. Replication, de injurid : — Held good, as the substance of the plea was, that the indorsement to the plaintiff was frau. dulent. Tolkurst v. Notley, 17 Law J. Rep. (n.s.) Q.B. 97; 11 Q.B. Rep. 406. Trover for hops. Plea, that before the plaintiff was possessed, M & Co. were possessed of the said hops as of their own property ; that M & Co. lost the same, which came, by finding, into the pos- session of S B, who immediately lost possession of the same, and the same came, by finding, into the possession of T E, who immediately and just before the said time when, &c., sold and delivered the same to the plaintiff, whereupon the defendants as servants and by the command of M & Co. took the said hops, &c., which is the same conversion, &c. Replication, de injurid: — Held, that on the issue raised hy de injurid, the plaintiff could give in evi- dence a valid sale of the hops by M & Co. to S B, through whom the plaintiff derived his title. On motion for a new trial for misdirection by the Judge in telling the jury that if there was a valid sale to S B the plaintiff was entitled to recover, — Held, that the plea must be taken, after verdict, to import a continuing title in M & Co. down to the time of the conversion, which fact being material was put in issue by the replication de in- jurid, and so the evidence was admissible and the direction right; or, that the plea was immaterial for not containing such allegation ; and in either case that the defendants were not entitled to a new trial. Byre v. Scovell, 17 Law J. Rep. (n.s.) C.P. 132 ; 5 Dowl. & L. P.C. 516 ; 5 Cora. B. Rep. 702. To a plea in assumpsit for monies paid, that they were paid for differences on illegal time bargains, against the statute, — Held, that the replication de injurid yas good. Mortimer v. Gell, i Com. B. Rep. 543. A plea admitting a contract in fact, and seeking to avoid it on the ground of illegality or fraud, is a plea in excuse, and may be traversed hy replication de injurid. Bennett v. Bull, 1 Exch. Rep. 593. The general traverse de injurid can be replied to those pleas only which shew that the plaintiff had not at any time a cause of action against the defen- dant. Catterall v. Lees, 8 Com. B. Rep. 113. [See Landlord and Tenant.] (U) New Assignment. To trover for ten barges, ten chains and ten pieces of timber, the defendant pleaded generally, that the barges tied and fastened by the chains and timber obstructed the navigation of the Thames, wherefore he removed them. The plaintiff replied de injurid, and also new assigned that he brought his action for five pieces of timber other than and different fronft the pieces of timber in the plea men- tioned, which the defendant converted, for another and different cause than the cause in the fifth plea mentioned, in manner and form as the plaintiff has declared against the defendant: — Held, that the replication was not bad for duplicity or as enlarg- PLEADING, AT LAW; (U) New Assignment. 501 ing or departing from the declaration ; and was well pleaded. Page v. Hatchett, 15 Law J. Rep. (n.s.) aB. 68 ; 8 Q.B. Rep. 187. A. declaration in trespass alleged, that the de- fendant, on a certain day, assaulted the plaintiif, and then seized and shook him, and struck him many blows. Second plea, a justification in defence of the possession of the defendant's close, which the plaintiff with a strong hand attempted forcibly to enter. Third plea, stating, that the defendant was possessed of a cow, then being in a certain close; that the plaintiff, against the will of the defendant, attempted to drive away the cow from the close and to dispossess the defendant of her, and would forcibly and in breach of the peace have driven away and dispossessed the defendant of her, wherefore, &c., justifying the trespass in defence of the possession of the cow. Replication, de injuridf and new assignment, that the plaintiff issued his writ, &c., not only for the trespasses in the pleas mentioned, but also for that the defendant, on other and different occasions, and with more force than necessary, seized and shook the plaintiff: — Held, on special demurrer, that the replication and new assignment were bad for duplicity, and that upon the declaration the plaintiff was confined to tres- passes on one occasion. Held, also, that it was unnecessary to allege in the pleas a rec[uest to the plaintiff to desist, before resisting with force. Held, also, that having pleaded over,ihe plain- tiff could not object that the third plea did not shew to whom the close therein mentioned belonged. Polkinhorn v. Wright, 15 Law J. Rep. (n.s.) Q.B. 70; 8 Q.B. Rep. 197. . IVespass for breaking and entering the plaintifPs close, and cutting down the rails of the plaintiff there standing, to wit, &e. Plea, a right of way across the said close, and because the said rails in the declaration mentioned were, at the several times when, &c. standing in and across the said highway, &c., a justification of their removal, which are the same supposed trespasses, &c. Replication, that the said rails were not then standing in or across the way. Conclusion to the country, and issue thereon : — Held, that the defendant maintained the issue by proving that some of the rails cut down were standing on a highway, and that on these pleadings the plaintiff could not recover in respect of the rails which were not on the highway ; that in order to do so, he should have new assigned. BracegirdU v. Peacock, 15 Law J. Rep. (n.s.) Q.B. 73 ; 8 Q.B. Rep. 174. Where the declaration was in the common form, for goods sold and delivered, and on an account stated, and the defendant pleaded that, by a certain deed (of which profert was made), the plaintiff released the defendant, to which the plaintiff replied non eat factum, — Held, that, under the above issue, the plaintiff was not entitled to shew that the cause of action accrued subsequently to the date of the re- lease, but should have made it the subject oif a new assignment. Jubb v. Ellis- 15 Law J. Rep. (n.s.) Q.B. 94 ; 3 Dowl. & L. P.t\ 364. The declaration was against two defendants, who severed in their pleadings; the new assignment was against one only, but was not specially demurred to as being a departure from the declaration on that ground :— Held, that such an objection could only be taken upon special demurrer. The plea alleged under a videlicet il. 16s. to be the rent in arrear. The new assignment alleged, also under a videlicet, a payment of 4:1. 15s., which was averred to be a sufficient sum to discharge ar- rears^and costs, and to have been received in full satisfaction, &o.: — Held, a sufficient averment of the payment of the rent in arrear and costs. West V. Nibts, 17 Law J. Rep. (N.s.) C.P. 150 ; 4 Com. B. Rep. 172. To a declaration alleging that the defendant broke and entered a certain shop, rooms, and apart- ments of the plaintiff, the defendant pleaded that by the leave and licence of the plaintiff he broke ' and entered the said shop in the declaration men- tioned, "the said shop, rooms, and apartments in the declaration mentioned being one and the same shop, and not different rooms and apartments," and stayed only a reasonable time. To this the plaintiff replied, that the defendant of his own wrong, &c. committed the trespasses in the plea mentioned, and further assigned that the action was not only for the trespasses in the plea mentioned, but also for that the defendant continued in the shop a much longer time than in the plea mentioned ; and also at the same time when. Sic. broke and entered two other rooms and apartments behind the said shop, to wit, &c., being other rooms and apartments in the declaration mentioned and other and dif- ferent from the said shop, and there stayed, &c., which were other and different trespasses from those in the plea mentioned: — Held, that such new assignment was proper, and that a special demurrer thereto on the ground that it charged a fresh tres- pass, and was a departure from the declaration, was frivolous. Harney v. Zankester, 18 Law J. Rep. (U.S.) as. 299. The expulsion of a person from his dwelling- house is an injury to the dwelling-house. Declaration in trespass for breaking the plain- tiff's dwelling-house, expelling the plaintiff, and taking his goods. Pleas of Hberum tenementum were pleaded as to the trespasses in and to the dwell- ing-honse. The plaintiff replied, denying the pleas, and new assigning the expulsion: — Held, on de- murrer, that the new assignment was bad, as the pleas justified the expulsion as well as the breaking of the house. Meriton v. Coombes, 19 Law J. Rep. (n.s.) C.P. 336. In case for obstructing the plaintiff's right to take clay, the declaration averred the plaintiff's right to get and work the clay in a certain piece of land, and that defendant built and erected a wall and fence in and upon the said land, and thereby obstructed the plaintiff in the enjoyment of his right. Plea — Liberum tenementum, and that the wall and fence were built and erected npon the edge and boundary of the said piece of land-; and that the clay in and upon, and under the piece of land wherein the wall and fence were built and erected, was worked out and exhausted. Replication, that the clay was not worked out and exhausted modo et formd, and a new assignment that the piece of land in which the plaintiff had such right, abutted on the east side on the plaintiff's close, and that the said wall and fence were built and erected on the edge and boundary to the east side, and upon and 502 PLEADIXG, IN EQUITY ; (A) Bill. along the whole of the east side, and that his right was obstructed in other parts than where the wall and fence were built and erected : — Held, on spe- cial demurrer, that the new assignment was good, and upon motion for judgment non obstante vere- dicto that the plea was bad. Grove v. Withers, 19 Law J. Rep. (s.s.) Exch. 188; 4 Exch. Rep. 875. PLEADIXG, IX EQUITY. (A) Bii-L. (a) Statements and Charges in. (6) Multifariousness. (c) Amending. (d) Of Revivor. (e) Supplemental. (B) Demttreer. (a) For Want of Equity. (6) For other Causes. (C) Disclaimer. (D) Answer. (E) Plea. (A) Bill. (a) Statements and Charges in. If the will of a testator is stated to have been proved by A Ms esecator in the Prerogative Court, and the will of A to have been proved by B his executor in the proper ecclesiastical court, non constat that B is the personal representative of the original testator. Jossaume v. Abbot, 15 Sim. 127. The plaintiff, a solicitor, being the projector of a railway, took upon himself the expenses of pre- liminary inspections and surveys, and also spent much time and labour in maturing the necessary plans and prospectuses. Upon the directors being appointed, the plaintiff entered into an agreement with them for the sale of all his interest in the undertaking, in consideration of 1,000 shares, upon which the deposit should be considered to be paid, and also a sum of 812(. The plaintiff filed a bUl against the directors for specific performance of this agreement ; that scrip certificates for the shares might be delivered to him, and that he might be declared entitled to a lien upon the funds of the company for the amount. The defendants de- murred, on the ground, that the bill did not allege that they had any scrip certificates in their hands, and that they had no power to allot shares with the deposit paid up, and also for want of parties, on the ground that all the shareholders ought to have been parties. The demurrer was ovemiled by the Court below, but allowed on appeal upon the first- mentioned ground ; and leave to amend refused. Colombine v. Chichester, 15 Law J. Rep. (s.s.) Chanc. 408; 2 Ph. 27. Bill for administration of an estate by some of the cestuis que trust against the trustee and one J G, charged that J G had alleged that the plaintiffs had contracted to sell him real estate, and that he had given notice of his claim to the trustees, but the plaintiffs charged that they had not entered into any agreement to sell to J G, and if they had, it had been abandoned and waived by J G, and liat he had no charge, interest, or claim on the estate : — Held, that the allegations against J G were in- sufficient, and his demurrer was allowed. Hodgson V. Espinasse, 10 Beav. 473. The equity of a case may be stated in the charg- ing part of file bill. A charge to the contrary of a defendant's pretence, is a sufficient averment of the contrary. A general allegation of facts, shew- ing the liability of a defendant to account, is not limited by claims for a more limited account, although frequently repeated in the bill. The Mayor, SfC. of Rochester v. Lee, 15 Law J. Rep. (s.s.) Chanc. 97. A bill filed against drainage commissioners under a local act, complained of a misapplication of the funds, but neither treated the commissioners col- lectively as a corporation, nor separately as indi- viduals, each answerable for himself, but partiy in one character, and paxtiy in the other; and the charge most relied on of applying the monies received to their own purposes was not so stated as to make it appear whether all or which of the de- fendants was sought to be affected. A general demurrer on the ground of uncertainty was allowed. Armitstead T. Durham, 1 1 Beav. 422. A bill was filed by two shareholders in a rail- way company, on behalf of themselves and all the other shareholders, except the defendants, against the committee of management and provisional com- mittee, praying an account of the assets received by them, and that the defendants might be decreed to pay up the deposits on the shares allotted to them. The plaintiffs alleged that they were induced to take shares upon the faith of the defendants having joined the undertaking, and upon the prospectuses issued by them. Two of the defendants demurred on the ground that they had taken no share in the management of the affairs of the company, but had only lent their names as provisional committeemen, and that they had not signed the parliamentary con- tract, and had never taken up their shares : — Held, that the bill did not sufficiently allege that the two demurring defendants had agreed to take shares; or that the plaintiffs had been induced to take their shares upon the faith of those defendants having joined the undertaking. Demurrer allowed. Bell V. the Earl of Mexborough, 15 Law J. Rep. (n.s.) Chanc. 453 ; affirmed 17 Law J. Rep. (n.s.) Chanc. 296. The plaintiff being the holder of 100 certificates for shares in the Royal North of Spain Railway Company, filed a bill, on behalf of himself and all the other shareholders in the company, against the directors, charging them with iiraud and misconduct, and praying that they might be decreed to refund a sum of 20,000/., said to have been improperly paid by them, and that they might render an account of the affairs of the company : — Held, upon demurrer, that the charges in the bill amounted to a direct allegation that the project was a fraud, and that the undertaking was utterly impracticable, and that the defendants knew it to be so ; that these statements went to prove the company to be a bubble speculation, and that the bill could not therefore be sustained. Harvey v. CoUett, 15 Law J. Rep. (N.S.) Chanc. 376 ; 15 Sim. 332. The proper form of a bill by an equitable mort- gagee, being also a specialty creditor, who seeks PLEADING, IN EQUITY ; (A) Bill 503 to charge the real assets of a testator generally, as well as to enforce his security, is on behalf of the plaintiff, and all other creditors of the testator, and the Court permitted a plaintiff at the hearing to amend his bill accordingly ; and with reference to the Statute of Limitatibnsj^Held, that such bill dates from the lUing of the original bill, and not from the day of the amendment. Blair v. Ormond, 1 De Gex & S. 428. A bill was determined to be defective by reason of its merely containing an allegation, that a de- fendant was the representative of a firm : that not being sufficient to admit proof of circumstances which might have made that party not only a representative, but actually the party carrying on the business. Schneider v. Lizardi, 15 Law J. Rep. , (n.s.) Chanc. 435 j 9 Beav. 461. A bill seeking to restrain an action at law, and not shewing any grounds on which the action could be sustained, — Held, to be denmrrable. Derbyshire, Staffordshire, S;e. Rail. Co. v. Serrell, 2 De Gex & S. 353. A subscriber to a projected railway company by his bill, filed on behalf of himself and all other shareholders, except the defendants, alleged thatthe promoters (who were defendants) together with the provisional committee (also defendants) issued a prospectus representing the capital as 450,000?., in 22,500 shares ; on the faith of which the plaintiff and many others paid deposits and signed the deed; that the provisional committee never superintended the administration of the affairs of the company, but that with their sanction certain of their body acted as directors, and exercised the whole direction of the company, and that the other provisional committee-men sanctioned all their acts without any inquiry. The bill alleged acts of misfeazance by the directors, and in particular that they did not allot the shares, although they had more than suffi- cient applications for them, and prayed for a disso- lution, accounts, payment of liabilities of the com- pany, and distribution of the surplus among the subscribers. Some of the provisional committee who were alleged to have applied for shares, but had never paid any deposit or accepted them, de- murred: — Held, allowing the demurrer, that the charges were not sufficiently distinct or cer- tain. A defendant, stated in the bill to be a shareholder, demurred, on the ground that the case stated by the bill entitled the shareholders to a return of the whole deposit, and that the plaintiff could not re- present absent shareholders for the purpose of seeking a less extensive remedy. Demurrer over- ruled. Sihson V. Edgworth, 2 De Gex & S. 73. An allegation in a bill that "A B duly made her last will and testament" is sufficient, without stating the signature and attestation. Hyde v. Edwards, 12 Beav. 160. A bill by the assignee of a lease for specific per- formance of an agreement to accept an assignment set forth the lessee's covenant not to assign without licence, hut did not state that the lease contained any proviso for re-entry on breach or non-perform- ance of the covenant. A demurrer on the ground that the bill did not aver that the licence would be obtained was overruled. Smith y. Capron, 18 Law J. Rep. (n.s.) Chanc. 135 ; 7 Hare, 185. (i) Multifariousness. [See Company,, (A).] Afler judgment and execution obtained by a cre- ditor against his debtor, the debtor becomes bank- rupt and his goods are seized by the messenger.^ The creditor then brings trover against the assignees and trespass against the messenger. Upon a bill filed by the assignees against the creditor to enforce a substantial right in equity in respect of the bank- rupt's goods, it is not an objection for multifarious- ness that the bill prays an injunction to restrain both actions. Effect, as between co-defendants, of the 23rd Order of August, 1841. Boyd v. Moyle, 2 Coll. C.C. 316. A bill stated numerous transactions between the plaintiff and C; and that the plaintiff had given him a bill of exchange for l,500i. without consi- deration, which he had indorsed to,N, who held it merely as a trustee, and had recently commenced an action upon it. The bill prayed for an injunc- tion and for an account. A demurrer by N for want of equity and for multifariousness, was over- ruled. Knill V. Chadwick, 16 Law J. Rep. (n.s.) Chanc. 410. The bill stated that a railway company had been formed, and one of the creditors of the company, after being paid his debt by the managing com- mittee, had brought an action for payment of the said debt, at the instigation of the committee agdnst the plaintiff, who was a shareholder in the company. The hill was filed against the creditor and the mem- bers of the committee for aninjunction to restrain the action, and that the committee might he restrained from distributing or paying away the assets in their hands, except in discharge of the liabilities of the company. A demurrer, for want of equity and multifariousness, was overruled :^ — -Held, also, that the other shareholders need not be made parties to the suit. Lewis v. Billing, 16 Law J. Rep. (n.s.) Chane. 425. ,,i. (c) Amending. The plaintiff filed a hill for discovery, and for an injunction to restrain the defendant setting up any outstanding term ; by the answer, it appeared that there was an outstanding term which had been assigned to secure a mortgage ; the plaintiff then amended his hill, praying liberty to redeem the mortgaged premises. Upon motion to dismiss the original bill, on the ground that the amended bill set up a different case, it was held that the object was substantially the same in both bills, but the mode of obtaining it was varied. The motion was refused, with costs. Ahram v. Ward, 15 Law J. Rep. (N.s.) Chanc. 29. Where the defendant raised a new issue by his answer, and the plaintiff proceeded to the hearing without amending his bill, the Court, under the circumstances of the case, directed the plaintiff to amend his hill by charging the new matter insisted on by the answer. Watts v. Hyde, 2 CoU.^C.C. 368. An order made at a hearing that the plaintiff should be at liberty to amend by adding proper parties with apt words to charge them or to shew that others were not necessary parties, or to file a supplemental bill, does not entitle the plaintiff to introduce by amendment any charge against the 504 PLEADING, IN EQUITY; (A) Bill. original defendants which is not necessary to explain the amendment. Gibson T, Ingo, 5 Hare, 156. Under an order at the hearing, giving leave to amend, hy adding parties, with apt words to charge them, the plaintiff will not be allowed by amend- ment to introduce charges raising a new issue as between himself and the original defendants j though such charges affect merely to state a con- clusion of law. Gibson v. Ingo, 16 Law J. Rep. (h.s.) Chanc. 4. Under an order made at the hearing giving the plaintiff leave to amend his bill by adding proper parties with apt words to charge them, or by stating reasons to shew why particular persons should not be parties, or to file a supplemental bill, the plain- tiff may amend by stating a grant of letters of administration to the estate of a deceased person to one who is already a defendant in the suit, and by expunging a statement which the bill originally contained, that the deceased person died insolvent, and had no personal representative. Bateman v. Margerison, 6 Hare, 502. The amendment of the bill by adding the per- sonal representative as a party, and introducing the disclaimer of such personal representative upon the record, will not sustain the suit of the heir-at-law. Griffith v. Ricketts, 7 Hare, 305. An order made at the hearing of a cause, giving liberty to the plaintiff to amend, by introducing an equity which was not set up in the bill, but ap- peared by the answer, was discharged, upon appeal. Watts V. Hyde, 17 Law J. Rep. (n.s.) Chanc. 39 ; 2 Ph. 406. (d) Of Revivor. The plaintiff brought ejectment against a party in possession, and afterwards filed a bill of discovery in aid of the action and to restrain the defendant from setting up outstanding terms. The suit abated by the death of the defendant, and the benefit of the action became lost After twenty years' adverse possession, the plaintiff having filed a bill of revivor, a demurrer was allowed, as no effectual proceedings could be taken at law, and the discovery and relief sought would be useless. Bampton v. Birchall, 11 Beav. 38. (e) Supplemental. A testator gave his personal estate and the produce of the sale of his real estate in trust for such of his children as should attain twenty-one, and if all should die under twenty-one, in trust for the per- sons who under the Statute of Distributions would be entitled thereto. The children, all of whom were infants, filed a bill against the trustees to have the trusts of the will executed ; and after decree, they filed a supplemental bill against the testator's widow and next-of-kin, praying to have the benefit of the decree and other proceedings in the original suit against them : — Held, that the bill should have been an original one. Roberts v. Roberts, 16 Sim. 867. A bill being filed by shareholders of a company against directors for an account, and one of the direc- tors becoming bankrupt a supplemental bill was filed against the defendant, alleging that the plaintiff had discovered, siijce filing the original hill, that the said director, before his bankruptcy, had paid or secured to the defendant the amount for which he was liable to the company. Demurrer to the supplemental bill allowed, the case for relief exist- ing prior to filing the original bill, and the plaintiff being entitled to that relief, if at all, prior to the bankruptcy. Decks v. Walker, 19 Law J. Rep. (n.s.) Chanc. 274. (B) Demukreb. [See (A) Bill, (a) Statements and Charges in. See also Company — Ship and Shippino, Register and Registry Act— Parties to Suits.] (o) For Want of Equity. A client entered into an agreement with a soli- citor, in Ireland, that in consideration of his pro- curing sureties in three administration bonds, to enable the client to receive some money out of the Court of Chancery in England, the sureties (of whom the solicitor was one) should retain a suffi- cient portion of the money in their hands for six years, as an indemnity, and that the solicitor should receive \Ql. per cent, on the fund, in addition to the law charges. A bill being filed to enforce the agreement, a demurrer for want of equity was allowed. Stranger. Brennan, 15 Law J. Rep. (n.s.) Chanc. 389; 15 Sim. 346. One of the shareholders in a railway com- pany which had been abandoned filed a bill on behalf of himself and all other shareholders, except the managing committee (the defendants) praying an account of monies received, and ex- penses properly incurred on account of the com- pany; that the plaintiff and other shareholders might be declared liable to contribute to such expenses in proportion to the number of their shares, or in such other proportion as the Court should think just; and that such proportion might be deducted out of the deposits paid, and the residue returned to them ; and that the surplus of the monies in the defendants' hands, after dis- charging the debts and liabilities of the company, might he applied in aid of the objects of the suit, as the Court should direct. A demurrer to the bill for want of equity and want of parties was overruled. Cooper V. Webb, 15 Sim. 454. To a bill by assignees of a bankrupt against a creditor, impeaching the amount of a debt for which the creditor had obtained judgment, and had taken the bankrupt's goods in execution, and pray- ing an account of the dealings between the bank- rupt and the creditor, a general demurrer for want of equity was allowed. Semble — it is a good ground of equitable relief, that when the action on which the judgment was obtained was commenced, the bankrupt was in pecuniary difficulties, and was pressed for payment by several creditors, and was unable therefore to attend to the defence of the action. Boyd v. Moyle, 2 Coll. C.C. 316. Bill by certain members of a lodge of the asso- ciation called Odd Fellows, against the chief officers of the association, the grand master and secretary of the district, some members of the lodge who had differed from the plaintiffs, and the lodge trustees, who had in their hands a sum of money arising from the subscriptions ; stating that they, the plaintiffs, had been improperly excluded from the PLEADING, IN EQUITY ; (B) Demtjrkeb. 505 society, and praying for » declaration that euch exclusion was void, and for a determination as to their rights to the money in the hands of the trustees, was demurred to for want of equity. De- murrer allowed. Clough v. Ratcliffe, 16 Law J. Rep. (n.s.) Chanc. 476 ; 1 De Gex & S. le*. The plaintiff by his bill stated, that he had pur- chased the entirety of an estate, but that the defen- dants having afterwards given him reason for believ- ing that they were entitled to a moiety, and having promised to produce the original instruments evi- dencing their title, the plaintiff was induced to join with the defendants in making a lease of the estate, but that the defendants now refused to produce such evidence. The bill prayed discovery and partition. Demurrer for want of equity overruled, but without costs. Potter v. Waller, 16 Law J. Rep. (n.s.) Chanc. 480. A is in possession of an estate, to the entirety of which B makes claim, but without disclosing the grounds of his title. A, treating B's claim as a nullity, expends money in improvements, of which B is cognizant, but gives no further notice of his claim during the progress of the expenditure. It appears that B's title went only to a moiety, and that he knew this when he claimed the entirety. B afterwards recovers the premises in ejectment. Upon bill by A to restrain the proceedings in the ejectment, — Held, on general demurrer, that as A, previously to his expenditure, had distinct notice of a claim by B, he had no equity, as against B to be reimbursed his expenditure. A, in possession of an estate claimed by B, granted a building lease to C, and covenanted to indemnify C against eviction. C expends money in building and is afterwards evicted. Whether the interest of A is sufficient to support a bill by him against B to be reimbursed the expenditure on the ground of B's acquiescence — qucere. The plaintiff in ejectment leads his adversary to suppose that he intends to try the action on the merits, but, in surprise of the defendant, obtains a verdict on the trial by matter of estoppel. The de- fendant at law has no equity to set aside the verdict, if it raises no impediment to the defendant's again trying the action at law. Clare Hall v. Harding, 17 Law J. Rep. (n.s.) Chanc. 301 ; 6 Hare, 273. A party at New Brunswick contracted to supply a quantity of railway sleepers to a person in Eng- land ; but when they were sent the purchaser refused to accept them. The seller then filed an affidavit of debt against him in the Court of Bankruptcy, for the value of them, according to the prices fixed by the contract, with the view of causing a fiat in bankruptcy to issue against him. The purchaser filed a bill against him, alleging that the sleepers were of an inferior quality and unsaleable, and that nothing was due from him to the defendant. A general demurrer for want of equity, on the ground that the Court of Chancery had no jurisdiction, was allowed. Pirn v. Wilson, 17 Law J. Rep. (n.s.) Chanc. 428. A banking firm, in which A was a partner, brought an action to recover a debt from another co-partner- ship in which A was also a partner. The latter co-partnership thereupon filed a bill to have their accounts taken, and for an injunction to restrain the action. A demurrer to the bill for want of Digest, 1 845—1850. equity was overruled. Rheam v. Smith, 18 Law J. Rep. (n.s.) Chanc. 97. (6) For other Causes. To a vendor's bill for specific performance of a contract to purchase shares in mines, insisting that the plaintiff was not bound to give other evidence of his title to the shares than attested extracts from the cost-books or registers of the mines, and that the defendant had refused to accept such evidence — but not alleging that the plaintiff was unable to give other evidence of his title, the defendant demur- red: — Held, that as the plaintiff was not precluded from giving other evidence of his title if necessary, the demurrer must he overruled. Curling v. Flight, 5 Hare, 242. Demurrer to a bill overruled, there being a fair point for decision, and a probability of the plaintiff ultimately establishing his equity. Norman v. Stibi/, 9 Beav. 560. Dgmurrer allowed to a bill filed without leave for relief inconsistent with the relief obtained by the same plaintiff in a former suit. Bainbrigge v. Baddeley, 9 Beav. 538. Demurrer to a hill filed by the representatives of a trustee defendant, who had died after decree, and whose interest survived to a co-defendant, allowed with costs. All the other defendants to the original bill were held to be necessary parties. Buchanan v. Malins, 11 Beav. 52. A shareholder in an incorporated railway, com- pany filed a bill on behalf of himself and other shareholders to restrain the directors from issuing preference shares, on the ground that they were about to be issued contrary to the company's acts and for a purpose not authorized. The bill, filed September 22nd, stated that the plaintiffon Septem- ber I7th became aware of resolutions passed on the 12th of September under which preference shares were to be offered to the shareholders on the 23rd of September, but it did not shew otherwise that the plaintiff had no means of procuring a suit to be in- stituted in the name of the corporation: — Held, that demurrers by the corporation and directors could not be overruled whether the proceedings sought to be restrained were legal or-not. The bill, being amended, stated that a majority of the shareholders supported the directors and re- fused to authorize the plaintiff to institute a suit in the name of the company. The demurrer was still allowed. The corporation and directors having demurred separately, the Court refused to give costs of more than one demurrer. Edwards v. Shrewsbury and Birmingham Rail. Co., 2 De Gex & S. 537. The plaintiff granted a licence to the defendant to use two patents, upon payment of certain royal- ties. The plaintiff afterwards put in a disclaimer as to part of his patent ; the defendant refused to continue paying the royalties, on the ground that the licence was void. The bill prayed an account of royalties under the licence; and in case the de- fendant should dispute the plaintiff's right to pay- ment by reason of the invalidity of the patent or otherwise, then that the defendant might be re- strained from continuing to manufacture articles the subject of the patent: — Held, upon demurrer, that if the licence were void, and the defendants 3T 506 PLEADING, IN EQUITY. were not bound to account, they ought to be re- strained from acting without the authority of the plaintiff. Demurrer overruled. Huddan v. Smith, 17 Law i. Rep. (n.s.) Chanc. 43; 16 Sim. 42. To a bill filed to set aside a deed alleged by the plaintiff to have been executed for an immoral con- sideration, and in expectation of future illegal coha- bitation, a demurrer was put in on the ground that the plaintiff being a party to the immorality could not claim relief when that relief was founded on his own turpitude; — Held, that as no immoral cohabi- tation had, in fact, taken place in pursuance of the alleged expectation, the demurrer must be over- ruled. Sismey v. Eley, 18 Law J. Rep. (n.s.) Chanc. 350; 17 Sim. 1. A railway contractor on the completion of the works sued the company for the balance. The action and all matters in difference were referred to an arbitrator with full powers, and the Court was empowered to refer back the award from time to time. The award was made in July 1848, and in January 1850 the company filed a bill against the contractor alleging fraud in the performance of the works practised in collusion with the engineer and discovered since the award, and seeking to set aside the award and have the accounts taken. A general demurrer was allowed on the ground that the mat- ter was already before another jurisdiction com- petent to reconsider the matter and decide all ques- tions. Londonderry and Enniskillen Rail. Co, v. Leishman, 12Beav. 423. (C) Disclaimer. A bill was filed to set aside a deed of 1809, on the ground that the plaintiff (the grantor) was of un- sound mind. The plaintiff was found by inquisi- tion to have been lunatic without lucid intervals from 1796. The defendants alleged that by deed of 1805 the lunatic had settled the estate upon himself and wife for their lives, and for their children in remainder. The children were made parties to the suit, and disclaimed, and offered to convey any in- terest they might have as the Court should direct: — Held, that the disclaimer and submission did not re-invest in the lunatic the interest which he would have had if the deed of 1805 had not existed, but the Court confined the decree to this reserved in- terest without prejudice to the rights of the chil- dren. Price V. Berrington, 7 Hare, 394. (D) Answer. Where the interrogatory in a hill has reference to particular circumstances, it is not enough for the defendant to answer generally ; and in a bill seeking an account of receipts and payments, where the de- fendant was interrogated whether he did not in fact receive, and whether or not on behalf of the plain- tiff, several or some and which of the sums therein mentioned from the several or some and which of the persons at the several or some and which of the times thereinafter mentioned, viz., on the day of March 1837, or at some other stated time, from Sir R P J, the sum of 100/., &c. or how otherwise, and from whom and when and on whose behalf, it is not a sufficient answer to state a denial of the defendant that he received on the plaintiff's behalf the several or any or any one of the suras from the several or any or any one of the persons at the several or any or any one of the times mentioned, and in particular that he received, in the month of March 1837, or at any other time before or during the period to which the account referred to in the bill extended, on the plaintiff's behalf, from Sir R P J or any other person or persons, the sum of 300Z. or any other sum, save as by the said account appeared, &c., or that he received the sums men- tioned in the bill or any or any one of them from the persons in the bill mentioned, or any or any one of them. Sic. The plaintiff is entitled to know whe- ther the sums mentioned in the bill were received by the defendant, coupled with the statement whe- ther they were received by the defendant on the plaintiff's behalf. Jodrellv. Slaney, 16 Law J. Rep. (N.S.) Chanc. 195 ; 10 Beav. 225. A defendant may state in his answer and take issue upon matters which happened since the bill was filed ; but the Court will not deal with the sub- ject of the suit by interlocutory order founded On matters which occur after the answer has been filed, and are not brought forward by amendment, by sup- plemental bill or by supplemental answer. Stamps V. Birmingham, Wolverhampton and Stour Valley Rail. Co., 7 Hare, 258. Quare — If a bill is not wholly demurrable, and the defendant answers it, he must answer fully. Gattland V. Tanner, 15 Sim. 567. An interrogatory asked, whether the defendant had not had communication with A B and C D and other persons. The answer admitted com- munications with A B, but denied any with any other persons, omitting the name of C D : — Held, that the answer was insufficient. The Duke of Bruns^- wick V. the Duke of Cambridge, 12 Beav. 281. The bill alleged that the' defendant had entered into an agreement for the purchase of a house on certain terms ; and that the agreement was made out by the letters after mentioned, and that such letters were a sufficient memorandum of agreement signed by the defendant. The defendant, by his answer, denied that the agreement in the bill men- tioned, or any agreement, had been made out by the said letters ; and that the letters did not amount to an agreement; and insisted that no binding agreement had been entered into by him : — Held, that the defendant had not by his answer claimed the benefit of the Statute of Frauds, and was not entitled to avail himself of it. Skinner v. M*Douall, 17 Law J. Rep. (n.s.) Chanc. 347 ; 2 De Gex & S. 265. Necessity of infants and Attorney General an- swering specially. Lane v. Hardwicke, 9 Beav. 148. If a defendant submits to answer a bill which is not demurrable, he must answer it fully, notwith- standing that he denies the plaintiff's title, and sets up an adverse title himself. Dott v. Uoyes, 15 Sim. 372. If a defendant puts in an answer to an inter- rogatory which is acquiesced in by the plaintifl^ and the bill is afterwards amended, leaving the interrogatory and the corresponding statement un- changed, but varying an antecedent which alters the meaning of such statement, the plaintiff is not entitled to a new answer to such interrogatory unless he specially requires it; hut a defendant who acquiesces in the new meaning of the state- ment by professing to answer it, must do so fully. PLEADING, IN EQUITY. 507 An answer may be verbally full, but technically insufiBcient, as where it sets up ignorance of facts of which the defendant had the means of infor- mation. The answer of persons engaged in working a mine, stating that they could not as to their belief or otherwise set forth the mode of working, held insufficient, as it was assumed that they might have derived such information from workmen under their controul. Attorney General V. Rees, 1 2 Beavi 50. A defendant who became bankrupt after the bill was filed, put in an answer (without having obtained any order for further time) merely stating the bank- ruptcy, and not purporting to answer any interro- gatory in the bill: — Held, not a case for taking the answer off the file as evasive. White v. Howard, 2 De Gex & S. 223. A bill was filed by a party, alleging that he was sele next-of-kin of an intestate, and that. the de- fendant was the legal personal representative of the intestate, praying an account, and. charging in the usual form, that the defendant had in her pos- session documents relating to the matters afore- said, whereby the truth of the said matters would appear. The defendant pleaded to the whole bill, except so much as sought a discovery of who was the testator's next-of-kin, and as to so much as- sought a discovery of documents, whereby the truth of such allegations would appear ; and in her answer stated that the testator left the defendant and another person his next-of-kin, and denied that she had documents whereby the truth of the said allegations would appear. The Master found the answer insufficient: — Held, that the answer was sufficient as to such parts of the bill as were not covered by the plea. Exceptions to the Master's report allowed. Leheup v. Tinling, 17 Law J. Bep. (n.s.) Chanc. 43. The bill stated the plaintiiF's title to an undivided moiety of an estate, and that he had purchased the other moiety, but that defendants alleged they were entitled to that moiety under a settlement and will prior to the plaintiff's purchase. The prayer was for a declaration of the rights of the parties and a parti- tion. The bill required the defendants to discover whether they had not represented that they were en- titled under the settlement and will, and to set forth the contents of those instruments, and the nature of their title, and a schedule of documents in their power in the u.sual way. The defendants in their answer submitted that they were not bound to make this discovery, and after admitting the pos- session of certain documents, denied having in their power any others relating in any manner to the title of the plaintiff: — Held, on exceptions to a report of the Master finding the answer sufficient, that the defendants were bound to set forth whether they had made the alleged representations as to their title, but not whether such representations were true, or to discover the nature of their title, and that they must set forth a schedule of all documents in their power. Potter v. Waller, 2 De Gex & S. 410. A bill was filed by A against B, stating that A had transferred certain shares into the name of B, and that there had been various dealings and trans- actions between them. The bill contained inter- rogatories inquiring particularly as to the dealings and transactions betwejen A and B. The bill prayed for a re-transfer of the shares. B, by his 'answer, set out the 7 Geo. 2. c. 8. s. .8, and stated that he was a stockbroker, and that the answers to the inter- rogatories would tend to subject him to the peMaltibs of the act, and declined to answer them : — Held, that B was protected. Short v. Mercier, 18 Law J. Rep. (n.s.) Chauc. 490; - , ■ The plaintiff made a verbal agreement with the defendants, who were stockbrokers, for the allowance of a portion of the commission to be received from customers whom he should introduce; disputes arose, and the plaintiff filed his bill asking for dis- covery, for an account of all transactions, andfor payment of such share of the commission as he should be declared entitled to. The defendants by their answer admitted that business had been done for the plaintiff and for other persons introduced by him; that part of it was real and that other part was fictitious, and consisted of time bargains; that discovery would subject them to penalties under the 7' Geo. 2. c. 8 j they also claimed the benefit of the Statute of Frauds. Exceptions were taken to the answer for insufficiency, and allowed by the Master; the defendants then excepted to the' Master's re- port: — Held, that the defendants, admitting a verbal agreement, must answer the allegations in the bill relating to it, notwithstanding they sug-. gested that some of the transactions inquired after were unlawful, and that the discovery would subject them to penalties. Held, also, that the 38th General Order of Aflgust 1841 did not exempt the defendants from answering, because the bill was open to a demurred;" and the exceptions were overruled. Fisher v. Price, 18 Law J. Rep. (sr.s.) Chanc: 235; U Beav. 194. Plaintiffs filed a bill against executors for the administration of their testator's estate and for pay- ment of a debt alleged to be due to them from the estate of the deceased. The interrogatories were framed with i great minuteness, requiring the exe- cutors to set forth all the particulars relating to the testamentary property, and whether the defendants, or one and which of them, do or dries not refuse to pay the plaintiffs the amount of their demand, or some and what part thererif, and why. Gne or the executors, in answers to the interrogatories,- stated various facts relating to previous money transactions between himself and the plaintiffs as a reason for doubting the accuracy of the plaintiffs' claim. Exceptions were taken to the answer for impertinence, and allowed by the Master. Upon exceptions to the Master's report, the Court held that the defendant was justified, in answer to the pointed form 6f the interrogatories, in setting forth what he had done ; and the exceptions to the Master's report were allowed. Robson v. Lord Brougham, 19 Law J. Rep. (n.s.) Chanc. 465. (E) Plba. Where a defendant, neither pleading nor de- murring to any part of a bill, answers it, whether sufficiently or insufficiently, he is generally pre- cluded from filing a plea in the suit, notwithstand- ing the bill be amended. Where, therefore, an original bill was answered, and the bill was then amended, the amended bill not differing from the original bill in parties, or subject-matter, though 508 PLEADING, IN EQUITY— PLEADING, IN CRIMINAL CASES. differing materially as to the extent of discovery sought, a plea to the amended bill was overruled. Esdaile v. Molynetit, 2 Coll. C.C. 636. To a bill by A and B, on behalf of themselves and all the other shareholders of a company pro- visionally registered, against the provisional direc- tors, charging malfeazance and misapplication of the assets, and praying an account of the costs, &c., properly incurred by the defendants, and of the ap- plication of the assets in discharge of the liabilities of the company, and a division of the surplus rate- ably among the shareholders, a plea ' in bar by a defendant, that B had assigned for value all his interest to C, was allowed, on the grounds, first, that B, after the sale of his shares, had no interest in the relief prayed, namely, the winding up of the concern, and the division of the surplus ; secondly, that, under the frame of the suit, he could not ask the relief on the ground of a right to be indemnified from the liabilities of the company ; and, thirdly, that in a suit by some on behalf of all the others, the assignor of the shares could not adequately repre- sent the beneficial interest of the assignee. Doyle v. Muntz, 16 Law J. Rep. (u.s.) Chanc. 51 ; b Hare, 509. To a bill filed by an executrix, the defendant pleaded that the stamp on the probate was in- sufficient to cover the amount claimed by the bill. Plea overruled, on the ground that a negative plea sliould not have stated alBrmative matter, though the plea would have been good had it merely averred that the plaintiffwas not executrix. Roberts V. Haddocks, 17 Law J. Rep. (n.s.) Chanc. 38 j 16 Sim. 55. A bill was ordered to be dismissed, with costs, and documents deposited by the defendants with the clerk of records and writs were ordered to be de- livered over to them. One of the defendants died before the taxation of the costs was completed, and his personal representative filed a bill of revivor. The defendant to that bill put in a plea alleging that the documents had been delivered over in pur- suance of the decree, and insisted that a bill of re- vivor for the costs only could not be sustained. The plea was overruled, as raising an immaterial point. Andrews v. Lockwood, 17 Law J. Rep. (n.s.) Chanc. 25; 2 Ph. 398. The plaintiffs, by their bill, set up a title to an estate, and alleged that the defendant had got pos- session of the estate and the title deeds, and that there were outstanding terms, mortgages, incum- brances, and unexpired leases affecting the estate. The bill prayed a discovery of documents, and that the plaintiffs might have the estate and the out- standing terms conveyed to them. It also prayed an injunction to restrain the defendant from setting np any outstanding terms in bar of an action of ejectment. The defendant pleaded that he was sole tenant in fee, and that there was no outstanding estate : — Held, that the plea was good. Dawson v. Pilling, 17 Law J. Rep. (n.s.) Chanc. 393 j 16 Sim. In a suit for the administration of a testator's estate, A B, in whom certain leaseholds were vested, was made a party. A B became bankrupt, and an official assignee was appointed. Before the cre- ditors' assignee was appointed A B put in a plea, alleging his bankruptcy :— Held, that the plea could not be supported, and that the bankrupt was a necessary party prior to the creditors' assignee having been appointed and having elected to take the leaseholds. Until that time there could be no final vesting of the propert}'. Turner v. Nicholls, 18 Law J. Rep. (n.s.) Chanc. 278; 16 Sim. 565. An action was pending against one of the defen- dants to the suit by a shareholder on whose behalf the plaintiff sued. A plea by this defendant that the sum sought to be recovered in the action was part of the monies which were the subject of relief sought by the bill, and that the plaintiff in equity had not such a common interest with the plaintiff at law as to entitle the former to sue on behalf of himself andthe latter, was overruled,as thependency of the action was no defence, as it must be assumed that the plaintiff at law repudiated the character of shareholder. A subscriber to a projected company who had signed the subscription contract filed a hill on be- half of himself and all other shareholders, except the defendants, alleging misfeazance by the direc- tors, and seeking a dissolution and distribution of the funds after discharging the liabilities of the company. One of the defendants pleaded that there were allottees who had not signed the deed. It appeared by the bill that the form of application for shares contained an undertaking to sign the deed. Plea overruled, without prejudice to the same defence by answer. Sibson v. Edgworth, 2 De Gex & S. 73. To a bill filed against A & B, solicitors in part- nership, in respect of^ joint liability, A pleaded an order of the Insolvent Debtors Court, made subse- quently to the filing of the bill, by which all the estate and effects of B became vested in the provi- sional assignee of that court The plea was allowed. Sergrove v. Maykew, 1 9 Law J. Rep. (n.s.) Chanc. 520 ; 2 Mac. & G. 97 ; 2 Hall & Tw. 218. PLEADING, IN CRIMINAL CASES. A plea of autrefois convict, which shews that the judgment on the former indictment has been re- versed for error in the judgment, is not a good bar to a subsequent indictment for the same offence. When, by reason of some defect in the record, either in the indictment, place of trial, process, or the like, a prisoner has not been lawfully liable to suffer judgment for the offence charged, he has not been in jeopardy in the sense which entitles him to plead the former proceeding in bar to a subsequent indictment. A prisoner is lawfully liable to suffer punish- ment on an erroneous record, until it is reversed in a court of error. A judgment reversed is the same as no judg- ment, and upon a record without any judgment no punishment can be inflicted; and therefore after judgment reversed on error, a prisoner cannot be said ever to have heen in jeopardy within the mean- ing of the rule. Regina v. Drury, 18 Law J. Rep. (n.s.) M.C. 189. The defendant was found guilty on a criminal information for a libel which contained four counts. The judgment was, that for the offence in the first POISONING— POOR. 509 count, the defendant be imprisoned for two months now next ensuing; that for the offence in the se- cond count, he be imprisoned for the further space of two months, to be computed from and after the end and expiration of his imprisonment for his of- fence in the first count ; that for the offence in the third count, he be imprisoned for the further space of two months to be computed from and after the end and expiration of his imprisonment for his of- fence in the second count. The sentence on the fourth count was in like manner for a further space of two months, to be computed from and after the end and expiration of his imprisonment for his of- fence in the third count. On a writ of error brought, the Court of Exche- quer Chamber reversed the judgment on the third count ; hut held that the judgment on the fourth count was not affected thereby, and that the im- prisonment for the offence in the fourth count would commence at the expiration of the imprisonment for the offence in the second count. Gregory v. Eegina, 19 Law J. Rep. (n.s.) Q.B. 366. POISONING. The prisoner, with intent to murder, caused a child to swallow two coculus indicus berries. The case found that the kernel of the coculus indicus berry is a poison, but that the shell, which was hard, and too strong to be digested by a child's stomach, prevented the kernels in this case from doing the child any injury.. The two kernels con- tained sufficient poisonous matter to destroy the child's life, had it been free to act : — Held, that the prisoner might be indicted and convicted for ad- ministering poison under the statute 7 Will. 4. & I Vict c. 85. s. 2. Regina v. Cluderay, 19 Law J. Rep. (n.s.) M.C. 119 ; 1 Den. C.C. 514; 2 Car. & K. 907. On an indictment against a prisoner for the mur- der of her husband by arsenic, in September 1848, evidence was tendered on behalf of the prosecution of arsenic having been taken by the prisoner's two sons, one oTwhom died in December and the other in March subsequently, and also by a third son, who took arsenic in April following, but did not die. Proof was given of a similarity of symptoms in the four cases. Evidence was also' tendered that the prisoner lived in the same house with her hus- band and sons, and that she prepared their tea, cooked their victuals and distributed them to the four parties : — Held, that this evidence was admis- sible for the purpose of proving, first, that the deceased husband actually died of arsenic ; secondly, that his death was not accidental ; and that it was not inadmissible by reason of its tendency to prove or create a suspicion of a subsequent felony. Regina V. Oeering, 18 Law 3. Hep. (n.s.) M.C. 215. On a trial for murder by poisoning, statements made by the deceased in conversation shortly before the time at which the poison is supposed to have been administered are evidence to prove the state of his health at that time. Regina v. Johnson, 2 Car. & K. 354. POLICE. Provisions usually inserted in acts regulating the police of towns consolidated by the 10 & 11 Vict. c. 89 i 25 Law J. Stat. 250. A moiety of certain penalties to be, paid to the police superannuation ( fund by the 13 & 14 Vict, c. 88; 28 Law J. Stat. 219. Qualification of Substitute of Parish Constable. Under the 5 & 6 Vict. c. 109. it is not necessary that the deputy of a parish constable should be on the overseer's list of qualified pgrsoiis. , , The overseers of the township of S made out a list of 100 persons qualified to act as parochial constables. This list was allowed by the Justices at a special sessions, and thirteen persons chosen by them from such list: to serve as constables. A B, one of the number, proposed C D, whose name was not on the list, but who was rated at 29?. and up- wards, as his substitute, and C D was accepted by the Justices and sworn in accordingly : — Held, that C D was well appointed. Semble, also, that.no qualification is necessary for a substitute. Regina v. Booth, 18 Law J. Rep. (n.s.) M.C. 25 ; 12 as. Rep. 884. Appointment and Remuneration of Special Constables. The statute 1 & 2 Will. 4. u. 41. is not repealed with respect to the appointment and remuneration of special constables within boroughs by the statute 5 & 6 Will. 4. c. 76. ». 83. The borough of Manchester, which was incorpo- rated subsequently to thepassingof the 5 Si 6 Will. 4. c. 76. and has a separate Quarter Sessions, is con- tributory to the county rate within ihe meaning of the 1 & 2 Will. 4. c. 41 . s. 13 ; and therefore an order by the Justices of the borough of Manchester upon the treasurer of the county of Lancaster for pay- .ment of the expenses, &c. of special constables, appointed under the 1 & 2 Will. 4. c. 41, for the borough of Manchester, is good. Regina v. Hulton, 19 Law J. Rep. (n.s.) M.C. 32. When acting in Execution of Duty. A constable who does an act bond fide intending to do his duty is within the protection of the 24 Geo. 2. c. 44. s. 8, which provides that actions against constables in execution of their office must be brought within six months after the act committed. A party who, seeing a man in custody of a con- stable for a supposed offence, points out another as the real offender, hut does not direct the constable to take him into custody, is not liable in trespass if the constable does illegally take him into custody. Flewster v. Royle is not law. Gosden v. Elphic/c, 19 Law J. Rep. (n.s.) Exch. 9 ; 4 Exoh. Rep. 445. POOR. [See Rate.] (A) Poor Law Commissioners ; tb Powers. (a) Appointment and Removal of Officers. (b) Creation of Audit District. (c) Order to build Workhouse. 510 POOR ; (A) PooB Law Commissioneeb ; their Powers. (B) Board op Guakdians. (a) Contracts with. (h) Dissolution of Incorporation. (C) Chargeabilitt. (D) Settlement. (a) Effect of Alteration in District, (fi) By Birth and Parentage. \c) By Rating. Id) By Renting a Tenement. (e) By Estate. (f) By Office. (g) By /ipprenticeship. (h) By Hiring and Service. (i) Evidence of by Relief {k) Order of Removal unappealed against. (E) Kemoval. (a) Pending Appeal. (b) Removability. . (1) Of Widows andmarried Women. (2) Residence under the 9 S; 10 Vict. c. 66. (3) To Birth Settlement. (4) To Maiden Settlement. (c) Order of Removal. (1) Examinations. (2) Form and Requisites of the Order. ' (3) Sending Documents. {d) Appeal. {!) At what time. (2) Notice, and grounds of Appeal. (3) Entry and Respite. (4) Hearing of Appeal. — Jurisdiction. (5) Trial and Evidence. (F) Pauper Lunatic. (a) Settlement and Expenses. (6) Appeal against Orders of Settlement and Maintenance. (c) Removal of. The laws relating to the removal of the poor ainended by the 9 & 10 Vict. u. 66 j 24 Law J. Stat 170. The laws relating to the removal of poor persons to Ireland, or the Isles of Man, Scilly, Jersey, or Guernsey amended by the 10 & 11 Vict c. S3j 25 Law J. Stat 1 16. Maintenance of paupers who are irremovable under the 9 & 10 Vict c. 66. to he charged to the union by the 10 & 11 Vict. c. 110 j 25 Law J. Stat. 289. The procedure in respect of orders of removal and appeals therefrom altered by the 11 & 12 Vict c. 31; 26 Law J. Stat 56. The provisions relating to the charges for the relief of poor in unions altered by the 11 & 12 Vict, c. 110 ; 26 Law Z. Stat App. xx. The 9 & 10 Vict c. 66. amended by the 11 & 12 Vict c. 1 1 1 ; 26 Law J. Stat App. xiii. More eiFectual regulation and controul provided over the maintenance of poor persons in houses not being workhouses by the 12 Vict c. 13; 27 Law J. Stat 14. Amendments in the laws for the relief of the poor made by the 12 & 13 Vict c. 103; 27 Law J. Stat App. V. The 11 & 12 Vict c. 110. and \% & 13 Vict c. 1 03. continued, and the laws for the relief of the poor amended by the 13 & 14 Viet c. 101 ; 28 Law J. Stat 297. Commissioners for administering the laws for the relief of the poor authorized to be appointed, and further provision made for administering such laws by the 10 & 11 Vict c. 109; 25 Law J. Sut 286. The law for the formation of districts for the education of the infant poor amended by the 11 & 12 Vict c. 82; 26 Law J. Stat App. iv. District auditors restrained from taking proceed- ings in certain cases by the 11 & 12 Vict c. 114 ; 26 Law J. Stat 302. (A) Poor Law Commissioners; their Powers. (a) Anointment and Removal of Officers. The Poor Law Commissioners have power under the 4 & 5 Will. 4. c. 76. s. 40. to direct the over- seers of townships comprised in a union to m^et and appoint a returning officer at the election of guardians for the union. Regina v. Overseers of the Oldham Union, 16 Law J. Rep. (n.s.) M.C. 110; 10 a.B. Rep. 700. The Poor Law Commis.sioners have a discre- tionary power of removing a relieving officer of a union whom they deem unfit for his office, without giving him notice of their intention to remove him, or hearing what he has to say in his defence. /« re Teather and the Poor Law Commissioners, 19 Law J. Rep. (N.s.) M.C. 70 ; 1 L. M. & P. 7. (&) Creation of Audit District. By a local act (the 3 Geo. 4. c. xxiv.) a corpora- tion was constituted for the relief and maintenance of the poor in the different parishes in the city of Bristol out of a common joipt fund. The 7 & 8 Vict u. 101. s. 32. authorizes the Poor Law Com- missioners to combine parishes and unions into dis- tricts for auditing accounts ; and by the 4 & 5 Will. 4. c. 76. s. 109. (incorporated with the 7 & 8 Vict c. 101.) "parish" includes a city maintaining its own poor, and " union" includes any number of parishes incorporated for the relief of the poor under any local act: — Held, that the Commissioners had power to include Bristol in a district for auditing accounts by the name of " the Corporation of the Poor of the City of Bristol." The fact of the corporation having also the col- lection and administration of funds not applicable to the relief of the poor does not affect the power of appointing an auditor under the 7 & 8 Vict c. 101. A mandamus recited an order of the Poor Law Commissioners creating an audit district, and di- recting the auditor to be appointed to audit the accounts of the said corporation, according to the laws in force for the administration of the relief of the poor, and then commanded the corporation to produce to the auditor an account of monies, &c. received, held, or expended by them : — Held, that the writ was correct, as all accounts must he pro- duced, but that the order which was recited shewed that the auditor's duty was confined to items relat- ing to the relief and maintenance of the poor. Regina v. Governor, Sfc. of the Poor of the City of POOR; (B) Board of Guabdians, 511 Bristol, 18 Law J. Rep. (u.s.) M.C. 132; 13 Q.B. Rep. 405 : affirmed, 19 Law J. Rep. (n.s.) M.C. 1 16, (c) Order fo build Workhouse: The parish of M was, by virtue of an order of the Poor Law Commissioners, governed hy a dis- tinct hoard of guardians :— Held, that the CoinmisT sioners had authority to order the purchase of land, and the building of a workhouse thereoii for sijoh parish, with the consent of the majority of J;he guardians, as directed by the 4 & 5 Will. 4. c. 7<3, s. 23. In re the Parish of St. Mary Ahboft's, Ken- sitigtdn, 16 Law J. Rep. (n,s.) M.C. 29. (B) BOAED OF GOARDIANS. (a) Contracts with. The Poor Law Commissioners, upon the repre- sentation of the board of guardians of the union, made at the request of the parish ofBcers of C, one of the parishes of the S union, ordered the guardians to have a survey and plan inade of the parish of C, for the purpose of the statute 6 8s 7 Will. 4. c. 96. The board of guardians contracted under seal with the plaintifiT to execute the survey and plan for 5001. After its Completion they verbally ordered him to prepare a reduced plan as a key to the larger plan. It was executed accordingly apd delivered to the board of guardians : — Held, as the contract for the reduced plan was not under the seal of the board of guardians, nor incident to the purposes for which they were incorporated, that it was not binding on them. Such guardians cannot bind themselves by con- tract without seal (if they can in any manner con- tract) to remunerate a surveyor for attending as a witness on an appeal against a parochial assessment within the union. Paine v. Guardians of Strand Union, 15 Law J. Rep. (k.s.) M.C. 89 ; 8 Q.B. Rep. 326. The guardians of a union verbally directed their officer to have gates made for the union workhouse. The plaintiiF furnished the gates, which were erected at the workhouse, and the jury found thatthey were necessaries: — Held, that the guardians were liable to the plaintiff for the price of the gates. Sanders v. Guardians of St. Neot^s Union, 15 Law J. Rep. (N.s.) M.C. 104; 8 as. Rep. 810. The plaintiff, a builder, covenanted by deed with the defendants, a corporation, to do certain speci- fied work for the sum of 5,5001., and that if their architects should require any alterations or addi- tions in the progress of the works, the architects should give to the plaintiff written instructions signed by them, and that he should not be con- sidered as having authority for the same without such written instructions. The defendants cove- nanted to pay the plaintiff 5,500/. and the value of the additional work, if any. The declaration, after stating the deed, averred that the plaintiff executed all the works to be done for the sum of 5,500?., that the architects required him to make certain addi- tions by means of written instructions, signed, &c., and that he executed all the additional works, and that the defendants took possession of all the works. Breach, the non-payment of the 5,500i, and of the sum due for the additions. The defendants, after setting out the deed on oyer, pleaded, amongst other pleas, to the sum of 5,500/., payment before action brought ; as to the non-payment by the defendants, in respect of the additions, &c., that the architects did not give the plaintiff written instructions signed by them, modo etformd; and eleventhly, a^ to the supposed non-payment of any sum of money in re- spect of the additions, &ic., payment before action brought. The plaintiff, having proceeded with the works, during their, progress received from tji^ archi- tects from time to time certifiqates, in the form of letters, signed hy them, and addressed to the clerk of the board of guardians, stating that the) board might safely advance 500/. to the plaintiff on ac- count of the works executed. Certificates in this form, to the amount of 5,00Q/., were given. No other written authority was given hy the architects to the plaintiff. Payments were made to the plain- tiff to the amount of 6,300/. The payments were made generally in respect of the work actually done, without distinguishing' the one description from the other. The defendants took p'bssession of all the works :— Held, first, that the meaning of the declaration being that a previous written autho- rity had been given by the architects to the plain- tiff, the letters written by them did not amount to such previous authority. Secondly, that the sums advanced bj' the defendants were to be treated as sums paid on account of whatever amount the plaintiff might eventually be entitled to' recover, namely, the sum of 5,500/., and that the plaintiff was not at liberty to apply so much of the 6,300/. as was necessary in satisfaction of what was due for the additional works, leaving the balance only to he applied in part discharge of the 5,500/. ; the doctrine of the creditor's right of applying ind'efi- nite payments to whichever of two debts he may prefer, npt applying to the present case. Lastly, that the plaintiff was not entitled to be paid on a quantum meruit in respect of the additional works, as the defendants being a corporate body were in- capable of making a new contract by parol. Lam- prell v. the^ Guardians of the Biltericay Union, 18 Law J. Rep. (n.s ) Exch. 282 j 3 Exoh. Rep. 283. (b) Dissolution of Incorporation. In replevin for taking goods in the workhouse of the W Union, against the guardians of C (incorpo- rated hy a local act) the defendants avowed as land- lords for rent in arrear, and the tenancy was put in issue by a plea in bar. It appeared in evidence that by an order of the Poor Law Commissioners, made on the 16th of September 1835, which pur- ported to be founded on the. consent of two-thirds of the guardians of C, such union was ordered to he dissolved; and on the 17th of September another order of the Commissioners was made under the provisions of the 4 & 5 Will. 4. c. 76, that the parishes comprised in the union of C should, toge- ther with others, be formed into the union of W. From the date of the latter order the guardians of theW Union used the union house formerly be- longing to the C Union for the poor of their union, and payments expressed to be for rent had been made by the guardians of the W Uniou'to the treasurer of the C Union until September 1838, when the payments were made generally, but re- ceipts were given by the treasurer as for rent. On that day a sum of money was paid by the W Union 512 POOR ; (D) Settlement. to the C Union as a balance for the furniture, &c. in the workhouse. In January 1841 the Poor Law Commissioners made an order, which recited that the premises in question had, under the order of the 17th of September, become convertible to the use of the W Union, and had since been used and occupied by the poor of such union, and directed the guardians of the W Union to pay to the trea- surer of the C Union a yearly rent as compensation for the use of the premises. This order appeared to have been acted on by both parties. Held, first, that the plaintiffs were not estopped, by having sued the defendants as a corporation, from giving in evidence the order of the 16th of September 1835. Secondly, that the effect of that order was not ipso facto to dissolve the incorporation for all purposes. Thirdly, that this order was admissible in evidence, without proof of the consent of two-thirds of the guardians of the C Union, as that corporation had since ceased to perform the duty of providing for and taking care of the poor, and that a jury might rightly presume that it operated as a valid dissolution. Fourthly, that supposing upon the dissolution of the C Union the property in the workhouse was divested from it (of which quare), yet that if the guardians of W had contracted with them as owners expressly or impliedly, the mere want of legal ownership would rot take away their^right to distrain. Fifthly, that under the circumstances the occupation of the workhouse by the "W Union must be referred to the order of the Commissioners, which must be presumed to have been communicated to the C Union, and not to any contract creating the rela- tion of landlord and tenant between the parties. The Guardians of the Woodbridge Union v. the Cor- poration of the Guardians of the Hundreds of Colneis and Carlford, 18 Law J. Rep. (n.s.) Q.B. 126 ; 13 a.B. Rep. 269. (C) Chargeability. "Where the relieving officer of a union stated that he had paid the paupers parish relief upwards of a year, during which time he had given them 2s. Sd. weekly, on account of the township of S, out of money in his hands belonging to the said township, — Held, not a suflScient statement of chargeability to S. Regina v. the Inhabitants of Bradford ( Wilts), 15 Law J. Rep. (n.s.) M.C. 117; 8 Q.B. Rep. 571. A copy of a certificate of chargeability (in the form given by the 7 & 8 Vict. c. 101. s. 69.) was sent with an order of removal, and at the foot of the copy was a note, that " this certificate was received in evidence by us, two of Her Majesty's Justices," &c. The dates andnamesof the paupers in the certificate agreed with those in the order, and the names of the Justices who signed the order and the note were the same: — Held, suflScient for the Court to presume the identity of the paupers, and that the certificate had been produced before the removing Justices. Regina v. the Inhabitants of High Bickington, 15 Law J. Rep. (n.s.) M.C. 157- 8 aB. Rep. 889. A notice of chargeability, signed by three over- seers, subscribing themselves as such, is primd facie a good notice, though it does not purport to come from » majority of the parish officers. Whether the parish officers sending such notice do or do not constitute the majority, is matter of evidence. Regina v. the Inhabitants of Colerne, 17 Law J. Rep. (n.s.) M.C. 121; 11 aB. Rep. 909. A notice of chargeability should state the names of the paupers ; and a notice stating that " the persons named in the order hereunto annexed," have become chargeable, &c., written on one side of a piece of paper, on the other side of which was a counterpart of the order of removal, — Held, insufli- cient. Regina v. the Inhabitants of Gomersal, 17 Law J. Rep. (N.s.) M.C. 163 J 12 aB. Rep. 76. (D) Settlement. ' (o) Effect of Alteration in District, The parish of Gresford, previous to 1833, con- sisted of the township of G and seven other town- ships in Denbighshire, and of two townships in Flintshire. The latter always maintained their own poor separately. Churchwardens were ap- pointed for the whole parish, who acted only in ecclesiastical matters. The number of overseers appointed for the Denbighshire townships had varied from time to time since 1816 j but from 1737 to 1816 one was appointed for G and three other town- ships. An equal poor-rate was always agreed to at a general vestry ; buftseparate rates weflS^uade, allowed, and collected by the overseers in tile town- ships for which they wereSjpointedi^' The ^cjounts of the overseers for all.'tl)e'-Denbighsliir^;;6STiships were settled yearly, wheii those'who were deficient received what wasjdue-to them from those who had a surplus, and the gefljeral balance was paid over to the new overseers, fofthe general expenses of the ensuing year. In 1833 the Justices, in obedience to a mandamusj-appoihted two overseers for each of the Denbighshire townships, which from that time had each maintained their own poor separately: — Held, that no settlement could be gained in G as a distinct township prior to 1833, and that regular relief given to a pauper by the overseers of G from 1815 to 1844, in respect of a supposed settlement acquired by hiring and service in G in 1771, did not estop the present overseers of G from denying such settlement. Held also, that notice of grounds of appeal was properly signed by the overseers of G only, and not by either of the churchwardens of Gresford. Regina V. the Inhabitants of Acton, 15 Law J. Rep. (n.s.) M.C. 21; 8 aB.Rep. 108. By an act of parliament, 4 Will. 4. c. xxiii, the parishes of A and B, two distinct parishes, in all respects, were united for all purposes whatsoever (except ecclesiastical matters) : — Held, that a pauper, who, previous to the passing of that act, had gained a settlement in parish A, might be removed to the united parishes of A and B. Regina V. the Inhabitants of St. Martin, New Sarum, 15 Law J. Rep. (N.s.) M.C. 123 ; 9 Q B. Rep. 241. (b) By Birth and Parentage. [Regina v. the Inhabitants of Brighthelmstone, 5 Law J. Dig. 552 ; 7 aB. Rep. 549.] It appeared on the face of the examinations that the pauper was fifty-three years of age, that he married in 1812, and had never done any act to gain a settlement. That in 1824 the pauper's father, whilst residiiig in parish B, was relieved by POOR; (D) Settlement. 513, parish L : — Held, not "a sufficient statement of evidence of a derivative settlement of pauper in L, and that the case was not helped by evidence given at the Sessions, that in fact the father before 1812 and always afterwards had resided out of parish L. JRegina v. the Inhabitants of Bangor, 16 Law J. Rep. (N.s.) M.C. 121 ; 11 a.B. Rep. 399, n. The examinations stated that the pauper's father resided in H up to the year 1826, when he removed to another parish ; that the pauper resided with his parents in H as part of their family, and was then under. twenty-one; and that in 1816 the father acquired a settlement in H : — H61d that, nothing appearing to the contrary, it was to be presumed that the pauper was unemancipated in 1816, and took his father's settlement. Regina v. Hammer- smith, 17 Law J. Bep. (n.s.) M.C. i7 ; 11 Q.B. Rep. 391. [See post, (d) By Renting a Tenement — (E) Re-' moval, (o) (4) To Maiden Settlement.'] (c) Bn Rating. A person entering into the occupation of a house in the parish of St. Marylebone at Midsummer, and paying the subsequent half-year's poor-rate, due at Christmas in the same year, gains a settlement under the 3 Will. &M. c. 11. s.6, although the name of the tenant whom he succeeded, and not his name, appears in the rate-books of that year as the occu- pier of the house ; the 35 Geo. 3. c. Ixxiii. for the better relief of the poor of S t. Marylebone, providing that, in case of change in the occupation of a house, &c., the person entering shall be liable to the pay- ment of a proportion of the rate in like manner as if he had been originally rated or assessed. Regina v. the Inhabitants of St. Marylebone, 19 Law J. Rep. (N.s.) M.C. 201 ; 15 as. Rep. 399. (d) By Renting a Tenement. On the frial of an appeal it was proved that A, the pauper's father, hired from C, his master, a cow, which was kept in the pasture season on the pasture lands of C's farm, in the appellant parish, and in the winter season in the straw-yard ; that A put the cow where there was feed for her, but nothing was said, either by his master or himself, as to the manner, or on what particular lands, the cow was to be fed ; — Held, that there was no evi- dence from which a contract could be inferred that the cow was to be fed on the growing produce of the land. Regina v. the Inhabitants of Mendham, 16 Law J. Rep. (N.s.) M.C. 67; 9 Q.B. Rep. 971. It is wholly unnecessary that an examination which states a marriage and the time it took place should also state the place. The examination shewed a certificate granted to the pauper's father by the appellant to the respon- dent township in 1812, and a continuous residence in the respondeat township from that time to the present. One of the grounds of appeal stated that the pauper's father in 1821, 1822, 1823 gained a settlement in the respondent township, by settling upon, renting, and occupying certain tenements in that township (which, with the names of the owners, were specifically stated in the ground of appeal) : — Held, that such statement did not suffi- ciently shew a compliance with the 9 & 10 Will. 3. Digest, 1845—1850. c. 11; and that the Sessions were right in refusing to go into evidence of such settlement. The Court will only entertain cases frorn the Sessions which raise a question the decision of which will decide the appeal, and wjU not act on a direction by the Sessions, that in a particular event the case is to be sent back to them to be re-heard. Regina v. the Inhabitants of Marton-cum-Grafton, 16 Law J. Rep. (n.s.) M.C. 159 ; 10 Q.B. Rep,'971. (e) By Estate. The words " within ten miles, thei-eof," in the statute 4 & 5 Will. 4. c- 76. s. 68, mean within ten iniles measured in a straight line from the house where the person inhabits to the boundary, of the parish in which the estate, which conferred his settlement, is situate. Regina v. , the Inhabitants of Saffron Walden, 15 Law J. Rep. (N.s.) M.C. 115; 9 Q.B. Bep. 76. By the rules of a building society, the members were to pay a certain weekly sum until the shares were all paid up, and a plot of land was to be, pur- chased by the society, on which houses were to be built and allotted among the members, whOiWere to pay rent to the society for their occupation dur- ing the continuance of the society, and at the end of that time were to be entitled to a conveyance of the house allotted to them. In 1822 the club con- tracted to purchase a plot of freehold land, on which they began to build, and before any con- veyance to the club, the land and the houses were conveyed by way of mortgage to A by the club, to secure the purchase-money which he had paid, and which did not amount to 30Z. for each member. In 1825 the pauper had a house built for him on the ground allotted him, and entered into possession, and paid rent for it until 1838, when the club ended. At that time he had made payments to the amount of 80i. In 1839, A being paid ofl^, con- veyed the land, with the houses built thereon, to the several menibers, and the house occupied by the pauper was conveyed to him: — Held, that the pauper gained a settlement by the purchase of an estate in land of the value of 30Z. Regina v. the Inhabitants of Carlton, 19 Law J. Rep. (n.s.) M.C, 100. (/) By Office. A ground of appeal stated that the pauper had for many years, to wit, the years 1832, 1833, and 1834, and afterwards, served the offices of assessor and collector of land tax and assessed taxes in the parish of C, to which offices he was duly and legally appointed, and during which years he was an inha- bitant and resident in the said parish of C : — Held, sufficient, as shewing a settlement by serving ap office under the 3 Will. & M. c. 11. s. 6. Regina V. the Inhabitants of Anderson, 16 Law J. Rep. (n.s.) M.C. 25 J 9 Q.B. Rep. 663. te) ^y Apprenticeship. [Regina v. the Inhabitants of Wooldale, 5 Law J. Dig. 553 i 6 a.B. Rep. 549.] Two Justices made an order for binding an ap- prentice under the 56 Geo. 3. c. 139. In this order they described themselves as " Justices of the ^eace of the county of D." By their allowance of the indenture of the same date, and which indenture 3 U 514 POOR^ (D) SKTTIiEMENT. referred to the order, they signed their names and described themselves as " Justices of the Peace" : — Held, that as the statute required that the Justices who allow should be the same as those who order, and the names and dates being the same, it must be taken thatthe Justices who allowed were Justices of the Peace of the county of D, and that the allowance was therefore sufficient Regina v. the Inhabitants of Jshburton, 15 Law J. Rep. (N.s.) M.C. 97; 8a.B. Rep. 871. The examinations set up a settlement by appren- ticeship, and, the indenture being lost, secondary evidence of it was given by the production of the register of parish apprentices, which was regularly kept under the provisions of the statute 42 Geo. 3. c. 46, and contained the entry of the assent of two Justices to the binding. The Sessions found that it appeared from the examinations that two Justices had allowed, by signing and sealing, an indenture, which recited an order under the 56 Geo. 3. c. 139, for binding the apprentice ; but they also held that the examinations did not disclose sujEcient legal evi- dence that such an order had been made: — Held, that the Sessions were right in so deciding. Regina V. the Inhabitants of East Stonekouse, 16 Law J. Rep. (U.S.) M.C. 49 ; 10 O.B. Rep. 230. A parish apprentice was bound by indenture executed by A B, churchwarden of the township of L, and by C D, one of the overseers of the same township ; — Held, sufficient under the 54 Geo. 3. u. 107. s. 2. The indenture, which was duly allowed by two Justices under the 56 Geo. 3. i;. 139. s. 1, recited that it was made by virtue of an order under the hands and seals of A L and J N C, Justices of the Peace in and for the county, &c., made in pursu- ance of the statute in such case made and provided, and bearing date, &c. : — Held, to be good primary evidence of the order for binding, which was not produced. The allowance of an indenture of apprenticeship by Justices under the 56 Geo. 3. c. 139. s. 1, need not appear on the face of it to be made within their jurisdiction. Regina v. the Inhabitants of Stain- forth, 17 Law J. Rep. (n.s.) M.C. 25 ; 11 Q.B. Rep. 66. The allowance of an indenture of apprenticeship should appear on the face of it to be locally made within the jurisdiction of the allowing Justices, except in cases where such jurisdiction appears in the order for binding, and the allowance is made by the same Justices. Two Justices of the borough of T, in the county of D, made an order for binding a child apprentice in the parish of H, also in the county of D. The indenture of apprenticeship purported to be allowed by the two Justices of the borough, and also by G P A and R H F, " two of Her Majesty's Justices of the Peace for the county of D." — Held, that there being two jurisdictions shewn, and the allowance being a judicial act, it was void for not being shewn to have been done within the county into which the apprentice was bound. Regina v. the Inhabitants of Totnes, 18 Law J. Rep. (n.s.) M.C. 46; 11 Q.B. Rep. 80. Where an indenture of parish apprenticeship stated in the body of it that the binding was with the approbation of two Justices whose names were thereunto subscribed, and the allowance at the foot of the indenture purported to be signed by the Justices before the indenture was executed by any of the parties, and referred by date and the names of the Justices to the order for binding, such a re- ference is a compliance with the 56 Geo. 3. c. 139, as the allowance is in such case part of the inden- ture. The allowance purported to be made by A and B, "Justices in and for the West Riding of the county of Y, &c." — Held, that this sufficiently appeared to be made within their jurisdiction. Regina .t. the Inhabitants of Aldborough, 18 Law J. Rep. (n.s.) M.C. 81 ; 13 Q.B. Rep. 190. [See (E) Removal, (i) (3) Sending Documents. (A) By Hiring and Service. It is not a rule of law, that a general hiring is a hiring for a year, but a question for the jury, depending upon the facts of each particular case — per Tindal, C.J. Baxter v. Nurse, 13 Law J. Rep. (n.s.) C.P. 82. By agreement between A, B, and C, A agreed to hire B, and B agreed to be hired by A for the term of three years to dress silk, for 10*. a week for the first three months, and afterwards in proportion to the work done, provided B did a certain quantity per week. It was further agreed, that C should re- ceive from A so much per week for superintending and teaching B, to make him a competent workman : — Held, confirming the order of Sessions, that a settlement by hiring and service might be gained by B under this agreement. Regina v. the Inhab- itants of Northowram, IS Law J. Rep. (n.s.) M.C. 149; 9 aB.Rep. 24. Pauper was hired by agreement in writing, from the 5th of April 1826 to the 5th of April 1827, to hew and work coals, and it was provided that the hewers were to be allowed, during the whole period of their hiring, save for one fortnight at Christmas, and in case of accident as thereinafter provided, not less work than would yield them 285. in each fortnight; but the owners were empowered if they thought it expedient for the parties hired to work no more than nine days in each fortnight, to " lay the pits off work" for the other days ; also that the owners might lay the pits off work, at or about Christmas, for any time not exceeding ten working days, but that " the parties hired should neverthe- less continue during such time, and during all other times that the pits should be laid off work the servants of the owners" also that " the parties hired should do and perform a full day's work on each and every working day, or a quantity of work equal to a day's work, and should not leave their work until such day's work or quantity of work ; should be fully performed" : — Held, an exceptive hiring. Regina v. the Inhabitants of Walhotlle, 16 Law J. Rep. (n.s.) M.C. 153 r 9 Q.B. Rep. 248. (j) Evidence of by Relief. Where the relieving officer of a union, including the parishes of M & W, stated that he had for" three years relieved the paupers while resident in M, and charged such relief in his account to the parish of W, — Held, that this statement furnished no primd facie evidence of relief given by the parish of W. POOR;,(E) Removai,. 515 Regina y. the Inhabitants of Little Marlow, 16 Law J. Rep. (n.s.) M.C. 70 ; 10 aB. Rep. 223. The clerk to the board of guardians of an union is an officer having authority to order the giving of relief, so as to establish a settlement by admission in a township within such union. Where, therefore, a letter was written by the clerk to the guardians of the union, within which the appellant township was contained, to the guar- dians of the poor of the union containing the re- spondent township, requesting relief to be given on account of his union to a pauper resident in the respondent township, but whose settlement was stated in the letter to be in the appellant township ; which relief was afterwards given and repaid, — Held, that it amounted to some evidence of a settle- ment by admission in the appellant township. Regina v. the Inhabitants of Wigan, 19 Law J. Rep. (n.s.) M.C. 18. The examinations upon which an order of re- moval from B to W was made, shewed that the pauper was born a bastard in C, where his mother went to reside during her pregnancy j that shortly before her confinement the parish officers of G threatened to remove her to W unless she procured a certificate from that parish in respect of herself and child. The mother and child remained in C, and the parish officers of W paid weekly sums for relief to the grandmother of the child for his main- tenance, after the mother had gone abroad : — Held, that the examinations contained evidence of admis- sion by conduct of a certificate, and that the Sessions were wrong in refusing to allow the respondents to give any evidence in support of a settlement in W. Regina v. the Inhabitants of Basingstoke, 19 Law J. Rep. (n.s.) M.C. 97. [See (D) (a) Effect of Alteration of District — (E) Removal, (V) (3) Sending Documents.} (k) Order of Removal unappealed against, [Regina v. the Guardians of St. Mary, Lambeth, 5 haw J. Dig. 555 ; 7 Q.B. Rep. 587.] [Regina v. the Inhabitants of Ellal, 5 Law J. Dig. 555; 7 Q.B. Rep. 593.] The examinations on which an order of removal was made stated that G was employed by the over- seers of the respondent parish to remove the paupers to the appellant parish, under a prior order of 1826, and that after he returned from removing them he signed this indorsement on the order — " Delivered to Mr. W, overseer of D, by T Gj" that G was dead, and his handwriting was proved. On the trial of the appeal, it appeared that G was not an over- seer, but had been employed by the overseers to remove the paupers, and that they had been seen on the morning in question leaving the respondent parish with G, and that the]r returned the same night with 4s. The appellants objected to the ad- missibility of the indorsement in evidence ; and also contended that the respondents were estopped by a prior order of removal in 1841, which was quashed without entering into the merits of the settlement, " by reason of the informality and in- sufficiency of the examinations." The Sessions held this decision not conclusive : — Held, that the examinations contained evidence of the removal under the prior order of 1826 ; and — ySemife, that the indorsement was evidence, as being made by a person deceased, in the course of duty. Held, also, that the Sessions having decided on the effect of the quashing of the order of 1844, this Court would not interfere with their decision. Regina v. the Inhabitants of Dukii\field, 17 Law J. Rep. (N.s.) M.C. 113) 11 Q.B. Rep. 678. (E) Removal. (a) Pending Appeal. It is not an indictable ofience if an overseer (without fraud or menace) remove a pauper under an order after it has been confirmed on appeal by the Sessions, subject to the opinion of the Queen's Bench, and before its final determination by that Court. Regina v. Cooper, 18 Law J. Rep. (n.s.) M.C. 16. (6) Removability. (1) Of Widows and Married Women. Residence by a pauper for five years next before the application for the warrant, partly as wife and partly as widow, is sufficient to render her irre- movable, under the 9 & 10 Vict. c. 66. The 9 & 10 Vict. c. 66. does not give an appeal against an order made prior to its passing, on the ground of five years' residence in the respondent parish, where there has been no actual removal of the pauper. Regina v. the Inhabitants of Glossop, 17 Law J. Rep. (n.s.) M.C. 171 ; 12 Q.B. Rep. 117. By the 9 & 10 Vict. c. 66. s. 2. no woman resid- ing in any parish with her husband at the time of his death shall be removed, nor shall any warrant be granted for her removal for twelve calendar months next after his death, if she so long continue a widow : — Held, that this provision renders irre- movable widows whose husbands died before the passing of the act. The order of removal was made prior to, but the pauper was removed subsequent to, the 9 & 10 Vict, c. 66 : — Held, that irremovability under that statute was a good ground of appeal against the order. Regina V. the Inhabitants of St. Mary, Wkitechapel, 17 Law J. Rep. (n.s.) M.C. 172; 12 ft.B. Rep. 120. The wife of a marine had resided in parish A from February 1841 to October 1846, when she became chargeable. At this time her husband, who had only occasionally resided with her during the above period, had been absent for six months serving at sea,— Qutere, if she was removable under the 8 & 9 Vict. c. 66. Regina v. the Inhabitants of East Stonehouie, 17 Law J. Rep. (n.s.) M.C. 166; 12a.B. Rep. 72. The second proviso in the statute 9 & 10 Vict. c. 66. s. 1, that the %ife or children are to be re- movable whenever the husband or parent is remov- able, and vice versd, must be construed with refer- ence to cases where such husband or parent is removable by law, and does not render a wife or children irremovable in cases where the husband or parent cannot practically be removed, by reason of absence from the parish or other cause ; and therefore, where a husband who had not resided five years in a parish deserted his wife and children, and they became chargeable, — Held, that the cir- cumstance of his absence did not prevent their being removable to the place of his settlement. 516 POOR; (E) Removal. Reginav. the Inhabitants of Si. Ehbe, Oxford, 18 Law J. Rep. (N.s.) M.C. 14; 12 aB. Rep. 137. (2) Residence under the 9 ^ 10 Fict. c. 66. Pauper became chargeable to the parish of H on the 9th of December 1846, having resided ten years in that parish. During the year 1844 he received relief from R. The 9 & 10 Vict c. 66. passed on the 26th of August 1846:— Held, that the resi- dence before and afler the year 1844 were to be added together, so as to make up the period of five years, the one year of relief (on the supposition that the proviso was retrospective) being only ex- cluded from the computation of the entire time, and not defeating the effect of a previous residence. Regina v. the Inhabitants of Harrow-on-the-Hill} 17 Law J. Rep. (n.s.) M.C. 148 ; 12 Q.B. Rep. 103. It is not an objection to an order of removal that the place at which it is made is not stated in it. Nor is it an objection that it does not appear on the face of the order or on the examinations, that the pauper did not become chargeable in respect of relief made necessary by sickness or accidenL A pauper, after residing thirteen years in H, was, by an order which was unappealed against, on the 1st of March 1845, removed to A, where she remained, receiving relief out of the workhouse there until the ] Sth of March, when, on being pro- mised 7s. 6d. a week by the guardians of A, she returned to H, where her friends lived, and where she had always been desirous of returning. On her return to H she took possession of a house which she had rented before her removal to A and of which she had kept the key, and in which she had left her furniture whilst she remained at A. The guardians of A discontinuing the promised allow- ance, she again became chargeable to H on the 4th of November 1846, and another order was made for her removal to A: — Held, that she was properly removable, notwithstanding the 9 & 10 Vict. c. 66, as the first removal to A entirely put an end to the residence at H. Regina v. the Inhabitants of Halifax {Halifaxand Alnuiick), 17 Law J. Rep. (n.s.) M.C. 158; 12 Q.B. Rep. 111. The statute 9 8c 10 Vict. c. 66. s. 1. does not apply where there has been a residence by the pau- per out of the parish at any time during the five years preceding the order of removal. QiicBre — if the statute applies to an order which has not been appealed against, or which has been confirmed on appeal, before the passing of tlie sta- tute. Regina V. the Inhabitants of Salford, 17 Law J. Rep. (n.s.) M.C. 170; 12 Q.B. R«p. 106. An order of removal, unappealed against, and acted upon, puts an end to the residence of the pauper in the parish from which he is removed, however short the residence may be in the parish to which he is removed. Under an order of removal a pauper was, in May 1812, removed from S, where she had resided twenty years in a house rented by herself, to C. She left one daughter in her house at S; and her other chil- dren, who had been removed with her, returned on the day of the removal to S, and she herself re- turned there seven days after such removal, and resided in the said house at S till February 1847: —Held, that she was removable under the 9 & 10 Vict. c. 66. s. 1. Regina v. the Inhabitants of the Chapelry qf Seend, 18 Law J. Rep. (n.s.) M.C. 12 ; 12 Q.B. Rep. 133. The provisoes in the first section of the 9 & 10 Vict. c. 66, though worded in the future tense, have a retrospective operation, as well as the enacting part of the section ; and, therefore, where a pauper had resided from April 1839 till May 1847 io parish A, but had been relieved by parish B from March 1843 to September 1846, — Held, that she was removable. Regina v. the Inhabitants of Christ^ chwch, 18 Law J. Rep. (n.s.) M.C. 28 ; 12 Q.B. Rep. 149. The pauper .resided in the respondent township, with her husband, from June 1841 till April 1846, when he was committed to a prison out of that township, where he remained until he was trans- ported. The pauper continued to reside in the re- spondent township until September 1846, when she was taken, under an order of removal dated the 2Sth of August 1846, to the appellant township : — Held, that the pauper was removable. The effect of the proviso in the 9 & 10 Vict. c. 66. s. 1. is to render a wife removable whenever her husband, if he had returned to her and become chargeable, would be removable. Regina v. the Inha- bitants of Pott Shrigley, 18 Law J. Rep. (n.s.) M.C. 33 ; 12 Q.B. Rep. 143. A pauper was settled in parish T. He was a weaver, and had resided in parish M for more than five years next before January 1841, when, being out of work, he left his wife and family in two rooms, which he had hired by the q^uarter in parish N, and went to parish T for the purpose of obtain- ing work or relief. He was there employed by the overseer of T for six or seven weeks, during which time he was lodged in the workhouse, and paid wages by his employer. At the end of that term he returned to his wife and family at N, having maintained them there during his absence, and he continued to reside with them there till December 1846, when an order of removal was applied for. For four years before the passing of the statute 9 & 10 Vict. c. 66, he had been in receipt of relief from parish T : — Held, that there was no disrup- tion of the five years' residence at N, and that the pauper was irremovable on the facts as stated, as it was clearly to be inferred from them that there was an animus revertendi to N, during his residence at T. The question, whether there has been an animus revertendi in cases of this sort, is a question of fact which should be decided by the Sessions. Regina V. the Inhabitants of Tacolnstone, 18 Law J. Rep. (N.s.) M.C. 44; 12 Q.B. Rep. 157. By a local act, the governor and guardians of the poor of the city of Norwich were incorporated, and were invested with all the powers of overseers in all matters touching or concerning the mainte- nance, relief, management, removal or employment of the poor, and were empowered to institute and defend appeals against rates and orders of removal, and to assess and apportion the share to be paid by each parish in the city for the relief of the poor. An order was applied for by the governor and guar- dians for the removal of a pauper from the parish of S, within the city, to a parish without the city. The pauper had resided two years in parish S, and twenty years immediately preceding those two years in another parish within the city: — Held, that Nor- POOR ; (E) Remotai,. 517 wich being a city maintaining its own poor, was a " parish," within the 4 & 5 Vict. u. 76. s. 109, and that the pauper was rendered irremovable by the statute 9 & 10 Vict. c. 66. Reginav, the Inhabitants of Pornceit St. Mary, Norwich, 18 Law J, Hep. (n.s.) M.C. 125; 12 a.B. Rep. 160. (3) To Birth Settlement. Children born in England, of Irish parents who have not gained a settlement in England, may when deserted by their father after the death of their mother, be removed to the place of their birth settlement. Under the 8 & 9 Vict. c. 117. s. 2, a valid order for the removal of such children to Ireland can only be made where at the time of the order they form part of the father's family, and as such can be removed with him. Regina v. the Inhabitants of Jll Saints, Derby, 19 Law J. Rep. (n.s.) M.C. 14. (4) To Maiden. Settlement. An order for the removal of A B, a widow, and her four children, to the place of her maiden set- tlement, was founded on examinations which shewed a hiring and service, by the widow, in the appellant parish before her marriage. It appeared, by the examinations, that one of the children was illegiti- mate. The following were the grounds of appeal {inter alia) : — First, that the order and examinations were bad on the face thereof. Secondly, that the examinations did not shew relief given to the pauper. Thirdly, that the examinations did not shew any inquiry or endeavour by the respondents to discover the settlement of the pauper's husband : — Held, that having stated these specific objections, the ap- pellants could not, under their first general ground of appeal, object that the examinations were de- fective in other respects; viz., in not shewing a residence in the appellant parish ; in not purport- ing to be taken by Justices having jnrisdiction; and in not stating that the examination of the pauper (a markswoman) was read over to her. Semble — Every examination should, before it is signed, be read over to the examinant; but it need not appear, on the face of the examination, that this has been done. Held, also, that the order was bad as regarded the illegitimate child. A married woman, or a widow, may be removed to her maiden settlement, the husband's settle- ment not appearing, without any proof that inquiry has been made by the removing parish into the settlement of the husband. Regina v. the Church- wardens of Birmingham, 15 Law J. Rep. (N.s.) M.C. 65; 8 Q.B. Rep. 410. Under a ground of appeal stating that theexamina- tions were defective, for not shewing by sufficient statement of facts that the pauper at the time the order of removal was made was chargeable to the respondent parish, — Held, that the appellants were not entitled to object that the examinations did not shew the residence of the pauper in the respondent parish. A birth settlement does not require a residence of forty days to complete it. An order of removal (made upon the complaint of the overseers of S) described the pauper as the widow of J L, and removed her tOiW, which the examinations shewed to be the place of her maiden settlement, — Held, that the examinations sup- ported the order of removal, the latter furnishing no evidence of the settlement of J L the husband, and that no inquiry into the place of his settlement was necessary. Held, also, that the statement of the complaint was sufficient. Regina v. the Inhabitants of Watford, 16 Law J. Rep. (n.s.) M.C. 1 ; 9 Q.B. Rep. 626. (c) Order of Removal. (1) Examinations. [Regina V. the Inhabitants of East Rainton, Shim J. Dig. 559; 11 a.B. Rep. 62, n.] {^Regina v. the Inhabitants of St. Margaret's, West- minster, 5 Law J. Dig. 559; 7 aB. Rep. 569.] IReginav. the Inhabitants of Great Bolton, 5 Law J. Dig. 559 i 7 Q.B. Rep. 387.] IRegina v. the Inhabitants of Totley, 5 Law J. Dig. 559 ; 7 a.B. Rep. 596.] {Regina v. the Inhabitants of St. Anne's, West- minster, 5 Law J. Dig. 559 ; 7 Q.B. Rep. 245.] A pauper, in his examination, stated, "When I was about fifteen years of age, I went to work 'at Messrs. C & D's factory, called- Ringley Mills, in O, in the township of P. It was about the latter end of the year 1828. There was a custom in the mill, requiring the work-people to give a fortnight's notice before leaving their employment. I remained in the employment more than two years, during the whole of which time I resided in O, in the said township of P, and slept there : I worked under the custom as to giving notice. The works consisted of two mills, adjoining each other. When I, wanted to leave the first mill (in which I had been working for about a year) to go to the other mill, I was compelled to serve l_sic'\ a fort- night's notice before leaving. The second mill was under a similar custom ; and after I had worked in it better than a year, I had a dispute with the overlooker, and wanted to leave at once, but was not allowed. The overlooker afterwards gave me a fortnight's notice, at the end of which time I left the factory," &c. The grounds of appeal were, first, that the exa- mination does not shew any settlement in the town- ship of P ; secondly, that it does not contain any legal evidence of the settlement of the person re- moved ; thirdly, that it is bad upon the face of it, and does not warrant any order of removal ; fourthly, that it does not state sufficient facts to shew that the pauper gained a settlement by hiring and service in P; fifthly, that there was no such hiring and service at Messrs. C & D's factory, or residence in the township of P, as in the examina- tion is alleged; sixthly, that the pauper was not legally settled in the township of P. It was objected at the Sessions, that the examina- tion was insufficient, as no general or yearly hiring was stated, or could be implied from it ; that it did not state that the party was hired at all^ nor with whom he purported to make a contract, nor that he made any contract at all ; and that there was no allegation in the examination that the paupers were settled in the appellant township : — Held, with re- ference to these objections, that the examination was sufficient. 518 POOR ; (E) Removal. The Conrt of Quarter Sessions ought not simply to state facts, and ask the opinion of this Court, as a jury, upon them; but, having drawn their own conclusions from the facts, they may ast whether, in the opinion of this Court, the facts will warrant their finding. Reginav. the Inhabitants of Pilkington, 13 Law J. Rep. (n.s.) M.C. 61. A statement in the examination of the pauper, that " whilst residing in the parish of A, she has received monthly relief from B " (another parish), is sufficient to allow the respondent parish, on an appeal, to go into evidence of an acknowledgment of a settlement in B by relief Regina v. the Inhabitants of Hartpury, 16 Law J. Rep. (n.s.) M.C. 105 ; 8 Q.B. Rep. 566. The captions of the examinations on which an order of removal is founded, must shew that they were taken upon the complaint of the parish officers who apply for the order. Regina v. the Inhabitants of Molesworth, 15 Law J. Rep. (n.s.) M.C. 108. Every examination on which an order of removal is founded must appear to he, in itself, perfect and complete, and must shew, without reference to any other examination, that it was taken before Justices having jurisdiction to take it. Regina v. the Inhabitants of Ratcliffe Culey, 15 Law J. Rep. (n.s.) M.C. 109 ; 9 Q.B. Rep. 18. A statement in an examination that "in or about" the year 1832, the pauper was hired as a yearly servant by W, and served him under such yearly hiring, &c., — Held, insufficient, for not shewing with suflicient certainty that such hiring and ser- vice was completed at the time of the passing of the Poor Law Amendment Act. A statement that the pauper about the year 1827 (being unmarried, &c.) was hired as a yearly ser- vant by S, and that she served S at his residence, at &c., under such yearly hiring, for about four years or more, and lived and lodged in the house of her master, the said S, at his residence, at &c., for more than forty days next preceding the termination of the said service, and on the last day thereof, — Held, insufficient, for not shewing that the pauper was unmarried at the time of the contract, express or implied, for the last year's service with S, that being the only year in which the forty days' residence was alleged. Regina v. the Inhabitants of St. Anne, H'estmi?!ster, 15 Law J. Rep. (N.s.) M.C. 119; 7 Q.B. Rep. 124. Where the examination stated a marriage in B, there being two churches of B, the Sessions refused to hear the respondents, and the Court holding it to be a point as to which the Sessions were the sole judges, affirmed the order of Sessions. Regina v. the Inhabitants of Bakewell, 7 Q.B. Rep. 601, n. In an order for the removal of a widow, the pauper's examination set out a renting of a house by her late husband, and that he was assessed to and paid the poor-rates of the appellant parish for the said house for one whole year, and she pro- duced the receipts for the rates, copies of which were exhibited and sent to the appellants. The vestry clerk of the appellant parish was examined, and produced the rate-books for the year in ques- tion before the removing Justices, but no extracts from them were sent by the respondents with the copies of the examinations: — Held, (dubitante Cole- ridge, J.) that it was to be presumed that the removing Justices had inspected and decided on the accuracy of the rate-hook, and that this being a document belonging to the appellant parish ex- tracts from it need not he sent with the examina- tions. Regina v. St. Pancras, 17 Law J. Rep. (n.s.) M.C. 123; 12Q.B. Rep. 4. It is not sufficient that the caption of examina- tions, on which an order of removal is founded, shews that they are taken touching the settlement of the pauper and on the complaint of the overseers. The caption should also shew what such complaint is. Regina v. the Inhabitants qf Sheffield, 17 Law J. Rep. (n.s.) M.C. 155 ; 12 Q.B. Rep. 93. It is not necessary that each examination should have a distinct caption ; it is sufficient to state in the first caption the names of each of the witnesses. Regina v. the Inhabitants of St. Michael's, Coventry, 17 Law J. Rep. (n.s.) M.C. 156; 12 Q.B. Rep. 96. The caption of an examination which purports to be taken upon the complaint of the overseer, " touching the place of residence, chargeability, and last place of lawful settlement of the pauper," — Held, insufficient. Regina v. the Inhabitants of Gomersal, 17 Law J. Rep. (n.s.) M.C. 163; 12 Q.B. Rep. 76. The caption of an examination stated that the examination was taken " touching the legal settle- ment" of the pauper (not stating any complaint) : — Held, insufficient. Regina v. the Inhabitants of St. Thomas, New Sarum, 17 Law J. Rep. (njS.) M.C. 164; 12 Q.B. Rep. 55. The caption of the examinations stated that they were taken on oath " upon the complaint of the churchwardens and overseers of the parish of A" : — Held, insufficient. Reginay. the Inhabitants of East Stonehouse, 17 Law J. Rep. (N.s.) M.C. 166 ; 12 Q.B. Rep. 72. It is sufficient if the caption of an examination states a complaint that the pauper has come to inhabit, and is actually chargeable to the removing parish, and it need not further state (as in the case of orders of removal) that the pauper has not gained a settlement in suchparish. Regina v. the Inhabitants of Addingham, 17 Law J. Rep. (n.s.) M.C. 175 ; 12 Q.B. Rep. 63. The caption of examinations stated that they ■were taken on the complaint of the overseers of the respondent township (not specifying the subject- matter of the complaint). Under grounds of appeal denying that the order was made on the com- plaint of the overseers, and that the examinations ■were bad on the face thereof, the appellants were not permitted to rely on the insufficient, statement of the subject of complaint. The examination of the relieving officer stated that the pauper is now resident in and receiving relief from the respondent township. The evidence on the trial shewed that the relieving officer relieved the pauper on behalf of the respondent township on the application of one of the overseers; that the matter was brought before the guardians of the union, and the relief ordered to be and was accord- ingly continued. The order hook was produced : — Held, that there was a sufficient statement and proof of chargeability. Regina v. the Inhabitants of Pott Shrigley, 18 Law J. Rep. (n.s.) M.C. 33 ; 12 Q.B. Rep. 143. Examination of T P, " taken before us A B and POOR; (E) Removal. 519 C D, two of Her Majesty's Justices, &c. in and foT, &c. on complaint, &c. touching the place of the last legal settlement of, &c." " The said T P, upon his oath, saith, 8ec." " Taken and sworn at, &c. this 25th day of January, A B & C D" :— Held, that the examination sujfficiently appeared to have been taken on oath before two Justices, Regina v. the Inhabitants of Eltesmere, 18 Law J. Rep. (n.s.) M.C. 181 ; 12 Q.B. Hep. 19. A pauper inhabiting and leceiving relief in one of several parishes incorporated under a local act for the support of the poor, is chargeable to such parish, and may be removed to another parish not within the act, although the relief is given out of the common fund provided by the local act. Regina V. St. Mary in Bungay, 19 Law J. Rep. (n.s.) M.C. 39 ; 12 aB. Rep. 38. Where examinations, on which an order of re- moval is founded, shew no complaint, either in the body or by way of caption, the order must be quashed on appeal if the objection be properly taken. Although the order itself shew a complaint, and recite that the Justices have examined witnesses of the same names as those subscribed to the written examinations. Regina v. the Inhabitants of Holywell, 12 aB. Rep. 61, n. . In the caption, the recited complaint of the over- seers held sufficient, where it stated the pauper's coming to inhabit, and his chargeability, without adding bis not being settled or certificated. Regina V. the Inhabitants of Addingham, 12 Q.B. Rep. 63. Where there was no complaint in the caption, but it was mixed up in the examination : — Held, that the want of it in the caption was not supplied, as the complaint must precede the examination. Regina V. Inhabitants of Monk Bretton, 12 a.B. Rep. 83. Where the caption only stated " the examination to be touching the place of settlement," and not mentioning any complaint, — Held, insufficient, and to shew no jurisdiction, although the order pur- ported to be made on due proof of the complaint, as well by the examination of the overseer and pauper on oath as otherwise, and that the objection might be taken on a ground of appeal stating only " that the said examinations and order were bad on the face of them." Regina V. the Inhabitants of Witham, 12 Q.B. Rep. 88. The examination purported to be taken before Justices in and for, &c., on the 24th of April, on the complaint, &c., that H now is inhabiting and is now chargeable: — Held, that it sufficiently appeared that the complaint was made on the 24th of April, when the examinations were taken. Regina v. the Inha- bitants ofGoole, 12 Q.B. Rep. 172. [Statement of Marriage, see (D) Settlement, {d) By Renting a Tenement.^ (2) Form and Requisites of the Order. [Regina v. Willatts, 5 Law J. Dig. 557 ; 7 Q.B. Rep. 516.] [Regina v. the Inhabitants of Worthenbiiry, 5 Law J. Dig. 557 ; 7 Q.B. Rep. 555.] An order of removal purported to be made by two of Her Majesty's Justices of the Peace, acting in and for the S division of the county of Gloucester, and after reciting a complaint of the churchwardens and overseers of the parish of C S, and that the paupers were inhabiting' in and chargeable to the parish of C S, in the said county of Gloucester, required the churchwardens and overseers of C S to remove the paupers to A, if no notice of appeal should be given within twenty-one days after ser- vice of the order, notice of chargeability and exami- nations, upon the parish of A, or if notice of appeal should be given within twenty-one days, ^hen forthwith after the time for prosecuting such appeal should have expired (if the same be not duly pror secuted), or in case the same should be prosecuted, then forthwith after the final determination of the same, if the order should he confirmed ; and con- cluded, " Given under our hands and seals at O S, in the saiS county of Gloucester." It was admitted that the above order was defective. Regina v. Blath- wayte, 15 Law J. Rep. (n.s.) M.C. 48 ; 3 Dowl. & L. P.C. 542. An order of removal was in the following form : — " Borough of L. On the copplaint of the church- wardens, &c. of the parish of M, in the borough of L aforesaid, unto us, whose names and seals are hereunto set, two of Her Majesty's Justices of the Peace in and for the said borough, that S W, &c. (the paupers), now inhabit in the said parish of M, not having gained a legal settlement, and are now actually chargeable to the said parish : we, the said Justices, upon due proof made thereof, as well on the examination of the said S W, upon oath, as otherwise, and likewise upon due consideration had of the premises, do adjudge the same to be true; and we do likewise adjudge that the lawful settle- ment of the said S W is in the township of B, &c." " Given under our hands and seals, this 18th day of August 1845": — Held, first, that it sufficiently appeared that the adjudication, as to the settlement was made upon proper evidence ; secondly, that the words, " as otherwise," did not import that evidence not upon oath had been received by the Justices ; thirdly, that it sufficiently appeared that the order was made by the Justices within their jurisdictfon. Regina V. the Recorder of King^s Lynn, 15 Law J. Rep. (n.s.) M.C. 93 j 3 Dowl. & L. P-C. 725. An order of removal ran as follows : — " Whereas complaint has been made to me, A B, one of the police magistrates of the metropolis, sitting at the police court, at &c., by the churchwardens and overseers of the parish of G, that J J and E J had lately come into the said parish, endeavouring to settle there ; and it appeareth to me, and I adjudge, that they are become chargeable ; and, upon exa- mination of the premises taken upon oath, and other circumstances, it further appeareth unto me, and I adjudge, that the parish of P is the last legal settle- ment of the said J J and E J": — Held, first, that the description of" police magistrate," sitting, &c., was sufficient to shew the jurisdiction of the single magistrate to make the order under the 2 & 3 Vict. c. 71. s. 14. Secondly, that the order was bad, for not stating a complaint of the actual chargeability of the pauper. Regina v. the Inhabitants of St. Giles in the Fields, 15 Law J. Rep. (n.s.) M.C. 122 ; 7 Q.B. Rep. 529. An order of removal recited a complaint "made unto us, two of Her Majesty's Justices acting in and for the county of," &c., that the pauper " in- truded and came into the parish of M, and hath actually become chargeable to, and is now inhabit- 520 POOR; (E) Removal. ing in the same parish." After adjudicating the settlement, the order directed the removal of the pauper "on sight hereof:" — Held, that it suffi- ciently appeared that the complaint was made to the Justices, and the order made by them within their jurisdiction. That the order was not bad for not directing the removal " on sight hereof." And lastly, that the statement of the inhabitancy of the pauper was sufficient to justify the order of removal, under the statute 35 Geo. 3. c. 101. Re- gina V. the Inhabitants of St. Paul's, Covent Garden, 16 Law J. Rep. (n.s.) M.C; 11 ; 7 a.B. Rep. 533. An order of removal purported to be made by B C, " one of the magistrates of the police courts of the metropolis, sitting at the Clerkenwell Police Court, within the metropolitan police district" : — Held, that this sufficiently shewed that the Clerken- well Police Court was a court appointed under the provisions of the 3 & 4 Vict. c. 84. Regina v. Hammersmith, 17 Law J. Rep. (N.s.) M.C. 47; 11 as. Rep. 391. Where the order was made by Justices of a borough, and stated that they had jurisdiction therein, but did not shew where the complaint or order was made, — Held, that it could not be sup- ported ; and the Court upon a certiorari, granted in the first instance, quashed it, as well as the order of Sessions affirming it, upon the fiat of a Judge at chambers, without any rule to shew cause. Regina v. the Inhabitants of Newton Ferrers, 9 Q.B. Rep. 32. An order of removal commenced " County of C," and purported to be made by "A and B, Justices acting in and for the said county of C." Indorsed on it and hearing date the same day was an order suspending its execution and commenc- ing " County of C," and purporting to be made by "A and B the Justices within mentioned." There was also indorsed on the order of removal two orders, both bearing date two years later than it. The one purported to be made by " A and D, two of Her Majesty's Justices of the Peace for the said county of C," and directed the suspension to be taken off; and the other purported to be made by "A andD the Justices whose names are hereunto subscribed," and was an order for payment of the expenses incurred by the suspension, and was ex- pressed to be made " in pursuance of the statute in such case made and provided." These last two orders bore date the same day, but neither of them had any marginal venue : — Held, that they were void as not shewing jurisdiction. The 12 & 13 Vict. c. 45. s. 7. (whic-li came into operation on the 1st of November 1849) provides that no objection on account of any omission or mistake in an order brought up on return to a certiorari shall be allowed, unless such omission or mistake shall have been specified in the rule for the certiorari : — Held, that this provision does not apply to rules obtained before the 1st of November 1849. Quare — 'Whether the effect of this provision is to prevent. substantial as well as formal objections to the order being taken, unless specified in the rule for the certiorari. Regina v. the Inhabitants of Crowan, 19 Law J. Rep. (N.s.) M.C. 20. [See (D) Settlement, (4) By Birth and Parent- age.'] (3) Sending Documents. One of the examinations, sent with an order of removal, stated, " J produce a covenant indenture of apprenticeship, bearing date, &c., between, &c., by which A B (the pauper) was bound to serve C D as his apprentice, &c. The indenture is duly stamped, and a premium of 61. is stated in the in- denture to be paid with the apprentice." A copy of the indenture was also sent with the examina- tions, but such copy did not, in any manner, shew whether any or what stamp was impressed on the indenture, and the examination contained no other evidence of premium, or consideration, or stamp : — Held, that the stamp was no part of the inden- ture, and that the examinations were sufficient in this respect. Regina v. the Inhabitants of Keighley, 15 Law J. Rep. (n.s.) M.C. 102; 8 a.B. Rep. 877. Justices examined witnesses at the request of the parish upon whom they were about to make an order of removal. Their evidence was not reduced into writing, and the order was made entirely upon the examination of the witnesses produced on the part of the removing parish, a copy of which was sent with the copy of the order : — Held, that it was unnecessary that the evidence of the witneses examined on the other side should be reduced into writing, or a copy of it sent. Under the statute 56 Geo. 3. c. 139. s. 2, notice of an intended binding of an apprentice from one parish into another is sufficiently given if served upon one of the overseers of the latter, and addressed to the whole body of parish officers. Regina v. the Inhabitants of Holne, 15 Law J. Rep. (n.s.) M.C. 125; 9a.B. Rep. 70. The examinations on which an order of removal was made, stated that the pauper was, with his own consent (his parents being dead), bound apprentice by indenture, dated, &c., which was duly stamped and executed by the parties thereto. The indenture was shewn to he lost: — Held, that it sufficiently appeared that the binding was not a parish binding. Under a ground of appeal, stating that notice of chargeability accompanied by a copy of the order and examinations, had not been sent to the appel- lant parish, in conformity with the statute, an objection that the notice of chargeability sent was accompanied by an imperfect copy of the order cannot be raised. Where a case is granted by the Sessions, the party taking it must rely on the objections there stated, or may abandon the case and rely on such other objections as may be raised on a certiorari, but he cannot do both. Regina v. the Inhabitants of St. Anne, Westminster, 16 Law J. Rep. (n.s.) M.C. 83; 8 Q.B. Rep. 561. Where application for relief is made by a pauper to the relieving officer of an union, and, in conse- quence, the board of guardians order relief to be given on account of one of the parishes within the union, which is accordingly administered by the relieving officer, that is evidence of the relief having been given by the authority of that parish. In the examinations, on which an order of re- moval was made, the pauper stated instances of relief to her husband by parish C, and also that she, after his death, applied to and was relieved by the relieving officer of H Union while living in POOR; (E) Removal. 521 parish E, which was within that union. The re- lieving officer of W Union (in which the parish of C was Comprised) set out a letter received from the relieving officer of H Union, containing an account of relief given to the pauper, and applying for re- payment; and stated that he reported the application to the hoard of guardians of W Union, who made an order for payment of the amount (which was pro- duced, properly signed, Sec); that he forwarded the amount in a letter to the relieving officer of H Union J and that the relief so given was charged in his weekly relief list (produced) to the parish of C. The relieving officer of the H Union stated an appli- cation by the pauper for relief while living in E, stating that C was his parish; that in pursuance of an order by tlie guardians of H Union to give him' relief and to charge it to C parish, in the W Union, he relieved the pauper and sent an account to the relieving officer of W U nion, who repaid the amount This was held to he legal evidence, from which it might he inferred by the removing Justices that the relief was given hy the authority of the parish ofC. The pauper was sworn and examined as to her settlement on the 27th of February, and her state- ment was then taken down in writing and signed hy the pauper, but not by the Justices, and had no jurat: it was indorsed: " Draft examination of M C, February 27, 1845, retaken afterwards:" the pauper was again examined on the 6th of' March, and the examination taken on the second occasion was the only one sent with the copy of the order of removal. Qtttere — ^Whether the former examination ought also to have been sent. Reginav. the Inhabitants of CrondaU, 16 Law J. Ilep.(N.s.) M.C. 175; 10 Q.B. Rep. 812. Where the examination, on which an order of removal was made, set up two distinct grounds of removal, and a document applying exclusively to one of them referred to in the examination, and pro- duced before the removing Justices, was omitted to be sent by the removing parish, together with the copy of the order, the respondents were pre- cluded from giving evidence at the Sessions in sup- port of either of the grounds of removal. Regina V. ihf Inhabitants of Mylor, 17 Law J. Rep. (n.s.) M.C. 6; 11 Q.B. Rep. 55. Where the parish applying to remove a pauper proves before the Justices a former removal, ac- quiesced in, to the parish now about to be charged, and produces the order of removal, such order, or a copy, must be sent to the latter parish, under the statute 4 & 5 Will. 4. u. 76. s. 79. Regina v. the Inhabitants of Wellington, 11 Q.B. Rep. 65, n. {d) Appeal. (1) At what time. An order of removal was made from parish A to parish B, and the notice of chargeability and copies of the order and examination were sent to parish B in sufficient time to enable them to appeal at the next following Sessions. There was no appeal to those Sessions; and the paupers were afterwards removed to parish B : — Held, that parish A might treat the removal as the grievance, and appeal to the Sessions next after sueh removal. Regina v. the Digest, 1845—1850. Recorder of Leeds (Easingwold v. Leeds), 15 Law J. Rep. (h.s.) M.C. 153 ; 8 Q.B. Rep. 623. On the 22nd of April G G was removed alone from M to D, on an order for the removal of him- self and family. There was no appeal entered against the order or the removal. G G returned to M; and on the 23rd of December, being again chargeable, he was removed with his family to D, under the same order. The overseers of D entered an appeal against the removal, at the next January Sessions : — Held, that they were too late, and should have appealed to the first Sessions after the order, or after the first removal of G G. Regina v. the Jus- tices of Durham, 16 Law J. Rep. (n.s.) M.C. 112 ; 5 Dowl. & L. P.C. 82. At the hearing of an appeal against the removal of a pauper the respondents objected that the appel- lants could not be heard, the original order not being produced, and no notice to produce it having been served. The Sessions dismissed the appeal. Subsequently the pauper was removed, and the ap- pellants appealed to the next Quarter Sessions, but the Court refused to entertain the appeal. Upon motion for a mandamus, — Held, first, that the first appeal was properly dismissed ; the practice of the Court requiring the production of the original order : and, secondly, that there was no right of appeal upon the subsequent removal of the pauper. Regim V. the Justices of Peterborough, 18 Law J. Rep. (K.S.) M.C. 79; 6 Dowl. & L. P.C. 517. A notice of appeal was given for the next sessions after the service of an order of removal, but in con- sequence of the grounds of appeal not having been served fourteen days before those sessions the Court made a special entry " Order confirmed, not on the merits, no due notice having been given." The pauper being afterwards removed, a fresh appeal was entered against the order: — Held, that the right to appeal againt the actual removal was not lost by reason of the previous proceedings. Semble — that the appeal should have been ad- journed hy the first Sessions. Regina v. the Inha- bitants of Macclesfield, 19 Law J. Rep. (n.s.) M.C. 38. Previously to the making and service of an order of removal, and the suspension of its execution on the 7th of April 1843, the pauper had resided five years in the parish obtaining such order of removal, and on the 29th of September 1847, a second order of Justices was made directing the execution of the first order, and the payment of a certain sum for the maintenance of the pauper to be made by the parish to which under such second order the pauper was actually removed : — Held, (both orders being ap- pealed against) first, that the appeal against the suspended order of removal was too late ; secondly, that the removal under the second order was ren- dered illegal under the 9 & 10 Vict. a. 66, and, therefore, that the costs of the pauper's maintenance during the suspension could not be recovered. Regina v. the Inhabitants of Chedgrave, 19 Law J. Rep. (U.S.) M.C. 54; 12 aB. Rep. 206. (2) Notice and Grounds of Appeal. In the examination on which an order of removal from the township of L to the parish of C was founded, M S stated that she was the widow of A S, who was born at C of parents settled there, as she 3X 522 POOR; (E) Removal believed; and J S stated that he was an elder brother of A S, who was born in C. The grounds of appeal alleged that the order, notice of charge- ability, and examinations were had on the faces thereof, and that the examinations contained no legal evidence of the pauper's settlement in C, or of their having come to settle in, or being chargeable to L. At the trial of the appeal, the appellants contended that the examinations did not shew that the A S mentioned by the widow was the same A S mentioned by J S. The respondents objected that this point was not raised by the grounds of appeal. The Sessions quashed the order on the point raised by the appellants. A rule nisi for a mandamus having been obtained, this Court held that the ob- jection was sufficiently raised by the grounds of appeal, and that the decision of the Justices was final. Reginav.iheJusticesof Staffordshire, 16 Law J. Rep. (n.s.) M.C. 53 ; 4 Dowl. & L. P.C. 624. An appeal against an order of removal was en- tered at the Midsummer Sessions. The attorney for the appellants served a notice on the respon- dents in due time, "to enter" and try at the Michaelmas Sessions; but fearing that the inser- tion of the words " to enter" might invalidate the notice, he took it back and erased those words, and at the same time inserted a sentence withdrawing the former notice, and then caused the notice, so altered, to be served on the respondents, without having it signed afresh by the parish officers of the appellant parish. At the trial these facts appeared, but the person who served the second notice not being present to prove that it was served in time, the Sessions dismissed the appeal, on the ground that "the notice was not sufficiently proved": — Held, that the insertion of the words "to enter" did not vitiate the first notice ; that the alterations made by the attorney after the notice was signed were such as he was justified in making ; that the second notice was a sufficient abandonment of the first, but that as the time of service was not proved, the Sessions decided rightly on a preliminary ques- tion of fact, with which this Court could not inter- fere. Reginaw. the Justices of Somersetshire, 16 Law J. Rep. (N.s.) M.C. 86 ; 4 Dowl. & L. P.C. 741. The only settlement disclosed by the examina- tions was the birth settlement of the pauper's late husband : — Held, that, under a ground of appeal which stated generally that " the pauper was not at the time of the order, nor was the late husband at the time of his decease, legally settled" in the ap- pellant parish, the respondents were bound to give evidence of the birth of the pauper's late husband in the appellant parish, though thete was no ground of appeal traversing the fact of his being born there, or alleging that he was born elsewhere. Regina v. the Inhabitants of St. Giles, Colchester, 17 Law J. Rep. (N.s.) M.C. 148; 12 Q.B. Rep. 13. Where the poor of a parish are under the management of certain governors and directors appointed under a local act, such governors and directors are the parties aggrieved by an order of removal, within the statute 13 & 14 Car. 2. c. 12, and any three of such governors and directors may give a valid notice of appeal under the statute 4 & 5 Will. 4. c. 76. By a local act, 7 Geo. 4. c. cxxi., the vestry of a parish were empowered to appoint twenty house- holders, who, together with the rector, church- wardens, and overseers for the time being were to be the governors and directors of the poor of the said parish, and to have the sole care and manage- ment of the said poor, with power to bind parish apprentices, to take bastardy bonds, to super- intend and repair workhouses, &c. An order of removal was addressed to the churchwardens and overseers of this parish, and a notice of appeal against the order was given, signed by three of the governors and directors: — Held, first, that the governors and directors were the parties aggrieved, and therefore the proper persons to appeal. Secondly, that the signature of the notice by three of the guardians was suflBcient within the statute 4 & 5 Will. 4. c. 76. ss. 81, 109. Regina v. the Inhabitants of St. George's, Hanover Square, 18 LawJ. Rep. (n.s.) M.C. 160. Though it does not appear on the order or exa- minations that the chargeability of a pauper was occasioned by relief given on account of sickness, yet it is a good ground of appeal that such was the case, and that such sickness was not shewn to be likely to produce permanent disability. Paupers became chargeable by sickness on the 20th of April 1846. Shortly after the passing of the 9 & 10 Vict. c. 66. (the 26th of August 1846), they were removed by an order which did not state the sickness, or that the Justices were satisfied that it would not produce permanent disability : — Held, that such omission was a good ground of appeal. Regina v. the Inhabitants of Priors Hardwick, 18 Law J. Rep. (n.s.) M.C. 177; 12 aB. Rep. 181. The ground of appeal against an order for the removal of a widow stated that the pauper's late husband, " in or about the year 1810, was horn in the parish of P, in the county of S ": — Held, on a case reserved, that such statement was sufficient. Regina v. the Inhabitants of Ealing, 18 Law J. Rep. (n.s.) M.C. 185 ; 12 Q.B. Rep. 178, n. The pauper's examination upon which an order of removal was founded, stated a settlement by apprenticeship in the appellant parish under a covenant of indenture executed in the year 1804. One ground of appeal was that the said pauper " was not in the year 1834 legally bound apprentice to," &c. (following the words of the examination) " as stated in the said examination of the said pau- per taken in this cause," &c. : — Held, that such ground of appeal was a sufficient traverse of the settlement by apprenticeship stated in the exa- mination, and that the decision of the Sessions upon the question was one which this Court might properly review. Regina v. the Inhabitants of Aston- nigh-Birmingham, 19 Law J. Rep. (n.s.) M.C. 17; 12 Q.B. Rep. 26. The examinations in support of an order of re- moval alleged, as evidence of a settlement, relief given to the pauper's late husband and the pauper in the appellant parish, and the former order acted upon and unappealed against, for the removal of the pauper and her children from the respondent to the appellant parish as the place of her late hus- band's settlement. The appellants' first ground of appeal stated that J S, the late deceased husband of the pauper, " had not at the time of his decease nor ever had any settlement in our said parish." There were eight other grounds of appeal, all except the POOR ; (E) Removal. 523 fifth raising questions as to tlie relief set up, the pauper's chargeability, the sufficiency of the jurat of the examinations, the statement of inhabitancy in the order, the marriage of.the pauper and the legi- timacy of her children, and setting up a five years' residence in the respondent parish. Thefifth ground objected that no copy of the former order unappealed against had been sent : — Held, dubitante Erie, J., that under the first ground of appeal the fact of the existence of such former order was not traversed, and that the Sessions had properly refused to call upon the respondents to produce and prove it at the hearing. Quiere — Whether, if the first ground of appeal had denied the existence of the former order, it would have been rendered unavailable for that purpose by reason of the other special grounds of appeal. Regina V. St. Mary in Bungay, 19 Law J. Rep. (n.s.) M.C. 39 ; 12 a.B. Rep. 38. (3) Entry and Respite. Where a pauper was removed, under an order of removal in March, within fourteen days of the Easter Sessions, and the appellants entered and respited an appeal ex parte, without giving notice to the respondents, at the Midsummer Sessions, and served notice and grounds of appeal for the October Sessions, it was held, that as the Midsummer Ses- sions had jurisdiction to receive the appeal, the propriety of their adjournment could not be con- sidered. iSemite-^that for all purposes, the first practicable sessions are the first sessions within the meaning of the 9 Geo. 1. c. 7. s. 8; and that the Justices would be bound to respite an appeal entered at such ses- sions if no notice of appeal were given. Regina v. the Justices of Surrey, 15 Law J. Rep. (n.s.) M.C. 1 ; 3 Dowl. Sz L. P.C. 343. An order of removal had been served, and notice and grounds of appeal sent in time for trial at the October Sessions, but in consequence of an arrange- ment made with the attorney for the appellants ,by the agent of the attorney for the respondents, it was agreed that the trial of the appeal should be post- poned until the Epiphany Sessions. The attorney for the respondents, being in ignorance of this ar- rangement, and on a certificate by the clerk of the peace that no appeal was entered, filed the order of removal, and had it confirmed at the October Ses- sions, and immediately afterwards the pauper was removed under the order. On an application by the appellants to enter and respite an appeal against the same order at the Epiphany Sessions, the clerk of the peace refused to do so, as there was already an order confirming it on the files of the court. On a mandamus to erase the entry of the order made at the October Sessions, the Court refused the rule, as the Sessions had jurisdiction by the entry of the ' appeal. RegiTiay.the Justices of Glamorganshire, 15 Law J. Rep. (N.s.) M.C. 1 10. Justices at Quarter Sessions refused to hear an appeal against an order of removal, which had been entered and respited at a former Sessions, on the ground that the appellants had not complied with a rule of practice of the Sessions, requiring notice of the previous entry and respite to be given to the respondents eight days before the sessions next after such entry and respite : — Held, that the Ses- sions had no power to make a rule of practice of that kind, and, therefore, as all the notices required by the general law had been given, that a man- damus lay to compel the Justices to enter con- tinuances and hear the appeal. , Regina v. the Justices of Surrey, 18 Law J. Rep. (n.s.) M.C. 175 ; 6 Dowl. & L. P.C. 735. (4) Hearing of Appeal — Jurisdiction. Upon an appeal against an order of removal coming on to be tried, the respondents admitted that the examinations were defective, as not contain- ing evidence of chargeability. The objection had been pointed out by one of the grounds of appeal. The appellants stated that they waived the objec- tion, and applied to have the appeal heard on the merits; but the Sessions quashed the order, at the request of the respondents, with a special entry "for want of proof of chargeability in the exami- nations." An application, on the part of the appel- lants, for a mandamus to the Sessions, to hear the appeal, was refused by the Court. Exparte the Inha- bitants of Wellingborough, 15 Law J. Rep. (n.s.) M.C. 20; 8 Q.B. Rep. 123. A notice and grounds of appeal signed by a ma- jority of the officers of the parish, and stating, " We, being a majority of, and acting for and on behalf of the churchwardens and overseers, &c." and also " that the following are the grounds of our appeal," is sufficient. Where upon an appeal being called on at the Sessions, the respondents required the appellants to prove their notice of appeal, and a witness was accordingly examined, who proved service of a no- tice of appeal, which was objected to as improperly signed, and the Sessions accordingly dismissed the appeal, — Held, that a mandamus might issue, com- manding the Justices to hear the appeal, as the decision on the validity of the notice of appeal was only preliminary to the right of the appellants to be heard. Regina v. the Justices of Surrey (St. Anne, Westminster -v. St. Mary Magdalen, Bermondsey), 15 Law J. Rep. (n.s.) M.C. 46 ; 3 Dowl. Si L. P.C. 573. An order of removal was made by A B and Josiah Wilson, and a duplicate copy served, in which the name of the latter Justice was illegibly written. In the copy of the examinations sent with the order the names of both Justices were clearly written. A petition of appeal was presented against the order, describing it as made by A B and Jonah Walters, and the appeal was entered as against an order made by A B and John Walter ; notice of appeal was also sent describing it in the same way. At the Sessions the original order was produced, and the Sessions dismissed the appeal, on the ground that there was no order in existence against which it was entered ; — Held, that if the Sessions were of opinion that the appeal was meant to be entered against the real order, they would have jurisdiction, and a mandamus was issued to compel them to enter continuances and hear the appeal. Regina v. the Justices of Middlesex (St. Pancras v. St, John, Hackney), 15 Law J. Rep. (n.s.) M.C. 100 ; 3 Dowl. & L. P.C. 745. An order of removal was directed to a parish which contained several townships, one of which bore the same name as the pdrish. The officers of the township appealed against the order. At the 524 POOR ; (E) Removal. trial, the respondents took a preliminary objection that the churchwardens of the parish should have joined in the appeal. A witness stated, that the township maintained its own poor, hut the Sessions, not believing that statement, held the objection good, and dismissed the appeal. A mandamus was refused because the Justices had decided on a question of fact, and their decision was therefore final. Regina v. the Justices of Flintshire^ 16 Law J. Rep. (N.s.) M.C. 55 i 4 Dowl. & L. P.C. 644. An appeal against an order of removal having been entered and respited after notice of appeal given to the respondents, was abandoned by the ap- pellants, and notice thereof given to the respon- dents. At a subsequent sessions, the respondents after notice to the appellants appeared and obtained an order of Sessions confirming the order of remo- val, and adjudging a certain sum for their costs, charges and expenses in supporting the latter order : — Held, that the confirming of the order of removal was an excess of jurisdiction on the part of the Sessions; but that as the rights of the parties did not appear to be affected by such confirmation, and the costs would have been the same had the appeal been, as it properly ought to have been, dismissed, the order of Sessions ought to be confirmed. Regina V. the Inhabitants of Over, 19 Law J. Rep. (n.s.) M.C. 57. (5) Trial and Evidence. An order of removal of a pauper from parish P to parish A was quashed on appeal, with a special entry of "not on the merits, and without prejudice to the making of any other order for the removal of the pauper," &c. A subsequent order of removal from P to A (no new settlement having been gained) was made and appealed against, and the grounds of appeal set up the quashing of the former order : — Held, on a case reserved, first, that the special entry prevented the former order from operating as an estoppel between the parishes. Secondly, that the appellants could not give evidence to shew that, notwithstanding such special entry, the question decided by the Sessions affected the merits of the settlement. Regina v. the Inhabitants of St. Anne's, Westminster, 16 Law J. Rep. (N.s.) M.C. 41. The examination set up two grounds of settle- ment in the appellant parish : first, birth ; second, hiring and service. The grounds of appeal set up a former order of removal between the same parishes quashed by the Sessions, and a settlement by parentage, and also traversed the hiring and ser- vice, and further alleged that the paupers were not settled in the appellant parish "in any manner whatever." At the trial it appeared by the minute book of the clerk of the peace that the former order of removal (mentioned in the grounds of appeal) was quashed, "on the ground that the examinations were insufficient to support the order:" — Held, that parol evidence was admissible to explain the entry in the minute book, and to shew that the order was not quashed on the merits. The appellants tendered evidence to shew that the pauper was not born in their parish ; — Held, that such evidence was not admissible under the grounds of appeal. The examination of a prisoner, confined in gaol under sentence of transportation, was taken on the 1st of January 1845, touching his settlement, under the 59 Geo. 3. c. 12. s. 28 : — Held, not admissible, at the trial of the appeal, in June 1845, without evi- dence that he was a prisoner at the time it was so tendered. Regina v. the Inhabitants of fViddecombe- in-the-Moor, 16 Law J. Rep. (n.s.) M.C. 44 j 9 Q.B. Rep. 894. After an appeal against an order of removal had been entered and respited, the respondents on the 22nd of March, gave notice to the appellants that they abandoned the order, and intended to appear at the next Quarter Sessions only for the purpose of quashing it, and obtaining a special entry ; " that such order was quashed not upon the merits," and also undertook and offered to pay all costs incurred up to the time of the service of the notice. At the Sessions, held on the 8th of April, the application for such special entry was opposed by the appel- lants, and the entry made was, " order quashed without any special entry, as the Court has no evi- dence before them to enable them lo make such special entry." On appeal against a subsequent order, made on examinations setting forth the same facts as those on which the former order was made, and no other, — Held, that the former order was not conclusive as to the settlement, but that evidence was admis- sible to shew that the former order had not been quashed on the merits. Regina v. the Inhabitants of Landkey, 16 Law J. Rep. (n.s.) M.C. 81. An order of removal from P to L was founded on examinations, which stated that the pauper rented a tenement of above 101. for a year, and paid rent during his tenancy. On appeal, the Sessions con- firmed this order, subject to a case on the point, whether the examinations were defective for not shewing that " the" rent was paid by the pauper. The case directed that if this Court should consider the objection to the examinations fatal, the order was to be quashed " for deficiencj' of the examina- tion " whereon it was founded. The Court of Queen's Bench, after argument, quashed the order of Sessions and order of removal. On appeal against a subsequent order removing the same pauper from P to L upon the same set- tlement, the appellants objected that the respon- dents were estopped by the decision on the former case, (which was set out in the examinations,) and rested their objection upon production and proof of a copy of the record in the Crown Office, shewing that the former order had been quashed. The re- spondents did not offer any evidence to shew that the judgment did not proceed on the point of settle- ment. The Sessions held that the respondents were not estopped. The appellants then tendered evidence to shew that the decision of the Court of Queen's Bench proceeded on the ground that the former examina- tions were insufficient in the point of shewing » settlement, which the Sessions held to be inadmis- sible (subject to the opinion of this Court); but it being admitted, that if this evidence could be re- ceived the decision did proceed on that ground, they further asked, whether such a decision was conclusive: — Held, first, that the quashing of the prior order "for deficiency of the examinations" was equivalent to a general quashing, and that the POOR ; (F) Paupek Lunatio. 525 respondents were not estopped by the former judg- ment, either party being at liberty to shew the grounds on which it proceeded. Secondly, that evidence of the grounds of the decision of this Court was admissible. Thirdly, that the decision in the former case was on a point of settlement, and conclusive. Regina v. the Inhabitants of Leeds, 17 Law J. Rep. (n.s.) M.C. 1. The examination stated that the pauper was born in the appellant parish, and had gained no settlement in his own right, and then proceeded to shew a settlement acquired by the pauper's father, by renting a tenement in the appellant parish. The grounds of appeal only denied this derivative settle- ment :v- Held, that the respondents, at the trial of the appeal, might fall back upon the birth settlement. Regina v. the Inhabitants of Ellesmere, 18 Law J. Rep. (n.s.) M.C. 181 ; 12 Q.B. Rep. 19. Under the general ground of appeal " that the statements contained in the said examinations are not true," the appellants are entitled to call upon the respondents to prove the settlement relied upon in the examinations. It is for the Sessions to consider any question of inconvenience arising from such general ground of appeal, and if it amount to a frivolous and vexatious statement, to award costs under the 4 & 5 Will. 4. c. 76. and 1 1 & 12 Vict. c. 31. Regina v. the In- habitants of St. Pancras, 19 Law J. Rep. (n.s.) M.C. 23. If the ground of appeal against an order of remo- val be merely that it does not appear on the face of the " examinations " that it was made upon a proper complaint, the objection is sufficiently au:- swered by shewing that such a complaint appears in the body of the examinations, although no caption shews it. Regina v. the Inhabitants of St, Margaret, Leicester, 12 Q.B. Rep. 98. (F) Pauper Lunatic. (a) Adjudication of Settlement and Expenses. Two Justices of the county of R made an order for the removal of a lunatic pauper to a licensed house in the county of S. The pauper was removed accordingly, his settlement not being then adju- dicated on, though the Justices of R had, at the time of malcing the order, made inquiry into and received some evidence respecting his settlement : — Held, that, after the removal of the pauper to S, the order adjudicating his settlement could be made only by Justices of the county of S, under the 9 Geo. 4. c. 40. s. 42. Regina v. Heyop, 15 Law J. Rep. (N.s.) M.C. 70; 8 Q.B. Rep. 547. Two Justices made an order, directing the re- moval of a pauper lunatic to an asylum, his settle- ment being then unascertained. In this order they gave no directions as to the expense of his main- tenance. They subsequently made an order, adju- dicating his settlement to be in H, and directing H to pay for his maintenance. This second order was confirmed by the Sessions on appeal, but quashed by the Court of Queen's Bench, together •with the order of Sessions confirming it, on a case granted by the Sessions. H paid for the mainte- nance of the pauper under the second order. The Court refused a mandamus to the Justices of the county; to repay to the parish oiBoers of H the sum so paid by them. Regina v. tlie Justices of Radnorshire, 15 Law J. Rep. (n.s.) M.C. 151 ; 9 Q.B. Rep. 159. An order of settlement and maintenance, under the 9 Geo. 4. c. 40, on parish A, of a lunatic pauper, confined in an asylum in parish D, was made in April 1841, and quashed by consent, on appeal. In September 1841 another order of two Justices was made between the same parishes adjudging the pauper's settlement to be in parish A, and directing the overseers of that parish to repay to the over- seers of parish D the sum of HI. 2s. for the removal, maintenance, care, &o. of the pauper. This order was appealed against, and confirmed at the Sessions, but the order of Sessions was, on a case reserved, quashed by the Court of Queen's Bench, on the ground that the statute did not empower the Justices to order the reimbursement to be made to the over- seers. In January 1845 another order of two Jus- tices was made, adjudging the pauper's settlement to be in parish A, and directing the overseers of that parish to pay to the keepers of the asylum a weekly sum, for the maintenance, &c. of the pauper. This order having been quashed on appeal by the Sessions, on the ground that the previous order was conclusive between the parishes as to the settle- ment of the pauper : — Held, that the Sessions were wrong in so deciding, as the judgment of the Court of Queen's Bench, the reasons of which must be taken to be adopted by the Sessions, did not turn on the question of settlement. Regina v. the Inha- bitants of St. Peter's, Droitwich, 16 Law J. Rep. (n.s.) M.C. 38; 9 Q.B. Rep. 886. It is no ground of objection to an order of Justices adjudicating the settlement of a pauper lunatic, or to an order for the costs of his maintenance, made under the statute 8 & 9 Vict. u. 126, that the pro- ceedings before the Justices were taken ex parte, and without notice to the parish sought to be affected by the orders, Semble — that upon appeal against an order of maintenance made under the above statute, the set- tlement of the pauper may be put in issue. Ex parte Monldeigh, 17 Law J. Rep. (n.s.) M.C. 76 ; 5 Dowl, & L. P.C. 404. The adjudication of the settlement of a lunatic pauper, under the 8 & 9 Vict. c. 126. ss. 58, 62, may properly be comprehended in the order for pay- ment of the costs of his maintenance. Such order may be made on the overseers of the parish where he is adjudged to be settled, though such parish form part of a union. Regina v. Tyr- wMtt, 17 Law J. Rep. (n.s.) M.C. 141 ; 12 Q.B. Rep. 292. By an order of Justices, the settlement of a pauper lunatic was adjudged to be in S, and the overseers of that parish were thereby ordered to pay to the treasurer of the M union, within which the parish of C was included, the expenses incurred by C in and about the examination, conveyance, main- tenance, &o. of the lunatic. The parish of S ap- pealed against this order, which was thereupon quashed by the Sessions, and an order made that the parish of C should pay to the parish of S the costs of the appeal: — Held, that the Sessions had jurisdiction to make this order on C, as that parish was substantially the respondent in the appeal, and 526 POOR; (F) Pauper Lunatic. that the payment directed to be made to the treasurer of the union by the prior order was merely on behalf of the parish of C. Held also, that the order of Sessions shewed on the face of it that the parish directed to pay costs was a party to the appeal. Regina v. the Inhabit- ants of Chatham, 17 Law J. Rep. (n.s.) M.C. 161. Orders of adjudication of settlement and of main- tenance of a pauper lunatic in an asylum, under the 8 & 9 Vict. c. 126, do not amount to a removal under the 9 & 10 Vict. u. 66, and may be made on the parish in which the pauper is settled, notwith- standing a previous five years' residence in the parish fromwhich hehasbeenremoved to the asylum. Pauper was settled in the parish of R, and was removed from the parish of L, where she had re- sided more than five years, to a lunatic asylum in the parish of D, under the 8 & 9 Vict. .;. 126. ss. 58. and 62. Two Justices subsequently made orders of settlement and maintenance on the parish of R, under the 8 & 9 Vict. u. 126. ss. 38. and 62 : — Held, that such orders were not prohibited by the 9 & 10 Vict. c. 66. s. 1. angina v. the Inhabitants of Leaden Roothen, 18 Law J. Rep. (n.s.) M.C. 187; 12 Q.B.Rep. 181. An order of Justices for the expenses, &c. of a lunatic under the 8 & 9 Vict. c. 126. s. 62, is valid in a case where the lunatic has been admitted into the asylum under the 8 & 9 Vict. c. 100. s. 48. without any application to a Justice as required by the 8 & 9 Vict. c. 126. s. 48. It is no objection that the facts essential to authorize an order for the maintenance and ex- penses of a pauper lunatic are stated in it by way of recital. An order of maintenance, made under the 8 & 9 Vict. c. 126. s. 48, which directed the treasurer to the guardians of the "W Union to pay weekly to the proprietor of a lunatic asylum lis., " which appears to the Justices a reasonable charge, or such other weekly sum as the proprietor of the said asylum shall hereafter and from time to time reasonably charge" for the future lodging, &c. of the lunatic, is not objectionable. Regina v. the Inhabitants of Hatfield Peverel, 18 Law J. Rep. (n.s.) M.C. 225. Where a lunatic not chargeable to any parish was, at the instance of the officiating minister of H, sent by an order of two Justices to an asylum under the 8 & 9 Vict. c. 126. s. 49,— Held, that he was to be considered as a pauper, and chargeable by virtue of section 57. to the parish from which he was sent. Held also, that the parish of H in which he resided was to be considered, for the purpose of such chargeability, as the parish from which he was so sent, and not the parish of W in which he happened to he at the time of his capture ; and that, therefore, the allowance of the auditor of the district of an account of the guardians of the union which comprised the parishes of H and W, charging the expense of the lunatic's maiutenance in the asylum to parish W, was ill ; and that the sum so allowed ought to be repaid by the parish of H. Regina v. the Churchwardens of Winsford, 18 Law J. Rep. (n.s.) M.C. 231. The power given by the statute 8 & 9 Vict. c. 126. s. 58. to Justices " at any time to inquire into the last legal settlement of any pauper lunatic confined. or ordered to \Se cotiflned" in an asylum, can only be exercised while the lunatic is either actually confined there or while there is an order for his removal thither unexecuted ; and there is no power to inquire into the settlement after a pauper lunatic has been discharged from the asylum. Under section 62. of the same act an order may be made at any time for payment of the expenses incurred in or about the examination of a pauper lunatic, and his conveyance to the asylum ; but the repayment of monies paid for maintenance, medi- cine, &c. must be limited to the expenses incurred within twelve calendar months previous to the date of the order. Regina v. the Inhabitants of Wolver- hampton, 19 Law J. Rep. (n.s.) M.C. 25. Where an order has been made upon the trea- surer of the W Union, which includes parish A, from which a pauper lunatic had been sent to an asylum, for the payment of the expenses of lodging, maintenance, &c., and the lunatic is afterwards ad- judged to be settled in parish B, which is also com- prised in W Union, a second order may, under the 8 & 9 Vict. c. 126. s. 62, be made on the treasurer of W Union, directing him on behalf of such par- ties, and in such manner as the law directs, to pay to himself, so being the treasurer, &c. out of any money which may come to his hands by virtue of his office, the expenses incurred by parish A in and about the examination and conveyance of the lunatic, and the monies paid by him (the treasurer) for the lodging, &c. of the lunatic within twelve months on behalf of A, and also to pay to the treasurer of the asylum a weekly'sum for the future lodging, main- tenance, &c. of the lunatic in the asylum. Regina V. EastArdsley, 19 Law J. Rep. (n.s.) M.C. 133. The limitation of twelve months mentioned in section 62. of the 8 & 9 Vict. c. 126. refers to the expenses incurred for the maintenance and care of a pauper lunatic, and not to the cost of the examin- ation and conveyance to the asylum of such lunatic. Where, therefore, an order of Justices under that section directed the payment of 20s. for the examin- ation and conveyance of a pauper lunatic, and Wl. 17s. 2d. for the lodging, maintenance, medicine, clothing, and care of such lunatic, but omitted to shew upon the face of it that the sums so ordered had been " incurred within twelve calendar months previous to the date of the order," — Held, tliat as to the payment of the latter sum the order was had. Regina v. the Inhabitants of Winster, 19 Law J. Rep, (n.s.) M.C. 185: (6) Appeal against Orders of Settlement and Mainte- nance. By the 9 Geo. 4. t. 40. s. 54. it is enacted, that the churchwardens, &c. of a parish, in which any insane person shall be adjudged to be settled, may appeal to the Quarter Sessions for the county where such order shall be made, in like manner and under like restrictions and regulations as against any order of removal, which appeal the Justices, at the said Quarter Sessions, are authorized and empowered to hear and determine in the same manner as appeals against orders of removal are now heard and deter- mined. An order made by two Justices, adjudging the settlement of a pauper lunatic confined in an asylum, to be in L, was served on the parish of L on the 13th of March. The next Sessions were POOR; (V) Pauper Lttnatic. 527 held on the 7th of April, at which no appeal was entered. The practice of the Sessions required ten days' notice of appeal in all cases not otherwise pro- vided for by law. Semble — that the provisions of the 4 & 5 Will. 4. c. 76. s. 79, that no pauper shall be removed until twenty-one days after notice of the order has been served upon the parish to which the removal is ordered to be made, do not apply to this case, and that an appeal entered at a sessions subsequefnt to those held in April, was out of time ; but a man- damus was granted, in order that the question might be discussed on a return. Regina v. the Justices of the West Riding of Yorkshire, in re Vincent, 1 5 Law J. Rep. (n.s.) M.C. 52 ; 5 Dowl. & L. P.C. 16, u. ; 10 Q.B. Rep. 763. By the 9 Geo. 4. c. 40. s. 54. an appeal is given, against an order adjudging the settlement of a lunatic pauper, to the Quarter Sessions for the county where the order is made " in like manner and under like restrictions and regulations as against any order of removal ;" which appeal the Justices are authorized to hear and determine " in the same manner as appeals against orders of removal are now heard and determined. Held, that the enactment in the 4 & 5 Will. 4. c. 76. s. 79, that no pauper shall be removed until twenty-one days after a copy or counterpart of the order has been served on the parish to which the removal is ordered to be made, is not incorporated in the 9 Geo. 4. c. 40. s. 54, and is inapplicable to the case of lunatic paupers. Therefore, where an order adjudging the settle- ment of a lunatic pauper to be in the parish of L was served on the overseers of L on the 13th of March, and the next sessions were held on the 7th of April, at which no appeal was entered, and by the practice of the Sessions ten days' notice for the trial of appeals was required, — it was held, that an appeal entered sub-sequently to the April sessions was too late. Section 60. of the 9 Geo. 4. c. 40. applies to cases of penalties under the act, and not to orders of maintenance, &e., which are regulated by section 54. of the same act (overruling The Queen v. Pixley, 4 Q.B. Rep. 711; s. c. 12 Law J. Rep. (n.s.) M.C. 87, and confirming The Queen v. the Recorder of York, ante, M.C. 22). A writ of mandamus commanded Justices to hear an appeal by the overseers of L against an order of two Justices adjudging the settlement of a lunatic to be in L, and ordering the overseers of L to pay a snm of money so long as the lunatic should be confined in the asylum under another order made by the same two Justices, and bearing date the same day. The return set out facts relating to " the said order," and justified the refusal to hear: — Held, that it suffipiently appeared that the order referred to in the return was the order addressed to the over- seers of L and appealed against by them. Regina V. the Justices of the West Riding of Yorkshire, 16 • Law J. Rep. (n.s.) M.C. 171 ; 10 tt.B. Rep. 763. By the statute 8 & 9 Vict. c. 126. s. 62. guardians of an union, &c. affected by any order for the main- tenance of pauper lunatics are authorized to appeal against the same, in like manner as if the same were a warrant of Iremoval, and the persons appeal- ing or defending such appeal are to have all the same powers, rights, and privileges, and to be subject to the same obligations in all respects as in the case of an appeal against a warrant of removal. The 11 & 12 Vict. c. 31. repeals so much of the 4 & 5 Will. 4. c. 76. as provides that in cases of orders of removal copies of the , examinations shall be sent, and section 9. enacts, "that no appeal shall be allowed against an order of removal if notice of appeal be not given within twenty-one days after notice of chargeability and statement of grounds of removal, or within a further period of fourteen days aftersending copies of the depositions" : —Held, that the provisions in the 11 & 12 Vict. c. 31. extend to appeals against orders for maintenance under the 8 & 9 Vict. u. 126, and that notice of appeal against such orders must be given within twenty-one days after service of notice of chargeability, 8zc. or within fourteen days from the sending copies of the depo- sitions. Regina v. the Justices of Glamorganshire, 18 Law J. Rep. (N.s.) M.C. 118. Where an order made under the 8 & 9 Vict. c. 126. s. 62. adjudged the settlement of a pauper lunatic to be in the parish of K (which is within the C union), and directed the treasurer of the C union to pay certain sums for his maintenance, &c. — Held, that both the parish oflScers of K and the guardians of the C union had a right to join in appealing against the order. Regina v. the Justices of Lancashire, 18 Law J. Rep. (n.s.) M.C. 121 ; 12 Q.B. Rep. 305. The grounds of appeal against an order for the maintenance, of a pauper lunatic alleged, that the pauper's mother was legally settled in the parish of R, and that the pauper was legally settled there, her mother's settlement being legally communicated to her; and further, that the said pauper's mother was legally entitled to, and in possession of, a certain freehold tenement, situate in the parish of R, and that she had been resident in the said parish forty days next before the making of the order, and that the pauper was unemancipated: — Held, that such grounds of appeal were not sufBciently explicit to enable the appellants to set up under them a deriva- tive settlement by estate from the pauper's mother. Under the 8 & 9 Vict. c. 120. the jurisdiction of the Justices to adjudicate on the settlement of a pauper lunatic, and to make an order of mainte^ nance, attaches on their finding the lunatic in the asylum, and for that purpose the regularity of the previous preliminary proceedings is immaterial. In such case it is not necessary, in order to give the Justices jurisdiction, that there should have been an information, under section 48, by the relieving officer, and an order under the hand and seal of the Justice, requiring the relieving ofiicer to bring the pauper before him. Quaere — Whether distinct grounds of appeal may be taken together without some link connecting them. Regina v. the Inhabitants of Rhyddlan, 19 Law J. Rep. (n.s.) M.C. 110. (c) Removal of. A lunatic who has become chargeable, and who is not shewn to be unfit to be at large, is removable to the place of his settlement under a common order of removal, and it is not imperative on the Justices or overseers to resort to the provisions of the 8 & 9 Vict. c. 126. 528 PORT DUTIES— POWER. An order was made in July 1842 for the removal of C D, his wife, and their idiot son aged 33, from the township of B to the township of T, where they were settled. This order was never appealed against, but its execution was suspended till August 1844, when the paupers were removed under it to the township of T and received by the overseers of T. At the expiration of four days the paupers, under a promise by the overseers of T to pay the parents 3s. 6d. per week for the future maintenance of the son, returned to B, where C D had retained a house in the care of two of his emancipated children, and remained there, receiving such allowance. Another order for the removal of the same paupers from B to T having been made in September 1847, — Held, first, that the lunatic son was removable. Secondly, that there being nothing to shew that the charge- ability of the father was occasioned merely by relief given to the son, the father was to be taken to he chargeable on his own account. Thirdly, that the removal to T in 1 844 was a break in the five years' residence. Regina v. the Inhabitants of Barnsley, 18 Law J. Rep. (n.s.) M. C. 170 ; 12 Q. B. Rep. 1 93. PORT DUTIES. [See Municipal Comoration.] James II. by charter granted to the master pilots and seamen of Newcastle certain primage dues to be paid "by all persons being owners of any goods" which should be brought from beyond seas into the River Tyne, and in manner following, " that is to say, aliens and strangers born, and other such per- sons, who, with their said ships, should arrive within the said port, and not belong to the same, before they depart with their said ships from the said port, should pay the duties aforesaid for and in the name of primage, and every free merchant and other inhabitant of Newcastle arriving with their said ships within the said river of Tyne, should pay the duties aforesaid, within ten days after the land- ing of the said goods as aforesaid upon lawful demand." The duties had always been paid by the importer: — Held, that the word " owners" meant the persons who imported the goods, and that such a person was liable, although he gratuitously landed, entered and warehoused the goods for the owners, who resided in London. Master Pilots and Seamen of Newcastle v. Hammond, 18 Law J. Rep. (N.s.) Exch. 417 i 4 Exch. Rep. 285. PORTIONS. Testator devised his estates in B to the same uses as those to which the estates comprised in his eldest son's marriage settlement were limited, and devised his estates in M to trustees in trust by sale or mortgage to raise portions for his youngest children, and from and after performance of that trust, and subject thereto in the first instance, and subject to the payment of such of his debts as bis personal estate should be insufficient to satisfy, he devised those estates to his eldest son in fee, and appointed him executor. The testator died indebted by specialty as well as simple contract, and his personal estate being in- sufficient to pay his debts, his eldest son, with the concurrence of the trustees of the estates at M, sold those estates, and exhausted the proceeds in making good the deficiency of the personal estate to pay the debts : — Held, that the youngest children were entitled in respect of their portions to a charge on the estate in B, equal in amount to the proceeds of the estates in M, which had been applied to pay the specialty debts. Legh v. Legit, 15 Sim. 135. POST OFFICE. [See Laecent.] Laws relating to sending letters by post, and postage altered by the 10 & 11 "Vict. c. 85 ; 25 Law J. Stat. 243. The Money Order department of the Post Office regulated by the 1 1 & 12 Vict. u. 88 ; 26 Law J. Stat. 226. Newspapers from the Channel Islands and Isle of Man rendered liable to postage by the 11 & 12 Vict. c. 117 ; 26 Law J. Stat 309. POWER. [See Devise — Lease.] (A) Construction of Powers in general. (B) Execution of, generally. (a) Instrument of Execution. (b) Reference to Power. (c) Form of Execution and Attestation. (d) Aider of informal Execution, (C) Power of Appointment. (a) Construction of, (b) Execution of. (c) Release of, (D) To grant Leases. (E) Of Sale. (A) Construction of Powers in general. A will, after restraining each tenant for life from cutting timber and underwood, declared that it should be lawful for the executors of the testator at their discretion, at any time afterwards, " until some person entitled in possession to an estate tail, under the limitations of the will, should attain twenty-one years," to enter and cut timber and underwood, and to invest the proceeds thereof in the purchase of lands, to be settled to the uses of the testator's will: — Held, that the power was void as a whole, as tending to a perpetuity, and that, whether it was to be construed as imperative, or permissive only, being in derogation of the rights of the infant tenant in tail ; also, that the power could not be apportioned. But, semble, there appears no sound reason why a power should not be apportioned, where each act to be done from time to time is complete and lawful in itself, and which act, when done, com- pletely fulfils the intention of the testator. With respect to the law as to perpetuities, there is no distinction between a trust to accumulate the POWER; (B) ExECUTIOir of, aBNERALLY. 329 proceeds of timber cut from time to time, and a trust to accumulate the annual rents and profits of an estate. Tenant for life may work open mines, but cannot open new mines. QuiBce-^Whether he can work a new mine through or by means of an old shaft. Per- randv. Wilson, 15 Law J. Rep. (n.s.) Chanc. 41 ; 4 Hare, 344. (B) Execution of, generally. (a) .Instrument of Execution. T H gave and bequeathed the residue of his estate to J S and his brother equally between them. J S made his will and disposed of all the effects due to him from the estate of T H, amongst his nine cliildren ; and subsequently executed a deed of settlement, by which it was agreed that a certain sum should be considered as his share of the pro- perty of T H, and the said property was conveyed to such uses as J S should appoint Under the 1 Vict, c. 26, the will of J S was held a good execution of the power limited in the deed of settlement. Still- man V. Weedon, 18 Law J. Rep. (n.s.) Chanc. 46 ; 16 Sim. 26. By a deed made since the 7 Will. 4. & 1 Vict. c. 26, a fund was vested in trustees in trust for such persons, &c. as A. should by any deed or deeds, writing or writings, with or without power of revo- cation and new appointment, to be by her sealed and delivered in the presence of, and attested by one witness or more, direct or appoint. A after- wards made a will duly executed and attested, according to the Wills Act, bequeathing part of the trust fund : — Held, that the will was a writing within the terms of the power. Buckell v. Blenkorn, 5 Hare, 131. By deed of settlement, a power of appointment over certain sums of stock was given to husband and wife jointly, and in case of the death of the husband during the life of the wife, the property was settled upon the wife absolutely. The wife executed the power alone during her husband's lifetime. 'The husband died first, and upon the death of the wife, probate of her will was granted, so far as concerned the interest which the deceased, by virtue of the settlement, had power to appoint : — Held, that the wife having executed the will during her husband's lifetime, when she had no separate power of appointment, the will was invalid; and that although the 24th section of the Wills Act directed that every will should speak from the death of the testator, it could not be construed to apply to wills which were void ah initio, nor could the probate which was granted of the will, in respect of an invalid appointment, have the effect of ren- dering it valid. Price v. ParJcer, 17 Law J. Rep. (U.S.) Chanc. 398; 16 Sim. 198. The execution of a power appointing a sum of stock standing in the name of the Accountant General, must be verified by affidavit, notwith- standing the probate of the will in the ecclesiastical court. Smith v. Lord Somers, 19 Law J. Rep. (n.s.) Chanc. 148. (6) Reference to Power. The sum of 1 ,0OOZ. was given by will to trustees, upon trust (after a life interest given to A) for such Di&EST, 1845—1850. persons as A should by will appoint. A made a will, whereby she gave legacies amounting exactly to IjOOOi, but did not notice either the power or the property subject to it. A had no property of her own at the'date of her will or at her death : — Held, that A's will was not an execution of the power. Davies v. Thorns, 18 Law J. Rep. (N.s.) Chanc. 212 ; 3 De Gex & S. 347. (c) Form of Execution and Attestation. If the attestation to a document executed under a power expresses in any form of words ah act to have been done in thepresence of witnesses, by which the complete execution of the instrument, as re- quired by the power, appears to have been effected, it is sufficient; but when the terms of the power require two or more such acts to be done, then, if the attestation expresses only the doing of one of them, even though from it all persons would clearly infer that the other act had also taken place, the power is not well executed. Therefore, where an indenture gave to S I a power to appoint by her last will, " to be by her signed and publisJied in the presence of and attested by two or more credible witnesses," and S I made her will, and signed and sealed it in the presence of liivo wit- nesses, the attestation being in these terms, " Signed and sealed in the presence of H P, of &c., and M E," &c., — Held, that the power was well exe- cuted, as the sealing amounted to a publication. Vincent v. the Bishop of Sodor and Man, 1 9 Law J. Rep. (N.s.) Exch. 366 ; 5 Com. B. Rep. 683. By a settlement of 1813, stock was settled on trust, in an event which happened, for such persons as a married woman should, during and notwithstanding her coverture, by will, or writing in the nature' of a will, to be by her duly signed, sealed and delivered in the presence of and to be attested by two or more credible witnesses, appoint. The husband of the donee died in 1819, and the donee in 1840. After her death a writing was found in the form of a letter and sealed on the outside only, purporting to bear date August 20th, 1816, and to be made in execution of the power, and concluding thus, " As witness my hand and seal," with a signature purporting to be that of the donee and two other names in other handwriting, but with no memorandum of attestation. On a reference to the Master in 1847, as to the form and manner of the execution of this paper, no evidence could be produced, but such as was afforded by the document, — Held, that the documentwas not shewn to be a due execution of the power. Burnliam v. Bennett, 1 De Gex & S. 513. Under a marriage settlement a power was given to the husband to appoint among children by his last will and testament " to be signed and published by him in the presence of three witnesses." The power was executed by will, and the " signature " of the testator was witnessed by three witnesses : — ■ Held, that the will was signed and published in the presence of the witnesses, and was a good execution of the power. In re Wrey's Trust, 19 Law J. Rep. (U.S.) Chanc. 183. (d) Aider of informal Execution. If the intention to exercise a power be clearly shewn, a court of equity will, in favour of a charity, 3 Y 530 POWER; (C) PowEfi OF Appointment. give effect to an informal or defective execution of the power. Therefore where a power to dispose of personalty was directed to be exercised, amongst other modes, by the last will and testament, &c. of the donee, signed, sealed, published, and declared in the presence of two or more witnesses, and the donee, in exercise of the power, bequeathed part of the personalty to certain charities by aminattested will (executed before the passing of the New "Wills Act), signed and sealed by the donee, but not in the presence of witnesses, and not published or de- clared, it was held to be a valid execution. Evidence of the state of the property is admissible on a question whether a power has been executed by will, so far as it is material to the question whe- ther a particular part of the property is or is not described in the will ; but unless the circumstances of the property exclude the primary and strict sense of the words used, such strict sense must be ad- hered to, independently of any probability that the words were used in another sense. Stock over which testatrix had a power of ap- pointment held to pass by a will not referring to the power. Innes v. Sayer, 18 Law J. Rep. (n.s.) Chanc. 274 ; 7 Hare, 377. The mere fact that a party, having a power by deed to revoke and make a new appointment, has attempted to do so by will owing to her having for- gotten the terms of the power, and being unable to procure the deeds, is no ground for supplying the formal execution of the power, or for givingthe will the effect of a deed, or for converting the trustees of the property into trustees for the persons who would be appointees in case the will were a good execution of the power. Buckell v. Blenkorn, 5 Hare, 131. (C) PowEB OF Appointment. (o) Construction of. R P, being entitled to one-third share of real and personal estates, settled such share upon her mar- riage, with power of appointmentto herself (in events that happened) over one- third part thereof, by deed or will, and over the other two third parts by will, subject to the husband's life interest therein, and in default of issue of the marriage. R P becoming entitled to a moiety of another third share of the same estates, settled it to such uses as she should appoint, subject to the husband's life interest. There was one child of the marriage. R P by her will devised, bequeathed, and appointed " all that one-third part of her real and personal estates over which she had a disposing power," upon trust, im- mediately after her death to raise a sum of 5001 ; and " as to the residue of the said one-third part, and the remaining two third parts," she gave the same to her husband for life, remainder to her infant son, and his heirs ; but in case he should die under twenty-one, without issue, she directed the residue of the said one- third part to be sold, for payment of an annuity and legacies given by her will, — the annuity to be payable upon the son's death, and the legacies as soon as the said one-third part could be sold ; — and as to the remaining two third parts, subject to her husband's life interest, she gave and appointed them to her sister absolutely. The son survived the testatrix, and died under twenty-one without issue: — Held, that the appointment of the " one-tiiird part" for payment of the annuity and legacies, extended only to one-ninth of R P's ori- ginal third share, and to one-third of her moiety of the other third share. Secondly, that the annuity and legacies became payable on the death of the son, with interest on the legacies from that time. Thirdly, that the will did not affect the husband's rights under the settlement, and no case of election was raised against him. Saward v. M'Donnell, 2 H.L. Cas. 88. By the marriage settlement of M S, a copyhold of which she was seised in fee was settled on her husband J B for life, and after his death to the use of M S for life, and after her death to the use of such child or children of the marriage, and for such estate or interest, and in such parts and proportions as M S by deed might appoint, and for want of such appointment to the use of all the children of the marriage as tenants in common in tail, and in de- fault to M S in fee. M S, in the lifetime of her husband, and then having two sons, made a will, by which she ap- pointed the estate to her elder son J B and his heirs and assigns for ever, on condition that he should pay 200^. to W B her second son, within a year of her husband's decease, or on W B's attaining the age of twenty-one j but in case neither of the sons should be living at the decease of J B her husband, then she gave the estate to her father-in-law, in trust to sell and pay legacies. After the date of the will, four other children were bom of the marriage. M S died in the lifetime of her husband ; J B the eldest son died in his father's lifetime leaving the lessor of the plaintiff his youUjgest son and customary heir ; and W B the second son died before his father. Held, in affirmance of the judgment of the Court of Common Pleas, that the lessor of the plaintiff was not entitled to recover. That there was an implied dispensation of coverture in the power given to M S. That, although the appointment was not alto- gether void, but gave a vested defeasible estate in fee to J B the eldest son, and the appointment over to the father-in-law alone was void, yet that the event which happened defeated and put an end to the estate of J B the son. Doe d. Bloonffield v. Eyre, 18 Law J. Rep. (n.s.) C.P. 284; 5 Com. B. Rep. 713; affirming s. c. 16 Law J. Rep. (n.s.) C.P. 64; 3 Com. B. Rep. 557. A power was given to a tenant for life to charge real estate with any sum not exceeding 2,000i., for the portions of his younger children, to be paid to them at such times as he should appoint : — Held, that he had the power of making an unequal divi- sion of the 2,000i. among his younger children. Cotgreave v. Cotgreave, 16 Law J. Rep. (n.s.) Chanc, 145; lDeGex& S. 38. (6) Execution of. A testatrix, having personal property of her own, and a power of appointment by will over portions of two sums of stock, in the first place directed pay- ment of her debts and certain expenses out of her personal estate, and bequeathed several legacies ; and then, without any reference to the power, be- queathed parts of the said portions of stock to, or in trust for persons, objects of the said power, and POWER ; (C) PowBB of Appointment. 631 afterwards bequeathed the residue of her personal estate and effects, after payment of her debts, ex- penses, and legacies aforesaid, to other persons, also objects of the power: — Held, that by the residuary clause passed, as by a valid exercise of the power, so much of the stock, over which the testatrix had the power of appointment, as she had not previously disposed of by her said will, as well as the surplus of her general personal estate. Elliott v. Elliott, 15 Law J. Rep. (n.s.) Chanc. 393 ; 15 Sim. 321. A donee of a power, affecting two sums of stock, appointed a gross amount, exceeding one-fourth of one of them. She afterwards made successive ap- pointments of aliquot parts of both fuuds as one subject (without noticing the previous gross sum) among all the parties entitled. The aliquot parts so appointed amounted to fonr'fifths, exceeding, with the first appointment, the entirety of one of the funds: — Held, first, that the latest appointees were not entitled to put the earlier to their election, so that the excess might be made good out of the unappointed one-fifth of the unexhausted fund. Secondly, that the successive appointments of aliquot parts operated upon the whole fund, and that, therefore, the loss arising from the deficiency fell on the last appointees. Tenant for life of a trust fund, with power to appoint the reversion to a child, appointed a portion of the fund to a daughter absolutely by a deed to which the daughter, daughter's husband, and the trustees of the fund were parties, and, by the same deed, assigned her life interest in the appointed portion to the daughter absolutely. By a subse- quent witnessing part, it was expressed to be agreed and declared by all the parties that the appointed portion shouldbefor the daughter's separate use for life, and afterwards in trust for her husband and children: — Held, that (independently of any ques- tion of merger of the life estate), the trust for the separate use was good. But, quaere, whether the subsequent limitations were effectual. The rule that costs arising from diffiicalties of construction fall on the residuary estate does not apply to the unappointed portion of a fund. Trollope v. Rmtledge, I De Gex & S. 662. A term was limited by a marriage settlement, in trust to raise l,000i. on the death of the survivor of husband and wife, in case there should be no issue of the marriage, and to pay the same to such person as the wife should at any time or times thereafter during her coverture by deed or will appoint, and ill default of appointment to the executors, admi- nistrators, and assigns of the wife's mother. There was no issue of the marriage, and the wife survived without having appointed during her first coverture. She then married again, and had issue, and died, leaving such issue, her second husband, and her mother surviving : — Held, that the power of ap- pointment could only be exercised during her first coverture, and that the 1,0001. and interest passed to the executors of the mother as part of her resi- duarj' personal estate. Morris v. Howes, 16 Law J. Rep. (N.s.) Chanc. 121; 4 Hare, 599. A testatrix, in exercise of a power, directed and appointed that her trustees should pay, assign, or transfer a sum of 5001 unto A B upon trust for his daughter, to be vested in her on attaining twenty- one years or day of marriage, which should first happen; and she directed the interest and dividends of the said sum to accumulate for her benefit, and be paid to her with the principal, at the time before mentioned. The daughter of A B died under: twenty-one, and unmarried: — Held, that the repre- sentatives of the daughter took neither principal nor accumulations, and that the fund would go as if no appointment had been made. In re Thruston's Estate, 18 Law J. Rep. (k.s.) Chanc. 437; 17 Sim. 21. By a settlement a fund was limited to the hus- band for life, remainder to the wife absolutely, if she survived, but ^f she pre-deceased him, for all the children of the marriage in such shares as she should appoint; and if there should be no issue of the marriage living at her death, upon trust, as she should appoint generally, and in default to the husband absolutely; but there was no express gift to the children in default of appointment. The hus- band survived, and there were children living : — Held, that they were entitled to the fund, though the mother never appointed. Fenwick v. GreenweU, 10 Beav. 412. An appointment, under a power in a settlement, was made, directing the trustees after the death of the tenant for life to stand possessed of 6,000/., to pay the dividends to S M for life, and after his de- cease to permit T M to receive the dividends for his life, and after the decease of the survivor for all and every the child and children of T M and S M, equally to be divided between them, share and share alike, the shares of sons to be paid, assigned or transferred at the age of twenty-one, and the shares of daughters at twenty-one or marriage, which should respectively first happen, with benefit of survivorship among the children surviving, in case any of them should die before he, she, or they should, by virtue of the trusts, become entitled to payment, assignment or transfer of his, her or their respeoj^ive parts. At the time of executing the deed T M and S M had seven children, the eldest of whom was iforty-three, and the youngest twenty-six years of age. One of the children died in the life- time of the tenants for life: — Held, that the per- sonal representative of the deceased child was en- titled to her share, and not the surviving brothers and sisters. In re Williams, 19 Law J. Rep. (n.s.) Chanc. 46; 12 Beav. 317. A married woman, having power to appoint a fund to her children, appointed it to an only child of tender years, who died four months afterwards. Her husband attested the deed of appointment as witness, twenty-four years afterwards ; the wife died in the lifetime of her husband, who then claimed the fund as administrator of the child. The Court directed issues to try whether the power had been exercised without fraud on the part of the husband and wife. Gee v. Gurney, 2 Coll. C.C. 486. A deed, dated April 2, 1813, between a mother and her two illegitimate children, recited, that, by a prior deed of November 28, 1804, a trust fund had been appointed by the mother to one of such chil- dren, subject to a power of revocation, which was thereby expressed to be exercised as to one moiety in favour of the other child. The recited deed was not produced, and no evidence of it given beyond the recital. The deed of April 2, 1813 was, in another suit, declared not to be a valid appointment. 532 POWER; (C) Power OP Appointment. not being in favour of proper objects of the power reserved in the recited deed. In a suit by other persons, claiming under legitimate children, and appointees of the same mother, by an instrument later in date than April 1813, the Court decreed the transfer of the fund to the parties representing such legitimate children, and refused to direct any inquiry as to the recited appointment of November 1804. As to the effect of the recital, if the title of the plaintiff had been founded on or derived under or through th"e deed of April 2, 1813, queere. Bell v. Alexander, 6 Hare, 543. Testator, by his will, dated in 1778, gave all his real estates to his son-in-law, J R, for life, with remainder to his daughter M K, for life, with re- mainder to the first and every other son of his daughter in tail male, with remainder to the daughters of his daughter in tail general, with cross- remainders between them; and for defaultof " such" issue, be gave his daughter an absolute power of appointment over the whole property. In 1841, the daughter, M E., by deed-poll, duly executed according to the power, reciting accurately the limitations of the will, and that there was no'issue of her body, and that she was desirous of exercising the power given her by the will, appointed that the devised property should go, " subject to the life estate of J E. and M E, therein, and there being a failure of issue of the said M R," to the use of the plaintiff in fee : — Held, that this was a valid appoint- ment to the plaintiff; the words "failure of issue" being, with reference to the previous recital that she had no issue of her body, to be construed as a failure of "such issue." The same rule of con- struction would prevail as well in a deed as in a will. Eno V. Eno, 16 Law J. Rep. (n.s.) Chanc. 358; 6 Hare, 171. A father had a power of appointing to any of his children. Having, in breach of trust, obtained possession of part of the trust funds, he, in 1834, appointed that part to his daughters, in exclusion of his son, under an agreement that that part should be afterwards conveyed to him in exchange for an estate of less value. In 1844 be executed a second appointment, reciting the previous dealing with the iund, and thereby appointed the remainder of the trust property "and all other" the property com- prised in the settlement to his daughters : — Held, that the first appointment was void, and secondly, that the portion of the property comprised therein was not appointed by the second deed. Askham v. Jiarker, 12 Beav. 499. By a marriage settlement certain property was vested in trustees, upon trust, during the life of the wife, to pay and apply the proceeds as she should from time to time by any writing appoint, and in default of appointment into her own bands for her separate use, and after her decease to pay an annuity out of the trust property to the husband, and, subject thereto, all the trust monies and all annual produce and yearly rents which might he unapplied were to remain upon the trusts thereby declared. The wife died before the husband, and by her will gave all the money which might be in the house at her decease, as well as any other savings which she might have made out of her separate estate, to her husband : — Held, that 888/. found in the house at the death of the wife, and being portion of the income of the settled property, would go to the husband, hut that 2,049/. other portion of the same income, and which was in the hands of the bankers in the names of the trustees, did not pass to the husband, but was subject to the ulterior trusts of the settlement. Juhnstme v. Lumb, 15 Law J. Rep. (n.s.) Chanc. 386; 15 Sim. 308. A power to appoint amongst children is not within section 27. of the Wills Act, and a mere general devise or bequest to a child will not operate as an execution of such a power. Clowes v. Awdry, 12 Beav. 604. The donee of a power of appointment over per- sonal estate exercised the same and reserved a power of revocation merely : — Held, that the power of revocation included in it the power of limiting new uses. A and B, his wife, resident abroad, had a life interest in government stock, with a joint power of appointment by deed in favour of their children ; and B was tenant for life of other stock, with re- mainder to the children of the marriage. The dividends on both sums of stock were transmitted through the banking firm of C & Co. to A & B, who had no other account with that firm. In 1830 A & B appointed, by deed, one-half of the first fund to their eldest son, and the remainder among their younger sons equally, reserving a power of revoca- tion as to the shares of the younger sons. In 1839 and 1843, on the respective marriages of two of the younger sons, A & B executed joint instru- ments (unattested), by which they disposed that the two sons respectively should receive from the sur- vivor of them a capital property of 7,000 dollars, " which stand in the English bank of C & Co." — Held, that, in point of construction, the words, " which stand in the English hank of C & Co.," described both funds ; and that each of the two sons was entitled, under the two latter instruments, to receive only from the fund, over which the power of appointment extended, so much money as, with the share he was entitled to out of the other fund, would make up the sum thereby provided for him. Sheffield v. ron Donop, 17 Law J. Rep. (n.s.) Chanc. 481; 7 Hare, 42. The sum of 6,000i. stock was settled upon A for life, with remainder for her children as she should by deed or will appoint, and in default of appoint- ment for her children equally. A had two chrldren — E U an unma:rried lady, and M S the wife of R S. By a deed dated in June 1839, A appointed 4,800/. stock to E R absolutely ; and by a deed dated the following- day, E R settled 2,300/. on M S and her children. The latter deed was not communicated to M S until 1845, and evidence was given that the former deed was executed with an understanding that E R should execute the latter. In a suit instituted by R S, both deeds were set aside, as being a fraud upon the power. Salmon v. Gibhes, 18 Law J. Rep, (n.s.) Chanc. 177; 3 De Gex & S. 343. (c) Release of. By a marriage settlement certain real property was settled upon the husband and wife for life, and afterwards to such of the children of the marriage as they should jointly appoint; in default of joint POWER— PRACTICE, AT LAW. 533 appointment, as fhe survivor should appoint ; and in default of such appointment to the children equally, as tenants in common. The wife died without having joined in any appointment. The hushand subsequently executed a deed-poll, by which he absolutely released his power of appoint- ment given by the settlement, and afterwards by his will, professed to execute the power of selection, without tailing notice of the deed of release, and divided the property in unequal shares among his children ; — Held, that the deed-poll releasing the power was valid, that the children took as tenants in common, and that the will was inoperative as an execution of the power. Smith v. Plummer, 17 Law J. Rep. (n.s.) Chanc. 145. A sum of stock was held in trust for a lady for life, then for any husband for life, in ease she should appoint to him, and subject thereto, in trust for her children; and in default of children, to such uses as she should appoint. The lady, at the age of sixty-eight, having never been married, appointed the fund to herself, and released her power of ap- pointment in favour of her hushand and children: — Held, that she was entitled to a transfer of the capital. Miles v. Knight, 17 Law J. Rep. (n.s.) Chanc. 458. (D) To GRANT Leases. [See Lease.] Lands were devised to trustees, in trust to pay rents to C for life, but impeachable for waste, " for digging or getting any coal opened or to be opened, otherwise than under the power thereinafter given," remainder to D for life, with other remainders over; with power to the person or persons (except C) who by virtue of the limitations should, for the time being, be seised of or entitled to the actual freehold of the premises thereby devised, or to the rents thereof, to grant leases of the mines : — Held, that the trustees (who had the legal estate during C's life) could, during his life, grant leases of the coal mines. Leigh v. the Earl of Balcarres, 6 Com. B. Rep. 849. (E) Of Sale. A reversion of a moiety of a farm was settled on a marriage, and the trustees were empowered to sell it when in possession, and the intended hus- band and wife covenanted that if they should acquire any other share or interest in the farm they would convey it to the trustees on the trusts, &c. of the settled moiety. After the moiety had fallen into possession a moiety of the other moiety descended on the wife, but subject to a life interest therein : — Held, that it, as well as the settled moiety, was sale- able under the power.^ Giles v. Homes, 15 Sim. 359. Testator devised estates to trustees in trust for his brother's first and other sons successively in fee, but so that the estate and interest of each should cease in favour of the next brother on his dying under twenty-one and without leaving issue living at his death, and if all of them should die under twenty-one and without issue living at their deaths, in trust for the person who should then be his heir absolutely, and he empowered the trustees to sell ^the estates at any time after bis decease and at their sole discretion : — Held, that the power of sale was valid. Nelson v. Callow, 15 Sim. 353. A testator devised, in 1835, all his real estate to his wife for life, with remainder as to part to two joint tenants for life, and directed' the same to be sold on the death of the survivor. He bequeathed the monies arising from the sale to ^uch individuals of a certain class as should he then living, and appointed his wife and others executrix and exe- cutors. The will contained no power other than the direction to sell, nor was any donee named : — Held, that the power of sale was vested, by impli- cation, in the surviving executors. Curtisv. Fulbrook, 19 Law J. Rep. (n.s.) Chanc. 65 j 8 Hare, 25. PRACTICE, AT LAW. (A) PnocEss. (o) Description of Parties and Indorsements, ih) Service. (c) Altering and Amending* (d) Setting aside: [See (N) Proceedings.] (e) Filing. (B) Appearance. (a) Entering and Striking out. (&) Distringas to compel. (C) Declaration. ; , . (o) Time to declare. (b) Allowing and Striking out Vounts. , (c) Notice of Declaration. (D) Plea. (a) Rule to plead. (6) Time to plead. (c) Issuable Plea. {d) Several Pleas. \e) Adding and Striking out Pleas. (f) Puis darrein continuance. (E) Demtjrrer. (a) Marginal Statement. (6) Special. (c) Assessment of Damages on. {d) Frivolous. (F) Rejoining Gratis. (G) Particulars op Demand. (H) Issue. (I) Notice to produce. [See Bill of Ex- change and PRonucTiON and Inspec- tion OF Documents.] (K) Trial. (a) At Bar. (6) Notice of Trial. (1) Form and Time of. (2) By Continuance. (c) Postponing. (d) Proceedings at the Trial. (1)'/k general. (2) Right to begin. (3) Evidence in reply. (e) Entry on the Record. (L) New Trial. (M) Discontinuing Action. .(N) Proceedings. (a) Disclosing Plaintiff* s Residence. (Jb) Staying. (c) Setting aside. 531 PRACTICE, AT LAW; (A) Process. (O) Motions, BrLES, and Oksers. (P) Judge at Chambers. (G) Special Case. (R) BiiL OF Exceptions. (S) Judgments. (T) Executions. (A) Process. (a) Description qf Parties and Indorsements. A writ of summons issued, directing the de- fendant to cause an appearance to be entered at the suit of " Henry Walker & Co." with a notice that in default of his so doing, " the said Henry Walker & Co." might enter an appearance for him. The writ was indorsed, " The plaintiff claims 201. Is." The Court refused to set the writ aside, as it did not appear upon the face of it that " Henry Walker & Co." necessarily meant more than one person. Walker v. Parkins, 14 Law J. Rep. (n.s.) Q.B.214 j 2 Dowl. & L. P.C. 982. A writ of summons directed to a defendant as of Bristol in the county of Gloucester, only a part of Bristol being in that county, is void. Levi v. Perralt, 15 Law J. Rep. (n.s.) C.P. 4; 2 Com. B. Rep. 345. The Court refused to set aside a writ of sum- mons which described a defendant as " The Right Honourable Baron Suifield," his true description being " The Right Honourable Edward Vernon Harborn Baron Sufiield." Where a prtscipe had been granted for an alias writ, and by mistake a pluries writ had been issued, tlie Court refused to set aside the writ Wells v. Lord Suffield, 16 Law J. Rep. (n.s.) C.P. 234; 5 Dowl. & L. P.C. 177 ; 4 Com. B. Rep. 750. A copy of a writ of summons was directed to " J S, late of B, in the county of York, but now in the Castle of York, of the city of York, merchant" The afiBdavit stated, " that the said Castle of York was not situate in the city of York, but was wholly situate in the county of York." On a motion to set aside the copy of the writ, on the ground of its not stating correctly the place where the debtor was " supposed to be," pursuant to the 2 & 3 Will. 4. t, 39, theCourt refused a rule, as the affidavit did not sufficiently negative the existence in the city of York of a place called *' the Castle." Balman v. Sharp, 16 Law J. Rep. (n.s.) Exch. 39 ; 16 Mee. & W. 93. The omission of a county in the description of a defendant in a writ of summons is an irregularity which is waived if the plaintiff does not apply to the Court in a reasonable time after notice. Ross V. Gandell, 18 Law J. Rep. (n.s.) C.P. 224 ; 7 Com. B. Rep. 766. The copy of a writ of summons served on the defendant was indorsed "The plaintiff claims ISO?, and interest for debt" The writ, copy and service were set aside for irregularity. Chapman v. Becke, 15 Law J. Rep. (n.s.) a.B. 5 ; 3 DowL & L. P.C. 350. A writ of summons was indorsed " This writ was issued by A & B, of, &c. agents for J T, of the city of Exeter, in the county of Devon, the plaintiff within named." The Court set aside the copy and service for irregularity, as it did not appear to be issued either by the plaintiff in person or by an attorney for him. Toby v. Hancock, 16 Law J. Rep. (n.s.) Q.B. 33 ; 4 Dowl. & L. P.C. 385. Where a copy of a writ of summons was indorsed with a claim of interest from the 31st of March, without saying of what year, the copy and ser- vice of it were set aside for irregularity. Bardell v. Miller, 18 Law J. Rep. (n.s.) C.P. 249; 7 Com. B. Rep. 753. The indorsement of the time of service of a writ of summons, pursuant to the 2 Will. 4. c. 39. s. 1. and rule 3 of Michaelmas terra, 3 Will. 4. may be made by a marksman. Baker v. Coghlan, 7 Com. B. Rep. 131. Whereupon serviceof a writ of summons on a de- fendant he denies that he is the party named therein, and the person serving the writ consequently omits to make the indorsement on the writ within the time required by the Reg. Gen. Mich, term, 8 Will. 4. r. 3 ; the Court will, upon affidavit of these facts, permit him to make the indorsement, notwithstand- ing the lapse of the specified time, so as to enable the plaintiff to enter an appearance for the defen- dant, according to the statute. Burrows v. Gabriel, 4 Dowl. & L. P.C. 107. A "writ of summons was indorsed "The plaintiffs claim 351. 3s. 6d. and interest thereon, from the 8th of September 1846, until payment, for debt, and 21. 10s. for costs," — Held, sufficient, and that it need not state what rate of interest is claimed. Allen v. Bussey, 4 Dowl. & L. P.C. 430. (6) Service. A writ of summons described the defendants as " Pilbrow's Atmospheric Railway and Canal Pro- pulsion Company, now or late carrying on business in King William Street, in the city of London." The company had been completely registered pur- suant to the statute 7 8j 8 Vict c. 110, and No. 6, King William Street, London, was registered as their place of business. They afterwards discharged their secretary and clerks, and gave up their place of business, but no other place of business was taken or registered by them, and there were no means of serving the writ but upon a director: — Held, that the description of the residence of the defendant was uncertain and insufficient under the statute 2 Will. 4. c. 39, and also that the service of the writ upon a director, in the county of Middlesex, was bad, and that the person on whom it was served might avail himself of these grounds for setting it and the service of it aside. Pilbrow v. Pilbrow^s Atmospheric Railway and Canal Propulsion Company, 16 Law J. Rep. (N.s.) C.P. 1 1 ; 4 Dowl. & L. P.C. 450; 3 Com. B. Rep. 730. Service of a writ of summons on a clerk in the office of the secretary of a corporation aggregate, is not sufficient service on the " clerk or secretary," under the 2 Will. 4. c. 39. s. 13, so as to authorize a motion for a distringas, or to enter an appearance for the defendants. Walton v. the Universal Salvage Co., 16 Mee. & W. 438. The defendant was a lunatic, and was confined in a lunatic asylum ; and the party going there to serve him wili a writ of summons, was told, on several occasions, by the proprietor of the asylum, and by his wife and daughter, that it was against the rules of the establishment that the lunatic could PRACTICE, AT LAW ; (B) Appearance. 535 be seen. The proper number of calls were made ; and, on the last occasion, a copy of the writ left with the daughter of the proprietor. The Court granted a distringas to compel an appearance, di- recting the writ to be .served on the wife of the lupatic, or at his last place of residence, as well, as at the asylum. Mutter v. Foulkes, 5,Dowli, & L. P.O. 557. :; (c) Altering and Amending. A defendant having been arrested upon a capias directed to the sheriffs, instead of to the sheriff of Middlesex, applied to a Judge for his discharge. The Judge refused to discharge him, and, on,.tb« application of the plaintiff, made an, order for amending the writ and copy. The defendant, hav- ing applied to the Court, to rescind the Judge's order, — Held, that the writ was properly amended ; that neither the Court nor the Judge had power to amend the copy ; and that the defendant was en- titled to his discharge on the ground of the variance between the writ as amended and the copy. Qiuere — Whether the defendant could he again arrested upon the writ so amended by the Judge. Moore v. Magan, or M'Ghan, 16 Law J. Rep. (n.s.) Exoh. 57 ; IS Mee. & W. 9S ; 4 Dowl. & L. P.C. 267. The plaintiff applied for a rule to alter the date in the first and alias writ of summons from the day on which they were respectively issued to a later date, in order that a pluries writ might issue within a, month after the date of the alias as amended, for the purpose of saving the Statute of Limitations: — Held, that the Court will not authorize any alter- ation in the date of a writ of summons ; though without such alteration the Statute of Limitations will be a bar to the action. Campiellv. Smart, 17 Law J. Rep. (n.s.) C.P. 63 ; 5 Dowl. & L. P.C. 335 ; 5 Com. B. Rep. 196., The defendant was arrested under a writ of capias, the copy of which served contained no direction to the sheriff, and no day or year in the teste. The defendant was served with a copy of the writ of summons, by which the action was commenced, directed to the defendant in the wrong county, and tested in 1840, hut which was not served until 1844. On an application to discharge the defendant out of custody, for irregularity, — Held, that it was not necessary to apply to set aside the writs or copies, and also that the grounds of the irregularity need not be stated in the rule. Held also, that it was necessary that a summons should have issued before proceeding to the arrest, under 1 & 2yict. c. 110. s. 5, and the writ of sum- mons and copy being defective, the Court had no power to render them valid by amendment, as there was nothing by which to amend the writ itself j and even if the Court had power to deal with the copy, it could only be by permitting a fresh copy to be served, which would not remedy the defect in the original service. Rennie v. Brace, 14 Law J. Rep. (n.s.) a.B. 207 ; 2 Dowl. & L. P.C. 946. [See Amendment.] (d) Setting aside. [See (N) Proceedings.] (e) Filing. Though the 2 & 3 Will. 4. c. 39. s. 10. does not in terms require that writs issued and continued for the purpose of preventing the operation of the Statute of Limitations should be " filed," yet it being necessary that such writs should he brpught to the officer of the court when returned, in order in each instance to warrant the issuing of a ^6n- tinuing writ, the filing must betaken to be a neces- sary part of the returijing and entering' of record required by the act. HvKter v. Caldwell, 16 Law J. Rep. (n.s.) a.B.274; 10 Q.B. Rep. 69. (B) Appeakance, . , 1 , (a) Entering and Striking oiit. When the last of the eight days after the service of a writ of summons falls on afly day between the Thursday before and' the Wednesday after Easter- day, then the Wednesday after Easter-day is con- sidered the last of such eight days, and the plainljtt may enter an appearaince for the defendant oh the Thursday. Harris v. Itolnnson, 15 Law 3. Rep. (n.s.) C.P. 208 i 3 bowl. & L. P.C. 813 ; 2 Coni'. B. Rep. 908. Where a writ of, summons issued into Middlesex had been sent by post to a defendant, ah attorney, in London, who afterwards admitted the receipt, and said he would enter an appearance, — Held, insufficient to entitle the defendant to a rule ab- solute in the first instance to enter an appearande, but sufficient for a rule nisi. Grand Junction Waterworks Co. v. Roy, 16 Law J. Rep. (N.s.) C.P. 200. A plaintiff, in person, may enter an appearance for the defendant according to the statute. Smith V. Wedderhume, 16 Law J. Rep. (n.s.) Exch. l4 ; 16 Mee. & W. 104 ; 4 Dowl. & L. P.C. 296. A Judge having made an order (opposed by the defendant) to set aside an appearance, the plaintiff took the order to the clerk of appearances, who thereupon struck out the appearance, but the plaip- tiff omitted to serve the order on the defendant:— Held, that the plaintiff could derive no benefit from the 0TcA6t:' Belcher v. Goodered, 16 Law J. Rep. (n.s.) C.P. 176 i 4 Dowl. & L. P.C. 814 ; 4 Com. B. Rep. 472. Where after a distringas had issued, the defen- dant took out a summons to stay proceedings, on payment of debt and costs, but drew up no rule, the Court allowed an appearance to be entered for him under the statute. Watkins v. Hayward, 15 Law J. Rep. (N.s.) a.B. 46. (i) Distringas to compel. The affidavit for a distringas should state where the residence of the defendant is situated. Crofts V. Brown, 14 Law J. Rep. (n.s.) a.B. 232 ; 2 Dowl. & L. P.C. 935. The Court granted a distringas where it appeared that the answer given on each of the three calls for the purpose of serving the writ was, that the defen- dant was ill in bed, and could not be seen, the na- ture of the visit being explained to the servant, without any statement that the defendant was keep- ing out of the way to avoid process. Wilkins v. Janes, IS Law J. Rep. (n.s.) 0.8. 226 j 3 Dowl. & L. P.C. 747. A service upon a clerk at a party's place of busi- ness, when his re.sidence cannot be found, may be sufficient for a distringas to proceed to outlawry. Quare —Whether it is sufficient for a distringas to 536 PRACTICE, AT LAW; (C) Deoj.aeation. compel an appearance. Rock v. Adam, 15 Law J. Rep. (n.s.) C.P. 192; 3 Dowl. & L.P.Ci 817. A distringas may issue within a reasonable time after the expiration of four months from the issuing of the writ of summons. Peyton v. Wood, 15 Law J. Rep. (n.s.) Exoh. 347 ; 15 Mee. & W. 608 ; 4 Dowl. & L. P.C. 19. To obtain a distringas it is sufBcient if the appoint- ments and calls are made at the defendant's place of business, if it also appears that his residence is unknown. Baker v. Coe, 16 Law J. Rep. (n.3.) Exch. 256 ; 1 Exch. Rep. 153. If a distringas to compel an appearance issues against a person who was abroad at the time when service of the writ of summons was attempted, it is irregular, but unless the defendant applies promptly- after he is aware of the proceedings against him, he will be taken to have waived the irregularity. Brough T. Eisenberg, 19 Law J. Rep. (n.s.) Q.B. 22; 7Dowl. &L. P.C.338. A Judge at chambers made an order for a dis- tringas, upon affidavits which were sufficient, if true. The defendant applied to the Court for a rule nisi to set aside the order, upon affidavits con- tradicting the facts stated in the original affidavits produced before the Judge. The affidavits of the defendant stated that a paper, which was described to him, and which he concluded was a copy of a writ of summons, had been left at his house, and destroyed by mistake in his absence, and that he had no other knowledge of an action having been commenced against him : — Held, that a defendant who seeks to set aside the order for a distringas granted by a Judge at chambers, must shew that the original affidavits on which the order was granted are defective. The Court will not set aside a distringas upon affidavits contradicting the facts upon which the order for a distringas was made. Lewis V. Padwick, 19 Law J. Rep. (n.s.) C.P. 140. Upon a motion for a distringas, it is not enough that the affidavit negatives the appearance of the defendant, " according to the exigency of the writ" of summons. M'Alpin v. Gregory, 1 Com. B. Rep. 299. The affidavit in support of a distringas must shew that the party explained the nature and object of his call. Dubois v. Lowther, 4 Com. B. Hep. 228. The affidavit in support of a distringas, stating the making of calls, &c., at the place of residence of the defendant, or stating merely the non-appear- ance of the defendant, without adverting to any search, or when, where, or whether the copy of the writ reached his hands, is sufficient ; and where no objection was made to the writ describing the defendant by initials, no objection can be made to the distringas. Batho v. Dickman, 6 Com. B. Rep. 260. Rule for a distringas not discharged, on the ground of mis-statement in the affidavit. Ensor v. Griffin, 7 Com. B. Rep. 781. (C) Declaration. (a) Time to declare. The defendant, before declaration, obtained an order for particulars of demand, with a stay of proceedings until delivery ; and the plaintiff having, for two terms, neglected to deliver the parti- culars, the defendant got an order rescinding his first order, served it with demand of declaration on the plaintiff, and after four days signed judgment of nonpros. On motion to set aside the judg- ment, — -Held, that the non-delivery of the parti- culars being a default of the plaintifT, he was not entitled to the same time to declare, after the re- scinding of the order to stay the proceedings, as he was at the time when that order was made ; and, therefore, that the judgment was regular. Johns V. Sanders, 16 Law J. R.ep. (n.s.) Q.B. 340; 5 Dowl. &L. P.C. 49. A defendant having, on the 11th of August, served a summons on the plaintiff to shew cause why the declaration should not be set aside, on the ground, as stated in the summons, of " four terms " (instead of " a year ") having elapsed be- tween the writ and declaration, the Judge, on the 14th of August, dismissed the summons for this defect. The defendant having, on the 27th of October, applied to another learned Judge, who refused to interfere, obtained a similar rule in this Court, in Michaelmas term : — Held, that the Judge was right in dismissing the summons, and that the defendant was too late in his application to the Court. Chaplin v. Showier, 18 Law J. Rep. (n.s.) Exch. 34 ; 6 Dowl. & L. P.C. 227. (6) Allowing and Striking out Counts. "Where the plaintiff declared on an agreement by which he undertook to siurvey a line of railway, and was to be paid 250/. on the 22nd of October on commencing the work, 300/. more on the 15th of November, 250/. on the plans being deposited, and 300/. when the Standing Orders were complied with, — Held, that a special count for the first two instalments was properly joined with a count for work and labour. Bulmer v. Bousfield, 16 Law J. Rep. (N.s.) Q.B. 237; 9 Q.B. Rep. 986. The defendant, on the 6th of November, obtained a Judge's order for a week's time to plead; on the 12th he took out a summons to strike out one of two counts in the declaration, which, on the 14th, was dismissed, with costs, and at the same time an order was made giving him three days' time to plead. On the 19th he obtained a rule for strik- ing out the first or second count: — Held, that the application was too late, and that the rule must be discharged. Semble — that an appeal lies to the Court, when a Judge has refused to make an order. Chapman v. King, 16 Law J. Rep. (n.s.) Exch. 15 ; 4 Dowl. & L. P.C. 311. A count on a charter-party for demurrage and detention of the ship, and an indebitatus count for demurrage are " in apparent violation " of the Pleading Rules of Hilary term, 4 Will. 4, s. 5, and ought not to be allowed ; Piatt, B. dissentienie. Mathewson v. Ray, 16 Law J. Rep. (n.s.) Exch. 288; 16 Mee. & W. 329. Where two counts appearing to be on the same agreement are introduced into a declaration for the evident purpose of removing a difficulty as to the legal effect of the agreement, one of the counts ought to be struck out. The first count was upon an agreement by which the defendant undertook to take the plaintiff into his service for six months, and at the expiration thereof, if no just cause was shewn, to enter into PRACTICE, AT LAW; (C) Declakation. 537 a fresh agreement for two years. First breach, that though no just cause was shewn at the expi- ratioTi of the six months, the defendant would not enter into a further agreement for two years. The second count stated that whereas the plaintiff had been six months in the defendant's service, the defendant agreed to continue him in the service for two years. Breach, that the defendant would not continue him in the service. A rule nisi to rescind an order for striking out so much of the first count as related to the first breach, as being in violation of rule of Hil. term, 4 Will. 4. No. 5, was discharged. Smith v. Thompson, 17 Law J. Rep. (N.s.) C.P. 159 ; 5 Dowl. & L. P.C. 524; 5 Com. B. Rep. 486. A declaration in trespass contained two counts, the first in the usual form for breaking and entering the plaintiff's rooms, the second, under the statute 2 Will. & Mary, session 1. c. 5. s. 5, for distrain- ing goods for rent pretended to be due, and selling them, and claiming their double value, &c. There was only one act of trespass committed: — Held, that the plaintiff was not entitled to more than the second count of the declaration, under which he could recover damages, though proof of a simple act of trespass only were given. Hoare v. Lee, 17 Law J. Rep. (n.s.) C.P. 196 ; 5 Dowl. & L. P.C. 765 ; 5 Com. B. Rep. 754. In assumpsit, a count for money paid was pleaded with a special count, which stated in substance, that In consideration of the plaintiff having, at the de- fendant's request, contracted to sell to a third pai:ty on his own credit and responsibility certain shares in a railway company, of which the defendant was the registered holder, the defendant promised to deliver to him all new shares allotted in respect of such shares while he continued the registered holder thereof, -on payment to him of all payments made by him to the company in respect of such new shares, and to indemnify the plaintiff from all loss which might arise by reason of the non-performance of his said -promise ; alleging the non-delivery to the plaintiff of certain new shares so allotted to the defendant, and that by reason thereof the plaintiff had necessarily expended a large sum of money in the purchase of other shares, in order to perform his said contract of sale : — Held, not to be in viola- tion of the pleadingrules of Hilary terra, ,4 Will. 4, I. 5, whereby several counts are not to be allowed, unless a distinct subject-matter of complaint is in- tended to be established in respect of each. Simpson V. Rand, 17 Law J. Rep. (n.s.) Exch. 146; 1 Exch. Rep. 688; 5 Dowl. & L. P.C. 389. Where a Judge at chambers has declined to make an order, upon an application under the Sth and 6th rules of Hilary term , 4 Will. 4, to strike out counts as being in apparent violation of the former rule, — it is competent to the Court to entertain the matter. A count for goods sold and delivered was not allowed together with a count upon a special con- tract apparently for the price of the same goods, unless the plaintiff could satisfy a Judge at cham- bers, that he bond fide intended to establish a distinct subject-matter of complaint in respect of each count; dissentients Cresswell, J., as to the application of the rule. Grissell v. James, 4 Com. B. Rep. 768. A declaration by the assignees of two bankrupts Digest, 1845—1850. contained four counts. First count, trover for a ship and cargo in the possession of J H converted before the bankruptcy. Second count, trover for o ship and cargo in the possession of the assignees converted after the bankruptcy; Third count, that J H, being sole owner of a ship, executed a deed- poll (set out at length) under seal before his bank- ruptcy, empowering the defendants to sell the ship ; that the deed was delivered to the defendants as a security for certain bills of exchange drawn by the said J H and by A M on the defendants, which they were to accept ; that they refused to accept the said bills, but nevertheless, contrary to the purpose for which the deed-poll was delivered to them and under colour thereof, sold the ship before the bank- ruptcy, whereby the plaintiffs as assignees of the said J' H and A M have been deprived of the pos- session of the said ship, and have lost a large sum of money which would have been payable to them, as assignees, for freight. Fourth count, that J H, being' sole owner of a ship, executed a deed-poll (as in the third count), and that J H and A M, before the bankruptcy; wrote a letter to the defendants, in- structing them not to sell the ship; that the deed- poll and letter were delivered to the defendants, who always held the said deed-poll subject to the terms of the said letter, but nevertheless, contrary to the said purpose and contrary to the instructions con- tained in the said letter,' and under colour of the deed-poll, sold the said ship before the bankruptcy, &c. (-concluding as in the third count) :— Held, that the plaintiffs must elect between the first and third, and second and fourth counts, or amend the iirst and second counts by coniining the same to the cargo ; such counts being founded on the same principal matter of complaint, and in violation of Reg. Gen. Hil. term, 4 Will. 4. r. 5. Dearie v. ffen- derson, 18 Law J. Rep. (n.s.) C.P. 149 ; 7 Com. B. Rep. 71. The first count of a declaration stated, that the defendants agreed to sell twenty tons of sal enixon at \ll. per ton, and to deliver it at a certain time and place, &c. Breach, that the defendants did not deliver the sal enixon or any part thereof, and that the plaintiff was obliged to purchase elsewhere, to the plaintiff's damage, &c. The second count stated that after the agreement as aforesaid, the defendants delivered and were paid by the plaintiff for a cer- tain article which they warranted was sal enixon. Breach, that the said article was not sal enixon, but was nitrate of soda cake, whereby special damage accrued to the plaintiff. On motion for a rule to shew cause why the order of a Judge striking out one of the above counts should not be rescinded, — Held, that the two counts were founded on the" same subject-matter of complaint, and that one of them was properly disallowed pursuant to Reg. Gen. Hil. term, 4 Will. 4. r. 6. Ramsden v. Gray, 18 Law J. Rep. (n.s.) C.P. 277 ; 7 Com. B. Rep. 961. (c) Notice of Declaration. In an action, commenced by writ of summons, a capias was taken out under the 1 & 2 Vict. c. 110. o. 3, and the defendant arrested under it. The plaintiff subsequently entered an appearance for the defendant, and filed a declaration with the Masters, and served the defendant with notice of the decla- 3 Z ',38 PRACTICE, AT LAW ; (D) Plea. ration :— Held, that this was regular, and that it was not necessary to serve the defendant with the copy of the declaration. Neale v. Snodell or Snoulten, 15 Law J. Rep. (n.s.) C.P. 22; 3 Dowl-. & L. P.C. 422 ; 2 Com. B. Rep. 322. (D) Plea. (a) Rule to pkad. Semble — that it is no part of the plaintiff's duty to see that the precipe for the rule to plead has been entered by the Master in the book kept for that purpose J and therefore where judgment has been signed for want of a plea, the Court will not set it aside upon the ground that no such entry has been made in the book. Wright v. Woodroffe, 18 Law J. Rep. (N.s.) Exoh. 168. (ft) Time to plead. Where a summons for particulars is dismissed after the time for pleading has expired, the defen- dant is entitled only to a reasonable time to deliver his pleas, and not to the same time as he had when the summons was returnable. The rest of the day is a reasonable time for this purpose. Mengens v. Perry, 15 Law J. Rep. (n.s.) Exch. 307 ; 15 Mee. & W. 537. A summons for further time to plead after an order for time to plead peremptory, is regular ; and if returnable at the opening of the office, on the day after the order expires, it operates as a stay of pro- ceedings till disposed of. Beazley v. Bailey, 16 Law J. Rep. (n.s.) Exch. 1 ; 16 Mee. & W. 58 ; 4 Dowl. & L. P.C. 271. The- declaration was delivered along with a rule to plead in which the name of the cause was incor- rectly stated ; and the defendant afterwards asked, and obtained from the plaintiff, time to plead, with- out taking out a summons. No plea having been delivered, the plaintiff signed judgment: — Held, that the judgment was regular, the defendant having waived the irregularity in the rule by obtaining time to plead. Carpenter v. Hall, 18 Law J. Rep. (N.s.) C.P. 279; 8 Com.B. Rep. 84. A defendant whose time for pleading expired on the 26th, on the 24th took out a summons for fur- ther time to plead, returnable on the 25th; this summons not being attended, another summons was taken out, returnableonthe26th, which having been dismissed on the afternoon of that day, the plaintiff on the same day signed judgment: — Held, that the judgment was irregular, the defendant being entitled to the whole of the 26th to deliver his pleas. Evans V. Senior, 19 Law J. Rep. (n.s.) Exch. 159 ; 4 Exch. Rep, 818. (c) Issuable Plea. A plea raising a fair question of doubt on a matter of law, the decision of which will determine the legal rights of the parties on the merits, is an issuable plea. Therefore, in an action upon an agreement that M should furnish to Z, within eight months, two steam-engines, of a certain power and description, to be put on board a vessel, for 15,000^., and that Z should pay that sum for them in the following manner, viz., one fourth part on signing the agreement, one fourth part when the engines were half finished, one fourth part when the engines should be ready to be put on board, and one fourth part when they were completed and put on board, complaining that M did not furnisli the engines within eight months ; it was held that a plea, stating that although the engines were half finished, accord- ing to the agreement, of which Z had notice, yet that he did not nor would pay the one fourth parf of the price then due, though requested to do so, raised a fair question of doubt as to his legal right to re- cover, and was an issuable plea. Zulueta v. Miller, 15 Law J. Rep. (n.s.) C.P. 267 ; 4 DowL & L. P.C. 186; 2 Com. B. Rep. 895. The defendants being under terms to rejoin issu- ably demurred to the replication, on the ground of duplicity : — Held, that this was a breach of the order to plead issuahly, and a rule to set aside judgment signed by the plaintiff was discharged. An issuable plea is one upon which, if judgment be given, there will be a decision on the merits. Tagg V. Simmonds, 16 Law J. Rep. (n.s.) Q.B. 319 ; 4 Dowl. & L. P.C. 582. To a declaration on a bill of exchange for 20?., drawn by one L, accepted by the defendant, and indorsed by L to the plaintiffs, the defendant, being under terms of pleading issuahly, pleaded that be- fore the indorsement by L, L was indebted to the defendant in \l. 13s. \d., and that L held the bill on the terms that the said debt should he set off against the sum due from the defendant to L upon the bill. That L, in order to deprive the defendant of his right to the set-off in respect of the \l. ISs. \d., and in fraud of defendant, and in collusion with the plaintiffs, indorsed the bill to the plaintiffs, who were suing as agents for L : — Held, that this was not an issuable plea. Mayew or Mayhew v. Blofeld, 17 Law J. Rep. (n.s.) Exch. 28; 1 Exch. Rep. 469. Declaration contained a count by. indorsee against indorser of a bill of exchange and a count on an account stated. Plea, that the defendant did not indorse the said bill in the said first count men- tioned in manner and form as in the said first count mentioned. The defendant being under terms to plead issuahly, the plaintiff signed judgment on the ground that the plea being pleaded to the whole declaration, and containing no answer to the last count, was not an issuable plea : — Held, that the judgment was irregular. A plea is not non-issuable which is only bad on special demurrer. Bousfield v. Edge, 17 Law J. Rep. (n.s.) Exch. 169; 1 Exch. Rep. 89; 5 Dowl. & L. P.C. 99. The declaration stated that E J was indebted to the plaintiff, and that the plaintiff had brought an action for the debt, and had given notice of trial ; that the defendant, who was E J's attorney, having ap- plied to the plaintiff to stay proceedings, E J delivered to the defendant a picture, accompanied by a letter, requesting the defendant to use his best endeavours to find a purchaser for it at forty guineas or more, and stating that the defendant should pay iOl. out of the purchase-money to theplaintiff on her (E J's) account j and that in consideration that the plaintiff promised to abide by the terms of the letter, and to countermand his notice of trial and stay proceedings in the action, and accept the iOl. out of the pur- chase-money in full satisfaction of his claim, the defendant promised to fulfil the conditions of the PRACTICE, AT LAW; (D) Plea. 539 letter! and although the plaintiif did countermand his notice of trial, and stayed proceedings, and was ready and willing to accept the iOl. in full satisfac- tion, yet the defendant did not within a reasonable time use his best endeavours to find a purchaser for the picture. To this the defendant, who was under terms to plead issuably, pleaded a special traverse, alleging a fresh notice of trial, and con- cluding absque hoc that the plaintiff stayed the pro- ceedings : — Held, that this was not a non-issuable plea which entitled the plaintiff to sign judgment. The defendant afterwards pleaded that the plain- tiff was not ready and willing to accept and receive the sum of iOl. out of the said purchase-money modo el formd ; — Held, on demurrer, that the plea was had as an immaterial traverse, the readiness to receive the money being a condition subsequent to the performance by the plaintiff. Hudson v. liaslam, 18 Law J. Rep. (n.s.) C.P. 260; 7 Com. B. Hep. 825, 833. A declaration in covenant, by the administratrix of M L, stated that by an indenture made by the defendant, Eliza S, his wife, and M L, the intes- tate, the defendant covenaqted to pay to M L, during the life of Eliza S, an annuity of 52i. Breach, non-payment. Plea, setting out the indenture on oyer, which stated that M L did declare that he would stand possessed of the annuity in trust to pay the same to Eliza S for her own use. The in- denture was executed by the defendant and Eliza S, but not by M L. The plea then averred that M L never executed the indenture nor declared that he would stand possessed of the annuity in trust to pay it to Eliza S for her own use, nor did he ever become nor was the plaintiff a trustee under the deed : — Held, an issuable plea. Linwood v. Squire, 19 Law J. Rep. (n.s.) Exch. 237 ; 5 Exch. Rep. 234. {d) Several Pleas. To a declaration containing three counts, the defendant, who had appeared by attorney, obtained a rule generally to plead coverture and the Statute of Limitations, and, accordingly, pleaded those pleas to the whole declaration. The pleas were set aside by a Judge at chambers, on the ground that a defendant could not appear by attorney and plead coverture. The defendant then, without obtaining a fresh rule to plead, pleaded to the first two counts, coverture, and to the whole declaration the Statute of Limitations, whereupon the defendant signed judgment : — Held, that the judgment was irregular, for as the rule to plead had not been set aside, the defendant was at liberty to plead the pleas in ques- tion, and was not bound by the tei'ms of the rule to plead them to the whole of the declaration. Fryer V. /Andrews, 17 Law J. Rep, (n.s.) Exch. 25 ; 1 Exch. Rep. 471. The defendant obtained a rule to plead four pleas, describing the last plea in the rule thus : " that as to the sum of 1001., parcel, &c. the.defendant, before the commencement of the action, indorsed and delivered to the plaintiffs a certain bill of exchange for 1001., which the plaintiffs received in satisfaction of the said sum of 1001." The plea pleaded was: " as to the said sum of 1001., parcel, &o., that, before the commencement of the suit, the defendant,^?* and on account of the said sura of 100^., indorsed and delivered to the plaintiffs a certain bill of ex- change for 100/., drawn by the defendant and accepted by one T J, and the said plaintiff's took and received the said bill of exchange for and on account of the said sum, parcel," &c. Averment, that the defendant had not due notice of the non- payment of the said bill of exchange : — Held, that the plaintiffs were entitled to sign judgment, on account of the variance between the rule to plead and the plea pleaded. Hills v. Haymen, 17 Law J. Rep. (n.s.) Exch'. 206; 2 Exch. Rep. 323; 5 Dowl. & L. P.O. 742. Where a defendant has obtained leave to plead several matters, if the pleas delivered differ sub- stantially from the abstract, the plaintiff may sign judgment. Gabardi v. Harmer, 18 Law J. Rep. (n.s.) Exch.,168; 3 Exch. Rep. 239. To a declaration containing a count on a promis- sory note and the common counts, the defendant, without having obtained a rule to plead several matters, pleaded, to the first count, that he did not make the note, " and for a further plea to the whole' declaration," non assumpsit : — Held, that the plain- tiff was entitled to sign judgment. Harney or Harvey v. Hamilton, 18 Law J. Rep. (N.s.) Exch. 377 ; 4 Exch. Rep. 43i A defendant sued as executor (on an affidavit that he was advised that he would be put to great difficulty if he were not permitted to do so) was allowed to plead ne imques executor, and also plene administravit. Tyson v. Kendall, 19 Law J. Rep. (N.s.) aB. 434. Where pleas are pleaded which do not corre- spond with the abstract delivered with the sum- mons to plead several matters, the proper mode of taking the objection is by motion to strike out the pleas. FligM v. Smale, 4 Com. B. Rep. 766. In case for waste, a count alleged that beech trees were reckoned timber trees; plea, traversing the allegation, was allowed, in addition to not guilty. Mathewsy. Mathews, 7 Com. B. Rep. 1018. The Court refused to allow a defendant to plead a plea in bar of the further maintenance of the action, together with a plea in bar of the action generally. Suckling v. Wilson, 4 Dowl. & L. P.C. 167. [See Libel.] (e) Adding and Striking out Pleas. Where an action had been brought against a surety under the 1 & 2 Vict. c. 110, for not render- ing his principal, and a plea intended as an excuse for the render had been held bad on demurrer, the Court, in the following term, allowed a plea similar in substance to be added, counsel not having been present to ask to amend when judgment was deli- vered. Hayward v. Bennett, 16 Law J. Rep. (N.s.) C.P. 95 ; 3 Com. B. Rep. 418. After issue joined, and notice of trial, the Court allowed the defendant to add a plea, that the plain- tiff was not a sworn broker of the city of London, it appearing that the trial of the cause would not be thereby delayed. Field v. Sawyer, 1 7 Law J. Rep. (N.s.) C.P. 211; S Dowl. & L. P.C. 777 ; 5 Com. B. Rep. 844. Debt for the amount of compensation assessed by a jury before the sheriff, under the Lands Clauses Consolidation Act, the 8 & 9 Vict. c. 18. The defendants pleaded, amongst other pleas, two 540 PRACTICE, AT LAW; (E) Demurrer. pleas alleging in sutstance that a jury was duly sworn to assess the coropensation alleged in the declaration, without this, that J A, one of the jurors named in the declaration, was so chosen and sworn. The facts were that a jury having heen duly sworn, the holding of the inquisition was adjourned ; and on the adjournment day, one of the jury being absent from illness, the sheriff, with the assent of the par- ties, swore J A, another of the jurymen who had been regularly summoned, in his stead, and the jury so constituted assessed the compeiisation. Held, that such pleas were vexatious in their nature, and beside the merits, and the defendants were therefore bound to elect between them and the others pleaded. Cooling v. the Great Northern Rail, Co., 19 Law J. Eep. (n.s.) Q.B. 529 ; 15 Q.B. Rep. 486. (/) Puis darrein continuance. A plea of a release puis darrein continuance having been delivered on the 22nd of April, an application to set it aside on the 8th of June held not too late. Wright V. Burroughs, 15 Law J. Rep. (N.9.) C.P. 277; 3 Com. B. Rep. 344. V/here a cause was entered for trial at the first sittings in term, which commenced the 3rd of November, but was not in fact tried until the fol- lowing day, and on the 3rd of November the de- fendant's attorney delivered to the plaintiffs' attor- ney in court a plea, in the nature of a plea puis darrein continuance, pleaded as in banc, accompanied by an affidavit that the subject-matter thereof arose within eight days, — Held, that it was irregular, as such a plea, if pleaded after the commencement of the sittings, ought to have been pleaded at Nisi Prius and delivered to the Judge. Payne v. Shen- ston, 16 Law J. Rep. (n.s.) Q.B. 61 ; 4 Dowl. & L. P.C. 396. (E) Demuereb. (a) Marginal Statement. To an action of trover the defendant pleaded, first, that the grievance was committed after the passing of the 7 Vict. c. 19, for regulating the bailiffs of inferior courts, and within the jurisdiction of the inferior court thereinafter mentioned ; that before and at the time of the grievance he had been duly appointed to act as bailiff in execution of the process of the Tolsey Court of Bristol, which court then and at the passing of the act had and still has, by charter, jurisdiction in personal actions, within the said city ; that^the defendant, until and at, &c., was a bailiffof the said court, and that the supposed grievance was a thing done by him in pursuance of his duty as such bailiff, and that no notice of action had been given to him. The fourth plea resembled the foregoing, except in stating that the cause of action did not accrue to the plaintiff three months before action brought. The plaintiff demurred specially to the third plea, assigning causes. He also demurred to the fourth" plea, assigning for causes, in the demurrer and in the margin, that the plea was insufficient, upon the like grounds of objec- tion as had been taken to the third plea:— Held, first, that the demurrer to the fourth plea was a suf- ficient compliance with the Reg. Gen. Hil. term, 4 Will. 4. pi. 2, which requires the statement of some matter of law in the margin of demurrers; secondly, that it was snffieient to state that the defendant was a bailiff rfc facto, and that the pleas were good. Braham v. TVatkins, 16 Law J. Rep. (n.s.) Exch. 9 ; 16 Mee. & W. 77 ; 4 Dowl. & L. P.C. 42. (6) Special. The addition of causes of demurrer after signa- ture of counsel thereto does not make the demurrer special. Clarke v. Allatt, 4 Com. B. Rep. 335. (c) Assessment of Damages on. In an action on the case, the declaration stated that the plaintiff was ahont to become an actor, and to use and exercise the profession and occupation of an actor for reward, and that the defendants con- spired to prevent him from performing in public as such actor, and to prevent him from exercising his said profession or occupation of an actor; that the defendants, in pursuance of the conspiracy, hired divers persons to attend, and they did attend, to hiss and hoot the plaintiff during the performance. It then proceeded to aver that the plaintiff did appear and perform as such actor for reward, and that while he was so appearing and performing, &c., the defendants, in pursuance of the said conspiracy, 8rc., did, together with divers others of the persons so hired, hoot and hiss the plaintiff, so that the plaintiff was, in consequence thereof, obliged to desist from performing; and alleged special damage. The defendants pleaded, first, not guilty; second, that the plaintiff was not about to become an actor, as alleged, &c. ; third, that the plaintiff did not become such actor, or appear or perform as such actor, for reward, &c. ; and, fourth, as to part of the grievances, a special plea, which was demurred to. Issues in fact were joined on the first three pleas, and judgment given for the plaintiff an the de- murrer to the fourth plea. A venire was awarded to try the issues in fact, and to assess damages on the demurrer, and the jury found the three issues for the defendants, but did not assess any damages on the judgment on demurrer, and final judgment was given for the defendants, with costs, but no judg- ment entered on the record for the plaintiff on the demurrer. Upon writ of error — Semble — that the second and third issues were immaterial; but Held, that a repleader could not he awarded, as the first plea was good, and decided the case on the merits. Held, also (affirming the judgment below, 13 Law J. Rep. (n.s.) C.P. 34; 6 Man. & G. 205), that the neglect to assess damages for the plaintiflT on the demurrer was not ground of error, as the first issue was found for the defendants. Held, also, that the plaintiff was entitled to have judgment to recover his costs on the demurrer to the fourth plea, under the 3 & 4 Will. 4. c. 42.s. 34. _ Held, also, that the judgment ought not to be simply reversed for this defect, hut given for the plaintiff for the costs of the demurrer, and for the defendants on the issues found for them. Gregory V. Bulie of Brunswich, 16 Law J. Rep. (N.s.) C.P. 35; 3 Com. B. Rep. 481. (d) Frivolous. The declaration, after alleging the employment PRACTICE, AT LAW; (G) Particitlaiis or Demand. 541 of one of the defendants as auctioneer, to sell goods of A B, and the printing and publishing by the defendants of advertisements announcing the sale by auction of choice and valuable wines, the pro- perty of A B, proceeded to allege a conspiring by the defendants to bring to the sale and induce the plaintiff to 4)urchase wines of no value as and for the wines of A B. The defendants, who pleaded separately, after obtaining several successive orders for time to plead on terms, pleaded, in addition to not guilty, pleas traversing in the terras of the de- claration the publishing of the advertisements and the announcement of the sale of the wines. The plaintiff demurred to these pleas. The defendants, after obtaining time to join in demurrer, obtained an order from a Judge at chambers for setting eiside the demurrer as frivolous, or for striking out the allegations in the declaration, of which the pleas demurred to were traverses, as being imma- terial and surplusage, and calculated to entrap the defendants : — Held, first, that an order for setting aside a demurrer to a plea, as frivolous, fell within the provisions of Reg. Gen. Hil. term, 4 Will. 4; secondly, that a frivolous demurrer was not an irregularity, so as to be waived by the defendants' obtaining time to join in demurrer; thirdly, that the order was one which ought to be made. Cutis v. Surridge, 16 Law J. Rep. (n.s.) Q.B. 193 ; 4 Dowl. & L. P.C. 642; 9 a.B. Rep. 1015. A demurrer to one of several replications being clearly frivolous, the Court set it aside for irregula- rity, giving the plaintiff leave to sign judgment on the whole record, as for want of a plea, unless the defendant consented to strike out the pleadings ending with the demurrer, to pay the costs of the application of preparing for trial, and to take short notice of trial. Tucker y. Barnesley, 16 Law J. Rep. (N.s.) Exoh. 65 ; s.c. 16 Mee. & "W. 54 ; 4 Dowl. & L. P.C. 292. In assumpsit by indorsee against drawer, the first count being on the bill, and a second upon an account stated, concluding with the promise of de- fendant to pay " the said several last-mentioned monies respectively to the plaintiff on request;" a demurrer, on the ground of the consideration of the promise being incorrectly stated, or if including the money in the first count, being bad for duplicity : • — Held, frivolous, and set aside. Lomax v. Wilson, 3 Com. B. Rep. 763. . Where a declaration was demurred to on the ground that the defendant, was therein described as "William Henry W. Collier," the initial letter W being used for an unexpressed name, the Court held that the demurrer was not frivolous. Semble — that such a demurrer is good. Nash v. Collier or Calder, 17 Law J. Rep. (n.s.) C.P. 91 ; 5 Com. B. Rep. 177. The Court refused to set aside as frivolous a demurrer to a replication to a plea of liberum tene- mentum, in trespass for mesne profits, setting up the judgment in ejectment by way of estoppel. Bather V. Brayne, 7 Com. B. Rep. 815. In an action on the case for making noises near the plaintifTs premises, the defendants pleaded that they were a registered joint-stock company, incor- porated for carrying on communication between ports of England and of France, for the public ad- vantage, and that it was necessary for them to con- struct and repair steam-boats, and that the place in question was convenient for the purpose, and that it was for the public advantage that the construction and repairs should be carried on near such place, and that the noises complained of were necessarily made in such construction and repairs. Replication, admitting the defendants to be a registered com- pany, de injurid absque residuo causa. The plaintiff added the similiter, delivered the issue, and gave notice of trial. The defendants delivered a de- murrer to the replication, and gave the plaintiffs notice that they had struck out the similiter. A Judge at chambers ordered that the demurrer should be set aside as frivolous, and that the issue delivered and the notice of trial should stand: — Held, that the demurrer was frivolous, and that the Judge's order was correct. Higinbotham or Hegin- botham v. the Eastern and Continental Packet Com- pany, 19 Law J. Rep. (h.s.) C.P. 25; 8 Com. B. Rep. 337. (F) Rejoining gratis. The terms, " rejoining gratis" do not extend to a joinder in demurrer; and therefore where a defen- dant, who is under terms of rejoining gratis, pleads pleas which are demurred to, he is bound to join in demurrer without a rule for that purpose, but he is not bound to do so without a demand of joinder ; and semble, per Alderson, B., if under such circumstances a joinder be demanded, the defendant would be bound to join in demurrer within twenty- four hours. Cooke v. Blake, 16 Law J. Rep. (n.s.) Exch. 151 ; 4 Dowl. & L. P.C. 313. Rejoining gratis means rejoining within four days from the delivery of the replication without a rule for that purpose, and does not mean rejoining within twenty-four hours. The defendant delivered a rejoinder shortly before nine o'clock in the evening of the 29th of March, being the last day for rejoining, and also the com- mission day of the assizes. By the practice of the office a cause cannot be tried at the assizes unless the record be passed before three o'clock of the after- noon of the commission day. The plaintiff, without waiting for the defendant's rejoinder (the Statute of Limitations), on the morning of the 29th inserted in the issue a rejoinder similar in substance to the defendant's, and delivered the issue with notice of trial. The defendant did not appear at the trial, and the plaintiff had a verdict; — the Court set aside the issue, Nisi Prins record, and trial. WinterboitDm V. Lees, 17 Law J, Rep. (n.s.) Exch. 217 ; 2 Exch. Rep. 325 ; 5 Dowl. & L. P.C. 744. (G) Particulars of Demand. In an action for work and labour, as a surveyor, the particulars of demand stated that the action was brought to recover a specified sum for surveying a certain number of miles between two places which were named, at a certain rate per mile, in the year 1845. Tlie defendant havingpleaded only thegeneral issue, and notice of trial having been given, a rule for further and better particulars was refused. Irving v. Baker, 15 Law J. Rep. (n.s.) a.B. 322. In an action brought by a sworn broker for the price of scrip bought for the account for the defendant, the particulars of the plaintiff's demand should state the names of the persons from whom. 542 PRACTICE, AT LAW; (H) Issue. and the price at which the scrip was bought, and the date of the purchase within a few days. Berkley y, De Vere, 15 Law J. Rep. (N.s.) Q.B. 323; 4 Dowl. & L. P.C. 97. In an action by an engineer, for work and labour and materials, a bill of particulars giving a general account of the nature of his demand is sufficient, as that he claims in respect of certain surveys, stating the number of miles and branches. Higgivs v. Ede^ IS Law J. Rep. (N.s.) Exch. 77; 15 Mee. & W. 76; 3 Dowl. & L. P.C. 470. The object of a bill of particulars is to controul the generality of the declaration ; and a defendant is entitled to such particulars of the plaintiff's de- mand as will give him that information which a reasonable man would require respecting the matters against which he was called upon to defend himself. In an action by an engineer against a railway company, for surveying their line, &c., and for money paid, a general particular for surveying the country between certain places, including travelling charges and assistance, is sufficient, without specify- ing the number of fields surveyed, or how much of the charge is for the engineer's skill, time and labour, and how much for travelling expenses and assist- ance. The particulars should specify the sums paid to the defendant's use. Rennie v. Beresford, 15 Law J. Rep. (n.s.) Exch. 78 ; 15 Mee. & W. 78 ; 3 Dowl. & L. P.C. 464. Where the plaintiff in his particulars of demand had stated his claim to be for 450i., for his services as clerk to the defendant, after the rate of 200/. per annum ; — Held, that he was not entitled to prove a contract to be paid a commission on the amount of business done by the defendant. The question in such a case is not whether the particulars have actually misled the defendant, but whether they were calculated to mislead a reasonable man. Law V. Thompson, IS Law J. Rep. (n.s.) Exch. 334 ; 15 Mee. & W. 541 ; 4 Dowl. & L. P.C. 54. In debt for work and labour, &c. the plaintiff delivered particulars of demand, which gave credit to the defendant for sums paid by him amounting to ZOl. A further and better particular of some of the items was afterwards delivered under a Judge's order, but which omitted to give credit for these pay- ments. This latter bill of particulars alone was an- nexed to the record when entered. There was no plea of payment on the record. At the trial the plaintiff proved a demand to the amountof22Z., anditappeared on cross-examination that the defendant had ad- vanced money to the plaintiff to the amount of TJl, The defendant called for the first particulars deli- vered, under a notice to produce, and on non-pro- duction tendered a copy in evidence. This was rejected by the under-sheriff. The jury found for the defendant. On a motion for a new trial, on the ground of the rejection of this evidence, the Court discharged the rule, as, supposing the evidence to have been admitted, the verdict ought to have been for the defendant. BouUon v. Pritchard, 15 Law J. Rep. (n.s.) as. 356; 4 Dowl. & L. P.C. 117. In actions against persons on contracts arising out of railway matters, the particulars of demand must "be as explicit as possible. Prichard v. Nelson, 16 Law J. Rep. (n.s.) Exch. 207 ; 16 Mee. & W. 772; 4 Dowl. & L. P.C. 693. In an action against the defendant for a false re- presentation of the solvency of a third party, whom the plaintiffs had supplied with goods, the Court refused to compel the plaintiffs to furnish the defen- dant with a particular of credits consisting of the sums alleged to have been paid by such third party to the plaintiffs on account of the goods supplied. Luck v. Handley, 19 Law J. Rep. (n.s.) Exch. 29 ; 4 Exch. Rep. 486. In use and occupation to recover 42A 8s. 1 Qd., the balance of an account of 64i. Os. lOd., the plaintiff in her particulars of demand admitted the receipt of 2\l. 12j. The defendant had occupied the premises under the plaintiff's husband, and subsequently to his death had held them of the plaintiff: — Held, that the plaintiff was entitled to shew that part of the sum for which she had given credit in her par- ticulars was to be ascribed to the debt due to the husband, and not to that which became due to her- self since his death. Mercy v. Gatot, IS Law J. Rep. (n.s.) Exch. 347; 3 Exch. Rep. 851. In an action for money had and received, the plaintiff's particulars stated that the action was brought to recover " cash received by the defendant, being 10s. in the pound on a debt o{ 521. 5s., at one time due from the plaintiff to the defendant, and which had been previously paid by the plaintiff to the defendant." Held, that the plaintiff was not bound by his particulars to prove an actual cash payment of 521. 5s. to the defendant ; and that he was entitled to succeed on proof of payment of 391. 10s., being the amount of the bill less a large per-centage by way of discount, which the defendant had agreed to deduct. Letters containing a demand, written to a de- fendant, and unanswered by him, and in reference to which he has afterwards made unsatisfactory statements, are admissible in evidence against him, ^ although they also state facts shewing how the demand arises. Gaskill v. Skene, 1 9 Law J. Rep. (n.s.) as. 275. [See Set-off, Particulars.] (H) Issue. Obtaining a distringas is equivalent to serving a writ of summons. Where an issue stated that the action was com- menced by writ of summons issued on a day which saved the Statute of Limitations, and it appeared that the writ was not served nor returned nan eat inventus within a month after its expiration, and that a distringas was issued after the time of limita- tion had expired, the Court refused leave to amend the issue by entering therein the date of the dis- tringas instead of that of the writ of summons, on the ground that the distringas does not come within the 2 Will. 4. c. 39. s. 10. Jones v. Boxer, 18 Law J. Rep. (N.S.) C.P. 185; 7 Com. B. Rep. 58. In the issue the signature of counsel to tlie pleadings need not to be inserted. In an issue delivered under a Judge's order for a trial before the sheriff, under the statute 3 & 4 WilL 4. c. 42, the date of the teste of the writ of trial should be inserted, though the writ has not, in fact, issued, but it is not necessary to state the day on which it will be returnable. Where an issue omits to mention the date of the teste of the writ of trial, the proper course is PRACTICE, AT LAW ; (K) Triaij. 543 for the defendant to apply to a Judge to amend the issue at the cost of the plaintiff, and not to apply to the Court to set aside the issue and notice of trial. Jefferies v. YablonsM, IS Law J. Rep. (N.s.) C.P. 213 ; 3 Dowl. & L. P.C. 807 : 2 Com. B. Rep. 924. (I) Notice to produce. [See Bill of Exchange, and Production and Inspection of Documents.] (K) Trial. (a) Al Bar. The Court will not, on the application of the plaintiff; grant a trial at har nperely because the defendant is the Lord Chancellor, and the plaintiff an attorney of the court, and the cause is stated to be one of importance. Dimes v. Lord Cottenham, 19 Law J. Rep. (n.s.) Exch. 290 ; 5 Exch. Rep. an. For defect of jurors on a trial at bar, a rule absolute granted for a w'rit of octo ml decern tales. Buron v. Denman, 1 Exch. Rep. 769. (6) Notice of Trial. (1) Form and Time of. Where, by a Judge's order, the defendant is under terms of taking short notice of trial if necessary, he is not bound to take short notice if he puts in a plea sufficiently early to enable the plaintiff to give full notice of trial. Quare — Whether, in such a case, a defendant is not bound to apply promptly to set aside a notice of trial, on the ground that it is not given in suffi- cient time. Nichollv. Forshall, 15 Law J. Rep. (n.s.) Q.B. 203. On the 7th of April the defendant obtained an order for time to plead, taking short notice of trial, but not having pleaded in due time the plaintiff signed judgment, which the Court afterwards set aside. The defendant pleaded on the 1st of May ; on the 14th the plaintiff delivered a replication, but afterwards abandoned it, and delivered another on the 19th of May, with a rejoinder added. On the 23rd he delivered the issue indorsed with notice of trial for the 28th, and on that day, the defendant being absent, obtained a verdict. The Court held, that as the effect of the order of the 7th of April was removed by the judgment signed, the notice of trial was irregular, and the verdict must be set aside with costs. Drake v. Pickford, 15 Law J. Rep. (N.s.) Exch. 346 ; 15 Mee. & W. 607. A notice of trial may be given after a cause is set down for trial. No particular form is necessary to make a good notice of trial ; and, therefore, a notice correct in other respects, but incorrectly stating that the cause had been made a remanet from the preceding term, was held a good notice of trial. Ginger v. Pycroft, 17 Law J. Rep. (n.s.) Q-B. 182 ; 5 Dowl. & L. P.C. 554. Where the plaintiff had proceeded to trial upon an irregular notice of trial, the Court made a rule absolute to set it aside, with costs, the defendant not being bound to return the notice ; and the Court cannot take notice of a consent on a, sum- mons not followed in due time by an order drawn up and served. Wood v. Harding, 3 Com. B. Rep. 968. Where the plaintiff's pleading concludes to the country, he may give notice of trial under the Reg. Gen. Hilary term, 2 Will. 4. r. 69, either at the time of delivering the pleading or afterwards, without waiting for the similiter to be added. Where a rule nisi has been obtained to set aside a notice of trial, with a Stay of proceedings, Semble — that it is no violation of the rule to countermand the notice of trial. MuUinsy. Ford, 4 Dowl. & L. P.C. 765. (2) By Continuance. . A notice of trial hy continuance from the sittings in term to the sittings after term, in London, may be given, although the cause cannot be tried until the adjournment day. Toulmin v. Elgie, 15 Lavf J. Rep. (N.s.) a.B. 128; 3 Dowl. & L. P.C. 558. In a cause, the venue of which was Middlesex, notice of continuance of the execution of a writ of inquiry was given two clear days before the expira- tion of the original notice. On a motion to set aside the execution of the writ of inquiry, it appeared that the original notice was a fourteen days' notice, and the defendant's afiBdavitwas headed, "The affi- davit of M J, of Ragland," and stated that Ragland was 136 miles from Middlesex: — Held, that there was enough to shew that the cause was a country cause, and therefore that the notice of continuance should have been served six days before the day fixed by the original notice for the execution of the writ of inquiry. Saunders \. Jones, 15 Law J. Rep. (n.s.) Q.B. 272; 3 Dowl. & L. P.C. 770. Notice of trial was given for the second sittings in Michaelmas term, and was continued to the third sittings, and again continued to the sittings after term, and again continued to the first sittings in Hilary term, and still further continued to the second sittings in the last-mentioned term, at which sittings the cause was tried as undefended. The notice of continuance to the first sittings in Hilary term gave the defendant all the information as to the time and place of trial requisite in an original notice, and was served as long before the first sittings as an original notice should be served. Held, that the last-mentioned notice, which was bad as a continuance (only one continuance being -allowed in a term), was good as an original notice of trial; that it was properly continued to the second sittings ; and that the trial was regular. Cory V. Hotson, 19 Law J. Rep. (n.s.) Q.B. 250 ; 1 L. M. & P. 23. [See Judgment, as in case of Nonsuit.] (c) Postponing. The postponement of a trial upon affidavit is within the discretion of the Judge at Nisi Prius. Turner v. Merywether, 18 Law J. Rep."(N.s.) C.P. 155; 7 Com. B. Rep. 251. Where a trial is postponed by a Judge's order, on payment of the costs of the day, unless the order is accompanied by an appointment to tax the costs, the opposite party may treat it as a nullity, and proceed to try the cause. Waller v. Joy, 16 Law J. Rep. (n.s.) Exch. 17; 16 Mee. & W. 60 j 4 Dowl. & L. P.C. 338. 544 PRACTICE, AT LAW; (K) Trial. (d) Proceedings at the Trial. (1) In general. A witness for the plaintiff having stated that he had never heard of a certain agreement in writing, the agreement was put into his hands, and he was then asked by the defendant whether he had seen an agreement respecting the above matter ; he re- plied, " Never, before I came into court" : — Held, that the defendant, if he wished the agreement read, must put it in as his own evidence. Keys v. Har- wood, 15 Law J. Rep. (n.s.) C.P. 207; 2 Com. B. Rep. 905. A witness on cross-examination answered a ques- tion put to him by the defendant's counsel, and went on to make a further statement, which was not legal evidence. The plaintiff's counsel in reply remarked upon this further statement ; he was stopped by the jury, who understood the witness to have said the direct contrary to that attributed to him by the plaintiff's counsel, who then wished to recall the witness, but the Judge refused to allow this to be done : — Held, that the witness having volunteered a statement which was not evidence, it was the duty of the Judge not to notice it ; and that he was right in refusing to recall the witness to correct the mistake of the jury as to what the state- ment was. Catlin v. Barker, 17 Law J. Rep. (n.s.) C.P. 62 ; 5 Com. B. Rep. 201. In an action brought against several defendants, who appear at the trial by different counsel, it is a matter for the discretion of the Judge whether he will allow more than one counsel to address the jury on behalf of the defendants. Semble — that if at the close of the plaintiff's case there is only one point for the opinion of the jury, only one speech should be allowed. Nicholson v. Brooke, 17 Law J. Rep. (n.s.) Exch. 229 ; 2 Exch. Rep. 213. (2) Right to begiii. To an action of trespass qu. cl. fr., the defendant justified the entry, &c , for the purpose of removing an obstruction to his enjoyment of a right. The replication traversed the right : — Held, that, on the counsel for the plaintiff, at the trial, declining to say that he intended to proceed for substantial damages, the Judge rightly decided that the defen- dant should begin. Chapman v. Rawson, 15 Law J. Rep. (N.s.) Q.B. 225 ; 8 Q.B. Rep. 673. Assumpsit on a policy of assurance on life, one of the terms of which was, that it should be void if anything stated by the assured, in a decla- ration or statement given by him to the directors of the assurance company before the execution of the policy, should be untrue. In this declaration the assured stated, that he had not been afflicted with rupture, or any other disorder which tends to the shortening of life. The declaration in the cause averred the truth of the statement of the assured. Plea, that the declaration or statement was untrue to wit, in this, that the assured at the time of the making thereof was afflicted with rupture, conclud- ing with a verification. Replication, de injurid : — Held, that the plaintiff was entitled to begin, and the Judge who tried the cause having held the contrary, a new trial was ordered. Ashby v. Bates, 15 Law J. Rep. (n.s.) Exch. 349; 15 Mee. & W. 589; 4 Dowl. & L. P.C. 33. Where to an action against the maker of a pro- missory note, proof of the first four issues lay on the defendant, and, to a plea of payment into court, the plaintiff replied that the defendant was indebted to him in a larger amount than the sum paid in : — Held that the plaintiff was entitled to begin. Booth V. Millns or Millars, 1 5 Law J. Rep. (N.s.) Exch. 354 ; 15 Mee. & W. 659 ; 4 Dowl. & L. P.C. 52. [See Insukance, On Lives, Concealment — Ejectment, Right to begin.] (3) Evidence in reply. In an action of trespass for false imprisonment the defendant justified, first, on the ground that the plaintiff had stolen some " chaff" belonging to the defendant ; and, secondly, on the ground that the defendant had reasonable cause for suspecting the plaintiff of stealing his " chaff." The plaintiff gave some evidence of the honest possession of some chaff, and some peculiarities in that chaff were spoken to, similar to those in the chaff found in the plaintiff's drawer, and claimed by the defen- dant as his stolen property. No mention was made of linseed either in the pleadings or in the course of the plaintiff's case, by cross-examination or otherwise. The defendant called witnesses, who proved that in the chaff lost by him, and also in that found in the plaintiff's drawer linseed was found mixed. The plaintiff then proposed and was allowed by the Judge to call her father, who was in court, to prove that he had bought Unseed some months before the alleged felony, and mixed it with chaff, and sent it to the plaintiff, and to produce the invoice which he had received for that linseed. Held, that it was in the discretion of the Judge to allow such evidence to be given by way of reply, and that he had rightly exercised such a discretion. Semble — the Court will not lay down any general rule as to the admission of evidence in reply. Wright V. Wilcox, 19 Law J. Rep. (n.s.) C.P. 333. («) Entry on the Record. The plaintiff T, who sued as a public officer of a banking company, died after issue joined. The Nisi Prius record was made up from the plea roll as though T were alive. The venire was awarded as between T and the defendants. No entry was made on the plea roll of T's death, or of the ap- pointment of B as new public officer ; but a memo- randum was afterwards entered upon the Nisi Prius record of these facts, but not by way of suggestion to the Court, nor followed by any confession by the defendants, or a " nient dedire." The cause was entered for trial in the name of B as the plaintiff, and was tried by the jury returned to the venire between T and the defendants. Notice was given on the 6th of August to the defendants, that such entry would be made and the cause tried. The defen- dants appeared under protest, and the verdict was for the plaintiff. Held, that the entry on the Nisi Prius record was irregular, and did not authorize the trial of the cause in the name of B. Quiere- — Whether if the facts had been properly suggested upon the plea roll they would have been traversable ; and if so, to what time for pleading PRACTICE AT LAW. 545 would the defendants have been entitled ? Barne- wall V. Sutherland, 19 Law J. Rep. (n.s.) C.P. 290 ; 1 L. M. & P. 159. (L) New Trial. Where an ohjeotion is taken at a trial to the admissibility of certain evidence, but such objection is not afterwards pressed, and no subsequent application is made to have it struck out, the cir- cumstance of its having gone to the jury is no ground for a new trial, even though it should appear in the result to have been, on particular grounds. Open to objection. Ferrand v. Milligan, 15 Law J. Rep. (n.s.) Q.B. 103; 7 aB. Rep. 730. The Court will not grant the defendant a new trial where there has been a misdirection with respect to one item only of the plaintifTs demand, and the plaintiff consents to reduce the damages by the whole sura in respect of which the misdirection took place. Moore v. Tuckwell, 15 Law J. Rep. (N.s.) C.P. 153 J 1 Cora. B. Rep. 607. Practice as to taking the new trial paper on the last day of term. Lambert v. Heath, 15 Law J. Rep. (n.s.) Exch. 296. . Semble — the Court will not grant a new trial merely on the ground that a Judge's ruling as to the right to begin is erroneous, unless clear and manifest wrong has been done thereby. Booth v. Millns or Millars, 15Law J. Rep. (n.s.) Exch. 354 ; 15 Mee. & W. 669 ; 4 Dowl. & L. P.C. 52^. A cause which was fifteenth on the list for the day, was taken as an undefended cause, at the sitting of the Court, and in the absence of the defendant: — Held, that there was no ground for a new trial, and that the Judge may take the causes in the list in such order as he pleases. Banks v. Newton, 16 Law J. Rep. (n.s.) Q.B. 142 ; 4 Dowl. & L. P.C. 632. Where leave was given to the defendant to move for a nonsuit or a new trial after the first four days of term, and the case was entered in the list called the "New Trial Motion Paper," but no notice was given to the other side of its being in that list, beyond a statement made by the defendant's attor- ney to the plaintiff's attorney, that counsel would eithem move within the first four days of term, or enter the cause in the list; and the plaintiff signed judgment on the sixth day of term, and afterwards a rule nisi for a nonsuit or new trial was obtained by the defendant. Upon a rule nisi obtained by the plaintiff to set aside the defendant's rule for a non- suit or new trial : — Held, that the judgment could only be set aside and the defendant let in on pay- ment of costs ; and the Court directed the plaintiff's rule to stand over until the merits of the defen- dant's rule for a new trial should be disposed of. QMcere — Whether it would be sufficient to shew positive knowledge in the opposite party of the case being in the list. Lloyd v. Berkovitx, 16 Law J. Rep. (n.s.) Exch. 278 ; 16 Mee. & W. 31. Where a document which is not legal evidence of the facts contained in it, consists of an enumera- tion of items otherwise legally proved, the reception of such document in evidence is no ground for a new trial. Slindt v. Roberts, 17 Law J. Rep. (n.s.) Q.B. 166; 5 Dowl. & L. P.C. 460. If a Judge in leaving to the jury a question partly .depending upon the construction of an act Digest, 1845—1850. of parliament, does not give the jury an explana- tion of the meaning of the act sufficiently compre- hensive to enable them to decide the particular issue, it is a misdirection. Therefore, where the issue was whether a railway was at a particular spot passing " through a town within the meaning of the Railways Clauses Conso- lidation Act, section 11," and the Judge merely told the jury that "town" was in the act to be under- stood in its ordinary sense, the Court granted a new trial. " Town " in the act means the space on which the inhabitants have permanently collected their dwellings so near to each other that they may be reasonably said to be contiguous. It includes all open spaces surrounded by a continuous line of houses ; and, semble, all open spaces occupied as mere accessories to the congregated dwelling- houses, although not so surrounded. Elliott v. the South Devon Rail. Co., 17 Law J. Rep. (n.s.) Exch. 262 ; 2 Exch. Rep. 725. If a document be offered in evidence at a trial on one ground which is untenable, and be rejected, and after the trial it be discovered that the docu- ment might have been offered and admitted on another ground, the Court will not grant a new trial ; at all events, not unless manifest in- justice would ensue, and the party could not by due diligence have offered the document on the proper ground at the trial. Doe d. Kinglake v. Beviss, 18 Law J. Rep. (n.s.) C.P. 128 ; 7 Com. B. Rep. 456. The Court will not grant a new trial on the ground of a refusal by the Judge to allow a witness to be called after the case has been closed, unless it is made out very clearly indeed that the Judge in refusing has wrongly exercised his discretion. Mid- dleton V. Barned, 18 Law J. Rep. (n.s.) Exch. 433 ; 4 Exch. Rep. 241. In an action against a provisional committee-man of a proposed railway company for goods, &c. sup- plied in the course of the formation of, the company, and which resulted in a verdict for the defendant, the foreman of the special jury was himself a pro- visional committee-man of the same company. He did not make any affidavit that he was unaware of the question to be tried when he entered the jury- box : — Held, that this was a ground for a new trial; but it was granted only on payment of costs by the plaintiff, as it appeared that his attorney had been aware of the juryman's interest. Though a juryman's affidavit of what occurred in the jury-box during the trial cannot be received, it is admissible to explain the circumstances under which he came into the jury-box. An action was brought against a member of a provisional committee for (amongst other things) printing prospectuses of a proposed company. The defendant had admitted that all the work sued for had been done; after the case had been summed up, the jury inquired how early the defendant he- came a member of the committee, and the counsel for the plaintiff thereupon gave them the date of one of the prospectuses printed by the plaintiff in which the defendant's name appeared as a member of the provisional committee, and the jury gave a verdict for the plaintiff. Qutere — Whether the admission by the defendant 4A 546 PRACTICE, AT LAW ; (N) Pboobedings. thatall the work had heen done rendered the contents of the prospectus evidence against him ; but, Held, that under the circumstances, the defen- dant was entitled to a new trial on the ground of surprise. Held, also, that the fact of the jury accompany- ing their verdict with a statement that they had arrived at it independently of the prospectus did not alter the case. Bailey v. Macaulay, 19 Law J. Rep. (N.s.) Q.B. 73 ; 15 aB. Rep. 533. A new trial will not be granted on the ground of surprise, though it appear on affidavit that a wit- ness who was expected did not appear at the trial, unless it be stated that there was surprise. Hoare v. Silverlock, 19 Law J. Rep. (n.s.) C.P. 215. In case for injury to the plaintiff's reputation in trade, by fabricating inferior articles with the plaintiff's name, the jury having given damages 51., as upon the supposed proiits on the articles proved to have been sold, the Court refused to interfere with the verdict, as upon inadequacy of damages. Manton v. Bales, 1 Com. B. Rep. 414. This Court cannot aid a party in obtaining a copy of the notes taken at a trial. An application for a rule, that a defendant might be furnished with a copy of the notes taken by the Judge of the Sheriffs of London's Court on a former trial between the same parties, was refused. Park' hurst V. Gosden, 2 Com. B. Rep. 894. A new trial refused where the cause had heen taken in its proper course in the absence of the defendant's counsel, the defence intended to be set up being without equity. Blogg v. Bousquet, 6 Com. B. Rep. 75. Where one of the issues raised was either imma- terial, or was the same as that raised by the first plea, held that it did not vitiate the proceedings and was no ground for a new trial. Hunt v. Cox, 2 Exch. Rep. 606. Where a cause has been tried in a borough court on a writ of trial issuing out of the Court of Com- mon Pleas at Lancaster, a motion for a new trial cannot be made to a Judge sitting in banco at West- minster, under the 4 & 5 Will. 4. c. 62. s. 26. Bury V. Peers, 4 Dowl. & L. P.C. 163. Where the Court were of opinion that the direc- tion of the learned Judge who tried the cause, though in terms correct, might still have been mis- understood by the jury, they granted a new trial. Toulmin v. Hedley, 2 Car. & K. 157. (M) DiscoNTiHuiNG Action. The Court will not allow the plaintiff to discon- tinue the action after a general verdict, distinguish- ing from a special verdict, where something remains to be done by the Court. Young v. Hichens, 6 Q.B. Rep. 606. (N) Pkoceedings. (o) Disclosing Plaintiff^s Residence, The plaintiff, a female, who had been employed by the defendant to take care of his house, but who had subsequently left it, brought an action against him for breach of promise of marriage. The defen- dant had threatened to proceed criminally against her on a charge of taking away some of his property from the house. The Court refused to compel the plaintiff's attorney to disclose her place of residence, as the defendant knew who she was, and had avowed that he sought the information with the view of effecting her arrest on the criminal charge.. Harris v. Holler, 19 Law J. Rep. (n.s.) Q.B. 62; 7 Dowl. & L. P.C. 319. (6) Staying. [See Libel.] A rule to set aside a writ of summons and subse- quent proceedings had been obtained, on behalf of the defendant, on an affidavit that the action was commenced without the authority of the plaintiff. It appeared, in answer, that the action was brought to recover from the defendant arrears of mainte- nance-money due to his wife under a deed of sepa- ration, of which the plaintiff was a trustee, but that she had refused to carry out the trusts of the deed, in collusion with the defendant, for the purpose of preventing the wife from obtaining payment of the arrears, and, having been informed that the action was brought in her name, had refused to sanction it, but without stating any reason for so doing. The Court discharged the rule with costs. Auster v. Holland, 15 Law J. Rep. (n.s.) Q.B. 229 ; 3 Dowl. & L. P.C. 740. If, at the trial of a cause, a juror be withdrawn under the advice of counsel, and a second action brought for the same cause, the Court will stay the proceedings, notwithstanding the belief of the attor- nies on each side that such withdrawal would not operate as a termination of the suit. Gibbs v. Ralph, 15 Law J. Rep. (n.s.) Exch. 7 ; 14 Mee. & W. 804. Where separate actions are brought against seve- ral joint contractors for the same debt, the Court, upon payment of the debt and costs in one action, will stay proceedings in the other actions without costs. Newton v. Blunt, 16 Law J. Rep. (n.s.) C.P. 121 ; 4 Dowl. & L. P.C. 674 ; 3 Com. B. Rep. 675. N brought three separate actions for the same cause of action against three members of a railway provisional committee. A Judge at chambers, upon N declining to elect in which action he would pro- ceed, made an order for staying the proceedings in two of the actions. The Court rescinded the order. Newton v. Belcher, Newton v. Palmer, Newton v, Liddiard, 16 Law J. Rep. (n.s.) Q.B. 37 ; 9 Q.B. Rep. 612. Where a plaintiff had brought eleven separate actions for the same cause of action against eleven members of a provisional railway committee, the Court refused to stay the proceedings in each of the actions except such one as the plaintiff should elect. Quffirc— Whether they would have stayed the proceedings, if the defendants had consented to be bound by the verdict in one action. Giles v. Tooth, 16 Law J. Rep. (n.s.) C.P. 3; 4 Dowl. & L. P.C. 486; 3 Com. B.Rep. 665. The plaintiff brought an action of debt, for work and labour, but failed to prove that any work was actually done ; he, nevertheless, obtained a verdict, which the Court afterwards set aside, directing a nonsuit to be entered. He then commenced afresh action, in assumpsit, for the same cause, suing in formd pauperis, and declaring upon a special con- tract. The Court, on motion, stayed the proceed- ings in the latter action, until the former should be disposed of. Haigh v. Paris, 16 Law J. Rep. PRACTICE, AT LAW; (N) PaocEEDiNas. 547 (n.s.) Exch. 37; 16 Mee. & W. Hlj 4 Dowl. & L. P.O. 325. A plaintiff who has obtained a verdict in an action for unliquidated damages, has a right to sign final judgment in the usual way ; and the Court will not deprive him of his right, and stay further proceedings upon payment by the defendant of the sum recovered and the costs. Peat v. Magnall, 18 Law J. Rep. (n.s.) a.B. 5; 6 Dowl. & L. P.C. 261. The Court will not rescind an order made by a Judge to stay proceedings until further order, after a lapse of two years. Such an order, though wrong in form, is not a nullity. Griffin v. Bradley, 18 Law J. Rep. (n.s.) C.P. 97 ; 6 Com. B. Rep. 722. The plaintiff brought an action of slander against D, who justified. The cause was tried, the plain- tiff nonsuited, and the defendant's costs taxed at 408i. The plaintiff then brought a second action (in formd pauperis) for substantially the same slander as was complained of in the former action. The Court, on motion, stayed the proceedings in the second action till the costs of the first action should be paid. Hoare v. Dickson, or Dickinson, 18 Law J. Rep. (n.s.) C.P. 158; 7 Com. B. Rep. 164. Where a plaintiff who had been taken in execu- tion for the costs of a former action, had been after- wards discharged from custody under the Insolvent Debtors Act, such taking does not operate as a satisfaction of such costs. Where, therefore, under such circumstances, a second action for the same cause had been commenced, the Court stayed the proceedings until the costs of the former action should be paid. Stihoell v. Clark, 18 Law J. Rep. (n.s.) Exch. 165; 3 Exch. Rep. 264. The indorser of a promissory note paid the in- dorsees in default of the maker, and then sued the maker in the name of the indorsees without their authoritj', and obtained a verdict. The amount of the verdict having been paid, and an execution issued for costs, the Court, on motion, made a rule absolute to stay all proceedings without costs on either side. Colman y. Beadman or Coleman v. Biedman, 18 Law J. Rep. (n.s.) C.P. 263; 7 Com. B. Rep. 871. The practice of the superior courts to stay the proceedings where an action is brought for less than 40s. is not affected by the operation of the 9 & 10 Vict. c. 95. or the City of London Local Act, 10 & 11 Vict c. Ixxi. Such action will in general be stayed unless there is no inferior court in which it could have been brought Stutton v. Bament, 18 Law J. Rep. (n.s.) Exch. 318 ; 3 Exch. Rep. 831. An action was brought against the defendant on a promissory note, signed by himself and other directors, as follows : — " We, the directors of the Royal Bank of Australia, for ourselves and the other shareholders of the said company, jointly and severally promise to pay G H W, or bearer, on the 19th of February 1850, at the Union Bank of Lon- don, 200?. for value received, on account of the company." Held, that the defendant was personally liable on the note, and was not sued as a contributory of the company, and therefore was not entitled to a stay of proceedings under the 11 & 12 Vict c. 45. s. 73. Penkivil v. Connell, 19 Law J. Rep. (n.s.) Exch. 305; 5 Exch. Rep. 381. The Court will stay proceedings in an action brought by the defendant in replevin on the reple- vin bond against the- plaintiff in replevin, for not prosecuting the replevin suit with effect, when such plaintiff has been prevented from declaring in the replevin suit, after removal into the superior court, by reason of the defendant in replevin not having appeared in that suit in such court, pursuant to steps taken by such plaintiff to compel his appear- ance. Evans v. Bowen, 19 Law J. Rep. (N.s.) Q.B. 8 ; 7 Dowl. &L. P.C. 320. The plaintiff brought three separate actions against A, B and C, joint contractors, to recover the same debt, and recovered verdicts in the ac- tions against A and B. Before judgment was signed in either of these actions, C paid the debt and costs in the action against him: — Held, that A and B were entitled to have the proceedings stayed in the actions against them without payment of the costs. Where separate actions are brought against several joint contractors for the same debt, and one of them pays the debt and costs in the action against himself, the proceedings may be stayed in the other actions, notwithstanding that the case against each of the defendants would have to be established by different evidence. Bailey v. Haines, Bailey v. Bracebridge, 19 Law J. Rep. (n.s.) Q.B. 402; 15 Q.B. Rep. 533. [See Intekpleadek.] (c) Setting aside. An application to set aside a judgment, on the ground that the signing of it was contrary to good faith, must be made promptly. Saunders v. Jones, 15 Law J. Rep. (n.s.) Q.B. 272; 3 Dowl. & L. P.C. 770. A defendant took out a summons to set aside judgment and execution for irregularity with costs, and the Judge without deciding the question of irregularity, ordered the proceedings to be set aside without costs, and on the condition of the defendant's bringing no action. The defendant protested against those terms ; but afterwards drew up and served the order and obtained the benefit of it. The Court refused to rescind that part of the order which directed no action to be brought, con- sidering that the defendant had made himself a party to the order and was bound by its conditions. Pearce v. Chaplin, 16 Law J. Rep. (n.s.) Q.B. 49 ; 9 Q.B. Rep. 802. Under rule 15. of Reg. Gen. Mich, term, 3 Will. 4, the declaration, in its commencement, should state whether it is delivered or filed by the plaintiff in person, or by his attorney ; a declaration omitting this is irregular, and may be set aside, notwithstand- ing the notice of declaration served states It to have been served by an attorney. But held, that the proper course in such a case is to apply to a Judge at chambers, and that the Court will not give the defendant the costs of the application to the Court, though the declaration be delivered or filed in term. White V. Feltham, 16 Law J. Rep. (n.s.) C.P. 14 ; 4 Dowl. & L. P.C. 454; 3 Com. B. Rep. 658. The defendant, who appeared as Charles Frede- rick Augustus William, Duke of Brunswick and Luneburg, sued as Charles Frederick Augustus William d'Este, commonly called the Duke of Brunswick, pleaded a plea to the jurisdiction, in- 548 PRACTICE, AT LAW ; (N) Pkoceebikgs. tituled, " Charles Frederick AugustusWilliara, Sove- reign Duke of Brunswick and Liineburg, sued as, &c., at the suit of Charlotte Munden," accompanied hy an afBdavit, similarly entitled : — Held, that the plea was a nullity, and tliat the plaintiff was entitled to sign judgment ; and the Court refused to set it aside, there being no affidavit of merits. Munden V. the Duke of Brunswick, 16 Law J. Rep. (n.s.) C.P. 167; 4Dowl. &L. P.C. 807; 4 Com. B. Rep. 321. Where a defendant has been served with process, and an attorney, without authority, appears for him, if the attorney be insolvent the defendant will be relieved upon equitable terms, provided he has a defence on the merits. But if the attorney be sol- vent the defendant will be left to his remedy by summary application against him. But where the plaintiiF, without serving the de- fendant with a writ of summons, accepts the appear- ance of an unauthorized attorney, the Court will set aside the judgment as irregular, with costs, and leave the plaintiff to recover those costs and the expenses from the delinquent attorney. Bayly v. Buckland, 16 Law J. Rep. (n.s.) Exch. 204; 1 Exch. Rep. 1. The writ was in an action of debt ; and the com- mencement of the declaration was in the form usual in debt. The first count was good either in debt or in assumpsit, and the second and only other count was a good count in assumpsit : — Held, that this was a good declaration in assumpsit, and should therefore be set aside for irregularity, as varying from the process. Held, also, that under these circumstances the plaintiff could not insist that the declaration was demurrable for misjoinder of a count in debt with a count on promises, as an answer to an application to set it aside for irregularity. Moore v. Foster^ 17 Law J. Rep. (n.s.) C.P. 101 ; 5 Dowl. & L. P.C. 352; 5 Com. B. Rep. 220. A replication commenced " And the plaintiff as to the lorty-sixth plea" — it then traversed an alle- gation in that plea, and went on — "and this the plaintiff prays may be inquired of by the country ; and as a further answer in this behalf to the said forty-si.ith plea," — it then alleged new matter by way of answer and went on — " and this the said plaintiff is ready to verify ; and further as to the forty-sixth plea," — alleging new matter, and con- cluded — "and this the plaintiff is ready to verify;" — Held, that such a replication is so irregular in form that the Court will set it aside with costs, upon a summary application. Tolson v. the Bishop of Carlisle, 17 Law J. Rep. (n.s.) C.P. 195 ; 5 Dowl. & L. P.C. 789 ; 5 Com. B. Rep. 761. A declaration on a bill of exchange stated it to be payable at three months, and contained counts for goods sold and delivered and on an account stated. The bill, as produced at the trial, was made payable at two months, and on the record being referred to, appeared payable in like manner at two months, but the word " two," in the record, had been written on an erasure. The plaintiffs having obtained a verdict, the Court set aside the record and all subsequent pro- ceedings, refusing leave to the plaintiffs to retain their verdict on the account stated. Suker v. Neal, 17Law J.Rep. (N.s.)Exch. 56; 1 Exch. Rep. 468. Where a plea is sworn to be false, and is mani- festly tricky, and such as to put the plaintiff to a reasonable difficulty in replying to it, the Court will set it aside and allow judgment to be signed for want of a plea. Levy T. Railton, 19 Law J, Rep. (N.s.) Q.B. 16. After notice of trial given to the defendant's attorney for the first sittings in Michaelmas term, the defendant's attorney, on the 9th of October, died. The cause was tried, pursuant to the notice, on the 3rd of November, and a verdict found for the plain- tiff, and notice of taxation of costs was left by the plaintiff at the office of the defendant's deceased attorney on the 8th of November, the plaintiff's attorney not being aware of the death. On the 9th of November the plaintiff signed judgment for the debt and costs. In March 1850, the defendant being in prison, the plaintiff lodged a detainer against him. The defendant having obtained a rule nisi to set aside all the proceedings in the action since the 9th of October, deposing that he did not know of any notice of trial having been given, and believed that none had been given, and that he had had no notice of any proceedings subsequent to the plea, until he found that the detainer had been lodged, but not stating when he first knew that his attorney was dead, the Court discharged the rule. Ashley v. Brown, 19 Law J. Rep. (n.s.) Q.B. 477; 1 L. M. & P. 451. To a declaration hy the indorsee against the acceptor of a hill of exchange, the defendant pleaded that the plaintiff was indebted to the defendant in 157^. IO5. on a judgment recovered, which he, the defendant, is ready to verify by the record, and also in WOl. for goods sold, which said sums the defen- dant offers to set off and allow to the plaintiff against the damages, concluding with a verification. The Court-set aside the plea on the grounds of its being false (there being an affidavit of its falsehood), and calculated to embarrass the plaintiff. Nutt v. Rush, 19 Law J. Rep. (n.s.) Exch. 54; 4 Exch. Rep. 490. Upon demand of oyer of a deed, the plain- tiff's attorney delivered to defendant a copy of the deed with alterations and erasures in it, as they appeared on the deed, although made without authority; the defendant set out the deed in his plea as altered. The Court would not set aside the plea, but allowed the plaintiff to re-deliver oyer as he might be advised, on payment of costs. Turquand y.Hennet, 7 Com. B. Rep. 179. Assignees of a bankrupt applying to set aside proceedings on the ground of irregularity, must come to the court within a reasonable time after notice of the irregularity. An original writ of fi. fa. and a testatum writ were sued out on the 23rd of February, and on the same day the defendant's goods were seized under the testatum writ. On the 26th, the original writ, with the return of nulla bona, was filed in the proper office of the Court. On the 25th, a fiat in bankruptcy was issued against the defen- dant, and on the 10th of March, creditors' assignees were appointed. The plaintiff having made up the roll, on the face of which the original writ appeared to be regularly returned before the issuing of the testatum writ, the defendant's assignees applied to PRACTICE, AT LAW. 549 a Judge at chambers, on the 10th of March, to have the roll amended, by inserting the true date of the return of the testatum fi.fa., and were referred by the Judge to the Court : — Held, that this was at most but an irregularity, and that a motion made on the 5th of May for that purpose was too late. Butterworth v. Williams, 4 Dowl. & L. P.C. 82. A rule to set aside the declaration and judgment signed thereon, and all subsequent proceedings, and to discharge the defendant out of custody, on the ground that the defendant has never been served with process in the action, must ask to set aside the appearance also; unless it appear upon affidavit that no appearance has in fact been entered. A party moving to set aside proceedings on the ground of irregularity must ask to set aside the first proceeding in which the irregularity occurs, Hardwick v. Wardle, 4 Dowl. & L. P.C. 739. "Where an incorrect copy of a writ of .summons was served as if tested on a Sunday, but the writ itself was regular : — Held, that the defendant was not bound to treat the proceeding as a mere nullity, although the plaintiff had taken no subsequent steps ; but might come to the Court to set the copy and service aside. Corrall v. Foulkes, 5 Dowl. & L. P.C. 590. (O) Motions, Rules and Oruees. A rule was obtained in a cause of B v, D, calling upon F (an attorney) to render an account of and pay over money due to B, and the matters of this rule were, by a subsequent rule, referred to the Master. B afterwards died. A rule was then obtained, calling upon F to shew cause why B's executors should not be made parties to the two former rules instead of B. This rule and the affi- davits on which it was granted were entitled, "B, deceased, v. D": — Held, that this was a fatal ob- jection to the rule, there being no such cause as "B, deceased, v. D " : — Held, also, that it was not ne- cessary that the second rule should be drawn up on reading the first, if it adverted to the first which was in court. Bland v. Dax, 15 Law J. Rep. (n.s.) Q.B. 1 ; 8 Q.B. Rep. 126. An affidavit, stating that service of a rule had been made upon Mr. S " who acts as the attorney or agent of the defendant in this cause," was held sufficient. Pattrick v. Richards or Patrick v. Richards, 15 Law J. Rep. (n.s.)Q.B. 204; 3 Dowl. & L. P.C. 573. Upon an interlocutory judgment for the plaintiflF in an action on a covenant to pay to the plaintiff all such sums as should be received by the defendant, a sequestrator, and be at his disposition from time to time, in part or in full satisfaction of a certain debt due to the plaintiflj the Court refused to make a rule nisi to compute absolute. Smith v. Nesbitt, 15 Law J. Rep. (n.s.) C.P. 31 ; 3 Dowl. & L. P.C. 420; 2 Com. B. Rep. 288. Semble — that where a rule for a newtrial has been obtained on payment of costs, a term's notice should be given, after the lapse of more than a year, of a motion to discharge it. Lord v. Wardle, 15 Law J. Rep. (N.s.) C.P. 259 ; 3 Com. B. Rep. 295. A rule to discharge a rule absolute for a new trial " on payment of costs, after taxation and demand of costs, is, in the Exchequer, a rule nisi, which makes itself absolute if cause be not shewn within a limited time. Phillips v. Warren, 15 Law J. Rep. (n.s.) Exch. 3; 14 Mee. & W. 730; 3 Dowl. & L. P.C. 301. According to the practice of the Court of Queen's Bench (which is at variance with the practice of the Court of Common Pleas in this respect), the plaintiff is bound to draw up, and take notice of the terms of a rule discharging a rule for judgment as in case of a nonsuit upon a peremptory undertaking. Therefore, where the plaintiff did not go to trial according to his undertaking, and the defendant got a rule for judgment as in case of a nonsuit, the Court refused to set that rule aside on the ground that the plaintiff had not been served in due time with a copy of the rule discharging the rule for judgment as in case of a nonsuit on the peremptory undertaking. Landells v. Ball, 16 Law J. Rep. (n.s.) Q.B. 370 ; 5 Dowl. & L. P.C. 62. A rule for making a Judge's order a rule of court and for the costs of the application, is absolute in the first instance, provided there he an affidavit of the service and of disobedience of the order. Black V. Low, 16 Law J. Rep. (n.s.) Exch. 56 ; 4 Dowl. & L.P.C. 285. Where a rule obtained in the name of the plain- tiff to set aside an order had been discharged on an affidavit of the plaintiff that the application was made without his authority or consent, the Court allowed a second application to be made on the same affidavits in the name of the party on whose behalf the action was brought. Tilt v. Dixon, 17 Law J. Rep. (n.s.) C.P. 61. In this court, the party moving to enlarge a rule should serve the rule for enlarging it on the other party. And when a rule is enlarged by consent, the party whose interest it is to keep it alive must serve the enlarging rule on his adversary. Batty V. Marriott, 17 Law J. Rep. (n.s.) C.P. 140; 5 Dowl. & L. P.C. 477 ; 5 Com. B. Rep. 420. A party is entitled to a Judge's order on the de- fault of the opposite side in attending two sum- monses, and he ought not to obtain a third summons. The defendant, having obtained two Judge's sum- monses for time to plead, neither of which was at- tended by the plaintiff, on the non-attendance on the second summons, made an affidavit of service, and left it with the Judge's clerk for signature. The Judge having left chambers without signing it, the defendant, at the suggestion of the clerk, took out a third summons, returnable on the following day, when, on default of attendance, he obtained an order, previously to which, at the expiration of the time for attending the second summons, the plain- tiff had signed judgment : — Held, that the judg- ment was regular. Hawkins v. Wilkinson, 17 Law J. Rep. (n.s.) Exch. 230 ; 2 Exch. Rep. 340. The Court cannot take notice of a consent on a summons, unless followed in due time by an order drawn up and served. A defendant is not bound to return an irregular notice of trial, though made aware, by a notice to produce, that the plaintiff is proceeding thereon. Wood V. Harding, 3 Com. B. Rep. 968. A rule that money paid into court in lieu of bail should be paid out to the defendant after judgment as in case of nonsuit, is not absolute in the first in- stance. D'Ebro V. Schmidt, 18 Law J. Rep. (n.s.) Q.B, 223 ; 6 Dowl. & L. P.C. 742. 550 PRACTICE, AT LAW. Where at the trial a verdict was taken for the plaintiff, with liberty, by the consent of both par- ties, to the defendant to move to enter a verdict, if the Court should think him entitled to do so, and the defendant died after the trial and before the next term, a motion to enter a verdict for the defendant may be made without putting the executors of the defendant on the record, or making thera parties to the rule. Freeman v. Rosher, 18 Law J. Rep. (N.s ) Q.B. 349. Defendant was arrested, and deposited the amount of debt and 101. costs with the sheriff. A few days after he embarked for Australia, leaving no person to receive papers or act for him. Plaintiff obtained a rule calling upon defendant to shew cause why the money should not be paid to plaintiff accord- ing to the 43 Geo. 3. c. 46. s. 2. A copy of the rule was stuck up four days in the offices of the court: — Held, that under the circumstances there had been a sufficient service of the rule nisi, which was made absolute. Shackel v. Johnson, 18 Law J. Rep. (K.s.) C.P. 249 ; 7 Com. B. Rep. 865. On the last day of term a rule was made absolute on affidavit of service. The Master, next day, discovering that the affidavit was defective, refused to draw up the rule. The Court, considering the rule as a pending rule, allowed a motion to be made in the sittings after the term to make the rule abso- lute on an amended affidavit of service. Dow v. Bell, 18 Law J. Rep. (N.s.) Exch. 391 ; 4 Exch. Rep. 259. Where a rule iiisi for a new trial is obtained by one only of two defendants, although it must be served upon the other, he cannot be heard in sup- port of the rule, hut he may shew cause against its being absolute. Wakley v. Healey, 18 Law J. Rep. (n.s.) Exch. 426 ; 4 Exch. Rep. 53. It is not a good objection to an order for charging stock under the I & 2 Vict. c. 110. s. 15. that it requires cause to be shewn on a day specified, although the statute directs that it shall require cause to be shewn " within a time to be mentioned in such order.*' Robinson v. Burbidge, 19 Law J. Rep. (n.s.) C.P. 242; 1 L. M. & P. 94. As a general rule, no counsel is allowed to move twice in the same day, except in the case of motions for new trials. Hollis v. Hoseason, 19 Law J. Rep. (N.s.) Exch. 269. Held, that a motion to increase the damagesfound by the jury upon a trial in the vacation, made after the first four days of the term, is too late. Masters V. Farris, ] Com. B. Rep. 715. Where a motion, beside the merits, fails through defect in the affidavits, the application cannot be renewed. Ilderton v. Burt, 6 Com. B. Rep. 433. Where the service is upon the wife-of the party at his dwelling-house, the affidavit must shew where the dwelling-house is situate. A rule cannot be enlarged after the day on which it is returnable. Abrahams v. Davison, 6 Com. B. Rep. 622. Service of a rule to compute, by delivering it to " the landlord at the residence of the defendant," is not sufficient. Griffinv. Gilbert, 7 Com. B. Rep. 701. Service of rule to compute by delivery to the housekeeper at defendant's residence, — Held, not sufficient. Lewis v. Blurtmi, 1 Com. B. Rep. 102. Where a rule for a new trial upon payment of costs is granted, a rule to rescind that rule, upon the ground that the costs have not been paid, is, in the Common Pleas, a rule nisi only in the first instance. Spear v. Ward, 1 L. M. & P. 248. (P) Judge at Chambers. Where a Judge at chambers has dismissed a sum- mons to strike out a count, the full Court will not interfere. Slack v. Clifton, 8 Q.B. Rep. 524. A Judge at chambers has no power during term to make an order for leave to enter an appearance after the return of a distringas, under the 2 Will. 4. c. 39. s. 3 ; but the application should he made to the Court. Ross v. Gandell, 18 Law J. Rep. (n.s.) C.P. 224; 7 Com. B. Rep. 766. , [See Attokney and Solicitor, Bill of Costa — Annuity.] (Q) Special Case. A verdict having been taken for the plaintiff, subject to a special case, the terms of which were to be settled by a barrister, and the barrister having settled the case, the defendant refused to procure the signature of a Serjeant to it. The Court granted a rule, that unless the defendant, within a week, caused the case to be properly signed, the postea should he delivered to the plaintiff Doe d. Phillips v. Rol- lins, 15 Law J. Rep. (n.s.) C.P. 186 ; 2 Com. B. Rep. 842. The Court will not hear a special case in which the parties have agreed that the Court may draw such inferences from the facts as a jury might draw, and that the case may be turned into a special ver- dict. Engstromv. Brightman, 17 Law J. Rep. (n.s.) C.P. 142 ; 5 Dowl. & L. P.C. 499 ; 5 Com. B. Rep. 419. The Court refused to give judgment in a special case stated for the opinion of the Court, under the 3 & 4 Will. 4. c. 42. s. 25, it appearing that the action was not bond fide brought to try a question really in contest between the parties to the cause. Doe A. Duntze V. Duntxe, 17 Law J. Rep. (n.s.) C.P. 220 ; 6 Com. B. Rep. 100. The Court will not hear a special case which is not signed by counsel for both parties. De la Bran- chardiere v. Elvery, 18 LawJ. Rep. (n.s.) Exch. 381; 4 Exch. Rep. 380. (R) Bill of Exceptions. A bill of exceptions was tendered to a Judge's direction, and, under the 55 Geo. 3. c. 42. ». 7, was signed by him at the trial. The draft, thus prepared, was, some months afterwards, more formally drawn up, and was tendered to him for signature. He re- fused to sign it, unless a sentence, explaining his direction, was introduced into the bill, and the party excepting finally consented to its introduction. The bill of exceptions, with his explanation forming partofit,was presented to theCourt: — Held, that the introduction of this explanation was highly irregu- lar : but that, being on the record, the Court below, and this House, could only look to the record, and could neither receive an affidavit of the facts, nor examine the draft of the exceptions, originally pre- pared and signed. The Earl of Glasgow v. the Hur- let and Campsie Alum Company, 3 H.L. Cas. 25. PRACTICE, AT LAW— PRACTICE, IN EQUITY. 551 (S) Judgments. After verdict a term's notice is not necessary before signing judgment, though four terms have elapsed between the verdict and judgment. Newton V. Boodle, 16 Law J. Rep. (n.s.) C.P. 135 j 3 Com. B. Rep. 795. The Court of Exchequer, in this term, delivered judgment in two eases relating to the liabilities of provisional committeemen. This Court granted a rule nisi, which involved the same point (which the Court of Exchequer had decided) before their judg- ment was delivered : — Held, that the judgment of one Court of Westminster Hall is binding upon the others, and is only to be reviewed by a court of error. Barker v. Stead, 16 Law J. Rep. (n.s.) C.P. 160; 3 Com. B. Rep. 946. Where judgment was signed for the debt and 21. the costs of signing judgment, no mention being made in the incipitur of the sum of HI. the amount of costs agreed upon, except by a memorandum at the top, and judgment was issued for the debt, and 261. costs: — Held, that the judgment and exe- cution were not irregular. Deacon v. Allison, 6 Com. B. Rep. 434, (T) Executions. Final judgment having been signed against A and B in June 1843, on the same day a ca. sa. issued against both, under which A was taken, but afterwards discharged under the Insolvent Act ; but the writ still remained in the sheriff's office unexe- cuted against B, and without any return having been made to it. In January 1845, a ji. fa. was issued upon the same judgment, under which B.'s goods were taken in execution, but the judgment had not been revived by sci.fa.: — Held, that the fi. fa. was not irregular, as materials existed for making up the' roll, the ca. sa. being still in force against B, and capable of being returned at any time. A rule nisi to set aside a fi. fa., and the affidavit on which it was obtained, were intituled A v. B. It appeared, that the writ of summons and a ca. sa., which had issued long previously, were in a cause of A (sued as C) v. B : — Held, that as the cause might have irregularly got a wrong name, in which the party had acquiesced, the rule ought not to be discharged on that ground. Franklin v. Hodgkinson, 15 Law J. Rep. (n.s.) Q.B. 132 ; 3 Dowl. & L. P.C. 554. Under an execution against the goods of A, the sheriff cannot seize goods which A has deposited with another person as security for a debt. Rogers V. Kennay, 15 Law J. Rep, (n.s.) Q.B. 381. In ejectment there was a verdict for the defen- dant, and an allocatur given for the costs under the consent rule, which ordered that if a verdict should be given for the defendant the lessors of the plain- tiff should pay to the defendant costs to be adjudged. ii.fi. fa. issued pursuant to the 1 & 2 Vict. c. 110, s. 18. was held to be regular. Doe A. Pennington v. Barren, 16 Law J. Rep. (n.s.) O.B. 296; 4 Dowl. & L-. P.C. 755; 10 Q.B. Rep. 531. A writ of execution may issue on a rule of court ( 1 & 2 Vict. c. 110. 0. 18.) Sfter the expiration of a year and a day, without a set. fa. or any application to the Court, Spooner v. Payne, 17 Law J, Rep, (n.s.) Q.B. 68; nom. In re Spooner, 11 Q.B. Rep, 136. A writ of ca. sa. need not contain the clause relating to interest given in the form prescribed by the rule Hil. term, 3 Vict., unless the plaintiff chooses to claim interest. Where the ca. sa. purported to satisfy 591. 7s., and the debt secured was 552., and the costs SI. 10s., the Court refused to attribute the difference to a claim for interest not mentioned in the writ, as it might refer to incidental expenses of the levy. Stopford V. Fitzgerald, 16 Law J. Rep. (n.s.) Ci.B. 310; 4 Dowl. 8s L. P.C. 725. The 7 & 8 Vict. c. 96. s. 57, taking away the writ of ca. sa. in actions wherein the sum recovered does not exceed 20/. exclusive of the costs reco- vered by such judgment, applies only to cases where something is recovered by the plaintiff for debt and something for costs, and where the sum recovered for debt does not exceed 20/. A ca. sa. may there- fore issue for costs of nonsuit. Under the 1 Sc 2 Vict. c. 110. s. 17, interest may be. recovered on a judgment for costs of nonsuit An award of a ca. sa. into a different county, without any testatum clause, is error on the record. Newton v. Lord Conyngham, 17 Law J. Rep. (n.s.) C.P. 288 ; 5 Com. B. Rep. 749. A writ of fi. fa. returnable " immediately after the execution thereof," is not executed until the whole amount indorsed is levied under it, and may, if in the hands of the sheriff, be put in force after the levy of a part. Jordan v, Binckes, 18 Law J. Rep. (n.s.) as. 277; 7 Dowl. & L. P.C. 30. It is no cause to shew against a motion to charge a defendant in execution, who has been brought up on a writ of habeas corpus ad satisfaciendum, that the warrant of attorney on which the judgment has been signed was given without consideration, and the judgment signed in breach of good faith. Such facts are the proper grounds of a substantive motion to set aside the warrant of attorney and judgment and subsequent proceedings, and to discharge the defendant out of custody. The Court will, there- fore, not postpone the motion to charge the defen- dant in execution until the other rule comes on to be discussed. Cooke v. Wright, 5 Dowl. & L. P.C. 274. [See Akbiteation, Award.] PRACTICE, IN EQUITY. (A) Bills. (o) In general, (fi) Of Discovery. (c) Of Interpleader. [See Intekpleader Suit.] (d) Of Revivor. le) Supplemental and of Review. {f) Amendment of. is) Taking pro Confesso. {h) Taking off the File. (i) Retaining. [See Injunction.] (k) Dismissal of. (B) "PaoCESs. (C) Contempt. (D) Appearance. 552 PRACTICE, IN EQUITY ; (A) Bills. (E) Answeb. (a) In general. (i) Supplemental. (F) Plea. (G) Demurher. (H) Replication. (I) Petition. (K) Claim. (L) Motions. (a) In general. (6) Notice of Motion. (M) Production of Documents. (a) General Points. (6) When Production may be enforced, (c) Privileged Documents. (N) Commission. (O) Affidavits. (P) Interrogatories. (Q) Examination of Witnesses. (R) Depositions. (a) Reading. (4) Suppressing. (S) Publication. (T) Inspectcon of Subject of Suit. (U) Evidence before the Master. (V) Conduct op Suit. (W) Staying Peoceedings. (X) Orders and Decrees. (Y) Accounts. (Z) References. (a) Generally and Proceedings. (6) Report. (AA) Exceptions. (a) In general. (6) Answers. (c) Reports and Certificates, (BB) Sales by the Court. (CC) Payment into Court. (DD) Payment out of Court. (EE) Setting down and Hearing Cause. (FF) Issue and Case sent to Law. (GG) Receiver. (HH) Infants' Suits. (II) Next Friend. (KK) Lunatic. (LL) Pauper. (MM) Proceedings in different Courts. (NN) Petition of Right. (00) Rehearing. (PP) Appeal. (CiS) Jurisdiction of the Court. (RR) Creditor's Claim. (SS) Jurisdiction and Duties of the Masters. (TT) Preliminary Inquiries. (UU) Service of Papers. (VV) Delay. (WW) Traversing Note. (XX) Writs of Fi. Fa. (YY) Irregularity. (ZZ) Attachment. (AAA) Allowance of Interest. (A) Bills. (o) In general. Where authority is given to take land for a public purpose, and pay the money into court to be dealt with on petition, the ordinary jurisdiction of the Court to proceed by bill is not excluded. Hyde v. Edwards, 12 Beav. 160. A party having a legal title, may sustain a bill in equity to recover deeds, without having first established his title at law, where a deed to be recovered would be the proper evidence in a trial at law to enforce the legal right against the tenant in possession of the property in question, and that, notwithstanding the evidence furnished by the deed might have been obtained by means other than a suit in equity. Decree as between the claimant of property and the trustee who claimed to hold the same property in trust for an infant defendant, reserving the right of the infant defendant Position, duty, and liability of a trustee for in- fants of an estate created by an invalid deed, or a deed of doubtful validity, and which is impeached by other parties. Elsey v. Lutyens, 8 Hare, 159. (i) Of Discovery. ■ The 12th Order of May 1845 applies only to a cross-bill of discovery in aid of a defence to an ori- ginal bill. Heming v. Dingwall, 2 Ph. 212. The right of discovery is the same between the Crown and a subject as between subject and sub- ject. The statute 21 Jac. 1. c. 14. has no applica- tion to suits in equity. A plaintiff is entitled to discovery, not only of that which constitutes his own title, but also to dis- covery for the purpose of repelling an anticipated defence; and also to discovery of what the case is which the defendant relies upon, and how it is made out ; that is, the grounds and foundation of the de- fendant's title, but not to discovery of the evidence by which it is intended to be supported. Attorney General v. London (Corporation), 19 Law J. Rep. (N.s.) Chanc. 314; 2 Mac. & G. 247; 2 Hall & Tw. 1; aflBrming s. c. 18 Law J. Rep. (n.s.) Chanc. 314, 339; 12 Beav. 8, 171. Where the respective titles alleged by the plain- tiff and the defendant were antagonistic, the plain- tiff claiming the reversion in lands alleged to be in the possession of the defendant as lessee, and the defendant claiming to be entitled in fee to such lands, but admitting that he derived his title under a person alleged by the plaintiff to have been lessee only, and that the parcels mentioned in the deed under which he claimed, in some respects, although not wholly, correspond with the parcels described in the demise to such alleged lessee, it was held that the plaintiff was entitled to a discovery of such parcels, and to a production of so much of the pur- chase deed as described them. A plaintiff is not entitled to discovery of docu- ments the right to the possession or inspection of which is not necessary to the proof, and is only con- sequential upon the existence of the title he claims, that title not being admitted, — but where the Court finds upon the answelfthat, although the title of the plaintiff is not admitted, the question as to the existence of such title is a question to be tried, — PRACTICE, IN EQUITY; (A) Bills. 553 the plaintiff is entitled to the discovery and produc- tion of particulars material to establish his case on such trial. Consideration of the limits of the right to disco- very, in cases of adverse title, of the deeds and evi- dences in the possession of the defendant. Attorney General v. Thompson, 8 Hare, 107. (c) Of Interpleader. [See Interpleader Suit.] (d) Of Revivor. l^Bampton v. Birchall, 5 Law J. Dig. 543 ; 1 Ph. S6S.] A decree was made that certain documents should be delivered up, and that the plaintiff's bill should be dismissed, and the costs taxed and paid by the plaintiff. One of the defendants died after the documents had been delivered up, but before the costs had been taxed or paid. A bill of revivor was then filed : — Held, that a hill of revivor could not be filed for the purpose of costs alone, notwith- standing that the 1 & 2 Vict. u. 110. s. 18. gives the effect of judgments to decrees of courts of equity. Andrews v. Lockwood, 15 Law J. Rep. (n.s.) Chanc. 285; 15 Sim. 153. After decree in a creditors' suit, the plaintiff died, leaving no personal representative: the decree was ordered to be prosecuted on the petition of another creditor without bill of revivor. Brown v. Lake, 2 Coll. C.C. 620. A suit was instituted by A, the assignee of a bankrupt, against B and others, and, by a decree made in the cause, it was ordered that A should pay certain costs to the defendants, except B, and that B should pay them to A. A died, and, by an order made in the cause, it was ordered that C should be substituted as plaintiff in the place of A, and the suit prosecuted in the same manner as if C had been originally a plaintiff therein. A writ of Ji. fa,, drawn up in pursuance of the Orders of May 1839, issued on the application of C against B on behalf of these costs. On a motion to set aside tlie writ for irregularity, — Held, that there was no occasion for a bill of revivor, and that the writ was regular. Man v. Ricketts, 15 Law J. Rep. (n.s.) Chanc. 97. The death of a defendant between the hearing of the cause and the judgmeat does not render a bill of revivor necessary prior to drawing up the de- cree. Belsham v. Percival, 8 Hare, 157. A suit abated after decree by the marriage of one of several co-plaintiff's, unknown to their solicitor in the cause, and was not revived until proceedings had been subsequently had under the decree. Upon the application of the plaintiffs, the Court declared that they were entitled to the same benefit of the proceedings since the abatement as they would have been if the suit had been immediately re- vived ; and ordered the suit and proceedings to be carried on accordingly. Johnson v. Johnson, 19 Law J. Rep. (n.s.) Chanc. 371. The defendant to an original bill having died after appearance, but before answer, the plaintiff filed a bill of revivor and supplement against his personal representative, praying that the personal representative might answer both bills. The per- sonal representative demurred to both bills : — Held, Digest, 1845— 1850. that he should have demurred to the bill of revivor and supplement only. Granville v. Beits, 17 Sim. 58. (e) Supplemental and of Review. A bill was filed to have the benefit of a judgment against real estate, devised to the defendant by the will of the judgment debtor. The defendant by her answer, claimed the estate under deeds of convey- ance from the testator in his lifetime ; and before filing her answer, commenced an action of eject- ment. The plaintiffs then filed a supplemental bill, impeaching the validity of the conveyance to the defendant, and stating the proceedings respect- ing the action. The common injunction obtained in the supplemental bill to restrain the action was dissolved, the question of the title of the judgment creditors not being raised in the supplemental suit, and the circumstances connected with the convey- ance to the defendant being improperly brought before the Court by a supplemental bill, instead of being introduced into the original bill by way of amendment. Parker v. Constable, 15 Law J. Rep. (n.s.) Chanc. 16. A suit instituted by eight plaintiffs was ordered to stand over, with leave to file a supplemental bill, on an objection for want of parties. One of the plaintiffs then died, and a supplemental bill was filed against her personal representatives, and the person who had been declared a necessary party: — Held, that the suit could not proceed without being revived or the original hill amended. Parker v. Day, 15 Law J. Rep. (n.s.) Chanc. 191. Motion to dismiss for want of prosecution, made after the bankruptcy of the plaintiff, refused, with costs, the proper form of motion being that the as- signees file a supplemental bill within a given time, and in default the bill stand dismissed. Robinson ». Norton, 10 Beav. 484. Where the Court retains a bill for twelve months, with liberty for the plaintiff to proceed at law to recover a moiety of certain freehold estates, which he had been prevented from recovering at law un- der an elegit, in consequence of outstanding terms of years, and restrains the defendants from setting up such terms, or pleading the Statute of Limita- tions, it is irregular for the plarntiff, upon a partial failure of the proceedings at law, to file a supple- mental bill to bring the facts which had transpired subsequent to the hearing before the Court, with a view to obtain a further and more extended relief. The Court, by its decree at the hearing, retained the bill for a year, and gave the plaintifife leave to bring an action for the recovery of a moiety of cer- tain freehold estates, which they claimed by virtue of an elegit, and it restrained the defendants from setting up outstanding terms of years, and also from setting up the Statute of Limitations, though this was not specifically asked by the bill. Under this decree, the plaintiffs brought an action of ejectment against the receiver of the estates, who was a party to the suit, and against the tenants who were no parties to the suit. One of the plaintiffs died, and the survivor obtained a verdict against the receiver; but the tenants of the estate, who were no parties to the suit, set up the outstanding terms, and also pleaded the Statute of Limitations, and obtained a verdict. The surviving plaintiff' then filed a sup- plemental bill, and bill of revivor, and stated the 4 B 554 PRACTICE, IN EQUITY ; (A) Bills. whole of the proceedings at law, and asked for more extensive relief than he was considered entitled to at the hearing : — Held, that the supplemental bill was irregular; and a decree was made dismissing so much of it as consisted of supplemental matter, with costs. Smithy. Effingham {Earl), 16 Law J. Rep. (n.s.) Chanc. 445 ; 10 Beav. 589. A petition asking liberty to bring a new action, or for an issue, was refused, as the relief prayed was contrary to the practice ; and it was held that the verdict against one defendant could not be consi- dered as a verdict against all, and that there could be no stay of proceedings until the plaintiff had appealed. Ibid. 11 Beav. 82. A and B being, with others, incumbrancers on an estate, A filed a bill against B to have an ac- count of the incumbrances and their priorities ascer- tained. A decree was made directing a reference to ascej'tain the different incumbrances and their pri- orities, and the plaintiif was to bring them before the Court. The Master made his report finding the other charges and rejecting B's claim, who took exceptions. The plaintiff neglected to bring the other incumbrancers found by the Master before the Court, and the exceptions were ordered to stand over, with liberty to the plaintiff to file a supple- mental bill against all necessary parties. The plaintiffaccordingly filed a supplemental bill against B and the other incumbrancers, contesting the validity of the securities found by the Master, and seeking as against B relief difli'erent from that sought by the original bill: — Held, first. That the sup- plemental bill was irregular, and that so far as it sought to impeach the incumbrances found by the Master, or sought against B relief different from that prayed by the original bill, it should be dismissed, with costs. Secondly, That B had a right in the second suit to impeach A*s securities, though he had not done so in the original suit. Thirdly, That the other incumbrancers had a right to con- test the plaintiff's securities though at the hearing the plaintiff admitted their priority; and lastly, an action was directed to try the validity of the plaintiff's securities. Hele v. Bexley [Lord), 11 Beav. 537. Where a case of wilful default by an executor is charged by a bill, and stated in the answer of a defendant, a co-defendant, notwithstanding the decree for the common accounts in the original suit, will be entitled to file a supplemental bill, and to have inquiries directed whether there has been any wilful default. A suit was instituted by residuary legatees against the sole executor of a testator, and against an annu- itant, for the administration of the testator's estate, the whole of which was made subject to the annuity. The bill charged the executor with want of dili- gence, and with wilful default, and that loss had been sustained in consequence of such wilful default, and it asked for the consequential relief. By his answer the executor stated facts which shewed that there were grounds for the charges in the bill, but no evidence was brought forward by the plaintiffs to support the charges, and a decree for the com- mon accounts alone was made. The prosecution of the decree having been committed to the annui- tant, who was a defendant in the original suit, it. was ascertained that there had been a loss, and that there was a case for inquiry; and the executor having died, the annuitant filed a supplemental bill against his executors, charging the executor with wilful default, and that at the time of the decree there was a case for inquiry, and praying the con- sequent relief: — Held, that the annuitant had no means of obtaining relief against the executor at the hearing, and that the supplemental bill was properly filed. Berrow v. Morris, 16 Law J. Rep. (n.s.) Chanc. 506; 10 Beav. 437. A suit was instituted on behalf of infants against the tenant for life and three trustees in respect of a breach of trust. The bill being taken pro confesso a decree was made against the trustees for the payment of a sum of money in respect of the breach of trust. One of the trustees, who was abroad and in contempt for non-performance of the decree, filed a second bill against the plaintiffs and the other defendants in the first suit, recognizing the decree in that suit, but (but besides other things which were clearly not inconsistent with the decree) seeking, on the ground of fraud and collusion be- tween the tenant for life and his co-trustees, to make the interest of the tenant for life available for the purpose of reimbursing him (the plaintiff) the liability with which he had been fixed, as he alleged, through the active agency of the tenant for life : — Held, that such a bill could not be regarded as a bill of review or as a supplemental bill in the nature of a bill of review; and a motion to take it off the file for irregularity, as having been filed without the leave of the Court, was refused, with costs. One test of its being such a bill is, to inquire whether, if the decree had not been referred to in the bill, it could have been pleaded in bar to the relief prayed. Held, also, that this decision was not affected by there being matters in the prayer of the bill as to which the plaintiff would not be entitled to relief. The circumstance of the plaintiff being out of the jurisdiction and in contempt did not prevent his filing the bill in question. The bill having been filed before the Master of the Rolls was ordered to be transferred to the Vice Chancellor by whom the decree in the original suit had been made. Taylor v. Taylor, 1 Mac. & G. 397 ; 1 Hall & Tw. 437. When application is made for leave to file a supplemental bill of r^iew on the ground of dis- covery of new evidence, the question is not merely whether the evidence is material, but whether it is of such weight as, when taken in connexion with the mass of evidence adduced on both sides at the former hearing, would have been likely, if then brought forward, to have turned the scale. Hungate V. Gascoigne, 15 Law J. Rep. (n.s.) Chanc. 382; 2 Ph. 25. Upon petition for leave to file a bill of review, it being held that the new matter brought forward was such as,if unanswered, would entitle the plaintiff toa decree, or would raise a question of so much nicety and delicacy as to be the fit subject of the judgment on the case, the petition was granted. Hungate v. Gascoigne, 15 Law J. Rep. (N.s.) Chanc. 142. After a decree in a suit against the heir of A, the plaintiff petitioned for leave to file a bill of review, alleging error apparent on the face of the decree, and also that the plaintiff had discovered PRACTICE, IN EQUITY ; (A) Bills. 555 since the decree that the defendant was executor of A, and that it was essential to bring the defen- dant before the Court in that character. Petition dismissed, because a bill of review for error ap- parent may be filed without leave of the Court; and because the defendant had admitted in his answer that A's will was in his possession. Truloch V. Robey, 15 Sim. 265. Property was held by A, B and C, in trust for D, for life, with remainderto her children. The children filed a bill against the trustees for a breach of trust, and by the decree the trustees were ordered to re- place the fund. C afterwards being in contempt for non-performance of the decree, filed a bill against the other trustees and the tenant for life, alleging that they had received and retained the produce of the breaches of trust, and seeking to make them and the life estate liable to indemnify C : — Held, that this was not in the nature of a bill of review, and might be filed without leave of the Court; and secondly, that C's contempt did not prevent his filing the second bill. Taylor v. Taylor, 12 Beav. 220. A bill of review for error apparent on the decree applies only to errors of form and not to errors of judgment on the merits. Trulock v. Robij, 2 Ph. 395. In support of a bill of review for error in a decree the pleadings in the cause cannot be referred to. Trulock V. Robey, 15 Sim, 277. (/) Amendment of. The plaintiflf is not to obtain an order of course for leave to amend his bill, after a defendant (being entitled to move) has served a notice of motion to dismiss the bill for want of prosecution. Order of April 13, 1847; 16 Law J. Rep. (n.s.) Chanc. 296; 2 Ph. cxxxix. ; 9 Beav. xiii. Amendments after answer. Rigby v. Rigby, 9 Beav. 311. All the defendants who had appeared to the bill had answered; and the time within which the plaintiff was entitled to an order of course to amend had expired, if such time was to be com- puted from the last of those answers. Other de- fendants, who were within the jurisdiction, had not appeared, nor been served with a subpoena. The plaintiff then obtained an order of course to amend : — Held, that this order ought not to be discharged for irregularity ; but the Court discharged it upon the merits of the case, the plaintiff having taken no steps to get an answer from the other defendants. The words "last answer" in the 66thand 68th Orders of May 1845, mean the last answer required to be put in before a replication can be filed. Arnold v. ArnoW, 16 Law J. Rep. (n.s.) Chanc. 236 ; 1 Ph. 805 ; 9 Beav. 206. Since the Orders of May 1845, all special ap- plications for leave to amend a bill should be made, in the first instance, to the Master in rotation, and not to the Court except by way of appeal. As a general rule, an appeal from the decision of the Master upon such an application will not be heard by the Lord Chancellor, although the act 3 & 4 Will. 4. c. 94. gives the right of appealing to the Lord Chancellor, Master of the Rolls, or Vice Chancellor, and the decision of either of those Judges is to be final. Coombes v. Ramsay, 16 Law J. Rep. (N.s.) Chanft. 214; 2 Ph. 168. All special applications for leave to amend must, for the future, be made, in the first instance, to the Master in rotation, and not to the Court, except by way of appeal. The affidavits in support of a special application for leave to amend, after the expiration of the four weeks mentioned in the 68th Order of May ]8'1'5, must strictly comply with the requisition of that Order; and the affidavit of the solicitor himself will not be dispensed with. But where the defendants are abroad, or are a corporate body, and an aflSdavit cannot be obtained from them, the affidavit of their solicitor will be sufficient. A motion made after the New Orders of 1845 came into operation, is to be governed by those Orders, although the notice of motion was given, or the facts to which it related occurred while the former Orders were in force ; but, in deciding upon such a motion, the Court will take into considera- tion whether the proceedings of the party would have been satisfactory according to the former practice. Christ's Hospital v. Grainger, 15 Law J. Rep. (n,s,) Chanc. 145 ; 1 Ph. 634. See also Win- nail V. Featliersionhaugh, 15 Law J. Rep. (N.s.) Chanc. 149. An objection for want of parties having been allowed at the hearing, plaintiff obtained an order to amend by adding parties. He did not amend, but brought on the cause again for hearing, without having discharged the order, or stating on the re- cord why he had not acted on it. The Court refused to proceed with the hearing. Davis v. Chanter, 15 Sim. 93. Under all orders to amend a bill, the plaintiff must amend within fourteen days when no time is limited. Armitstead v. Durham, 1 1 Beav. 428. An order of course to amend by adding parties obtained after replication, is irregular. Hitchcock V. Jacques, 9 Beav. 192. After one of several defendants has put in a suffi- cient answer, the plaintiff cannot obtain more than one order of course to amend, though the other defendants may not have answered. Duncombe v. Lewis, 10 Beav. 273. By the effect of the 37th General Order of August 1841, the answer put in by a defendant to an original bill, although it extends to matters retained in the amended bill, does not preclude the defendant from demurring generally to such amended .hill, by overruling the demurrer, as it would have been held to do before that Order was made. Wythe v. Ellice, 6 Hare, 505. Defendant put in an insufficient answer, and plaintiff obtained an order of course to amend, and that the defendant might answer the amendments and exceptions together. No amendment was made withiiv fourteen days ; — Held, that a second order to amend could not be obtained ex parte. Dolly v. Challin, 11 Beav, 61. The 66th Order of May 1845 is applicable to bills of discovery. A plaintiff took exceptions which he gave notice of abandoning : — Held, that he had thereby short- ened the time allowed for amending as of course. A plaintiff after the time allowed obtained an order of course to amend. The order was dis- 556 PRACTICE, IN EQUITY; (A) Bills. charged, with costs, and the amended hill was ordered to he taken off the file: Peilev. Stoddart, 11 Beav. 591. Where a pUintiffhas ohtained an order of course to amend after one or more answers have been filed, he can obtain no further order of course to amend, although he has called for and obtained an answer to the amended bill from the defendants who had answered the original bill, and although other defendants may not have answered the original bill. If the right of the plaintiflT to an order of course to amend be barred as against one defendant, it is barred against all. Winilirop v. Murray ^ 7 Hare, 150. In the description of the plaintiflT, he was called John Watts, his true name being William John Watts, as evidenced by the body of the bill and answers. Leave was given to amend the bill by altering the name J. Watts into W. J. Watts, on giving notice to the defendants of the intention to alter the name pursuant to the order of the Court. Watts \. Symes, 16 Law J. Rep. (n.s.) Chanc. 332. After an order of the Vice Chancellor to amend the bill on payment of costs,, made on a special ap- plication for leave to amend without prejudice to the common injunction, which was not acted upon, the plaintiff obtained an order to amend, as of course, on petition at the Rolls : — Held, that the last order was irregular, but that the Master of the Rolls could not order it to be taken off the file. Edge V. Duke, 16 Law J. Rep. (n.s.) Chanc. 168 ; 10 Beav. 184. Upon motion for fiurther time to amend, on account of the plaintiff having been obliged to dismiss his solicitor for negligence and misconduct, and the new solicitor not having had time to in- vestigate the proceedings in the suit, it was held, that the plaintiff was not entitled to relief, although he might have his remedy by action against the solicitor. Clarke v. the Mayor, 8fc. of Derby, 16 Law J. Rep. (n s.) Chanc. 69. Two. orders had been made by the Court, on notice to the defendant, for leave to amend the plaintiff's bill after the expiration of the time within which orders might be obtained to amend as of course ; but the affidavits filed in support of the motions were not in conlbrmity with the requi- sitions of the 69th of the General Orders of the Court of the 8th of May 1845: — Held, on motion to discharge both the orders, that notwithstanding the 21st of the Orders of the 8th of May 1845, the orders made were irregular. Potts v. Whitmore, W Law J. Rep. (n.s.) Chanc 162; 10 Beav. 177. After three of four defendants to a hill had answered, the plaintiff obtained an order of course to amend, which he acted upon ; before any answer had been put in to the amendment, the plaintiff obtained another order, as of course, to amend as he should be advised ; and the bill was again amended by striking out of the bill the name of a person who had been made a party by the previous amend- ment, but who was at the date of the amend- ment dead, and substituting his legal personal representative in his place : — Held, that the second order was irregular. Horsley v. Fawcett, 16 Law J. Rep. (n.s.) Chanc. 184 ; 10 Beav. 191. On motion by one of several defendants to dis- miss a bill for want of prosecution, the plaintiff shewed for cause an order to amend the bill ohtained since the date of the notice to dismiss, one of the other defendants not having put in his answer to the bill; and on payment of the defendant's costs, no order was made. The same defendant after- wards moved to discharge the order to amend for irregularity. The plaintiff had been guilty of great delay in proceeding with the cause, and the defen- dant who had not answered was the husband of the plaintiff, and represented by the same solicitor. Motion refused, but without costs. In a case where one of the defendants to a bill had not put in his answer, the plaintiff, after great delay, and after notice of motion had been given to dismiss the bill for want of prosecution, ohtained an order as of course to amend the bill : — Held, that under the 66th of the General Orders of May 1815, the order was not irregular. Held, however, that though such an order could not be considered to be irregularly obtained, the same might be discharged on the merits, on account of the misconduct of the plaintiff with re- ference to the proceedings in the cause, but the motion in such case must be before that branch of the Court to which the cause is attached. Foreman V. Gray, 16 Law J. Rep. (n.s.) Chanc. 233 ; 9 Beav. 196, 200. Upon appeal, the Lord Chancellor allowed a de- murrer as to parties, but at the same time gave the plaintiff leave to amend his bill without limiting the time. After the time allowed by the General Orders of the Court for making amendments had expired, the plaintiff obtained, as of course, the common order, under which he filed an amended bin : — Held, upon an application to discharge the order for irregularity, that, where no time is limited by a special order for making amendments, it is limited by the General Orders of the Court ; that the cause was not out of court by not acting upon the special order, and that special application might have been made to the Court for further time ; and that the order of course was irregular, and must be discharged, with costs. Bainhrigge v. Baddeley, 18 Law J. Rep. (n.s.) Chanc. 365 ; 12 Beav. 152.. The rights of parties litigating in equity must be decided secundum allegata et probata ; and where a plaintiff prays by his bill for the specific perform- ance of an agreement, but the Court considers he is not entitled to that relief, it is irregular to give him liberty at the hearing to amend the prayer of his bill by asking to be placed as nearly as possible in the same position as if that agreement had never been entered into. A reference to the Master should be confined to such matters as are alleged and proved in the bill, and not extended to circumstances in which those essentials are wanting, but upon which the plaintiff might be able to found an equity. Bellamy v. Sabine, 17 Law J. Rep. (n.s.) Chanc. 105 ; 2 Ph. 425. After an order of the Vice Chancellor, referring it to the Master to ascertain which of two bills it would be most for the benefit of an infant to prose- cute, the plaintiff in one suit obtained the common order, and amended his bill : — Held, that the order was irregular; and it was discharged, but without costs. Held, albo, that the Master of the Rolls, upon an PRACTICE, IN EQUITY; (A) Bills. 557 application to discharge the order for irregularity, had not jurisdiction to order the amendments to be taken off the file, even with consent. Fletcher v. Moore, 18 Law J. Rep. (n.s.) Chanc.384; U Beav. 617. Special orders to amend must be obtained upon the affidavit of the plaintiff and the solicitor. On obtaining a special order to amend, it is not necessary that the affidavit mentioned in the 68th General Order of May 1845 should state all the amendments to be made in the bill. Payne v. Little, 19 Law J. Rep. (n.s.) Chanc. 459. The rule, that a plaintiff in an original .";uit by amending his bill after a cross bill is filed loses his priority of suit, and cannot call upon the defendant to answer the amended bill, before he answers the cross hill, will not prevail, where exceptions being taken to the answer to the original bill for insuffi- ciency and allowed, the plaintiff, under an order to amend and for the defendant to answer the amend- ments and exceptions together, amended his bill after a cross bill filed, but having served notice of the order to amend, before he was served with the subpoena to answer the cross bill. Gray v. Haig, Haig V. Gray, 19 Law J. Rep. (n.s.) Chanc. 446 ; 13 Beav. 65. Two suits having been instituted by two different next &iends on behalf of an infant, an order of refer- ence was made in both suits as to which was most for the benefit of the infant. Subsequently to the date of the order, but before it was executed, a de- murrer was put in to one suit and submitted to, and the bill substantially amended : — Held, that the amendment of the bill in one suit did not preclude the Master from proceeding with the order of re- ference. Under such an order of reference the Master is to report as to the "suit," and therefore is bound to refer both to the original bill and the amended bill (if any) as evidence of th.e object and scope of the suit. It is not a ground of appeal that the Court below has reserved the question of costs, which might have been properly disposed of at the hearing. Goodale v. Gawthorne, 19 Law J. Rep. (n.s.) Chanc. 447; 1 Mac. & G. 319; 2 Hall & Tw. 193. When a bill is amended by special leave not fixing any time for the amendment, it ought to be amended within fourteen days. Cridland v. De Mauley, 2 De Ges & S. 560. (g) Taking pro Con/esso. Where a bill had been ordered to be taken pro cortfesso against one of two defendants, and the cause was afterwards set down to be heard as against the other defendant, and a decree was then made against both defendants, — Held, that it was not necessary for the clerk of records to attend in court with the record upon the second occasion. The issuing of an attachment is not a proceeding in the cause within the meaning of the 4th Order of November 1841, semble. Needham v. Needham, 15 Law J. Rep. (n.s.) Chanc. 132; 1 Ph. 640. Where a husband and wife were defendants to a hill, but had neglected to put in any answer, and the husband had been taken under an attachment for want of answer, the bill was ordered to be taken pro confesso, not only against the husband, but against the wife also. Alexander v. Osborn, 16 Law J. Kep. (N.s.) Chanc. 368. The order referred to in the 81st of the General Orders of Conrt of the 8th of May 1845, is only the preliminary Order, that the record and writs clerk attend with the record of the bill at the hearing of the cause. By the same Order, the practice is rendered uni- form in all oases, whether there are several defen- dants or only one defendant to a hill. A like practice must he pursued under the 76th of the same General Orders of Court, in the cases of defendants absconding, or being served with notice. Brown v. Home, 16 Law J. Rep. (N.s.) Chanc. 177. Under the 88th of the same Orders liberty was given to the plaintiff to issue such process of con- tempt as he might be advised to compel perform- ance of the decree. Ibid. 10 Beav. 400. To take a bill pro confesso under the 77th Order of May 1845, it must be shewn by the evidence of the officer that he has used due diligence to execute the writ of contempt. Yearsley v. Budgett, 11 Beav. 144. A bill was amended under the 65th Order of May 1 845, after an order to take the hill pro confesso : — — Held, that such amendment destroyed the effect of the order. Weightman V. Powell, 1 8 Law J. Rep. (n.s.) Chanc. 71 ; 2 De Gex & S. 570. Under the 76th Order of May 1845 the Court has jurisdiction to order the costs of a motion by the plaintiff to take the bill pro confesso to be paid by the defendant, although the latter puts in his answer before the motion is made. Spooner v. Payne, 2 De Gex 8£ S. 439. A hill was in the presence of and adversely to the cestuis que trust taken pro confesso Against a trustee living abroad. The Court under the 86th Order of May 1845 dispensed with service of the decree on him. Benbow v. Davies, 12 Beav. 421. Where the preliminary order for taking a bill pro confesso has been made, the defendant cannot he heard at the hearing unless he waives all objections. Greaves v. Greaves, 12 Beav. 422. (A) Taking off the File. Motion made that a bill should be taken off the file, on the ground that the person whose name was affixed to the bill as the plaintiff's solicitor was not a solicitor of the court. Order made there- on, where there was a suggestion that the name of a solicitor ofthecourt would be substituted. Richard- son V. Moore, 15 Law J. Rep. (n.s.) Chanc. 424. In a bill purporting to be exhibited by an infant plaintiff by her next friend, she was described by her maiden name, but was, in fact, clandestinely married. The Court refused a motion made on behalf of her husband (a defendant) to have the bill taken off the file. Wortham v. Pemberton, 1 De Gex & S. 644. A bill reflecting on a party ordered by consent to he taken off the file. Clifton v. Benlall, 9 Beav. 105. The plaintiff having filed a bill for a partition, after answer amended his bill by adding a prayer in the alternative for a partition or a declaration that the plaintiff was entitled to the moiety claimed by tbtf defendant; after answer, the plaintiff re- amended omitting the prayer for a partition. The 558 PRACTICE, IN EQUITY ; (A) Bills. Court refused a motion to take the re-amended bill off the file. Semble — that such a motion may he acceded to if a plaintiff ohtain discovery by a bill making an offer which he withdraws by amendment. Potter V. Waller, 2 De Gex & S. 418. E G, the testator, being entitled to the equity of redemption in certain premises, by his will gave all his real and personal property to his "widow, A, the daughter of S M." In a bill by A for re- demption of the premises, she described herself as A G, widow and devisee of E G, the testator. It appeared that the plaintiff had taken out probate to the will of E G, and also administered to another party, under the description of " A M, otherwise G, spinster." On motion, by the defendant, to take the bill off the file, or that the plaintiff should give security for costs on the ground of misdescrip- tion, the Court refused to make any order, on the ground that the description of the plaintiff involved a question of title to the subject-matter of the suit. Griffith v. Ricketts, 15 Law J. Rep. (n.s.) Chano. 230; 5 Hare, 195. {i) Retaining, [See Injunction.] {k) Dismissal of. A plaintiff filed a replication, but served no sub- poena to rejoin. The Orders of May 1845 then came into operation. The plaintiff not proceeding in the cause, — Held, that the proper course was for the defendant to move that the plaintiff do file a replication in the form of the 93rd Order, within a limited time, or, in default, that the 'bill do stand dismissed. Spencer v. Allen, 15 Law J. Rep. (n.s.) Clianc. 31; 4 Hare, 455. Notice of motion was given by one of two de- fendants to dismiss the bill for want of prosecution. The plaintiff thereupon filed a replication to the answer of that defendant. The other defendant had not appeared. On the motion being made, the plaintiff undertook to dismiss the bill against the other defendant, whereupon the Court refused the motion, but ordered the costs to be paid by the plaintiff. Heanlexj v. Abraham, 5 Hare, 214. Pending a reference of title ordered in a suit for specific performance, the defendant cannot, under the 14th Order of May 1845, dismiss the bill for want of prosecution. Collins v. Greaves, 5 Hare, 59G. A filed an original bill and afterwards another, which he prayed might be taken as supplemental to the former, against B. Some of the statements in the latter were contradictory of the former bill. Both bills were dismissed, with costs. Blackburne V. Stanilajid, 15 Sim. 64. See Jenkins v. Cross, 15 Sim. 76. Order on the application of the plaintiff to dis- miss his bill with costs against disclaiming de- fendants, without prejudice to any question how the costs should ultimately be borne. Baily v. Lambert, 5 Hare, 178. On a motion by one of several defendants to dis- miss for want of prosecution, it is not enough for the plaintiff to shew that the answers of the other defendants have not been filed; he must also shew that due diligence has been used in getting them in. Morninglon {Earl of) v. Smith, 9 Beav. 251. A filed a bill against B & C. B was the prin- cipal defendant, and the only question in the cause was between A and B, but no complete decree could be made without the account being taken as between A and C, and as A had examined C as a witness in the cause, the Court held that no decree could be made, and dismissed the bill without pre- judice to filing a new one. Champion v. Champion, 15 Sim. 101. The plaintiff filed his replication in July 1844; the defendant gave notice of motion in the present term to dismiss for want of prosecution, and the plaintiff filed a subpoena to rejoin; — Held, that the defendant not having moved to dismiss, as he might have done, in Trinity term, the particular proceed- ing was not complete under the old Orders ; a new replication must, therefore, be filed, and the cause proceeded with under the New Orders. Lovell v. Blew, 15 Law J. Rep. (n.s.) Chanc. 31. Upon motion by some of the defendants to dis- miss the bill under the first article of the 114th Order of May 1845, the fact that other defendants have not yet put in their answer is not per se a ground for refusing the motion ; the plaintiff must shew sufficient excuse for the delay in not getting in the other answers. Where, upon a motion to dismiss, the plaintiff is ordered to file his replication within a given time, the vacation will be reckoned in the computation of such time. The 4th article of the 14th Order of May 1845 does not apply to such a case. The Court will not, as of course, nor except in case of necessity, give a plaintiff leave under the reservation in the 93rd Order of May 1845, to file a second replication in the same cause. Stinton v, Taylor, 15 Law J. Rep. (n.s.) Chanc. 321; 4 Hare, 608. If the defendant cause delay in the progress of the suit, the Court will not grant his application to dismiss the bill for want of prosecution, but will make such qualified order as will meet the justice of the case. Dalton v. Hayter, 15 Law J. Rep. (n.s.) Chanc. 33. The words " the last of the answers," contained in article 1. of the 114th Order of the 8th of May 1845, have reference to the last of the answers of the same defendant to the original or amended bill, and not to the last of the answers of the several defendants to the bill. Ibid,; and Sprye v. Reynelt, 16 Law J. Rep. (n.s.) Chanc. 286; 10 Beav. 351. Where a demurrer has been overruled, with costs, and the defendant has appealed, the plaintiffis not entitled to the common order of course to dismiss his bill, upon payment of costs. Lewis v. Cooper, 16 Law J. Rep. (n.s.) Chanc. 265; 10 Beav. 32; 2 Ph. 178. Under the Orders of May 1845, one of several defendants may move to dismiss a bill for want of prosecution, if the plaintiff has taken no step for four weeks after his answer is sufficient, although his co-defendants have not answered; but an order to amend obtained and served after notice of the motion is ordinarily an answer to the motion, but the plaintiff will have to pay the costs of the motion. Lester v. Archdale, 9 Beav. 156. Upon a bill for discovery and relief, a plea to all the relief, but not in form to all the discovery, is not a plea "to the whole bill" within the meaning of the PRACTICE, IN EQUITY ; (A) Bills. 559 48th and 49th Orders of May 1845, and where, after the expiration of three weeks, a defendant having so pleaded to all the relief but not to all the dis- covery, obtained as of course an order to dismiss the bill; — Held, that such order was" irregular. An order to amend after a plea to all the relief, and an answer to the discovery asked by a bill, is not to be obtained as of course under the 66th Order of May 1845, and an order so obtained was discharged with costs. Neck v. Gains, 1 De Gex& S. 223. Where the same solicitor appeared for two de- fendants, one of whom had and the other had not filed his answer so long a time previously as to entitle him to move to dismiss the bill for want of prosecution, the Court refused such a motion by the former defendant, with costs. Winthrop v. Mur- ray, 7 Hare, ISO. A cause was put at issue according to the old practice, more than two months before the Orders of May 1845 came into operation, but no further proceeding was taken : — Held, that the defendant could not move to dismiss the bill for want of pro- secution, under the 114th Order, section 4, butmust set down the cause for hearing according to the old practice. Griffith v. Griffith, 16 Sim. 35. Proceedings in a second suit were stayed until the costs of a former suit for the same purpose had been paid ; after great delay, order made that if the costs were not paid in a limited time the bill should stand dismissed. Latour v. Holcombe, 1 1 Beav. 624. See also s. o. 10 Beav. 256. Bill filed by the underwriter of a policy of in- surance on a ship to have it delivered up, on the ground of deviation and unseaworthiness ; but only deviation was proved. Bill dismissed. Thornton v. Knight, 16 Sim. 509. A testator bequeathed to his widow a legacy and a life annuity. She survived him twenty-eight years, and after her death, her executrix filed a bill for their recovery. No explanation was given of the circumstances, and no proof of any intermediate payment. The bill was dismissed, on the ground of laches. Pattison v. Hawkesworth, 10 Beav. 375. The plaintiff obtained an order to amend, but did not serve it until after the defendant had moved to dismiss for want of prosecution : — Held, that the defendant was entitled to dismiss notwithstanding the order to amend. Jones v. Charlemont, 1 7 Law J. Rep. (n.s.) Chanc. 449. A, a defendant, having answered the bill, -gave a notice of motion to dismiss the bill for want of pro- secution for the first day of Michaelmas term. On the 5th of November, before the motion came on, the plaintiff obtained an order from the Master for liberty to amend the bill on payment of 6s. '8rf., which he served on A, with a tender of the 6s. 8rf., which was refused. The plaintiff amended his bill, and required an answer to the amendments from A. The plaintiff did not .serve A with a subpoena to answer the amended bill, or file a replication, or set down the cause on the bill and answer : — Held, that A was entitled to move to dismiss the bill for want of prosecution. Raistrick v. Ehworth, 17 Law J. Rep. (n.s.) Chanc. 248; 2 De Gex & S. 95. Upon motion to dismiss a bill for want of prose- cution by a defendant, who had put in his answer, it was objected by the plaintiff that three out of the sixteen defendants had not yet answered the bill :— Held, that the plaintiff not having used due dili- gence in getting in the answers, the bill must be dismissed, unless the plaintiff would undertake to proceed immediately. Baldwin v. Darner, 16 Law J. Rep. (n.s.) Chanc. 448. After several orders had been made from time to time in a suit, giving the plaintiffs liberty to amend, an order was made, on the application of some of the defendants to dismiss the bill, that the plaintifl's should file a supplemental bill within ten days, bringing the assignees of a bankrupt plaintiff before the Court, or the plaintiffs' bill stand dismissed, with costs. The plaintiffs filed a supplemental bill within the prescribed period, but took no further pro- ceedings therein. On notice of motion, by some of the defendants, to dismiss the original and supple- mental bills, which had been served on the other defendants as well as the plaintiffs, — Held, that the defendants moving were entitled only to an order to dismiss the original bill, with costs against the plaintiffs, and that they were not entitled to ask for any order against the other defendants, and must therefore pay their costs of the motion ; and the Court would not give the defendants the costs of the motion. The defendants ought to have applied to the Court for an order discharging the order directing the plaintiffs' bill to stand dismissed in default of the plaintiffs filing a supplemental bill within ten days. Ward v. Ward, 17 Law J. Rep. (n.s.) Chanc. 397; 11 Beav. 159. After decree for an account, the bill cannot be dismissed even with consent. The proper order is to stay all proceedings. Egg v. Devey, 1 1 Beav. 221 . The application of the rule of the court to dis- miss a bill in which the title to relief is founded upon allegations of fraud, if fraud be not proved, depends not upon the use or omission in the bill of the word " fraud," but upon the fact, whether the charges upon which the relief is sought are in their nature such as this Court regards as consti- tuting fraud. M'Calmont v. Rankin. 8 Hare, 15. A reference as to title was made before hearing. A motion to dismiss for want of prosecution pend- ing the reference was refused. Gregory v. Sj>encer, 11 Beav. 143. The defendants to a bill, by their answer, alleged that they had assigned whatever interest they had in the subject-matter of the suit to a third party, and disclaimed. The plaintiff then amended his bill by making the assignee a party, who by his answer admitted the assignment, and claimed the interest transmitted to him by the assignment. A replication was filed to both answers, but no evidence was entered into on either side to prove the as.sigii- ment ; — Held, that the bill must be dismissed, with costs, against the disclaiming defendants. Glover v. Rogers, 17 Law J. Rep. (n.s.) Chanc. 2. A plaintiff who had obtained a special injunction against a defendant, afterwards obtained an order to amend without prejudice to the injunction, and amended his bill after seven days, but before the expiration of fourteen days. Motion by defendant to dismiss the bill for want of prosecution dismissed, without costs. Kennedy v. Lewis, 18 Law J. Rep. (n.s.) Chanc. 455. On motion to dismiss by one of several defendants. 560 PRACTICE, IN EQUITY ; (A) Bills. the plaintiff alleged that he had been unable to proceed on account of the other defendants having demurred, and the order upon such demurrer not having been drawn up : — Held, that the bill must be dismissed as against this defendant Jones v. Morgan, 17 Law J. Rep. (N.s.) Chanc. 365. A defendant offering the plaintiff all the relief specifically sought by his hill moved to dismiss with- out costs, or that the plaintiff might apply respect- ing them. The plaintiff then insisted on a further demand, which might be had under the prayer for general relief or by amendment. The Court refused the motion, with costs, but intimated that the pro- ceeding must be considered at the hearing. Hennet V. Luard, 12 Beav. 479. A defendant having answered the hill and having subsequently become bankrupt, and not having ob- tained his certificate, moved for an order to dismiss the bill in circumstances which but for" the bank- ruptcy would have entitled him to the order with costs. The plaintiff on the motion undertook not to proceed against the defendant in respect of the sub- ject-matter of the suit, and the Court dismissed the bill, without costs. Findlay v. Lawrence, 2 De Gex & S. 303. Where a cause has stood over at the hearing, with liberty to the plaintiff to amend, and the plaintiff has failed to amend, the proper course is to move upon notice that the plaintiff amend within a time stated or the bill he dismissed. During the pen- dency of an order to amend, the common order to dismiss for want of prosecution would be irregular. Emerson v. Emerson, 18 Law J. Rep. (n.s.) Chanc. 50 ; 6 Hare, 442. After bill fiiled and appearance entered, the defen- dant became bankrupt, and the plaintiff shortly afterwards obtained the common injunction for want of an answer. No proceedings were taken in the suit for two years, when the defendant having been declared entitled to his certificate, but not having taken it up, put in his answer, and then moved to diMniss for want of prosecution: — Held, that not- withstanding his bankruptcy and the other circum- stances, the defendant was entitled to an order dis- missing the bill, with costs. Blackmore v. Smith, 1 8 Law J. Rep. (n.s.) Chanc. 271 ; 1 Mac. & G. 80 ; 1 Hall & Tw. 155. Bill tiled by a plaintiff on behalf of himself and all other the shareholders in a company, praying that the defendants, the directors of the company, might be ordered to repay the shareholders all sums which might appear to have been improperly paid by them out of the funds of the company. The defendants moved to dismiss upon payment to the plaintiff of the sum claimed by him, together with his costs: — Held, that the plaintiff having complete dominion over the suit, and being the only person with whom the defendants could deal, they were entitled to dismiss upon the proposed terms. Scarth V. Chadwick, 19 Law J. Rep. (n.s.) Chanc. 327. A legatee, who was entitled to a share of the pro- ceeds of an estate directed to be sold, provided the sum realized did not exceed a certain amount, mort- gaged his share twice, and before the fund became diviMble filed his bill against the trustees and other parties interested, and his mortgagees, for the per- formance of the trusts and for an account of what was due upon the mortgage, charging the trustees with breach of trust, and charging that nothing was due upon the mortgage ; and asking that the trus- tees might pay the costs of suit. When the period of division arrived the trustees paid the other lega- tees their shares. On motion by all the defendants, except the mortgagees, the bill was dismissed against all the defendants except the mortgagees, upon the trustees paying the plaintiff's legacy into court, and paying to the plaintiff and the mortgagees their costs of suit up to and inclusive of the motion. Satoi/er V. Mills, 19 Law J. Rep. (n.s.) Chanc. 242 ; 1 Mac. &G. 390; 1 Hall&Tw. 569. An agreement was come to between the plaintiff and the defendant, by which it was agreed that the bill should he dismissed, and that the defendant should pay all costs, which were to be taxed, if neces- sary; and the plaintiff agreed to move to dismiss, and, in default of her doing so the defendant was authorized to instruct counsel for that purpose on her behalf. A sum of money was paid in respect of the plaintiff's costs, the solicitors undertaking to return a part, if, upon taxation they should he found to have been overpaid ; and an order was made on a motion by the plaintiff for the dismissal of the bill, but from thefault of the plaintiff the defendant could not get it passed and entered. Upon motion by the defendant three years afterwards, an order was made as against the plaintiff and her solicitors to leave with the Registrar the original order and the coun- sel's brief on the motion. Robison v. Manuelle, 2 Hall & Tw. 402. (B) Process. The 31st Order of May 1845 refers to absconding to avoid service generally, and not in the particular suit only. Cope v. Russell, 2 Ph. 404. Course of proceeding where a defendant, served with a copy of the bill under the 23rd Order of August 1841, dies before appearance. Edington v. Banham, 2 Coll. C.C. 619. The Court will not order service of a copy of a bill on the wife, who has been deserted by the hus- band, to he good service on the husband ; hut the plaintiff must proceed, according to the old practice, against the husband. The Couit will not order substituted service of a subpcena on the wife of a party to appear and answer the bill, where he has deserted his wife, and has not since been heard of, although the hus- band and wife were made parties to the suit, in re- spect of a small annuity, claimed by the wife for her separate use, under a testator's will, and she had answered the bill separately and apart from her husband, under an order of the Court. Thomas v. Selby, 15 Law J. Rep. (n.s.) Chanc. 280; 9 Beav. 194. Motion under the 33rd Order of May 1845, to serve subpoena and copy of bill upon a defendant and his wife and six infant children, out of the juris- diction — order made. Service on the defendant would be good service on his wife, but not upon the infant children, who must all be served sepa- rately. Jones V. Geddes, 15 Law J. Rep. (n.s.) Chanc. 65. A defendant, who is of unsound mind, but not found so by inquisition, may, together with his wife, a co-defendant, both of whom are residing out of the jurisdiction, be served, by order of the Court, with PRACTICE, IN EQUITY. 501 subpoena to appear and answer the bill. Biddulph T. Camoys, 1.5 Law J. Rep. (n.s.) Chanc. 141. Under tbe 33rd Order of May 1845, the Court is empowered, in its discretion, to order service of a subpoena to appear and answer upon a defendant out of the jurisdiction in any suit whatever, though such defendant has neither property nor domicile in this country. Whitmore v. Ryan, 15 Law J. Rep. (n.s.) Chanc. 232; 4 Hare, 612. A party having gone abroad to avoid service, substituted service at the last place of residence and on her solicitor ordered. Burlion v. Carpenter, 1 1 Beav. 33. A bill was filed in January and a copy of it served in October 1845:— Held, that the 16th Order of May 1845, article 2, requiring a copy of the bill to be served within twelve weeks after filing the bill, did not apply to a case where the proceeding was complete under the old Orders. Feltham v. Clarice, 15 Law J. Rep. (n.s.) Chanc. 32. The circumstances that certain solicitors had acted as solicitors of a defendant to a foreclosure suit in several other matters, including a suit relat- ing to the estate which was the subject of the fore- closure suit, and that such defendant could not be found so'as to be personally served with a subpoena to answer the bill of foreclosure, — Held, insufficient grouilds for ordering substituted service on the solicitors to be good service on him. Hurst v. Hmst, 1 De Gex & S. 694. Where a defendant was out of the jurisdiction, the Court declined to make an order for substituted service of the subpoena to appear and answer, upon a gentleman who had acted for him as attorney in an action wherein judgment was obtained, upon which this suit was founded, and who had since been in communication with him upon the same matters, but who was not shewn to have any autho- rity to act for him in the matter of the present suit, or with reference to the interests affected by it. Cope V. Russell, 16 Law J. Rep. (n.s.) Chanc. 369. A suit was instituted against three trustees, who all appeared by the same solicitor. After decree, the sole plaintiff died, and a bill of revivor was filed. One of the defendants could not be found, being supposed to have gone to America ; but there was no evidence of his having absconded to avoid ser- vice, and the place of his residence could not be ascertained. The Court ordered substituted service of the subpoena to appear in the revived suit upon his solicitor in the original suit. Norton v. Hep- worth, 18 Law J. Rep. (n.s.) Chime. 172; 1 Mac. &G. 54; 1 Hall &Tw. 158. A copy bill was served without leave after the expiration of twelve weeks. The Court, on the joint application of the plaintiff and the defendant, gave leave to enter a memorandum of the service. Tugwell v. Hooper, 10 Beav. 19. On the 2nd of November 1846 the plaintiff served the defendant with a copy of a subprena, omitting, however, the indorsement required by the 4th Order of December 1833. On the 10th of December the plaintiff obtained an order for leave to enter an appearance for the defendant, and served him with a copy of it on the 30th of December. Motion, by the defendant on the 8th of February 1847, for the discharge of the service and order granted, with Digest, 1845—1850. costs. Johnson v. Barnes, 16 Law J. Rep, (n.s.) Chanc. 173 ; 1 De Gex & S. 129. Substituted service of subpoena for defendants, out of the jurisdiction of the Court, to appear to and answer a bill of revivor and supplement, ordered to be made on their solicitors in the original suit. Hart V. Tulk, 18 Law J. Rep. (n.s.) Chanc. 336 ; 6 Hare, 618. All the trustees named in a will being dead, one of the cesiuis que trust filed a bill against the others, the heir of the trustee who died last, and other per- sons who had been in possession of the estates, praying an account of the rents received, for the appointment of new trustees, and for conveyance of the estates: — Held, that the cesiuis que trust, who were defendants, had been rightly served with a copy of the bill under the 23rd General Order of August 1841. Johnson V. Tucker, 15 Sim. 485. In a suit by one of the next-of-kin of an intestate, for the administration of his estate, the other next- of-kin may be served with a copy of the bill under the 23rd Order of August 1841. Knight v. Caw- thron, 17 Law J. Rep. (n.s.) Chanc. 103; 1 De Gex & S. 714. Where the time for serving a defendant with a copy of the bill is enlarged it is not necessary to serve him with the order enlarging the time. Fenton V. Clayton, 16 Sim. 82. Where adefendantbecomes bankrupt after answer, and his assignees are before the Court, it is not necessary to serve the bankrupt with a subpoena to hear judgment. Stahlschmidt v. Lett, 16 Law J. Rep. (N.s.) Chanc. 368 ; 5 Hare, 595. Notwithstanding the bill alleged that the estate of B was fully administered, and that the parties beneficially interested in the estate were parties to the suit, yet the executor of B, being a party against whom direct relief was in substance prayed, was not a party to be served with a copy of the bill under the 23rd Order of August 1841. Powell v. Cockerell, 4 Hare, 557. (C) Contempt. [Terrell v. Souch, 4 Hare, 535.] In an order of committal for contempt, it is not necessary, although it is more correct that there should be a distinct adjudication that a contempt has been committed. In an order of committal for contempt, it is not usual to direct the costs of the application to be paid, but the Court hasjurisdiction to do so if itis thought desirable. But the party in contempt is not liable to the payment of charges and expenses which are not included in the term " costs." An order of committal for contempt must be under the seal of the Court ; and if it is only signed by the Judge it will be invalid. Ex parte Fan Sandau re Martin, 15 Law J. Rep. (n.s.) Bankr. 13; 1 De Gex, 303. Proceedings for contempt stayed on account of defendant's inability, through illness, to put in an answer. Hicks v. Lord Alvanley, 9 Beav. 163. Where a defendant had been remanded, and an order made for a habeas corpus to bring him up to the bar of the court to have the bill taken pro con- fesso, and, upon his being brought up, he had been discharged, but that order was discharged upon 4C 5C2 PRACTICE, IN EQUITY. appeal :— Held, that the defendant might be brought up upon a second writ under the original order, and that a fresh order was not necessary for the issuing of the writ. If the last of the thirty days, mentioned in rule 5. section 15. of the act 1 Will. 4. c. 36. (during which time a plaintiff is required to bring a defendant, in contempt for not answering, to the bar of the court) happens out of term, the plaintiff may bring the defendant to the bar of the court on any day during vacation, though prior to the expiration of the first four days of the ensuing term. Needham v. Need- ham, 15 Law J. Rep. (n.s.) Chanc. 132 ; 1 Ph. 640. A party in contempt may be brought up on a habeas corpus, and remanded, not only upon a seal day, but upon any other day, whether in term or in vacation. Ibid. Where the plaintiff and the defendant in the ori- ginal suit both become bankrupt before answer, and a supplemental bill is filed by the assignees of the plaintiff (who are ahso assignees of the defendant), stating the fact of the bankruptcy, it is irregular on the part of the assignees to proceed by attach- ment in the name of the bankrupt plaintiff, to en- force from the bankrupt defendant an answer to the original bill. The notice of motion to discharge the attachment should be headed in both causes. Robertson v. Southgaie, 16 Law J. Rep. (N.s.) Chanc. 30; 5 Hare, 223. An attachment issued in vacation under the 11 Geo. 4. & 1 Will. 4. e. 36. s. 15, may Tje made returnable more than fifteen days after it is tested, and it is not irregular for it to have a larger return than the last return of the term following that in which it issued. A party prosecuting process of contempt is not bound to bring the prisoner to the bar of the court, in order that he may be turned over to the Queen's Prison. Wroe v. Clayton, 16 Sim. 183. A female defendant was committed for contempt in not putting in an answer. She had been gene- rally known as an unmarried woman, but moved to be discharged on the ground that she was married, and that the proceedings against her were irregular : — Held, that she was entitled to he discharged upon motion, she having produced a certificate of her marriage, and an affidavit from a person who described himself as her husband, but whose resi- dence was not known ; and that she ought not to be required to put in a plea of coverture. Attorney General v. Adams, 17 Law J. Rep. (N.s.) Chanc. 392. An attachment cannot be obtained on motion ex parte against a married woman ordered to answer apart from her husband. Graham v. Fitch, 2 De Gex & S. 246. In a bill against husband and wife, the husband, after sequestration executed for want of the answer of himself and wife, answered separately without leave of the Court; and then, upon motion with notice, and supported by affidavits that his wife lived apart from him and he had no controul over her, obtained an order to discharge the attachment and sequestration upon payment of the costs of his contempt, and that his wife should answer sepa- rately. On appeal by the plaintiff, the Lord Chancellor refused to discharge that order, on the ground that, as the plaintiff did not think fit to apply to take the irregular answer off the file, the defendant would be without any means of clearing his contempt, but the order was varied so as to enable the plaintiff to take up the process of contempt at the point where it left off, in case the answer should be found in- sufficient. Steele v. Plomer, 18 Law J. Rep. (N.s.) Chanc. 209 ; 1 Hall & Tw. 149. (D) Appearance. [Wilton V. Rumbolt, 5 Law J. Dig. 608 ; 14 Sim. 56.] An appearance may be entered for infant defen- dants, after service, under the 2 Will. 4. c. 33. and 4 & 5 Will. 4. c. 82. Anderson V. Slather, IS Law J. Rep. (n.s.) Chanc. 260. Where a defendant is proved to be out of the jurisdiction of the Court, it will, under the 33rd Order of the 8th of May 1845, limit a time within which the defendant is to appear after service of the subpcena, and also a time within which he is to plead or answer; but the time allowed for de- murring will be twelve days only, the same as was allowed previously to the Orders of the 8th of May 1845 coming into operation. Brown v. Stanton, 15 Law J. Rep. (n-s.) Chanc. 65. The plaintiff filed his bill in 1842; the defendant appeared and answered in the same year; the plaintiff amended his bill in 1844, and served a subpoena on the defendant's solicitor to answer. The defendant at this time resided abroad; the plaintiff applied for leave to enter an appearance for the defendant : — Held, that this case was not within the 29th Order of May 1845. Marquis of Hertford v. Suisse, 15 Law J. Rep. (M.S.) Chanc. 30. Application by the plaintiff for leave to enter an appearance for the defendant under the 29th Order, the subpcena to appear and answer having been served in May 1845: — Held, that the plain- tiff must serve a new subpoena or give notice of mo- tion. Walker v. Hurst, 15 Law J. Rep. (n.s.) Chanc. 72. Four plaintiffs instituted an original and two supplemental causes, and three of the same plain- tiffs, on a subsequent abatement, filed a supple- mental bill by a new solicitor, making the other plaintiff a defendant, who also appeared by another solicitor. On a petition in the four causes, the solicitor in the last suit, and not the solicitor on the record in the first three, is entitled to appear for the plaintiffs. The Order ofthe 18th of October 1842 substitutes the solicitor for the Six Clerks, and does not give the solicitor a right to insist as against his client upon acting in the cause until removed by order of court. Ward v. Swift, 6 Hare, 309. The application by a party, by his counsel, for time to answer affidavits filed in support of a mo- tion, whereupon time is given, is not an appearance entitling the other party to obtain the order, on a subsequent motion, without an affidavit of service, no counsel then appearing for the opposite party. Hutton V. Hepworth, 6 Hare, 319. The bill was filed after the Orders of May 1845 came into operation. The defendant answered the bill, and went abroad. The plaintiff then amended his bill, and, under the 26th Order of May 1845, served the defendant's solicitor with a subpcena. PRACTICE, IN EQUITY; (E) Answke. 563 Motion by the plaintiff, under the 29th Order of May 1 845, for leave to enter an appearance for the defendant, refused. Sewell v. Godden, 16 Law J. Rep. (U.S.) Chano. 181 ; 1 De Gex & S. 126. In a suit against husband and wife, the hus- band, residing in Scotland, was served on behalf of himself and his wife with a subpoena and office copy of the bill under the 33rd Order of May 1845, his wife then living apart from him. The husband entered an appearance for himself alone; — Held, that the plaintiff was entitled under that Order to enter an appearance for the wife. Steele v. Plomer, 18 Law J. Rep. (n.s.) Chanc. 211 ; 1 Mac. & G. 83; 1 Hall &Tw. 153. (E) Answer. [See Arbitration, Arbitrator.] (a) In general. The first apJ)lication for time to answer is not of course, but mast (unless the facts be admitted by the plaintiff) be supported by affidavit shewing suf- ficient cause and due diligence. Brown V. Lee, 11 Beav. 162. Bill filed 9th of February: time to answer ex- pired on the 30th of March, when a month's time was given. A second application for time was re- fused by the Master on the 3rd of May, but, on appeal, three weeks were given by the Court on the 22nd of May. On application for time to answer, it must be considered, that the answer is necessary, not only for giving a discovery to the plaintiff, but to enable the defendant to state the nature of his defence to the suit. The York and North Midland Rail. Co. v. Hudson, 13 Beav. 69. In a special case, the time for answering was enlarged on five successive occasions. Upon an application for time to answer, the Court relies on the statement of counsel as to the necessity of further indulgence. Byng v. Clarice, 13 Beav. 92. Under an order for time to answer simply, the defendant has a right to put in a plea. A defendant abroad, after two orders to answer simply, obtained a third order for time to answer, upon a representation that the answer was pre- pared and intended to be filed forthwith. The third order, as delivered out, was in terms " to plead, answer, or demur, not demurring alone," and the defendant thereupon filed a plea of out- lawry, the judgment of outlawry having passed after the order was made. The plea was ordered to be taken off the file for irregularity, upon the ground that the filing of a plea, though within the terms of the order, was, under the circumstances, an abuse of the order (17 Law J. Rep. (n.s.) Chanc. 96 ; 6 Hare, 12) ; but, upon appeal to the Lord Chancel- lor, the order was discharged, it being held that while the order for further time to answer was sub- sisting, no irregularity had been committed in filing such a plea. Hunter v. Nocltolds, 17 Law J. Rep. (N.s.) Chanc. 253 ; 2 Ph. 540. Defendants to a suit in the same interest ought to join in answering ; but there is no rule of the Court which compels them to do so. Greedy v. Lavender, 18 Law J. Rep. (n.s.) Chanc. 62; 11 Beav. 417. A demurrer put in to a bill was overruled at the hearing, and the Court gave the defendant a month's time to answer ; — Held, that the Master, in such a case, had not jurisdiction to give further time for answering. Haig v. Gray, 19 Law J. Rep. (n.s.) Chanc. 314. Husband having obtained leave to answer sepa- rately from his wife, an order was afterwards made, on the application of the plaintiff, that the wife should answer separately from her husband. Bray V. Alters, 15 Sim. 610. Practice as to enforcing answers from husband and wife, where the latter is living separate from her husband and out of the jurisdiction. Nichols V. Ward, 2 Mac. & G. 140. Part of the assets of a testator were in the course of administration in India by an official adminis- trator appointed there. Before they were completely administered, a legatee's suit was commenced in England against the executrix who had proved the will here, and who after obtaining from the Master successive orders extending the time for putting in her answer, obtained one more order giving her six weeks' further time. This order was made on an affidavit of her solicitor setting out a letter from the Indian administrator promising to remit the balance by the next mail, and stating that the receipt of the balance and of the accounts was necessary to enable the defendant to put in a complete answer: — Held, that although the Court might not have granted the indulgence, the order ought not to be discharged. Principles on which the Court proceeds in re- viewing the Master's decision on such points. Nott V. Nott, 1 De Gex & S. 373. Where it appeared by an answer that C, who was not a party to the suit, had an interest in the sub- ject-matter of it, but the objection on account of C's absence was not taken by any of the answers, — Held, that the case was within the 40th General Order of August 1841, and the Court made a de- cree saving the rights of C. Feltham v. Clark, 1 De Gex & S. 307. Writs of attachment for want of answer, though regular, discharged, and time given to answer, where the defendants had reasonable grounds for thinking an answer would not be required without previous intimation. Siderfield v. Thatcher, 11 Beav. 201. The Order 43rd of May 1845 which directs that commissions to take answers are to be made re- turnable without delay does not preclude the answer from being filed, although delay may have occur- red. Hughes V. WilUams, 5 Hare, 211. Under the 38th Order of August 1841, a defen- dant cannot refuse to answer an interrogatory on the ground that the bill is open to a general de- murrer. Mason Y. Wakeman, 17 Law J. Rep. (n.s.) Chanc. 208; 2 Ph. 516; reversing s.c. 15 Law J. Rep. (n.s.) Chanc. 423; 15 Sim. 374. Mode of correcting the title of an answer which purports to be the answer of several defendants where the answer has been sworn by some of such defendants, but the others refuse to join in it. Thatcher v. Lambert, 5 Hare, 228. The Court will not make a prospective order, dis- pensing with the oath of the messenger, in the case of an answer coming from abroad, although when an answer has already reached this country, and the Court has been satisfied that it has been pro- 564 PRACTICE, IN EQUITY; (E) Answer. perly taten, it has dispensed with the necessity of having the oath of the messenger. Plnnock ». Rigby, 15 Law J. Rep. (n.s.) Chanc. 64. At the hearing of an ohjection taken by way of answer for want of parties, the defendant is not at liberty to contend that there is any defect of par- ties besides that stated in the answer. The plaintiff after he has set down the cause to be heard on this objection cannot refer the answer for imperti- nence. "Where the ohjection is allowed at the hearing, the costs will be reserved. Lovell v. Andrew, 15 Sim. 581. A transferred stock from her own name into the joint names of herself and B (a stranger) ; and A, after receiving the dividends for some years, died intestate, leaving B surviving. To a bill by the administratrix of A, claiming the stock as part of A's estate, B put in her answer, stating that A, after the transfer, informed the defendant, that the transfer was made in confidence that the defendant, if she survived A, would fulfil every wish and direction which she might express respecting it. The answer then stated that the wishes which A from time to time expressed were that the defen- dant should pay certain sums to specified indivi- duals, the dividends of part to the plaintiff for life, and should hold the residue for herself absolutely ; and that the defendant had paid over the said sums in pursuance of those directions : — Held, that the plaintiff having read from the answer the admission of the trust, was bound to go on to read what the trusts were, the trusts, though declared from time to time, forming one transaction. That credit was to he given to the statements, so far as the trusts were for the benefit of strangers ; but so far as they were beneficial to the defendant, the Court directed an issue with liberty to examine the defendant. The application of the plaintiff to withdraw that part of the answer which she liad read refused, under the circumstances. Freeman v. Tatham, 15 Law J. Rep. (n.s.) Chanc. 323 ; 5 Hare, 329. The answers of defendants resident out of the jurisdiction, to the plaintiff's original bill, had been prepared and sworn, and were awaiting amessenger to bring them to England ; during which time the plaintiffs amended their bill, and gave notice to the defendants that they required from them no answer to the amendments; three days after the amend- ments had been made, the plaintiffs gave notice of motion, that, if the defendants did not answer the plaintiffs' bill within eight days from the date of the order to be made on the motion, the plaintiffs might, in default, be at liberty to file a traversing note against them : — Held, that the motion was irregular, and the same was refused, with costs, Pinnock v. Rigby, 15 Law J. Rep. (n.s.) 192. Where a defendant was incapacitated from putting in his answer through illness, but was iu possession of his mental faculties, an order for a guardian for the purpose of putting in his answer was discharged; the proper course in such a case being to extend the time for answering as occasion may require. Wil- lyams v. Hodge, 19 Law J. Rep. (n.s.) Chanc. 196 ; 1 Mac. & G. 516 ; 1 Hall & Tw. 575. The Court will in many cases compel a defendant to answer direct questions, the answer to which the Court may be less ready to allow a plaintiff to seek by examining the papers of his opponent. Attorney General v. Thompson, 8 Hare, 116. The defendant, having filed three answers, which were reported insufficient, filed a fourth answer before the certificate of the insufficiency of the third answer was obtained. A motion by the plain, tiff, under the 10th Order of 1828, to have the fourth answer taken off the file, was granted. The Corporation of Liverpool v. Chippendale, 19 Law J. Rep. (U.S.) Chanc. 328. (6) Supplemental. [Fulton V. Gilmour, 5 Law J. Dig. 610 ; 1 Ph. 522.] Leave given to file a supplemental answer where information had been obtained by a breach of pro- fessional confidence. Raincock v. Young, 16 Sim. 122. (F) Plea. lEmmoit v. Mitchell, 5 Law J. Dig. 549 ; 14 Sim. 432.] A plea to a bill of revivor by the representatives of a deceased defendant that the party whom they represent was never served with a subpoena to appear and answer, and did not appear to nor answer the original bill, overruled as insufficient in substance — not excluding the fact that the deceased party might by other means have' been bound by the pro- ceedings in the original cause. Rawlins v. Moss, 6 Hare, 604. A plea was overruled- and ordered to stand for an answer. Exceptions were then taken and submitted to, after which a warrant was taken out for time to answer, which was consented to. The order, as drawn up, gave leave to plead, answer, or demur, &c. The defendant filed a second plea. An appli- cation to take it off the file was refused until the order of the Master had been discharged. The order was afterwards discharged on proof which satisfied the Court that it was riot in accord- ance with the consent. Chambers v. Howell, 12 Beav. 563. Bequest to the children of A as a class. B claiming to be a child of A, filed a bill for the administration of the testator's estate. A plea stating the illegitimacy of the plaintiff required to he put in upon oath. Wild v. Gladstone, 19 Law J. Rep. (N.s.) Chanc. 286. A defendant by plea stated that the plaintiff J H H C was commonly called Viscount Alford, and not Viscount Alfred, as stated in the bill, and submitted to the Court whether he should make any further answer : — Held, that the defendant might have guarded himself from the error, and was not to be excused from answering ; and that the plaintiff was not to be compelled to correct the error at the expense of giving the defendant further time to answer the bill : and the plea was overruled, with costs. Cust V. Southee, 19 Law J. Rep. (k.s.) Chanc. 526. Where a plea of outlawry has been filed to a bill, and the outlawry has been reversed after the filing of the bill, but before the plea put in, the practice is for the plaintiff to move upon notice that the defendant, on a new subpoena served upon him and payment to him of 20s. costs, put in his answer within a limited time. The costs of such motion PRACTICE, IN EQUITY. 565 must be borne by the plaintiff. Hunter v. Nockolds, 17 Law J. Rep. (n.s.) Chanc. 380 ; 6 Hare, 459. (G) Demukbek. [See Pleading, in Equity — Bill.] [Knight'v. Marjoribanlts, 5 Law J. Dig. 611; 14 Sim. 198.] The defendant demurred to the bill for want of parties, and the plaintiff submitted to the demurrer, and added these parties by amendment. The de- fendant again demurred to the bill for want of equity, and for want of parties. On the argument of the second demurrer, — Held, that the Court was at liberty, with reference to costs, to look at the first demurrer. The defendant demurred to the bill for want of parties, and the plaintiff submitted to the demurrer. The defendant again demurred for want of parties, and the Court, after argument, reserved the ques- tion to the hearing of the cause. The demurrer would have been overruled without costs had there not been a former demurrer ; hut in consequence of the former demurrer, it was overruled with costs to a certain amount. Brydges v. Bacon, 15 Law J. Rep. (n.s.) Chanc. 128. Where a plaintiff had unsuccessfully applied to have a demurrer taken off the file for irregularity, and had not set down the demurrer for argument within the time allowed by the 46th Order of May 1845, the Court (discharging an order of the Court below) refused to restore the bill. Mathews v. Chichester, 16 Law J. Rep. (n.s.) Chanc. 160 j 5 Hare, 207. Some of the defendants were served with a copy of the bill under the 25th Order of August 1841, but did not enter any appearance. After the hear- ing, the bill was amended merely by adding parties, and the quasi defendants were served with a copy of the amended bill, to which they then entered an appearance in the usual form, and filed a general demurrer: — Held, that they were not entitled, in that state of the cause, to file such a demurrer; and it was ordered to be taken off the file. Powell V. Cockerell, 15 Law J. Rep. (n.s.) Chanc. 196; 4 Hare, 565. A defendant, who had not demurred to the bill within twelve days from his appearance afterwards put in an answer and a demurrer to the whole bill, and set down the demurrer for argument. The demurrer was overruled for irregularity. Skey v. Garlicke, 16 Law J. Rep. (n.s.) Chanc. 480; 1 De Gex & S. 396. The Court, on the argument of a demurrer, takes into consideration the nature of the case, for the purpose of considering as well whether there ought to be any direction given as to costs, as whether there ought to be any leave given to amend the bill, and the same is entirely in the discretion of the Court upon the facts appearing before it. Schneider V. Lixardi, 15 Law J. Rep. (n.s.) Chanc. 435 ; 9 Beav. 461. The Court will not determine on demurrer a point which cannot conveniently be decided by that form of proceeding. Leigh (Lord) v. Ash- burton, (Lord), 11 Beav. 470. A bill was filed for the specific performance of an agi'eement, by which the plaintiff was to receive a per-centage upon a certain number of bottles of mineral water, imported by the defendant from the duchy of Nassau, in consideration of personal ser- vices rendered by him to the defendant, for procur- ing the right" of exportation. An agreement was also made that a deed should be executed to carry out the terms of the agreement. The defendant appeared to the bill, and applied for an extension of time to answer. Defendant then died, and upon a bill of revivor and supplement being filed against his personal representative, a general demurrer was put in : — Held, that the Court might direct the execution of a deed for carrying out «n agreement of this nature, but, at all events, the demurrer could not be sustained, since the original defendant had ap- plied for further time to answer, and his repre- sentative was bound by that act, and was precluded from demurring. Granville v. Belts, 18 Law J, Rep. (n.s.) Chanc. 32. The 37th General Order of August 1841, although it removes the technical objection, that an answer to matters covered by a demurrer overrules the de- murrer, yet does not enable a defendant who has answered the original bill to demur to an amended bill upon any cause of demurrer to which the original bill was open. Attorney General v. Cooper,-8 Hare, 166. (H) Replication. [See (A) Bills, (ft) Dismissal of.} The replication, the form of which is contained in the 93rd Order of May 1845, is the replication intended by the 1 1 1th of those Orders ; and, there- fore, where a subpoena to rejoin under the old practice had been served previously to the operation of those Orders, it was determined that publication did not pass under the 111th of those Orders, and that an order of the Court was necessary for that purpose. Unless a good objection be shewn, the Court will, in a case like the present, direct publication to pass. Where a replication only, according to the old practice, has been filed, a replication in the new form may be filed for the purpose of putting the cause at issue. Wheatley v. Wheatley, 15 Law J. Rep. (N.s.) Chanc. 123. The plaintiff having filed a replication, neglected to give notice thereof to the defendant, until thirty- five days afterwards. The replication was ordered to be taken off the file, and the plaintiff to pay the costs of the application for that purpose. Johnson v. Tucker, 16 Law J. Rep. (n.s.) Chanc. 442 ; 15 Sim. 599. Where notice of filing replication is' not given on the same day on which the replication is filed, as required by the 23rd Order of October 1842, the Court will not declare the replication void ; hut will correct the consequence of the irregularity, by addii>g to the time allowed to the defendant for taking the next step in the cause the time lost to him by, the delay in the service of the notice. Wright V. Angle, 17 Law J. Rep. (N.s.) Chanc. 29 ; 6 Hare, 107. (I) Petition. Facts occurring after a petition has been answered 566 PRACTICE, IN EQUITY ; (L) Motions. cannot be introduced into it by amendment. Doubt- fire V. Elworthy, 15 Sim. 77. If a petition for an ex parte order suppresses any fact, whether material or not, which if known to the officer would have caused him to apply to the Court before drawing up the order, the order will be discharged for irregularity, Cooper v. Lewis, 2 Ph. 178. A suit for specific performance of a contract was at the hearing ordered to stand over. The con- tract being afterwards performed, the plaintiff was allowed on petition to bring before the Court the facts occurring subsequent to the answer. Pricev. the Mayor, S;c. of Penzance, 4 Hare, 506. It is not necessary to name the next friend of the petitioner on the petition of a married woman, under the 2 & 3 Vict. e. 54, for access to infants in the custody of the father. In re Groom, 7 Hare, 38. The petition of a person not a party to the cause must state his residence. Glazbrook v. Gillatt, 9 Beav. 492. A petition was presented by several solicitors, complaining of certain irregularities in the pro- ceedings in one of the Masters' offices ; an objection that the petitioners had no locus standi was over- ruled, although some only were engaged in any suit in which any reference had been made tothat particular Master. In re Whiting, 15 Law J. Rep. (N.s.) Chanc. 242 ; 1 Ph. 650. Prolixity in setting out at length, in a petition or other pleading, clauses of a public statute. In re Mancliester and Leeds Rail. Co., ex parte Osbaldiston, 8 Hare, 31. Where two petitions are presented in the same matter, the one first presented is entitled to be first opened. In re Mallorie, 1 Hall & Tw. 435. (K) Claim. General Orders of the 22nd of April 1850, as to the cases in which claims may be filed, and giving forms, 19 Law J. Rep. (n.s.) Chanc. ii. i 1 Mac. & G. xiv. 1 2 Hall & Tw. ix. Practice as to setting down claims for hearing. M'Cullock V. Haggar, 12 Beav. 546. Leave given to amend a claim. Early y.Whitling, 12 Beav. 549. Practice where claim filed after bill exhibited for the same purpose, and decree afterwards made in the suit before the claim heard. Dicker v. Hugo, 12 Beav. 550. Trustees and devisees of real and personal estate claimed to have the will of their testator established against co-heiresses-at-law, and the trusts carried into execution, and the personal estate administered. The Court gave permission to file the claim. Rich- ford V. Young, 19 Law J. Rep. (n.s.) Chanc. 311 j 12 Beav. 537. Upon motion for leave to file a claim to take cer- tain partnership accounts alleged to have been irre- gularly kept, and for an injunction, — Held, that the Orders were not intended to apply to a special case of this nature. Held also, that such claims did not require the signature of counsel. Carmichael v. Ogilby, 19 Law J. Rep. (n.s.) Chanc. 424. Course adopted in claims for the appointment of new trustees, see 19 Law J. Rep. (n.s.) Chanc. 572. Special claims in what cases allowed. Ibid. Claim by a married woman by her next friend; RolliTig v. Hargreaves, 19 Law J. Rep. (h.s.) Chanc. 570. The Court will not make any order in the absence of the defendant, unless on the production of proper evidence in support of the claim. Anonymous, 19 Law J. Rep. (n s.) Chanc. 570. A defendant to a claim residing out of the juris- diction may be served with a writ of summons by leave of the Court. M'Coy v. Cross, 1 9 Law J. Rep. (n.s.) Chanc. 570. The 22nd Order as to reviving suits is not appli- cable to suits instituted before the 22nd of May 1850. Carter v. Smith, 19 Law J. Rep. (n.s.) Chanc. 571. A common claim by first mortgagee against second mortgagee and mortgagor allowed. Poumall v.Durkin, 19 Law J. Rep. (n.s.) Chanc. 571. A common claim allowed by mortgagee against mortgagor, and judgment creditor of mortgagor. Hanson v. Games, 19 Law J. Rep. (n.s.) Chanc. 571. Where there was a bequest of stock to an executor on trust, a claim by the cestuis que trust against the executors may be filed without leave. Smith v. Smith, 19 Law J. Rep. (n.s.) Chanc. 571. (L) Motions. (a) In general. Where the creditors and official assignee of a bank- rupt filed a bill as co-plaintiffs, and the latter died before the decree, and the former died after it, — Held, that the name of the new official assignee might be substituted as plaintiff, by motion, without the bill being amended, or a supplemental bill being filed ; and that he could carry on the suit without a credi- tors' assignee. Man v. Rickets, 15 Law J. Rep. (n.s.) Chanc. 79 ; 1 Ph. 617. A trustee charged with breach of trust admitted by his answer the misapplication of three sums, and set forth an account crediting himself with these sums, and a fourth which was equally inadmissible. On a motion for payment of these three sums into court, the plaintiff was not allowed to enter into the question of the defendant's right to the fourth sum. Nokes V. Seppings, 2 Ph. 19. Special leave given to the plaintiffs to move for liberty to amend their bill by striking out the name of one of such plaintiffs and making him a defen- dant: — Held, to authorize a motion by such of the parties as were to remain, excluding the plaintiff whose name was to be struck out: and the Court made the order, without prejudice to a motion then pending for a receiver in the original cause. Hart v. Tulk, 6 Hare, 612. A motion stood over on the defendant's application ; when it again came on the defendant had wiihout order changed his solicitor, and no counsel then appeared for him. The motion was granted on an affidavit of service. Davidson v. Leslie, 9 Beav. 104. It is only in very special cases, and not at the option of the parties, that afifidavits are admitted on a motion, after it has been opened to the Court. The East Lancashire Rail. Co. v. Hattersley, 8 Hare, 86. Some of the cestuis que trust of a mining lease filed a bill against their trustees and the lessors, alleging that an agreement binding in equity had PRACTICE, IN EQUITY ; (M) Production of Dooumeots. 567 been entered into between the defendants for a re- duction of the royalties covenanted to he paid by the lessees ; and that in violation of this agreement the lessors were suing the lessees upon the cove- nant, and the bill sought for a specific performance and an injunction against the suit at law. Notice of motion for the injunction was given, and affi- davits filed verifying the statements in the hill. Before the day fixed by the notice, the lessors put in their answer, but the trustees did not. The plaintiffs filed further affidavits denying certain misrepresentations which the answer stated to have been made ; — Held, that the affidavit might be read on the motion. Griffiths v. Williams, 2 De Gex & S. 15. A plaintiff served a defendant with a notice of motion, under the 76th Order of May 1845. Be- fore the motion was made the defendant put in his answer : — Held, that the plaintiffhad a right to bring on the motion for the purpose of obtaining the costs of it. Spooner v. Payne, 17 Law J. Rep. (n.s.) Chanc. 130 ; 2 De Gex & S. 439. Motion by a plaintiff in a creditors' suit, after decree, to restrain proceedings of other creditors in other suits. Practice as to the payment to such creditors so to he restrained of their costs of such proceedings and of the motion. tVest v. Swinburne, 19 Law J. Rep. (N.s.) Chanc. 81. At a meeting of a railway company in May 1848 it was resolved that 1,055,0002. should be raised by 105,500 preference shares of 101. each, on which a fixed dividend of 62. per cent, should he paid. In July 1848, one of the dissentients filed a hill praying a declaration that this resolution was unauthorized by the company's acts, and for an injunction against the issue of such shares, and no other specific relief. Upon motion in August for an injunction accord- ingly, it appeared by the affidavit of the secretary that the preference shares had been offered to all the shareholders rateahly, and had been taken to the amount of 777,770i. on which the first instalment had been paid, and that other shareholders had ex- pressed their desire to accept other shares, and that there were only five dissentients :— ^Held, that the motion involved substantially the whole matter in dispute in the cause, and must be refused. Fielden v. the Lancashire and Yorkshire Rail. Co., 2 De Gex &S.531. (6) Notice of Motion. An order may be impeached for irregularity, although the notice of motion does not specify the ground, the omission being material (if at all) only as to costs. Brownv. Robertson, 2 Ph. 173. Motion by one of several defendants that the, deposition of a witness who had been examined by the plaintiflT should be suppressed: — Held, that notice of the motion ought to have been served on the other defendants. Barnett v. Papineau, 18 Law J. Rep. (n.s.) Chanc. 466. (M) Pkoduction of Documents. (a) General Points. Production of documents for a limited period refused. Attorney General y. Bingham, 9 Beav. 159. Production refused of a deed which the plaintiff by his hill sought to set aside. Dendy v. Cross, 11 Beav. 91. On motion for production, the defendant asked that the plaintiff might be prevented using the docu- ments for any collateral purpose, alleging that pro- ceedings at law were pending. The Court declined so to restrict the order. Tagg v. the South Devon Rail. Co., 12 Beav. 151. A person served with a subpoena duces tecum under the 24th Order of May 1845, to produce a document at the hearing of a cause, may, at such hearing, he called upon his subpoena and asked whether he produces the document, and if he de- clines to do so, why he so declines, or other like questions confined to the mere purpose of produc- tion. Griffith v. Ricketts, 7 Hare, 301. The defendant pleaded to part of a bill and an- swered as to the remainder. The plaintiff moved for production before the plea had been set down. The Court directed the motion to stand over until the plea had been argued. Buchanan v. Hodgson, 11 Beav. 368. In a suit to obtain evidence in aid of an eject- ment commenced by the plaintiff against the de- fendant, the clerk of records and writs, upon a motion for the production of deeds admitted by the defendant's answer to be in his custody, will, upon an affidavit of service, he ordered to produce them at that or any other trial at law between the parties. Smith V. Stone, 18 Law J. Rep. (n.s.) Chanc. 233. Deeds brought into court by the executor under the common order for the production of documents made in a creditors' suit, will, after the debts are paid, be ordered to be delivered out to the party by whom they were deposited ; and the Court refused to order such deeds to he delivered to the plaifltiff in the cause, though he was the tenant for life of the estate comprised in the deeds. Plunkett v. Lewis, 6 Hare, 65. A suit was instituted to restrain proceedings at law to recover for work and labour in constructing a sewer, on the ground of fraud on the part of the defendant in equity in improperly obtaining pos- session of an estimate in writing, and by chemical process removing the figures indicating the price. The document in question having been deposited with the clerk of records in pursuance of an order for production, the plaintiff moved for liberty to subject it to chemical tests for the purpose of the trial at law, upon an undertaking by the defendant to produce it to he stamped at the trial at law. The Court refused to make any order. Twentyman v. ^Barnes, 2 De Gex & S. 225. Re-delivery of documents deposited in the Master's office. Alderman v. Bannister, 9 Beav. 516. (6) When Production may be enforced. Defendant admitted that documents were in his solicitors' hands, having come to them as represen- tatives of the solicitors of the defendant's testator; but he said they were not in his possession or power or under his controul. The Court refused to order production. Palmer y. Wright, 10 Beav. 234. A bankrupt defendant put in his answer, stating that certain books, &c. were in his solicitor's pos- session, who claimed a lien on them, and that he could not obtain possession thereof. The Court 568 PRACTICE, IN EQUITY ; (M) Production of Documents. ordered the defendant to produce them, with liberty to apply, if necessary. Rodick v. Gandell, lOBeav. 270. A bill was filed against trustees and a cestui que trust to set aside a conveyance. The trustees ad- mitted the possession of certain letters, &c., but insisted that they were privileged communications between them and their cestui que trust, for whom they, or one of them, acted as solicitor. The cestui que trust, by his answer, denied that the other de- fendants were his solicitors ; but stated, in his answer to the amended bill, that the letters, Sfc. had come to their possession as his solicitors, or related to matters in which he had consulted them respecting proceedings in the ecclesiastical court, to enable him to instruct his proctors : — Held, that the answer of the cestui que trust might be read by the plaintiff, as against the other defendants, the trustees, upon a motion for the trustees to produce the letters, &o. ; and an order was made for their production. Blenkinsopp v. BlenHnsopp, 17 Law J. Rep. (n.s.) Chanc. 343; 2 Ph. 607; reversing s. c. 16 Law J. Rep. (n.s.) Chanc. 88 ; 1 Beav. 143. Estates were demised to trustees for a term of ninety-nine years, in trust, to permit the wife of the lessor, or such persons as she should by will appoint, to receive the rents thereof during the term. The fee simple was afterwards purchased, subject to the term, and the purchaser subsequently purchased the term, and took an assignment of it from the wife and the trustees. The wife, as was alleged, by her will bequeathed the estate to the plaintiff; but the will and the title of the plaintiff under the will were not admitted by the defendant; who, however, acknowledged that he had in his possession the original demise, and also the inden- ture of assignment, ^n abstract of which latter deed he set forth in his answer : — Held, that under the circumstances, the plaintiff was not entitled to the production of any of the deeds. Glover v. Hall, 1 7 Law J. Rep. (n.s.) Chanc. 249; 2 Ph. 484. On a motion for production of documents, the plaintiff must shew from the admissions iu the answer that the documents relate to the contents of the bill as it stands when the motion is made, Haverfield v. Pyman, 2 Ph. 202. A mortgagee against whom a bill was filed by another mortgagee for redemption and foreclosure, admitted the possession of vouchers consisting of bills of exchange and promissory notes, — Held, that he was bound to produce them. Gibson v. Hewett, 9 Beav. 293. Where the defendant stated in his answer that- under a certain deed which was in his possession his father was tenant for life, and never had any greater estate than for life, and that he himself was tenant in tail under the same deed, it was held that the plaintiff was not entitled to a production. Was- ney v. Tempest, 9 Beav. 407. _ The defendant, by his answer, denied the plain- tiff's title to certain money deposited with a bank, but admitted the possession of a document which gave him (the defendant) controul over the money : — Held, on a motion for the production of the docu- ment, that the plaintiffs were only entitled to in- spect it and take copies, and not to deprive the de- fendant of his controul over the money by having the document deposited in the usual way. Mayor of Berwick v. Murray, 1 Mac. & G. 530 ; 1 Hall & Tw. 452. The defendant to a bill of discovery, in aid of the plaintiff's defence to an action at law, cannot be compelled to produce a document as to which the bill contains no allegation that it relates to the matter in issue in the action. Tliis protection was held to be sufiiciently claimed by the defendant stating that he was ad- vised, and verily believed, that the document in question did not contain evidence in support of the plaintiff's pleas. Peile v. Stoddart, 1 Mac.& G. 192. A bill was filed by the heir-at-law of a testator, against a purchaser from his devisees in trust for sale, to set aside the conveyance on the ground that the purchaser had acted as solicitor to the devisees, and the consideration was inadequate. The defendant, by his answer, insisted that the title was materially defective, and, regard being had to that, the consideration was adequate ; and he admitted possession of the title-deeds : — Held, that the title-deeds must be produced. Shallcross V. Weaver, 19 Law J. Rep. (N.s.) Chanc. 450; 2 Hall & Tw. 231 ; 12 Beav. 272. An order for the production of deeds, &c. will not he made against the administrator of a de- ceased defendant, though the suit has been re- vived, and though an order has been previously made against the defendant himself, there being nothing to shew that they were in the possession of the administrator. Scott v. Wheeler, 19 Law J. Rep. (n.s.) Chanc. 402 ; 12 Beav. 366. Where the entries in the trade books of a defen- dant may shew the infringement by him of an alleged custom for the benefit of the plaintiff, the Court will order the production of the trade books for the inspection of the plaintiff before the hear- ing, and before the existence of the custom has been proved, notwithstanding the existence of such custom is denied by the answer of the defendant. Ord V. Fawcett, 19 Law J. Rep. (n.s.) Chanc. 487. Executors and trustees, by their answer, ad- mitted six hooks to be in the custody or power of their agent, and the agent, on a motion for produc- tion, deposed that he was agent for many other persons, and that his books related to the affairs of such other persons, as well as to those in question in the cause: — Held, that the executors had not so mixed up the testator's accounts with others as to preclude them from insisting that the books were not in their power, and a motion for production was refused. Airey v. Hall, 2 De Gex & S. 489. Defendants by their answer stated, that save as appeared therein and in the documents which were mentioned in the schedule thereto, and which the defendants were willing to produce as part of their answer, they were unable to answer further. In a subsequent part of the answer, the defendants ad- mitted possession of the documents scheduled to the answer, which they were willing to produce, with the exception of such as were confidential communications, for which they claimed privilege: — Held, that by the general reference in the former part of the answer, the whole of the documents were made part of the answer; and that the sub- sequent reservation of some on the ground of pri- PRACTICE, IN EQUITY ; (M) Peoduotion op Documents. 5G9 vilege would not protect them from production. Macintosh v. the Oreat Western Rail. Co., 18 Law J. Rep. (n.s.) Chanc. 169; 1 Mac. & G. 73; 1 Hall & Tw. 41. The defendant, in his answer to a bill seeking discovery in aid of the plaintiff's defence to an action at law brought by the defendant against him, stated that the letters, papers and writings scheduled to his answer contained the evidence on which the defendant was advised and intended to rely at the trial of the action, and that the same did not, nor did any of them, " as the defendant was advised and verily believed," contain any evidence whatever in support of the plaintiff's pleas in the action ; and that the same were not in any manner material to the plaintiifs case: — Held, that the statement was a sufficient answer to the plaintifif!s motion for production and inspection of the sche- duled documents. Peile v. Stoddart, 1 Hall & Tw. 207. One of several defendants, by his ansvf er, admitted the possession of documents; but by an affidavit subsequently filed, statod tliat, since his answer, Ko -haii"ciepi)srfed them with one of his co-defen- dants. A motion for their production refused in the absence of the co-defendant. Burbidge v. Ro- binson, 2 Mac. & G. 244. (c) Privileged Documents. The draft of an answer prepared for a deceased ' defendant, but not put in, is a privileged document in the hands of his administratrix. But if the ad- ministratrix, by her answer, admit possession of, and set out part of the contents of the document, and crave leave to refer to the same, she loses the privilege as to the part so set out, but retains it as to the remainder. Belsham v. Harrison, 15 Law J. Rep. (n.s.) Chanc. 438. A bill filed against a canal company alleged that the. company had for several years been gra- dually encroaching upon the land of the plaintifi; whose property adjoined to the canal; and prayed for a commission to ascertain the boundaries; — Held, that the company^ were bound to produce maps of the canal, and also leases of the adjoining lands, which the plaintiflf alleged to comprise part of his property; notwithstanding that the company insisted by their answer that they related to their own title and not to the title of the plaintiff. Bute (Marquis) v. the Glamorganshire Canal Company, 15 Law J. Rep. (n.s.) Chanc. 60; 1 Ph. 68L The plaintiff alleged that the defendant, who was in possession of a certain estate, was not the person intended to be the devisee of such estate; the bill prayed that the plaintiff might be declared entitled instead of the defendant, and it prayed an account of the rents and profits of the estate. The defendant pleaded to so much of the discovery as prayed an account, refusing production of all documents relating to the rents and profits, and averred that he was the party designated. The de- fendant, by his answer, set forth all . documents except" those relating exclusively to the rents and profits: — Held, that the defendant was no more protected by the plea from production of docu- ments relating to the rents and profits than those relating to identity, and the plea was overruled. DiQEST, 1845—1850. Rigby V. Rigby, 15 Law J. Rep. (n.s.) Chanc. 199 ; 15 Sim. 90. In a cross bill filed against a corporation, which claimed an exclusive right of metage of grain and other articles, it was alleged that the right was of modern origin, and that the fees for metage had varied. The corporation admitted metage books aVid other documents' to be in their possession, which were evidence of their title, and the oflScers of the corporation denied, as to their belief only, that the books and documents would prove the alle- gations in the cross bill; — Held, that this was not sufficient to protect them, but that the corporation were bound to produce the books and documents. Combe v. the Corporation of London, 15 Law J. Rep. (N.s.) Chanc. 80. S, having discovered that R was entitled to an estate in fee simple, subject to an existing life estate tlierein, agreed with R to take proceedings for the recovery of the same on condition of S's having one moiety thereof conveyed to him. The conveyance was executed by R of the moiety, and a suit was instituted by S in R"s name, in which Y was employed as the solicitor. Whilst the suit was in the course of prosecution, R contracted with S to sell him the remaining moiety of the estate. The estate shortly afterwards fell into possession, when R, suspecting the conveyance and sale to have been fraudulently contrived between S and Y, filed his bill to set them aside. S and Y having put in their answers, containing schedules of documents, and papers, and correspondence between S andY, having relation to the subject-matter of the former suit, it was decided that R was entitled to require produc- tion thereof, and also of the draft of a letter written by Y to S, relating to the sale of the second moiety, and also of cases prepared and opinions of counsel taken thereon, with reference to the subject-matter of the former suit ; the same, though instituted by S, having been instituted for the benefit of both R and S, and Y having acted on the behalf and for the benefit of both those parties. Reynell v. Sprye, 16 Law J. Rep. (n.s.) Chanc. 117; 10 Beav. 51. Production refused of letters which passed be- tween the respective solicitors with a view to a com- promise, upon an express stipulation that they should not be referred to or used in any way to the prejudice of the defendant if an amicable arrange- ment was not come to. Whiffen v. Hartwright, 11 Beav. 111. A B wrote the draft of a' letter to his solicitor in order that the solicitor might write a similar one to him to be shewn to C D, and thereby induce him to enter into a contract. On a bill to set aside the con- tract for fraud, — Held, that the solicitor was bound to produce the letter, but not the other correspon- dence between himself an"d his client. Order for production made on admissions in an answer filed prior to the amendment of the bill, but which did not vary the case. Reynell v. Sprye, 1 1 Beav. 618. A bill was filed to impeach a deed, on the ground of fraud, and the production of cases and opinions and confidential letters by the solicitor relating to the execution of the deed was required. The de- fendants, who claimed under the deed, alleged that these documents had reference to the proceedings in the suit, and were privileged : — Held, that the 4D 570 PRACTICE, IN EQUITY. documents must be produced. Folleit v. Jefferys, 18 Law J. Rep. (n.s.) Clianc. 389. Case and opinion submttied and taken by trus- tees in contemplation of the litigation held privi- leged as against the cestuis que trust. Brown v. Oak- shott, 12 Beav. 252. Letters alleged by a defendant to have passed between him and his solicitor, in the course of and for the purpose of professional business which the solicitor was employed to transact for him, and a case alleged to have been professionally and con- fidentially submitted to counsel by the solicitor of the defendant and on his behalf, and the opinion thereon, held not privileged. But a case alleged to have been submitted to counsel by defendant's soli- citor in contemplation of legal proceedings, and with reference to the title of the defendant at issue in the present suit, and the opinion thereon, held to be privileged. Beadon v. Kivg, 17 Sim. 34. A brought an action of trover against R & Co. to recover the value of a ship which had been lost at sea, and in respect of which R & Co. had received the insurance-money. R & Co. then filed their bill against A and his partner, to restrain the ac- tion, and for an account, charging that the ship was the property of A and his partner, and claiming a lien upon the insurance monies in respect of ba- lances of account due to them from the partnership. A, by his answer, admitted the possession of certain documents, but stated that they belonged not to himself alone, but to himself and his partner, and were in his possession for the benefit of himself and partner. A motion upon the answer of A for the production of these documents was refused. A defendant, residing at (Quebec, by his answer admitted the possession of letters which had been sent by him "to his agent" for the purpose of being communicated to his solicitors, and which had reference to the suit: — Held, that these com- munications were privileged. On a motion for the-^roduction of documents, it is not suflScient for the plaintiff to read detached insulated passages from the answer admitting pos- session, but he must take the whole case as it is stated in the answer. Reid v. Langlois, 19 Law J. Rep. (N.s.) Chano. 337 ; 1 Mac. & G. 627 ; 2 Hall & Tw. 59. (N) Commission. In a suit for partition, if a reference is necessary to ascertain the interests of the parties, the direc- tion for the commission ought to be postponed until the hearing for further directions. Cole v. Sewell, 15 Sim. 284. In ordinary cases it is not necessary to state in the affidavit in support of a motion for a commis- sion to examine witnesses abroad the names of the witnesses, or to verify the matters as to which it is intended to examine them, and the affidavit in sup- port of the motion may be made by the clerk of the solicitor, as well as by the solicitor himself or his client, according to circumstances. On a motion to produce documents and pay money into court there must be such an admission of probable title in the plaintiff as the Court can safely act upon. M' Hardy v. Hitchcock, 17 Law J. Rep. (n.s.) Chanc. 256; 11 Beav. 73, 93. On a petition by the Commissioner appointed to examine witnesses in the cause, the solicitor for the defendants was ordered to pay the Commis- sioner's expenses in attending the commission, and the costs of this petition, although he had given no personal guarantee for the payment of such ex- penses. Parsons v. Benn, 19 Law J. Rep. (n.s.) Chanc. 264. The proper form of objecting to a Master's certi- ficate, approving of a commission for the examina- tion of witnesses, and the order made thereon. Jones V. Creswick, 15 Law J. Rep. (n.s.) Chanc. 342. (O) Affidavits. Swearing of, after the 10th of August 1847. Order of the 9th of August 1847 ; 17 Law J. Rep. (n.s.) Chanc. 110. The affidavit required by the 67th Order of May 1845, on a special application to amend an informa- tion, must be made by the solicitor to the relators, Attorney General v. Wakeman, 15 Sim. 358. Defendant moved, on affidavits, to discharge an ca:par »..-_ swer, after which plaintiff filed several affidavits. On the motion being resumed, those affidavits were held inadmissible. Woodin v. Field, 15 Sim. 307. An affidavit of service of an order of the Court must state that the order was "duly passed and entered." Willelts v, Willetts, 5 Hare, 597. Where an affidavit is sworn before a Master ex- traordinary in Ireland, appointed under the 6 & 7 Vict. c. 82, it is not necessary to verify by affidavit that he filled that character. Day v. Day, 11 Beav. 35. On interlocutory applications, which are neces- sarily heard on affidavits, the Court does not dis- pense with the rule, that the best evidence in the power of the parties must be given on disputed points ; and, therefore, it is not sufficient to state on affidavit the purport and effect of a document which might be produced. Stamps v. the Birming' ham, Wolverhampton and Stour Valley Rail. Co., 7 Hare, 255. An affidavit of service of a copy of a bill is in- sufficient, if it omit in the title the name of one of the parties, although no process is prayed by the bill against such party. Lay v. Prinsep, 1 De Gex & S. 630. Upon motion by way of appeal against an order made by the Master for enlarging publication, it was held that no affidavits could be read which had been filed after the order made by the Master. Parkyn v. Cape, 18 Law J. Rep. (N.s.) Chano. 392; 17 Sim. 50. In a suit by a specialty creditor, his claim was admitted by the answer of the administratrix and heiress-at-law of the debtor, who had died intestate. The cause was set down to be heard on bill and answer, without any replication having been filed : —Held, that the plaintiff might prove, by affidavit at the hearing, the deed creating his charge. Held, also, that as it was admitted that the estate of the intestate was insufficient to pay in full the demand of the plaintiff, the latter was entitled to have a receiver appointed. Chalk v. Raine, 1 8 Law J. Rep. (n.s.) Chanc. 472; 7 Hare, 393. PRACTICE, IN EQUITY. 571 (P) Interkooatobies. After the common decree iu a suit, instituted by some of the residuary legatees named in a will against the executor and the other residuary lega- tees, the trustees of a post-nuptial settlement of a bond for 2,000i. previously given hy the testator to his daughter Elizabeth, (the wife of J. R. Holder,) carried in a state of facts before the Master, claim- ing payment of the total amount secured by the bond. This was met by a counter state of facts, on the part of the executor, who had paid to a creditor of Holder, Holder having been in the possession of the bond, and handed it over to the creditor, a sum of 850?., being the amount of the debt due to the creditor from Holder. The executor, on payment by him of that sum to the creditor of Holder, re- ceived the bond back from the creditor. It was sought before the Master to examine Holder on in- terrogatories, to prove that the executor had notice of the previous assignment of the bond to the trus- tees of the settlement. Thtf ^Master "refused to __rEciiwi*— tlit^-fnterfogatories, on the ground that Holder's evidence was not admissible against the executor. On motion to the Court, by the defen- dants, the residuary legatees, for leave to examine the executor on interrogatories before the Master as to notice, the Court refused the application with costs. In a legatees' suit, where the bill contains no notice of an alleged breach of trust, and nothing is said about it in the decree, the Court will not per- mit the executor to be examined on interrogatories before the Master, touching the breach of trust, but the breach of trust must be established against the executor by a distinct and independent suit. Ford V.Bryant, 15 Law J. Bep. (k.s.) Chanc. 261; 9 Bear. 410. By the decree made in a suit to redeem mort- gaged estates, in which several sets of incumbrancers were defendants, the usual accounts were ordered to be taken, and the usual order made for payment, and in default of payment the bill was to be dis- missed. By a decree made on a bill of revivor and supplement, in which one of the subsequent incum- brancers was plaintiff, the accounts were directed to be carried on : — Held, that the subsequent in- cumbrancer, the plaintiff" in the bill of revivor and supplement, was not entitled to exhibit interroga- tories for the examination of the prior incum- brancers, who were co-defendants in the first suit and mortgagees in possession, although the plaintiff declined to prosecute the^ decree and to have the accounts taken. Cottingham v, Shrewsbury (Earl), 15 Law J. Rep. (n.s.) Chanc. 441. Interrogatories to discredit answer. Suckermore y. Dimes, 9 Beav. 518. Under the 103rd and 104th Orders of 1845, additional interrogatories may be exhibited before the Commissioner for the examination of witnesses, during the sitting of the commission as circum- stances may require; and it is not necessary to obtain an order of the Court for that purpose. Lan- cashire V. Lancashire, 16 Law J. Rep. (n.s.) Chanc. 48; 10 Beav. 26. The Commissioner for the examination of wit- nesses in a cause must return the interrogatories as well as the depositions signed. Staniland v. milatt, 17 Law J. Rep. (n.s.) Chanc. 373. Upon a decree opening accounts, the Master ordered interrogatories to be brought in for the examination of the defendants. An objection to the fourth of the interrogatories brought in was over- ruled, and they were all allowed, and a time was fixed for the defendants to bring in their examina- tion, which was not done till after the time had been twice extended. Upon an inquiry into the sufficiency of the examination^ it was for the first time objected, that the plaintiff should have taken in a state of facts before proceeding on the exami- nation ; and subsequently it was objected, that the interrogatories should not have been allowed with- out a previous state of facts being taken in on behalf of the plaintiff. The Master adjourned the inquiry : — Held, on a motion to discharge the Master's certificate, that the Master was not wrong in allowing the interrogatories without a state of facts ; that any irregularity had been waived by the submission of the defendants, and the allowance of time to put in the examination ; that the decree warranted a special interrogatory without a special state of facts ; that in case of difficulty the Master might direct a state of facts to be laid before him ; and the motion was dismissed, with costs. Allfrey v. AUfrey, 19 Law J. Rep. (n.s.) Chanc. 200 ; 12 Beav. 292. Interrogatories were exhibited for the examina- tion of witnesses in a cause. Exceptions were taken to them on the ground that they were leading and suggested answers beneficial to the plaintiff, and not calculated to elicit the truth, and they were allowed by the Master : — Held, upon exceptions to the Master's certificate, that the interrogatories were not leading, and that objections might be taken to the evidence at the hearing of the cause. Gre- gory V. Marychurch, 19 Law J. Rep. (n.s.) Chanc. 289 ; 12 Beav. 398. (Q) Examination of Witnesses. A witness who had attended before the examiner, but had refused to be examined unless he were paid the expenses of some former attendances, ordered upon motion to attend and be examined, and to pay the costs of the motion. Gaunt v. Johvson, 6 Hare, 551. The general rule is, that witnesses resident in London or its neighbourhood should be examined before the examiner and not under a commission ; hut, semble, that the rule is not inflexible. Sowden V. Marriott, 2 Coll. C.C. 578. The solicitor of the plaintiffs in the cause was served with a subpoena to attend and be examined before Commissioners, as a witness for the defen- dants, and he thereupon attended aqd delivered to the Commissioners a written refusal to be exa- mined, on the ground of his being professionally employed by the plaintiffs : — Held, that such document was not properly returned by the Com- missioners, and ought not to have been set down as a demurrer. A witness who has attended to be examined in pursuance of a subposna cannot then refuse to be examined on the ground of irregularity in the service of the subpoena. It is not necessary to serve the other parties in a 572 PRACTICE, IN EQUITY; (R) Depositions. cause with a notice of motion that a witness be ordered to attend and be examined, though the reason assigned by the witness for his refusal to be examined was that he was professionally concerned as solicitor for such other parties. Wisden v. Wisden, 6 Hare, 549. A party by consenting to let an accounting party put in an affidavit instead of an examination is not precluded from afterwards insisting on having an examination, if the discovery given by the affi- davit be unsatisfactory. Attm-ney General v. the Corporation of Chester, 11 Beav. 169. After the examination of witnesses between all the plaintiffs and all the defendants, leave cannot be given to withdraw the replication and examine a defendant. A witness permitted to be examined upon the former interrogatories after releasing his interest. Bousfield V. Mould, 1 De Gex & S. 347. Re-examination of witness after decree. Leeds v. Amherst, 16 Sim. 431. Upon a motion by a defendant to suppress depo- sitions, supported by the aiRdavxt of the witness that the evidence which she gave before the Com- missioner was not truly represented in the deposi- tions, and that she had mistaken the meaning of a technical expression used in the interrogatories, the Court refused to suppress the depositions, but gave liberty to re-examine and cross-examine the witness vivd voce before the Master (the commission being issued after decree) upon the disputed parts of the depositions ; and also gave the plaintiff liberty in the same manner to examine, and the defendant to cross-examine the Commissioner and his clerk. Dobson V. Land, 7 Hare, 296. After publication passed, articles were exhibited to discredit one of plaintiff's witnesses, under cir- cumstances rendering it doubtful whether any evidence obtained thereon could be used. A motion to postpone the hearing of the cause, on the ground of the pendency of the examination under the articles, was refused. Penny v. Watts, 2 De Gex &S. 501. Under a commission, a witness was served with a subpcena duces tecum to produce a particular docu- ment. The subpcena was invalid, but the witness, without objecting to it on that ground, refused to produce the document, on the ground that it related to a private matter between himself and a stranger. The refusal to produce was not returned /by the Commissioner as a demurrer to the interrogatories, nor did he indorse upon the return any statement that the party refused to answer, and the examining party allowed publication to pass by consent, in ignorance of such refusal. An order obtained upon motion, by the examining party, that a new commis- sion should issue and the witness attend thereat and produce the document and be examined at his own expense, and pay the costs of such new com- mission and of its execution, was, upon appeal, dis- charged. Tippinsv. Coates, 17 Law J. Rep. (n.s.) Chanc. 337; reversing s. c. 17 Law J. Rep. (n.s.) Chane. 17; 6 Hare, 16. After publication had passed in this cause, the plaintiff discovered two affidavits made in a cause of Evans v. Baoies, the one by the defendant in that cause, who was since dead, and whose estate this suit sought to make liable for a sum of money, and the other by a witness in this cause. Upon a motion to examine witnesses to prove these affidavits and the signatures to them, with a view to discredit the testimony which had been given in this cause, — Held, in the case of the witness, that the plaintiff must adopt the ordinary course of discrediting his testimony, to give the witness an opportunity of explaining. In the case of the deceased party in the suit of Evans v. Davies, leave was given to the plaintiff to exhibit an interrogatory to prove the affidavit, that the plaintiff might be in a situation to tender it as evidence at the hearing, subject to any questions as to its being admissible, and the de- fendant was to be at liberty to exhibit an interroga- tory to prove the circumstances relating to the affidavit, or to prove that no such affidavit existed, Gregory v. Marychurch, 19 Law J. Rep. (n.s.) Chanc. 77 ; 12 Beav. 275. The common order giving leave to examine a party need not be served on the opposite party. In an examination of witnesses before Commis- sioners, a party is not bound to give a list of the names of his proposed v7ltjiesses to the opposite side. Smith V. Pincomhe, 18 Law J. Rep. ~(K.a;)--Clvana_ 211 ; 16 Sim. 479 ; 1 Hall & Tw. 250. Order obtained as of course after publication, to examine witnesses as to the credit of a witness examined in the cause, — Held, to be regular. If under such an order witnesses should he ex- amined as to matters that are in issue in the cause between the parties, the depositions would, on application to the Court, be ordered to be sup- pressed. Penny v. Watts, 18 Law J. Rep. (n.s.) Chanc. 108; 11 Beav. 298. After publication of his evidence in chief, a witness in the cause may be again examined as to matters upon which he has not been previously ex- amined. Cvming v. Bishop, 19 Law J. Rep. (n.s.) Chanc. 401. (R) Depositions. (a) Reading, It is not the practice to enter evidence as read, saving just exceptions. Sherwood v. Beveridge, 2 Coll. C.C. 536. One of several defendants in a suit filed a bill as second incumbrancer, against the plaintiff in that suit and other parties, seeking to redeem the plain- tiff in the first cause, as the first incumbrancer of the interest of certain residuary legatees. After publication had passed in the first cause, and- been extended with the consent of the plaintiff in the second cause, and the plaintiff in the second cause had examined his witnesses, he obtained an order, as of course, to read and make use of the depo- sitions taken in the second cause at the hearing of the first cause, saving all just exceptions: — Held, that the order was regular, altliough publication might not pass in the second cause before the first cause came on for hearing. Sowdon v. Marriott, Flight V. Marriott, 15 Law J. Rep. (n.s.) Chanc. 449; 9 Beav. 416. Real estate was by will devised in trust for A for life, with remainder for B for life, with remainder for C for life, with remainder for the first and other sons of C in tail. Personal estate was by the same will bequeathed on a series of limitations corre- sponding to those on which the real estate was PRACTICE, IN EQUITY; (R) Depositions. 573 settled. A was trustee of the real estate, and C of the personal estate. A suit was instituted by B against A in respect of alleged mismanagement of the real and personal estate, and some evidence entered into by B. Another suit was instituted by the first tenant in tail against A, in respect of the same matter. There was no suggestion that the witnesses examined in the first suit were dead or incapable of giving evidence in the second suit : — Held, that the evidence given in the first suit was not admissible at the hearing of the second. Bla- grave v. Blagrave, 16 Law J. Rep. (n.s.) Chanc. 346 ; lDeGex& S. 252. (fe) Suppressing. [See (ft) Examination of Witnesses.] From the error of the Commissioner the names of the witnesses examined in the cause were not allixed to the ingrossraent of their depositions. On a motion for the suppression of the depositions on this ground, it was ordered that the names should be added to the ingrossment, -and" that the costs of __tlw»— nsotron-'STiwria be costs in the cause. Lee v, Egremont, 17 Law J. Rep. (N.s.) Chanc. 437 ; 2 De Gex & S. 363. Replication having been filed in January 1816, and a subpoena to rejoin served in February 1816, no further step was taken in the suit till November 1847, when the plaintiffs applied for leave to with- draw the replication and file a new one ; this being refused, the defendants moved to dismiss -for want of prosecution ; that motion was also refused, but leave was given to set down the cause. The plain- tifl^s then proceeded to examine witnesses; the de- fendants now moved that the depositions might be suppressed. Motion refused, on the ground that publication had not passed. Thomas y. Lewis, 17 Law J. Rep. (n.s.) Chanc. 135; 15 Sim. 296; 16 Sim. 73. The Court will not suppress depositions on the ground of irregularity at the instance of a party who knew of the irregularity at the time of the examin- ation, but did not take the objection until long after he had seen the depositions. Smiths. Pincombe, 18 Law J. Rep. (n.s.) Chanc. 211; 16 Sim. 497; 1 Hall & Tw. 250. Two of the witnesses produced by the plaintifl's, and examined under a commission, denied by affi- davits that they had deposed to the effect represented by the Commissioner. On motion by some of the defendants, charges -of partiality and misconduct not having been established against the Commis- sioner, an order to suppress the whole of the depo- sitions taken by him was refused ; but leave was given to examine and cross-examine both the wit- nesses vivd voce in the Master's office on the disputed parts of their depositions. Dobson v. Land, 18 Law J. Rep. (n.s.) Chanc. 240. Where witnesses were examined during the abate- ment of a suit occasioned by the death of parties, the depositions of those who did not at the time of their examination know of the death of the parties which had caused the abatement were received, and the depositions of those who did know such facts, were suppressed. Curtis v. Fulbroolc, 8 Hare, 29. A witness to credit deposed that he believed the principal witness to be unworthy of belief on account of a particular transaction, which he detailed: — Held, no ground for suppressing more of the depo- sitions than related to the reason assigned for the belief. The same witness spoke to a conversation in which the principal witness had given an account of a fact material to the issue at variance with his testimony. The Court refused to suppress the depositions, although the principal witness had not been cross-examined as to this. Penny v. Watts, 2r)e Gex& S. 501. (S) Publication. Where a party filed a bill in this country to per- petuate testimony, which was to be used in the Court of Chancery in Ireland, and the question in the suit there was ripe for decision, the Court here ordered publication of the depositions, leaving the Court in Ireland to decide whether they were or were not admissible. Morris v. Morris, 16 Law J, Rep. (n.s.) Chanc. 286; 2 Ph. 205. After an order to enlarge publication, irregularly obtained, one of the defendants, with notice of the order, bxit treating it as a nullity, set down the cause under the 116th Order of May 1845, and served a subpoena to hear judgment. On motion by the plain- tiff the cause was ordered to be struck out of the registrar's book, and the subpoena set aside at the costs of the defendants ; an order, although irregu- larly obtained, being binding on all parties until set aside. Hughes v. Williams, 16 Law J. Rep. (n.s.) Chanc. 200; 6 Hare, 71. Upon a motion for the enlargement of publication after an application had been refused by the Master, — It was held, that affidavits filed since the hearing before the Master might be read. Peel v. Hague, 17 Law J. Rep. (n.s.) Chanc. 486; 16 Sim. 315. The evidence of a witness, taken de bene esse before the cause was at issue, was not published before the hearing. After a decree, directing certain accounts, an application (supported by affidavits that the wit- ness had become insane and that his evidence re- lated solely to items of accounts) that such evidence might be published for the purpose of being used before the Master on the question of accounts, was refused. Forsyth v. Ellice, 19 Law J. Rep. (n.s.) Chanc. 334 ; 2 Mac. & G. 209 ; 2 Hall & Tw. 424 ; reversing s.c. 7 Hare, 290. Pendency of an appeal from the dismissal of a bill held insufficient ground for directing publication to pass of the depositions as to credit for the purpose of their being used on the appeal. Issues having been directed on the appeal, and one of the witnesses to credit having gone out of the jurisdiction, the Court ordered publication to pass of his deposition. Penny v. Watts, 2 De Gex & S. 501. (T) Inspection of Subject of Suit. Order made on motion for an inspection of coal mines. The Attorney General v. Chambers, 12 Beav. 159. Order upon motion before the hearing, that the plaintiffs and their witnesses should be allowed until publication to view and inspect the workings by the defendants in the plaintiffs' mine, of which the defendants were lessees, and which mine was 374 PRACTICE, IN EQUITY. entered and worked by means of a shaft in an ad- joining mine belonging to the defendants. Lewis v. Marsli, 8 Hare, 97. ( U ) Evidence befoke the Master. [See Evidence, Privileged Communication.] Evidence received at the hearing of a cause and entered in the decree, is not necessarily admissible as against all the parties ou inquiries before the Master under the decree. Handford v. Handford, 5 Hare, 212. On an inquiry before the Master the plaintiif read from the answer and examination of the defendant, the executor, an admission that a promissory note for 400^., belonging to the testator, had come into the hands of the executor shortly after the testator's death ; and the executor was then allowed to read the further statement, that some years afterwards, when the plaintiff (the sole residuary legatee) came of age he had delivered the note to the plaintiff, who thanked him for taking care of it. East v. Easi^ 5 Hare, SiS. The answer of a co-defendant cannot be received in evidence on an inquiry before the Master. Meyer V. Montriou, 9 Beav. 521. In the prosecution of inquiries in the Master's ofBce the plaintiff brought in a state of facts and examined, under a commission, witnesses whose evidence charged the defendant with the receipt of monies, and of whose depositions publication had passed. The defendant then brought in a state of facts admitting the receipts, but discharging the defendant by payments. On motion the Court gave the defendant liberty to issue a commission and examine witnesses in support of the discharge, but not to contradict the plaintiff's state of facts. Parker v. Peet, 1 De Gex & S. 216. A decree directed an inquiry whether certain younger children had made any and what assign- mentsoftheir shares, and under what circumstances. One of the defendants, claiming to be an assignee of a share, carried into the Master's office a state of facts, setting forth the assignment under which he claimed. A co-defendant (one of the children) car- ried in a counter state of facts, impeaching the assignment, as having been executed for an inade- quate consideration and without legal assistance. A motion to suppressinterrogatories filed in support of the counter state of facts, as relating to questions in dispute between co-defendants only, and not in issue in the cause, was refused. Lennard v. Curzon, 1 De Gex & S. 350. A motioD absolute to commit upon a certificate of the insufficiency of a third examination before the Master refused. Allfrey v. Allfrey, 12 Beav. 620. After warrant issued on preparing the Master's report, the defendant W, who was in default, brought in his discharges, to the receipt of which the plain- tiff consented, although in strictness he was entitled to exclude the same. During the prosecution of the proceedings relating to the defendant's dis- charges, the plaintiff discovered material evidence whereby to charge a co-defendant B, jointly with W, with monies received by W, and he carried in charges before the Master arising thereout, &c. and a state of facts. Tlie Master, on the objection of B, declined to receive any further evidence on the part of the plaintiff with reference to the charges and state of facts : — Ordered, that notwithstanding the issuing of the warrant on preparing the report, the plaintiff be at liberty to continue the proceedings before the Master directed by the decree. Shall- crossv. Wright, 18 Law J. Rep. (n.s.) Chanc. 119; 11 Beav. 433. A reference was made to the Master to ascertain certain facts. Under this reference a witness was examined upon written interrogatories, and his de- positions were published. The witness was after- wards examined vi«d voce. The evidence of the witness given vivd voce was objected to before the Master, but not on the ground of his having been examined before on interrogatories. The Master received the evidence. Exceptions were taken to the report on this ground. On the hearing of the exceptions, — Held, that the objection to the vivd voce evidence on the ground of the witness having been examined before could not be raised. Andrew V. Andrew, 18 Law J. Rep. (N.S.)Chano. 222. Upon a motion by way of appeal from the Master's decision, refusing- to enlarge publication, the Court received in evidence new ftcK^noi iTcforts the Master, on which the Court directed the pub- lication to stand enlarged j but as the order was obtained upon materials which were not before the Master, the appellant was ordered to pay the costs of the motion. James v. Grissell, 3 De Gex & S. 290. Application to the Master on evidence already in the office. Clarke v. Chuck, 9 Beav. 414. (V) Conduct or Suit. Where decrees had been obtained in two creditors' suits for the administration of the same estate, the Court permitted the plaintiff in the second suit to attend the proceedings under the first decree, but refused to give him the conduct of it, though collusion and irregularity were alleged. Smith v, Guy, 2 Ph. 159. Where the prosecution of an administration suit had been neglected for several years, the conduct of it was given to parties who had been proved to be creditors, until further order. Beale v. Symonds, 2 Hall & Tw. 374. (W) Staying Peoceedings. [See Costs, in Equity, In general.] [Garcias v. Ricardo, 5 Law J. Dig. 623 ; 14 Sim. 528.] Order to stay proceedings discharged. Lenaghan V. Smith, 2 Ph. 537. Real estates were conveyed to trustees, upon trust to raise large sums of money for the pay- ment of incumbrancers, whowere parties to the deed, one of whom filed a bill to have the trusts carried into execution, and for other objects grounded upon the trust deed. Upon the devisee in possession of the estates undertaking to pay within a month the amount due to the plaintiff, the Court, with the consent of the other incumbrancers, who were de- fendants, stayed all further proceedings ; and that, although the plaintiff was devisee in trust of the equity of redemption in part of the estates for the payment of other incumbrances, and was, con- PRACTICE, IN EQUITY. 575 tingently, beneficially interested therein. Darner y. PortarUngton, 15 Law J. Rep. (n.s.) Cbanc. l^OS ,■ 2 Ph. 30 1 15 Sim. 380. All the purposes of a suit being answered, the plaintiiF, before answer, moved that the taxing Master might tax the costs of the suit, and that the defendant might pay them, and that all further proceedings in the suit might be stayed. The motion was re- fused, but the costs of it were reserved. Langham V. the Great Northern Rail. Co., 17 Law J. Rep. (n.s.) Chanc.436; 16 Sim. 173; 1 De Gex& S. 403. A demurrer had been allowed with costs, but an appeal had been heard, and was standing for judg- ment. A motion to stay the proceedings for costs was refused with costs. Bainbrigge v. Baddeley, 10 Beav. 35. "Where a bill was filed by a lunatic and his committee, and an injunction granted, and after the decree the lunatic died, and no further proceed- ings were taken, the Court ordered the injunction to be dissolved, and proceedings to be stayed unless the suit were revived within a limited time. Price V. BerringtoTit 11 Beav. 90. - iSVittTTv-ttie" person whose name was affixed to a bill as the plaintiff's solicitor was not a solicitor of the court, an order directing that the name of a solicitor should be substituted, and that the re- gistrar should satisfy himself that the proposed person was a solicitor, and also directing that all further proceedings against the defendant should be stayed, the plaintiiF not being present at the making of the application for the latter part of the order, or having had notice of it, was discharged for irregularity. Richardson v. Moore, 16 Law J. Rep. (n.s.) Chano. 144. Under an act monies were to be distributed on petition. On a reference to ascertain the persons entitled, one who was not a party to the reference went in and failed. He afterwards filed a bill, on the ground that he wanted discovery and evidence which he could not obtain in the reference. The Court, though the bill was not demurrable, stayed proceedings until the Master had made his report. Hyde v. Edwards, 12 Beav. 253. Motion to stay proceedings in a second suit until payment by plaintiff of the costs in the first, which had been dismissed, refused, it not appearing that the second bill could be produced by a fair amend- ment of the first. Cross costs in two suits ordered to be set off. Budge V. Budge, 12 Beav. 385. By a decree at the Rolls, the plaintifFhad been de- clared entitled to real estate, which had been formerly conveyed by him to some of the defendants, under circumstances which induced the Court to set aside the conveyance. None of the parties wished to in- terfere with some sales which had been since made of parts of the estate, but the amount of the pur- chase-money for them was ordered to be paid to the plaintiff. The decision was appealed from, and upon motion to stay proceedings pending the ap- peal upon payment into court of the amount of the purchase-money, the Court made the order, not on account of the alleged poverty of the plain- tiff, but on the ground that the substitution of the money for . the estate was an accident arising from the sale of part of the property, and that the plaintiff would he in the same position as if none of the estate had been sold. Sturge v. Sturge, 2 Hall & Tw. 469. (X) Okdeks and Deoeees. [Daltm V. Hayter, 5 Law J. Dig. 627 ; 1 Ph. 515. Calvert v. Gandy, 5 Law J. Dig. 627; 1 Ph. 518. Man v. Ricketts, 5 Law .T. Dig. 627; 1 Ph. 530. jiskew v. Peddle, 5 Law J. Dig. 626 ; 14 Sim. 301. Palmer V. Norton, 5 Law J. Dig. 628; 14 Sim. 633.] As to special inquiry directed by decree. Lord V. Wightwick, 2 Ph. 110; M'Mahon v. Burchell, Ibid. 127. Upon the Master's certificate that a, receiver is in default, the four day order upon him is of course. Scott V. Platel, 2 Ph. 229. Where the decision of the right between co- defendants is essential to and necessarily involved in the decision of the plaintiff's right, the decree will be conclusive as between the co-defendants; but, otherwise, the rights of co-defendants inter se will not be affected by proceedings which are necessary only for establishing or ascertaining the rights of the plaintiff. Cottingham v. Shrews- bury (Earl of), 15 Law J. Rep. (N.s.) Chanc. 441. An order had been obtained, on the 7th of December, for leave to amend, with the usual un- dertaking to amend within three weeks. In conse- quence of some discussion before the registrar, the three weeks elapsed before the order was drawn up. Notice was then given of a motion for leave to draw up the order of the 7th of December as of a subse- quent date, the amendments to be made within one week. An order was made on t^at motion, and it contained the ordinary undertaking to amend within three weeks. The order was discharged as irregular. Alcock v.Kempson, 15Law J. Rep. (n.s.) Chanc. 10. An order of the Court, which is known to a party, is not to be treated by him as a nullity, although it may have been irregularly obtained, and he has had no regular service of it, and it' has not been duly entered. A defendant obtained, by consent, an order for further time to answer, in which a longer time was allowed, by mistake, than had been agreed upon. After the day when the further time would have e.tpired if the order had been correctly drawn up, but before the day named in the order, the plaintiff issued an attachment for default of answer. The attachment was discharged for irregularity. Chuck V. Cremer, 16 Law J. Rep. (n.s.) Chanc. 92; 2 Ph. U3. On a motion to dissolve an injunction in an inter- pleading suit, an order was made directing an inquiry as to the title of the defendant who moved, but with respect to a co-defendant who had not answered and did not appear on the motion, direct- ing an inquiry whether he had made a claim. After the report had been confirmed the order of reference was discharged and the consequential proceedings set aside for irregularity, on the ground that the order should have recited an affidavit of service of the absent defendant, and also that no inquiry as to the title of the defendants should be directed until they had all answered. The inquiry ought to extend to the title of , all the defendants. Master- man V. Lewin, 2 Ph. 182. 576 PRACTICE, IN EQUITY; Obdebs akd Deobees. Under a decree made in an administration suit, the bill not praying a sale of the testator's real estate, the Master made his report, finding a very small balance of personal estate in the executor's hands, but not sufficient to pay the costs of the suit. By a decretal order made on the Master's report, a sale was directed of the real estate, under which A became the purchaser, and he was found to be such by the Master's subsequent report, which was afterwards confirmed by an order of the Court, and leave was at the same time given to A to pay the purchase-money into court. That order was ■served on all necessary parties, and passed, and the purchase- money paid into court. A then presented a petition, praying the discharge of that order, insisting that the Court had no power to make the order for the sale of the real estate, or even if it had, that such power had not been properly exercised by the Court. It appeared that one of the defendants beneficially interested was a minor at the dale of the oiiginal decree. Petition dismissed, without costs. Baker v. Sowter, 16 Law J. Rep. (n.s.) Chanc. 333; 10 Beav. 343. Petition to rectify alleged error in decree dis- missed. Stewart v. Forbes, 16 Sim. 433. The accidental omission of a usual term or direc- tion in a decree or order may be corrected by petition under the 45th Order of April 1828 ; but not the omission of any term or direction which would only have been introduced under the express judgment of the Court. The representative of a mortgagor who had obtained a bill for redemption was ordered, on the petition of the mortgagee, to produce the original decree for the purpose of coiTCCtion. The lien of a solicitor in the cause does not entitle him to withhold an original order of the Court in which there is an accidental error requir- ing correction. Bird v. Heath, 6 Hare, 236. An order made on affidavit of service of notice of motion must not depart from the terms of the notice, though it be less extensive, if the party may be prejudiced thereby. Hutton v. Hepworth, 6 Hare, 315. Upon the motion of B, the Court ordered that upon his paying the purchase-money into court, he should be substituted as purchaser iu the place of A, and that A should be discharged from his pur- chase. B having omitted to draw up the order, the plaintiffs in the cause did so, and caused a direction to be inserted for payment of the purchase-money by B within twelve days after service of the order, in which form (after notice to B to attend at the registrar's office) the order was passed. On the motion of B, the Court discharged the order, with costs. MiHtr v. Smith, 6 Hare, 609. If a defendant, who has been examined by the plaintiff as a witness in the cause, submits to a decree against himself, notwithstanding such exa- mination, it cannot be sustained by other defendants who have not been examined, as an objection to a decree against them. Smith v. Smith, 6 Hare, 524. An order, obtained upon affidavit of service, discharged, on the ground of a misnomer of the plaintifl"'s solicitor in the notice of motion. Moocty v. Hehberd, 17 Law J. Rep. (n.s.) Chanc. 24. An order to enrol a decree nunc pro tunc ought to be served : and where a decree could not have been enrolled without an order nunc pro tunc, and such au order, although obtained, had not been served, the enrolment was ordered to be vacated. Woods v. Woods, 17 Law J. Rep. (n.s.) Chanc. 426. A plaintiff obtained an order to sue in formd pauperis, but, before it was served, the defendant gave a notice to dismiss the bill for want of prosecu- tion. The plaintiff then served the defendant with his order to sue in form& pauperis, and filed a re- plication. The defendant having brought on the motion for the purpose of getting the costs of it, — Held, that he was entitled to such costs, as the order to sue informd pauperis only took effect from the time of service. Smith v. Pawson, 17 Law J. Rep. (U.S.) Chanc. 454 ; 2 De Gex & S. 490. Orders of course correctly drawn up may be passed without notice to the other side. An order may be varied in the discretion of the Court, on motion ear parte, if the variation will not be less beneficial to all parties than the terms of the original order. Therefore, where a plaintiff who had obtained an order for leave to amend by stciiinjr out the name of a co-plaintiff upon paying the costs of tlTe mocTon and giving security for the costs already incurred, afterwards obtained leave, on motion ex parte, to vary the terms of the order by substituting payment for security, and passed such varied order wrthout notice to the defendants, a motion by the latter to discharge the last-mentioned order was refused, and, under the circumstances, with costs. Hart v. Talk, 18 Law J. Rep. (N.s.) Chanc. 162 j 6 Hare, 611. "Where the probate stamp does not cover the amount claimed in a suit, a decree even for accounts and inquiries cannot be obtained by the plaintiff until the proper stamp is affixed. Howard v. PrinCBy 10 Beav. 312. Order directing preliminary inquiries and pro- duction of necessary papers, not superseded by order for inspection of all papers in the defendant's possession. Whicker v. Hume, 9 Beav. 418. By a decree setting aside a purchase by an agent from his principal, possession was directed to be given and a conveyance executed ; accounts of the rents and purchase-moneytobe taken and the balance paid, but no lien to be given : — Held, that the con- veyance must be made without waiting for the result of the accounts. An omission in a decree supplied by petition. Trevelyan v. Charter, 9 Beav. 140 ; see Turner v. Hodgson, Ibid. 265. An answer was filed on Saturday, and an order nisi to dissolve the injunction obtained the same day. Notice of filing the answer and of the order was not given till Monday. The Court, finding the plaintiff was not prejudiced, refused to discharge the order nisi, but made the defendant pay the costs of the application. Suffield {Lord) v. Bond, 10 Beav. 331. A witness deposed to having made a copy of a lost bond, and produced a copy, but omitted to iden- tify it as that which he had made. By the decree, inquiries were directed (among other things) astothe circumstances relating to the bond, and whether any debt remained due thereupon. Held, first, that it was not fit to insert any direc- tion in the decree that the witness should be PRACTICE, IN EQUITY ; (X) Obdebs and Ueceees. 577 examined before the Master as to the matters in- cluded in his first examination, but that a distinct application ought to be made for such an order. Held, secondly, upon motion subsequently made by the plaintiff to the Court, that the case was a proper one for an order for the witness to be exa- mined vivd voce to the same matters as to which he had been before examined, and generally. Stoohe v. Vincent, 1 De Gex & S. 705. In a suit, in respect of alleged breaches of trust, and not being merely an administration suit, the bill was filed against all the executors, who were jointly and severally liable. After the cause was at issue, one of the executors became bankrupt; — Held, that the plaintiff having elected to proceed originally against all the executors, could not at the hearing avail himself of the 32nd General Order of the 26th of August 1841, and elect to take a decree against some only of the defendants ; but that the assignees of the bankrupt were necessary parties and must be brought before the Court by supple- mental bill. Fussellv. Elwin, 18 Law J. Rep. (n.s.) Chanc. 349j_7 Hare, 29. TTHeTTourt may proceed with a cause so far as a final order can be made, notwithstanding the absence of an interested party, who is out of the j urisdiction : but where the suit was brought to enforce a charge upon the produce of the estate of an absent party, in the hands of his agents and consignees, in per- formance of an agreement to which the consignees were parties, the Court refused to direct an account to be taken of the amount of such produce received by the consignees ; for, as the absent party would neither be bound by the account of what was due to the plaintiff in respect of the charge on the estate, nor be compelled by the decree for payment of what was so found due to allow, in the accounts of his consignees, the payments to be made by them in pursuance of the decree, the accounts of the receipts of the produce of the estate by the consignees could not be taken for any final purpose. It is not an objection to a decree for one purpose that it may involve the necessity of taking an ac- count, which it may possibly be necessary to take in another suit for another purpose. Kirwan v. Daniel, 7 Hare, 347. If the decree at the hearing makes no provision for the costs of a trustee, the Court will not enter- tain any petition in respect of them at the hearing on further directions. Malins v. Greenway, 18 Law J. Rep. (N.s.) Chanc. 154; 7 Hare, 391. Form of order referring answer, when the bill has been amended, and the defendant directed to answer amendments and exceptions at the same time. Watson V. tj/e, I Mac. & G. 104; 1 Hall & Tw. 308. Orders discharged on account of the suppression of material facts. De Feucheres v. Dawes, 1 1 Beav. 46. On an issue directed at the hearing of a cause, the defendant obtained a verdict, and a motion by the plaintiff for a new trial having been refused, the bill was on further directions dismissed. The plain- tiff afterwards gaVe notice of an appeal motion for a new trial, and also presented a petition of appeal from the final order of dismissal ; but on the appeal coming on to be heard first, the Court refused to hear it separately, being, as matters then stood, a motion in a dismissed suit. Digest, 1845—1850. On the two proceedings afterwards coming on to be heard together, it appearing that the plaintiff's title to equitable relief depended on a legal right, and that that right depended more on questions of legal presumption than on any disputed fact, the Court not being perfectly satisfied with the result of the trial, discharged both the orders appealed from, and made an order retaining the bill for a twelvemonth, with liberty to the plaintiff to bring an action, although the original decree directingthe issue was not appealed from. When a bill is dismissed on the merits, the in- sertion of a clause that the dismissal shall be with- out prejudice to any question but that specifically put in issue by the pleadings is superfluous ; and the Court has no power to interfere with the effect which such a decree may have, as a matter of evi- dence, in any future proceeding in which it might, without such reservation, be legitimately used as evidence. Corporation of Rochester v. Lee, 1 Mac. & G. 467. Mode of proceeding where a difficulty arose in drawing up a decree made on appeal, in conse- quence of there being no proper affidavit of service of the setting down of the appeal on some of the respondents. Raekham v. Siddall, 1 Mac. & G. 607 ; 2 Hall & Tw. 244. By a decree made in a cause, Isabel the wife of James M'Hardy, and Henry Buckle, as the ad- ministrator of C C, were declared to be entitled in equal moieties to the money to arise from a freehold messuage and premises in England, which had been conveyed to trustees for sale. Before the decree was drawn up, James M'Hardy presented a petition to the Court, stating that he and his wife were born in Scotland, and were domiciled there ; that by the law of Scotland marriage operated as an assignment of the wife's personal estate to the husband; that he was entitled to recover the whole without her concurrence, and without her being entitled to any settlement ; and it prayed that the freehold house might be conveyed to him and Henry Buckle, and their heirs : — Held, that the petitioner being enti- tled to the produce of the real estate might elect and take the estate itself, but the fact of the parties electing must be recited in the decree. Hitchcock V. Clendinen, 19 Law J. Rep. (n.s.) Chanc. 238 j 12 Beav. 534. In an order directing an issue with liberty for the parties to read at the trial evidence taken vivd voce before the Master, it is proper to insert " sav- ing all just exceptions." Turner v. Maule, 2 De Gex & S. 209. To obtain the successive orders (in a matter, and not in a cause) upon a person to pay a sum of money to a party, personal service of the preceding order, and a demand and refusal must be proved ; but where the party avoids service, the Court will direct substituted service, and dispense with the necessity of a demand and refusal. In re Mourilyan, 13 Beav. 84. The Court gave some of the defendants the option of taking an issue on a, question of fact arising in the, cause, and dismissed the bill against another defendant. The option not being declared owing to the death of one of the defendants between the hearing and the judgment, — on the application of the defendant who was ordered to be dismissed, the 4E 578 PRACTICE, IN EQUITY ; (Z) References. Court directed a separate decree to be drawn up as to that defendant. Belsham v. Perceval, 8 Hare, 157. . (Y) Accounts. A, by will, gave stock equally to B and C. B and C,by their respective wills, gave their shares of the stock among their children, and appointed execu- tors. The children of B and some of the children of C filed a bill against the executor of A to re- cover the fund, making the executors of B and C and the rest of the children of C parties : — Held, that although the suit was multifarious, after a hearing, there being no misjoinder, the Court might make a decree for accounts and inquiries preparatory to the distribution of the fund. Powell v. Cockerell, 4 Hare, 557. On a bill to set aside a conveyance by a person claiming the fee simple, on the ground of lunacy and fraud, the lunacy was established, but the plaintiff turned out to be entitled only to a life estate in the property: — Held, that he and his per- sonal representative after his death were entitled to an account of the rents and profits during the plain- tiffs life as against the parties in possession under the conveyance. On revivor by a party who was heir-at-law and administrator of a lunatic in a suit to set aside a conveyance made by the lunatic of his estate, it was held that the plaintiff had no title as heir-at- law, hut that as administrator he was entitled to an account of the rents and profits during the luna- tic's life. Price v. Berrington, 7 Hare, 394. Where the Master bad determined that warrants should be served upon those parties only who were entitled in possession, and accounts were taken in the absence of a party who was, at the commence- ment, entitled in remainder, but afterwards became entitled in possession, but who never appealed from the determination of the Master, nor ever claimed a right to attend him, a petition presented by him to the effect that the Master's report might be dis- charged, and that the accounts might be taken over again, was dismissed, with costs, reversing the deci- sion of the Court below, Morison V, Morison, 17 Law J. B,ep. (n.s.) Chanc. 65. Where an entry in an administrator's account which had been settled was shewn to be fraudu- lently made, the whole account was opened, not- withstanding the lapse of forty years since the death of the intestate, seventeen since the settle- ment of the account, and more than two since the discovery of the entry complained against. Special directions inserted in the decree for the protection of the accounting party. Allfrey v. All- frey, 1 Mac. & G. 87 ; 1 Hall & Tw. 179. After decree for an account of personal estate, and, in case of deficiency of thepersonal estate topay debts, for the sale of descended real estate, it was on further directions ordered, that on the proceeds of the per- sonal and real estates proving insufficient to pay the debts, the heir-at-law of the intestate should account for the rents and profits received by him of the descended real estate. Stratford v. Ritson, 16 Law J. Rep. (U.S.) Chanc. 176 ; 10 Beav. 25. In a case where the accounting party was the solicitor or agent of the party sought to he charged, and it appeared that an item of 600/. was inserted for professional charges in the account, which it was sought to treat as settled, no bill of costs having been delivered, and the 6001. exceeding by 75/. the sum really due : — Held, that this was not such an error as could be set right by a decree to surcharge and falsify, but that the account must be dealt with as an open account. Coleman v. Mellersh, 2 Mac. & G. 309. If accounts are directed to be kept, with regard to future events (which subsequently happen), on a case not raised by the pleadings, and distinct from the points to be decided by the decree, it is in the discretion of the Court to hear a motion for such reference before, or to postpone it until, the hearing of the cause. Therefore, where lessees of premises filed a bill for an injunction to restrain the lessors from committing an alleged breach of their cove- nant, and the Court directed the plaintiffs first to establish their rights at law, the lessors undertaking to keep certain accounts, and to pay what this Court might award for damages to the plaintiffs, it was held, on motion before the hearing by the plaintiffs, who had succeeded at law, but who, pending the proceedings, had parted with their interest in the subject-matter of the litigation, that they were en- titled to an order of reference to take the accounts directed, without bringing the cause to a hearing or filing a supplemental bill, the defendants not assigning any reasons for postponing the motion until the hearing, and the justice of the case not requiring a supplemental bill. The motion of the plaintiffs respecting their costs of the proceedings at law, was ordered to stand over, without prejudice to the question of the costs of the motion, until the report had been made, upon the ground that the costs of such proceedings might be affected by the result of the reference. Righy V. the Great Western Rail. Co., 19 Law J. Rep. (n.s.) Chanc. 470. (Z) Refekences. (a) Generally and Proceedings. Orders of the 3rd of June 1850 ; 19 Law J. Rep. (N.s.) Chanc. xiiL ; 2 Hall & Tw. xlix. ; 1 Mac. & G. Ivii. ; 12 Beav. xiv. Rotation of Masters after August the lOth, 1847 ; Order of Julv 28, 1847 ; 17 Law J. Rep. (n.s.) Chanc. 110. In a suit for the administration and distribution of funds under a will, on a motion for the reference, on preliminary inquiries, as to proper parties to the suit, incumbrancers of shares of parties interested, and taking of accounts, &c., with liberty for the Master to state special circumstances, the Court granted a reference only as to parties. Greedy v. Lavender, 15 Law J. Rep. (n.s.) Chanc. 217. In a common injunction cause the Court will, on an ex parte application of the plaintiff, supported by an afiBdavit of facts, and stating that the plain- tiff will be prejudiced unless the exceptions are immediately referred to the Master, and that the application is made bond fide, and not for the pur- pose of delay, order exceptions to an answer to be referred instanter, without waiting for the expira- tion of the eight days mentioned in the 25th article of the 16th of the Orders of the 8th of May 1845. Muggeridgev.Sleman, 15 Law J. Rep. (n.8.) Chanc. 152; 9 Beav. 314. After service of an order referring exceptions to PRACTICE, IN EQUITY ; (Z) Repbrbkcbs. 579 the Master in rotation for insufSciency, it was dis- covered that the exceptions ought to have been re- ferred to the Master to whom the cause had been referred, and that the word " amended" had been omitted in the order, upon which the plaintiif 's solicitor (after the lapse of the fourteen days allowed for referring exceptions for insufficiency,) altered the order, by procuring the word "amended" to be added thereto, and the name of one Master to he inserted in the stead of another : — Held, that the order of reference was irregular, and must be dis- charged. WooU V. Townley, 15 Law J. Rep. (n.s.) Chanc. 143; 9 Beav. 41. Where there has been a previous reference to the Master in a cause, all subsequent references should be made to the same Master, and not to the Master in rotation. If, however, the order erroneously obtained was the consequence of a mere omission, and not the wilful or perverse conduct of the plaintiff, the Court will direct the reference to the proper Master, although the order to proceed was not obtained within the proper time. Tuck v. Raymmt, 15 Law J. Rep. (n.s.) Chanc. 103 ; 9 Bott; 38. On the dismissal of a bill with costs, the Court referred it to the Master to inquire and state whether it was necessary or proper that several defendants, consisting of trustees and their cesfuis que trust, appearing by the same solicitor, and having no conflicting interests, should have filed two separate answers. Reference to the Master, under the 122nd Order of May 1845, to distinguish the parts of a cross bill which were of unnecessary length, and to ascertain the costs thereby occasioned. Woods v. Woods, 5 Hare, 229. Where, under the powers of a private act of par- liament, a party presented his petition to the Court, seeking a reference to the Master to inquire who was a party entitled, one such reference having been made, the Court refused, with costs, a second similar petition by another party. Held, also, that a direction for production of papers by parties, and their examination on interrogatories, on a petition like the present, was contrary to prac- tice. In re London Dock Co., 17 Law J. Rep. (N.s.) Chanc. Ill ; 11 Beav. 78. A reference of exceptions instanter in an injunc- tion case on an ex parte motion is regular. Tees- dale V. Swindell, 9 Beav. 491. Where it is referred to the Master to approve of a settlement in pursuance of an executory trust, the Court does not usually insert in the order declara- tions as, to the interests which the parties are to take. Williams v. Teale, 6 Hare, 254. A reference to the Master to inquire which of two suits is most for the benefit of infants has not the effect of course of staying proceedings in both suits during reference. Westby v. Westby, 16 Law J. Rep. (n.s.) Chanc. 483 ; 1 De Gex & S. 410. Reference to a Master other than the one certified to be in rotation irregular. Svffield {Lord) v. Bond, 10 Beav. 146. The Master overruled the second exception and allowed the others. After a further answer, the plaintiff obtained an order of course, referring back the answer and other exceptions. It was discharged, with costs. Emrnott v, Emmott, 12 Beav. 557. An omission to give notice of filing exceptions on the same day does not render a subsequent order of reference irregular, but the omission is matter of compensation in time, upon a proper application. On the 6th of March the plaintiff took exceptions, but did not serve the notice until the next day, and obtained an order to refer on the 15th. A motion to discharge the order was refused. Lowe v. Wil- liams, 12 Beav. 482. If one of the defendants is out of the jurisdiction, and it is objected by the answers of others that per- sons not parties to the suit claim an interest in the subject-matter, the Court will not order a reference for preliminary inquiries and accounts, under the 5th General Order of the 9th of May 1839. Darhi- shire v. Home, 19 Law J. Rep. (N.s.) Chanc. 458. A vendor by public auction of shares in an in- corporated railway company, at the request of the purchaser (who had paid the purchase-money) exe- cuted a transfer to a third party who did not accept it, or register himself as a shareholder. On a bill filed by the vendor against the purchaser for a specific performance, the Court directed the usual reference as to title. Shaw v. Fisher, 2 De Gex & S. 11. In directing a reference under a private act of parliament, the Court will make the same provision for the production of deeds and the examination of parties and witnesses, as in the case of a reference in a suit. Hyde v. Edwards, 1 Mac & G. 410 j 1 Hall & Tw. 552. (6) Report. The Master of Reports and Entries and the Clerk of Reports, instead of the fees receivable for all copies of orders, exceptions, petitions, reports, or other documents, are to receive for all such copies bespoke after the 4th day of March instant, id. for every folio of ninety words, and no more. Order of Itibrch 3, 1847 ; 16 Law J. Rep. (n.s.) Chanc. 295 ; 9 Beav. II. A party who objects to the draft of the Master's report, on the ground that it is not warranted by the evidence, is not bound to produce office copies of the depositions; but should notify to the Master what part of the evidence he relies upon. Wilson v. Wilson, 15 Sim. 487. The Master comprised two subjects in his report, one of which required confirmation by orders nisi . and absolute, and the other by petition. A motion to confirm the report as to part was refused, as there should have been separate reports. Ramsdale V. Ramsdale, 10 Beav. 568. In a creditors' suit, an application to confirm ab- solute theMaster'sreport of the best purchaBer,made by consent before the expiration of the time limited by the order nisi, refused. Vernon v. Thellusson, 10 Beav. 452. It is informal for the Master to state in his report that he founds his opinion as to a vendor's title on the opinion of a conveyancer. In re Collard, 10 Beav. 334. After a report was confirmed by orders nisi and absolute, it was varied in a part relating to the maintenance of infants. Ramsdale v. Ramsdale, 11 Beav. 220. Where a party, having the charge and conduct of tlie proceedings, under an order of reference before the Master, is unsuccessful by reason of the Master's 580 PRACTICE, IN EQUITY; (AA) Exceptions. report being unfavourable to his claim, he will be compelled to file the report on the application of an interested party for whose protection and assistance the report is necessary to be filed. In re London Dock Company, 17 Law J. Rep. (n.s.) Chanc. Ill j U Beav. 78. One notice of motion to confirm the Master's report of best purchaser, and to pay the purchase- money into court, is irregular. Dnfield v. ElweSf 13 Beav. 85. (AA) EXCEPTIOHS. (a) In general. An order for leave to file exceptions in the form o! nunc pro tunc will not be made even by consent; but a special order may be made for filing them, notwithstanding the time limited has expired. Biddulph V. Lord Camoys, 9 Beav. 155. Exceptions for insufficiency overruled where they varied in a material particular from the form of the interrogatory, as where the one was in the present and the other in the past tense. Duke of Brunswick v. Duke of Cambridge , 12 Beav. 279. (6) Answers. The Court, in common injunction causes, on the ex parte application of the plaintiff, will, in proper cases, direct exceptions taken to the answer for insufficiency, to be referred insianter, notwithstand- ing the 2Sth article of the 16th Order of May 1845 ; but the application ought to he supported by an affidavit, stating that the plaintiff would be pre- judiced, unless the exceptions were referred in- stanter, and that the application was not made with a view to delay. Muggeridge v. Sloutman, 15 Law J. Rep. (N.s.) Chanc. 279: s.P. Jonesv. Roberts, 15 Law J. Rep. (n.s.) Chanc. 434. Application to take exceptions to answer off the file, on the ground of their having been filed 0n the loth of December, the answer having been put in on the 15th of August preceding, refused, al- though the exceptions were held to be filed one day too late, and the defendant was to elect, within tlie first four days of the next tern), whether he would submit to the exceptions. Whilmore v. Sloane, 15 Law J. Rep. (n.s.) Chanc. 104; 9 Beav. ]. Exceptions to answer will not be ordered to be taken off the file, because the order of reference is not served in due time. But if the plaintiff .serves the order after the time, and obtains a warrant, the defendant is entitled to apply to the Court for his costs. Atlee v. Gibson, 1 De Gex & S. 162. On the 20th of May the defendant filed a plea as to part of the bill, and an answer as to the re- mainder. On the 29th of June the plea was, after argument, overruled. On the 18th of July the plaintiff took exceptions to tlie answer for insuffi- ciency, and on the 29th, obtained an order of course, at the Rolls, for referring them to the Master. A motion by the defendant to take the exceptions off the file, on the ground that they were not filed within six weeks after the answer was filed, and to discharge the order of the Master of the Rolls, was refused, with costs. A Vice Chancellor has no power to discharge an order of course made at the Rolls. Where a plea and answer are filed to a bill, and the plea is argued and overruled, the time limited by the 16th Order of May 1845, article 22, for taking exceptions for insufficiency, runs from the overruling of the plea, and not from the time of filing the plea and answer. Semble — Where, under an order of course, made at the Rolls, exceptions for insufficiency are re- ferred to the Master, a Vice Chancellor has the power of ordering the exceptions to be taken off the file; Esdaile v. Molineux, 16 Law J. Rep. (N.s.) Chanc. 68 ; 2 Coll. C.C. 641. Upon exceptions for insufficiency to the answer of a party who had been attorney in the transac- tions impeached, and who refused discovery on the ground of privilege, the Court cannot regard the subsequent consent of the client to the disclosure of the matters inquired after, for the question of sufficiency must be determined as of a time anterior to the exceptions. Chant v. Brown, 7 Hare, 79. Defendants filed a demurrer and answer, and, the demurrer being overruled, obtained time to answer. They filed a further answer: on special application leave was given to the plaintiff to file exceptions thereto, although he had not filed any to the original answer. Attorney General v. London, 12 Beaw21^ An exception to an answer held to have been properly allowed, although it set out inaccurately the interrogatory, the answer to which was the sub- ject of exception, there being besides the inaccurate transcript of the interrogatory, a reference to it by its number. Semble — that the reference by number alone would be insufficient. Esdaile v. Molyneux, 1 De Gex & S. 218. (c) Reports and Certificates. [Slacken v. Dawson, 2 Ph. 141.] The Master, in his report, stated that he had admitted certain evidence, and that he thereupon found certain facts. A party objecting to the ad- mission of the evidence, and to the conclusion there- upon, cannot open that objection as appearing on the face of the report without having taken excep- tions. East V. East, 5 Hare, 347. The defendants demurred to a supplemental bill containing statements and charges, which, if an- swered, would subject him to penalties. The de- murrer was allowed ; and under leave given, the plaintiff amended the bill by striking out the inter- rogatories, and leaving the statements and charges upon which they were made. The defendant took exceptions to the amended bill for impertinence, but these were overruled by the Master: — Held, upon exceptions to the Master's report, that the statements and charges were not impertinent, and that the plaintiflf, though not entitled to discovery from the defendant, was not precluded from proving the charges. Held, also, in answering the interrogatory about books and papers, that the defendant could except those which might subject him to penalties: and the exceptions were overruled. Mitchell v. Koecker, 18 Law J. Rep. (n.s.) Chanc. 294; llBeav.380; 12 Beav. 44. Where the Master has expunged matter in a state of facts for impertinence, he should nevertheless issue his certificate thereupon, in order that the opinion of the Court may be taken if requisite. To such certificate exceptions may be taken. PRACTICE, IN EQUITY. 581 Semble — that an exception to the report for that the Master has found the said state of facts imper- tinent from the word &c. to the word &c., whereas the Master ought not to have so found, but ought to have found that the same was not impertinent, is sustained if any part of the passage is pertinent. Where there is a doubt about a passage being impertinent, it should be retained and considered on the question of costs. Where one of the principal facts relied on by the defendants, contending on a reference before the Master that a suit was not for the benefit of infant plaintiifs, was that theassets were too small to justify the proceeding, — Held, that as this fact could not be properly determined by the Court on exceptions to the report finding in favour of the prosecution of the suit, such exceptions must be overruled, reserv- ing the costs and retaining the deposit. But on the plaintiffs presenting a petition to con- firm the report, the Court, on the defendants under- taking to offer no obstacle to the hearing, directed the petition to stand over till the hearing. Queere, as to the proper mode of appealing from _tlM>- -Master's decision in such a case. Raven v. Kerl, 1 De Gex & S. 236. The Master's report finding the plaintiff's bill scandalous and impertinent was, upon exceptions taken both by the plaintiff and the defendant, varied by the Court: — Held, that the 41st General Order of May 1845 did not apply to this case, and an order was made directing the Record and Writ Clerk to expunge those parts of the plaintiff's bill which the Court considered scandalous and impertinent. Jodrell V. Jodrell, 19 Law J. Rep. (n.s.) Chanc. 265 ; 12 Beav. 216. After a Master's report had been absolutely con- firmed, a petition was presented for leave to except to it. The petition was heard with the cause for further directions, and the Court, without directing a reference back to the Master, made an order in accordance with the prayer of the petition. Joweit v. Board, 16 Sim. 352. (BB) Sales by the Court. The Court declined to open biddings upon an advance under 10/. per cent. Holroyd v. Wyatt, 2 Coll. C.C. 537. If at a sale by auction under the order of the Court, a purchaser sell his purchase for an additional sum beyond his purchase-money, the Court will order the property to be re-sold ; and, semble, if upon such re-sale, the property does not produce the improved price agreed to be given by the sub- purchaser, he will be responsible to the Court for the difference. Holroyd v. Wyatt, 2 Coll. C.C. 327. A bidder at a sale under the decree of the Court, who is not a party to the cause nor interested in the estate which is the subject of the sale, has no right to apply to the Court to set aside a sale to an- other bidder on the ground of irregularity, in that the latter, though reported the purchaser, was in fact not the highest bidder. Whether he may apply to be declared the pur- chaser in place of the bidder reported to be the best purchaser — qucere. Hughes v. Lipscombe, 6 Hare, 142. A purchaser under the Court obtained an order nisi to confirm the Master's report, but delayed to confirm it absolutely. Plaintiffs moved, on notice to the purchaser, to confirm the same absolutely: — ■ Held, that the plaintiffs might do so by motion of course. Robertsons. Skellon, 16 Law J. Rep. (n.s.) Chanc. 215; 10 Beav. 197. Upon a sale under the Court, an order on the purchaser to pay his purchase-money into court, obtained before the title has been accepted, or the Master's report made in its favour, is irregular, and will be discharged, with costs. Rutter v. Marriott, 10 Beav. 33. There is no invariable rule as to the sum to be paid into court on obtaining an order opening bid- dings made at a sale directed by the Court ; but where a sum of 27,000i. was the last bidding made at a sale, a sum of 3,400t was ordered to be paid into court by the applicant on his obtaining an order to open the biddings. Manners v. Furze, 17 Law J. Rep. (n.s.) Chanc. 485. Where in a suit for performance of the trusts of a will, the decree directed the Master to inquire what estates passed by the will, and that such as he should find to have passed should be sold with his approbation, and the Master proceeded to sell before having made his report, it was held that the purchaser could not object to the title on this ground. Dykes v. Taylor, 16 Sim. 563. (CC) Payment into Coukt. [See Infant, Guardian.] [Bartlett v. Bartlett, 4 Hare, 631.] The Court will not order an executor to pay into court money which he states by his answer to have retained in satisfaction of a debt due to him from the testator. Middleton v. Poole, 2 Coll. C.C. 246. Unless all persons interested in a fund are before the Court, an order for payment of it into court will not be made on an undertaking by the plaintiff to make them parties, except perhaps in cases of ad- ministration of creditors' suits. Whether such an order would be made in those suits — quare. Mar- riage V. the Royal Exchange Assurance Co., 18 Law J. Rep. (N.s.) Chanc. 216. Before the General Orders of June 1848 money might be paid into the name of the Accountant General, under the 10 & 11 Vict. c. 96. without any order of Court. In re Biggs, 11 Beav. 27. On a motion to pay assets of a testator into court, the Court declined to direct the payment of the in- come to the tenant for life to be continued, unless the executor took upon himself the responsibility of the payment. Abby v. Gilford, 11 Beav. 28. A party having a contingent interest in a trust fund may, in a. proper case, have it brought into court for his protection ; but he must shew suflScient ground for it. Such a motion was refused, on the ground that there was no allegation of danger, and that the fund might, if necessary, be sufficiently protected by a distringas^ Ross v. Ross, 12 Beav. 89. After the hearing and before the cause came on for further directions, the plaintiff moved, on admis- sions by the defendant in his answer, for payment of a sum of money into court: — Held, that such admissions were not alone sufBcient to induce the Court to make the order, and the motion was refused. Binns v. Parr, 19 Law J. Rep. (n.s.) Chanc. 401; 7 Hare, 288. 582 PRACTICE, IN EQUITY. Where a fund is carried over to a particular sepa- rate account it is released from the general questions in the cause, and becomes marked as being subject only to the questions arising upon the particular matter referred to in the heading of the account. In re Jervoise, 12 Beav. 209. Though the Court will stay the payment of a fund out of court, to give a stranger an opportunity of enforcing his right against it, yet it will not for the same purpose order iuto court a sum directed to be paid by one party to another. By the decree, an arrear of dividends on stock was ordered to be paid to the plaintiff by her trustee. Shortly afterwards such arrears were, under the 1 & 2 Vict. c. 110. s. 14, charged by a common-law Judge with the payment of a sum of money to A B. A petition was presented by A B, that the trustee might pay the amount iuto court and for a stop order thereon. The petition was dismissed, with costs. Newton v. Askew, 11 Beav. 43. (DD) Payment otJT of Coukt. A filed a petition in the Insolvent Court for the purpose of obtaining the benefit of the act. Shortly afterwards an order was made in a suit for pay- ment of a sum to her out of court. After the Insolvent Court had made a vesting order, hut before any adjudication respecting her, A died; after her death a creditors' assignee was appointed: — Held, that the assignee and not the administrator of A was entitled to the money paid out of court, Bruce v. Charlton, 15 Sim. 562. A defendant in the cause, to whose separate ac- count a sum of money has been carried, may pre- sent a petition for payment out of court by a solicitor who was not her solicitor in the cause, without obtaining an order to change her solicitor. Wadditove v. Taylor, 17 Law J. Rep. (n.s.) Chanc. 384. A petition was presented by the representa- tives of one of the next-of-kin of an intestate, praying for the transfer of stockwhich had been carried to the separate account of a party (since deceased) who was entitled for her life, and of the intestate's next-of-kin, who would become entitled at her decease. The petitioner's claim was deduced under several probates and letters of administration taken out in the Consistorial Court of London ; and she was unable, under those circumstances, to procure prerogative probate. An order was made for the transfer of the stock, without requiring pro- bate from the Prerogative Court of the Archbishop of Canterbury. Druce v. Denison, 17 Law J. Rep. (n.s.) Chanc. 149; 15 Sim. 356; reversing s.c. 16 Law J. Rep. (n.s.) Chanc. 443. Where very small sums are standing to a sepa- rate account in court, and the title is simple, the Court will order payment on petition without attendance in court. Petty v. Petty, 12 Beav. 170. A general authority from a party out of the jurisdiction to his solicitors to take any necessary proceedings for obtaining payment of his share of the fund in the suit out of court, — Held, on petition, not to authorize payment of it to the solicitors. Waddilove v. Taylor, 18 Law J. Rep. (n.s.) Chanc 406. A married woman having a general power of appointment over a reversionary trust fund, subject to a previous life estate in another person, ap- pointed it by way of mortgage, with a power of sale, under which it was afterwards sold. Her husband became bankrupt, and after the determination of the life estate, the trustees paid the fund into court, under the 10 & 11 Vict. c. 96. The purchasers thereupon presented a petition for the transfer of the fund to them. The petition was only served on the trustees. The Court made the order, subject to a direction that it should not be dratvn up for a fortnight, and that the husband's assignees should be served with notice that the fund would be transferred, if no objection were made within that period. Ex parte Stutely, 1 De Gex & S. 703. The purchase-money of a leasehold interest pur- chased by a railway company was paid into court to an account ** ex parte the company, the account of the two lessees," and the dividends were ordered to be paid to one lessee, and the executrix of the other. The executrix married : — Held, that on a petition for payment of the dividends to the hus- band and the other lessee it was ^unnecessary to serve the company, and that the petitioners having served them must pay their costs. Ex parte Hordern, in re the Grand Junction Rail. Co.'s Acts, 2 De Gex & S. 263. Where a fund stands to the general credit of a cause it will not be paid out in the absence of the legal personal representatives. But if after decree, and where the fund is clear, the executor dies, a supplemental bill is not always necessary, for the fund may be distributed on petition, upon the ap- pearance of the new personal representatives. Parsons V. Groome, 12 Beav. 180. Dividends of investments of purchase-money paid into court by a railway company for lands belonging to the Archbishop of Canterbury ordered to be paid to the archbishop for the time being. Ex parte Archbishop of Canterbury, in re the East Lincolnshire Rail. Co.'s Acts, 2 De Gex & S. 365. (EE) Setting down and Hearing Cause. Causes to he set down by the registrars upon pro- duction of a certificate by the proper officer that they are in a fit state to be set down for hearing, without any fiat, order, or direction from the Lord Chancellor. Causes for further directions, or on the equity reserved, and pleas, demurrers, exceptions, and ob- jections for want of parties, to be set down for hear- ing on orders drawn up on petition to the Lord Chancellor without any fiat or direction. Order of February 23, 1850; 19 Law J. Rep. (n.s.) Chanc. i. ; 1 Mac. & G. xii. ; 1 Hall & Tw. x. A bill had been dismissed in the court below, and on appeal the Lord Chancellor directed the cause to stand over for a year, in order that a ques- tion of usury might be tried in a court of common law. After the trial (at which the deed in question was found to be usurious) the cause was set down before the Lord Chancellor; — Held, that it ought to have been set down before the Vice Chancellor to whose court it belonged. Flight v. Marriott, 17 Law J. Rep. (n.s.) Chanc. 449. In a suit for the distribution of a trust fund, one of the plaintiffs, a married woman, was entitled for PRACTICE, IN EQUITY. 583 her separate use to a share in the property; her husband, who was made a defendant, not having been heard of since 1843, an application was made to have the cause set down for hearing notwith- standing the husband had not appeared. Upon an objection raised by the registrar to the jurisdiction of the Vice Chancellor, the Court refused to make the order. Russell v. Lucy, 18 Law J. Rep. (n.s.) Chanc. 464. "Where a bill has been retained at the hearing, with liberty to plaintiff to bring an action, he may on having the verdict in his favour obtain an order for setting down the cause on further directions, or on the equity reserved, though the time for moving for a new trial has not arrived. Rodger s v. Nowitl, 6 Hare, 338. A bill was filed by a legatee claiming several legacies under the will, against the executrix and the other legatees, and stating that a legatee named as a defendant was out of the jurisdiction and could not be found. Upon motion, supported by affidavits that the absent legatee could not be found to be served with process, leave was given to file a replication against the defendants who had ap- peared and answered; and afterwards leave was obtained to set down the cause for hearing against the same defendants. The absent legatee, who had a possible interest in only one of the legacies claimed by the plaintiff, was not proved at the hear- ing to be out of the jurisdiction ; and the executrix took a preliminary objection that the hearing could not be proceeded with under the circumstances. The Court proceeded to dispose of the questions as to those legacies in which the absent legatee was not interested, and reserved the questions as to those legacies in which he was suggested to have an interest, directing the latter legacies to be brought into court, and referring it to the Master to inquire whether the absent defendant was out of the juris- diction. Mores v. Mores, 17 Law J. Rep. (n.s.) Chanc. 311 ; 6 Hare, 125. Suit by one cestui que trust against the trustees and some of the other parties interested, to restore a fund held in trust for a class of persons : — Held, that there must be proof at the hearing that all the persons constituting the class were before the Court. Phillipson v. Gatty, 17 Law J.' Rep. (n.s.) Chanc. 241 ; 6 Hare, 26 ; 2 Hall & Tw. 459. (FF) Issue and Case sent to Law. [See (X) Orders and Decrees.] As to directing issue, Butlin v. Masters, 2 Ph. 290. In a creditors' suit, plaintiff did not establish his debt at the hearing j but the Court retained the hill with liberty to bring an action. The plaintiff pro- duced other evidence and recovered in the action. Decree'made for payment of the debt and costs in equity, but no costs given for the proceedings at law. Gregson v. Booth, 6 Hare, 536. On a motion on behalf of the plaintiff, for an issue devisavitvel non, in a suit instituted by him, praying the delivery up of a deed of settlement to be can- celled, and that an issue might be directed as to the will of the alleged testator, the Court refused the application, the defendant having stated, by her answer, that she claimed the estates absolutely for her own use, and that the plaintiff had no title thereto, even if his alleged title, as heir-at-law of the testator, were fully established, but of which she stated her ignorance. The Court has power, in cases like the present, to grant an issue devisavit vel non, by way of interlocutory proceeding, but it will only be done after great care has been bestowed on the case, and on facts justifying the order. Lancashire v. Lancashire, 15 Law J. Rep. (n.s.) Chanc. 293 ; 9 Beav. 259. If an issue is directed, an application for a new trial must be to the Court of Chancery, when all proceedings at law will be examined ; but if liberty is given to bring an action, the new trial must be moved for in the court of law, and the Court of Chancery will only look to the result of the action. In the latter case, if there has been a miscarriage at law, relief cannot be obtained on the case coming on upon the equity reserved, without petition. Hope V. Hope, 10 Beav. 581. A bill was filed to set aside certain securities given to a banking firm, upon the ground that they were obtained by fraud and concealment. The transaction took place between the plaintiff and a late partner in the banking-house, who had since died. Issues were directed to try the question of fraud or concealment ; but an order of the Court below, directing that the plaintiff and the defendants might be examined as witnesses, was reversed ; it appearing that such a direction would necessarily give the plaintiff an advantage over the defendants who were not parties to the original transaction. The former partner, who had managed the trans- action, had ceased to be a member of the banking firm and had since become bankrupt, and had been made a defendant as the executor of another part- ner : — Held, that his answer was not admissible as evidence against the other defendants, the continu- ing partners. Where money has been paid to one of the parties to the suit, under a decree which is afterwards re- versed and the money ordered to be repaid, interest on the money will not be payable unless specially ordered by the Court. Parker v. Morrell, 17 Law J. Rep. (N.s.) Chanc. 226; 2 Ph. 45.3. The Court relieved a party from undertaking to make an admission upon a trial at law, the law on the point having since the undertaking been placed in a state of uncertainty by reason of the conflicting decisions of different Courts. Codes v. Purday, 12 Beav. 451. On the hearing, the Court expressed an opinion that the case was one which was proper for an issue, but at the request and with the consent of all par- ties undertook to decide the cause : — Held, that the . parties had, by such consent, precluded themselves on appeal from asking for an issue, or a review of the decree of the Court below, if the question raised was one which, According to the course of the Court, ought, in the first instance, to have been sent to a jury ; but the Court permitted the appellant to shew, if he could, that the case was so clear upon the proceedings that the Court might decide it without directing an issue, Stewart v. Forhes, 19 Law J. Rep. (n.s.) Chanc. 133 ; 1 Mac. & G. 137 ; 1 Hall & Tw. 461. Where a matter of fact has been once litigated upon an issue directed by the Court, and the verdict 584 PRACTICE, IN EQUITY. is[the result of a fair trial, and is in affirmation of what by the Court directing the issue is thought to be the truth, and the unsuccessful party has not been taken by surprise, and there is no substantial ground for believing that any mistake or accident has occurred, or that on a second trial other evidence of a weighty nature bearing against the existing conclusion can and will be produced, a new trial will not be granted. It is within the ordinary practice of the Court of Chancery to make a decree conclusively affecting the freehold and inheritance of land upon one in- vestigation of disputed facts, as well where there must be a jury, as where it is in the discretion of the Court to dispense with a jury, and although there has been no consent or acquiescence by the unsuc- cessful party. In an establishing suit and verdict in favour of the plaintiff, the heir is not entitled to more favour than a devisee, unless in the sense that the burthen of proof is in that case thrown upon the plaintiff Waters v. Waters, 2 De Gex & S. 591. Where, on the trial of an issue, the evidence of a material witness, being uncorroborated and being in other respects unsatisfactory, has been discredited by the Judge, and the jury having given a verdict against the party producing the witness, the Court, upon being satisfied by affidavits filed since the trial, that the evidence of the witness may be sub- stantially corroborated, will grant a new trial. Shields v. Boucher, 1 De Gex & S. 40. There is no absolute rule in a court of equity requiring that Court, as of course, to grant a second trial in an issue of devisavit vel non, when the first trial has terminated against the heir-at-law, if the .fudge in equity is satisfied that no new light can be thrown on the subject by a further investigation. Though there maybe an outstanding legal estate, which compels the heir-at-law to come into equity, he cannot, on that account, claim a right to have the issue tried a second time, if the Court, in the exercise of its discretion, should deem the first verdict satisfactory. In every such issue the Court of Equity requires that all the attesting witnesses to a will shall, if it is possible to procure their attendance, be examined. Circumstances under which the Court of Equity, in the exercise of its discretion, was held properly to have refused a new trial. McGregor v. Topham, 3 H.L.Cas. 132. The Court can, on demurrer, send a case for the opinion of a court of law. Spooner v. Payne, 2 De Gex & S. 439. A testator, who was the subject of a commission of lunacy at the time of making his will and up to his death, being seised of large real estates, made his will, whereby, after giving certain benefits to his daughter and heiress-at-law, he declared, that if she or her husband, or any person on their or either of their behalf, should dispute his will, or if any proceedings should be taken by any person whom- soever, whereby his daughter or her husband might attain a larger interest in his estates than that given by his will, and she and her husband should not disavow or resist such proceedings, then he revoked the benefits thereby given to her. The daughter was married at the date of the will, and on her marriage, articles were executed, by which the hus- band covenanted with A B, a trustee, to settle her present and future property upon trusts, for the benefit of himself, his wife and their issue. There was no issue of their marriage. In a suit by the trustee of the will, to establish it, the evidence in the cause, on the part of the plaintiffs, went to prove the competency of the testator, and there was no evidence to the contrary ; and the heiress-at-law did not ask an issue ; — Held, that A B had a sufficient primd facie title as trustee for the unborn issue ; and the Court directed an issue devisavit vel von, the plaintiffs in equity to be plaintiffs at law, and A B to be the defendant at law. Cooke v. Turner ; Cook V. Cholmondeley, 19 Law J. Rep. (n.s.) Chanc. 81 i 2 Mac. 8e G. 18 ; 2 Hall & Tw. 162 : affirming s.c. 15 Law J. Rep. (n.s.) Chanc. 487 ; 15 Sim. 611. (GG) Receiver. [Bowman v. Bell, 5 Law 3. Dig. 641 ; 14 Sim. 392.] The plaintiff, claiming real estates as heir-at-law to B, filed his bill to establish his title against the defendant, who claimed under a settlement ad- versely to the plaintiff, and had the legal estate. Motion for a receiver, on the part of the plaintiff, refused, on account of the absence of fraud, and doubt as to title. Lancashire v. Lancashire, 15 Law J. Rep. (n.s.) Chanc. 54 ; 9 Beav. 120. The Court will grant an order for a receiver over a moiety of an undivided share of an estate. Hiir- grave v. Hargrave, 15 Law J. Rep. (n.s.) Chanc. 280 ; 9 Beav. 549. The notice required by the 88th Order of May 1845 does not apply to proceedings for appointing a receiver, but only to his taking possession of the estates when appointed. Dresser v. Morton, 2 Ph. 285. A receiver, who without the sanction of the Court, successfully defends an action brought against him by a party to the cause, is entitled to be reimbursed his extra costs. Bristowe v. Needham, 2 Ph. 190. By a settlementon themarriage of A with B, certain trust funds were assigned to three trustees in trust to pay the annual income to B for life for her sepa- rate use, with remainder to A for his life, with re- mainder, as to the principal monies, to the children of the marriage. The trustees, on the application of A, and with the consent of B, invested the trust funds, in contravention of the trusts of the settle- ment, in the purchase of certain copyhold houses, in which A claimed an interest under an agreement - entered into by him with the vendor, previously to the date of the purchase by the trustees. A had also expended a large sum in repairing and re- building part of the houses, and, from the time of the purchase until recently, had been allowed^ to receive the rents, and pay them over to his wife. Differences having arisen between A and the trus- tees, the latter directed their solicitor to receive the rents, and commence an action against one of the tenants, who refused to pay the rents to them. On a bill filed by A against the trustees, and his wife and children, praying an injunction against further pro- ceedings in the action, and the appointment of a receiver ; a motion for a receiver on his behalf was refused, with costs. One of the trustees, who lived in the country, at a distance from the other two trustees, appeared. PRACTICE, IN EQUITY. 585 by separate counsel, on the motion, and asked for his costs, which were ordered to he paid him. Wiles V. Cooper, 15 Law J. Rep. (N.s.) Chanc. 129; 9 Beav. 294. It is not the practice of the Court to order a receiver's recognizance to be pat in suit against the surety, where it does not appear from the Master's report that a definite sum is due. No actual balance having been found due from the receiver, the Court refused to decree an account against his administratrix. Ludgater v. Channell, 16 Law J. Rep. (n.s.) Chanc. 248 ; 15 Sim. 479. A receiver appointed to get in property, part of which he finds in the possession of another receiver, ought not to take proceedings to deprive the latter of possession without the authority of the Court. A motion for a committal on the ground of dis- turbance of possession should not be made when the object is only to compel payment of costs. Ward V. Swift, 6 Hare, 312. A and B were trustees and executors. A paid more than he received in expectation of repayment out of a mortgage forming part of the assets. A died and B refased to act. In an administration suit a re- ceiver of the mortgage was appointed against A's representatives. Palmer v. Wright, 10 Beav. 234. On the application of all the parties to a cause, the Court made an order appointing at once a party named by them to be receiver of the partnership estate and eiFects, the absolute property of the par- ties to the cause, without requiring him to give any other than his own personal security, notwithstand- ing a previous order made in the cause directing a reference to the Master in the usual form to appoint a receiver of the partnership estate and effects. Manners v. Furze, 17 Law J. Rep. (n.s.) Chanc. 70; 11 Beav. 30. Rules of practice upon applications to discharge receivers and vacate their recognizances. Lawson V. Riclcetts, 1 1 Beav. 627. Receiver appointed after decree upon motion in an urgent case. Thomas v. Davies, 11 Beav. 29. A receiver was appointed over a testator's real property, and afterwards, by foreclosure another estate became comprised in the property, and an order was made that the receiver should include the rents in his future accounts : — Held, that the re- ceiver, with the approbation of the Master, had power without a special order of court to set and let the foreclosed estate, under the 64th Order of 1828. Duffield v. Elmes, 11 Beav. 590. In a case of urgency the Court will appoint a receiver on the motion of the plaintiff before the de- fendant has appeared, and even where an injunc- tion is not asked against him. Meaden v. Sealey, 18 Law J. Rep. (n.s.) Chanc. 168 ; 6 Hare, 620. The plaintiff and the defendant were co-execu- tors. The plaintiff being indebted to his testator in the sum of 300t upon bond, filed his bill against the co-executor for an account and distribution of his testator's estate, and prayed for a receiver; upon the answer coming in, the plaintiff found that there was no outstanding estate, and that the debt of 300Z. due from him alone remained unapplied. The plaintiff allowed matters to rest as they were, hut the defendant gave a notice of motion, asking for the appointment of a receiver as prayed by the bill ; but the application was refused, without costs. Ro- DlGEST, 1845—1850. hinson v. Hadley, 18 Law J. Rep. (n.s.) Chanc. 428; 11 Beav. 614. Motion refused to appoint a receiver of a part- nership, where the question raised was, whether the partnership had been dissolved; but an issue di- rected to try the fact. Fairburn v. Pearson, 2 Mac. &. G. 144. Although there is no rule of practice that where a will is in contest in the ecclesiastical courts, the Court of Chancery will not grant a receiver where the property is in the hands of the executor, yet it must be clearly shewn that the nature and position of the property is such as to warrant the interference of the Court. Under what circumstances fresh aflidavits may be read on the hearing before the Lord Chancellor of a motion to discharge or vary an order of a Vice Chancellor. Whitworth v. Whyddon, 2 Mac. & G. 52 ; 2 Hall & Tw. 445. A rector, who was also the patron of a living, gave warrants of attorney to various creditors who had mortgages on the advowson, subject to an agree- ment that the judgment to be entered up by the first mortgagee should have priority over the rest whenever execution should be issued :■ — Held, that the agreement pointed so particularly to making the judgments charges on the living, that the Court could not give effect to it by granting an injunction and a receiver. Long v. Storie, 3 De Gex & S. 308. (HH) Infants' Suits. [See Mabeiage, Settlement.] The plaintiff's solicitor ought not to be appointed guardian ad litem to a defendant, under the 32nd Order of May 1845. The solicitor to the suitors' fund ought in general to be appointed such guardian. Sheppard v. Harris, IS Law J. Kep. (n.s.) Chanc. 104. An infant defendant on attaining twenty-one dis- charged the solicitor who had acted in the suit. Afterwards that solicitor was served with a subpoena for her to hear judgment, which he returned to the plaintiff's solicitor, stating that the defendant had coifie o{ age, and that he was no longer employed for her. After this the cause was heard without the defendant having been served with a subpoena to hear judgment, or any one appearing for her at the hearing ; and a decree was made, in which she was described as an infant : — Held, that she was entitled to put in a new answer to the bill. Snow v. Hole, 15 Sim. 161. After an infant defendant had appeared the plain- tiff moved under the 32nd Order of May 1845 that a solicitor might be appointed the infant's guardian to answer the bill and defend the suit : — Held, that as the infant appeared, the Court might grant the motion on an affidavit stating merely that notice of the motion had been served on the solicitor who had entered the appearance, after the expiration of the time allowed for answering, and more than six days before the hearing of the motion. Cookson v. Lee, 15 Sim. 302. Day to shew cause against a decree reiused. Walsh v. Trevannion, 16 Sim. 180. On an application to appoint a guardian ad litem to an infant resident within the juiisdictlon, his ap- pearance in court will not be dispensed with except 4 F 686 PRACTICE, IN EQUITY. under special circumstances. Baynton v. Hooper, lOBeav. 168. When two suits are instituted on behalf of an in- fant, it is not of course when one is in the paper for hearing, to refer it to the Master to ascertain which of them is most beneficial for the infant. Rundk v. Bandfe, 11 Beav. 33. An order of course, obtained by the direction of the next friend of two infant plaintiffs, discharging their solicitor, and appointing a new one, a consider- able time after one had attained twenty-one, though it was doubtful whether the other had attained that age, was held irregular, and was discharged, with costs to be paid by the next friend. Brown v. Broim, 18 Law J. Kep. (n.s.) Chanc. 388 ; 1 1 Beav. 562. On a motion for the appointment of a guardian of infant defendants, the appearance of one of them, who was less than a month old, in court was dis- pensed with, on the production of an atfidavit of the birth, and that it would be prejudicial to remove it. Stutehy v. Harrison., 18 Law J. Rep. (n.s.) Chanc. 336. A motion to appoint a guardian ad litem to two infant defendants resident within the jurisdiction, without their appearance or a commission, refused. Mower v. Orr, 18 Law J. Rep. (h.s.) Chanc. 50. A bill was filed to establish the right of an infant to a moiety of an estate. At the hearing of the cause an issue was directed to ascertain the legitimacy of the plaintiff, upon which his right depended. Before the trial commenced an agreement for a compromise was entered into, and signed by the counsel both of the plaintiff and the defendant, by which the estate was to be divided equally between their respective clients, each of whom was to pay his own costs. The defendant consented to carry the agreement into effect, but he subsequently refused to abide by it : — Held, that from the want of reciprocity the Court would not interfere unless it were for the benefit of the infant ; but that, as this agreement was beneficial to the infant, the Court would have given its sanc- tion to it ; but, in consequence of the want of reci- procity arising from the plaintiff's infancy, the Court refused to enforce the agreement upon the with- drawal of the consent of the defendant : that the counsel of the defendant had an implied authority to enter into the agreement; that an order of Court to give effect to it was not necessary ; and that the defendant must pay so much of the plaintiff's costs of preparing for the trial as became useless by the refusal of the defendant to carry out the agreement; that the former order must be continued and the trial proceeded with ; and that the costs of the peti- tion on which the order was made must be costs in the cause. Hargrave v. Hargrave, 19 Law J. Rep. (n.s.) Chanc. 261 ; 12 Beav. 408. (II) Next Friend. The mother of an infant plaintiff employed a soli- citor to prosecute the suit. The next friend died, and the mother subsequently discharged the solicitor, who after his discharge amended the bill and nominated a new next friend without the mother's sanction. The Court ordered that, on payment by the mother of the costs incurred by the new next friend, he should be removed and another appointed, and that the solicitor should pay the costs of the application and of the new appointment. Lander v. Ingersoll, 4 Hare, 596. Where a married woman applied for leave to sub- stitute, as a new next friend, a' person who was in such circumstances that the defendants' security for their costs would evidently be prejudiced, the Court refused to make the order. Jones v. Fawcett, 16 Law J. Rep. (n.s.) Chanc. 497 ; 2 Ph. 278. The Court refused to change the next friend of a married woman who was residing out of the juris- diction, though the next friend was a domestic ser- vant of the solicitor conducting the suit, and it was alleged to be his suit ; there being nothing to im- peach the bona fides of the parties. Whether the Court wiU order security for costs, where all the plaintiffs are out of the jurisdiction, but one of them sues by a next friend in this country — quare. Lander v. Parr, 16 Law J. Rep. (k.s.) Chanc. 269. (KK) Lunatic. [See Lunatic — Practice.] It is not absolutely necessary in the case of a defendant, a lunatic, but not found so by inquisition, that the solicitor to the Suitors' Fund should be appointed his guardian for the purpose of his ap- pearing to and answering the plaintiffs' bill, but any other solicitor may be appointed his guardian who will undertake the duty of appearing to and answer- ing the bill for the party. In the present case the solicitor of the wife was appointed the guardian of the husband on the pro- duction of an affidavit shewing that the husband had no interest adverse to the wife. Biddulph v. Dayrell, 15 Law J. Rep. (n.s.) Chanc. 320. One of three trustees under a will had dis- claimed and another had become lunatic: — Held, upon the petition of the sole acting trustee and the cestuis que trusts in the matter of the lunacy, that the Court had no jurisdiction to appoint a new trus- tee in the place of the disclaiming trustee; but the Court appointed two persons trustees in the place of the lunatic. Where stock is standing in the names of trustees, one of whom becomes a lunatic, and new trustees are appointed in his place, the Court will not order a transfer of the stock to be made to the cestui que trust, but it must be transferred to the old and new trustees. In re Smith, 17 Law J. Rep. (n.s.) Chanc. 415. Defendants'of unsound mind, but not found so by inquisition, on the last day allowed them for putting in their answer, obtained from the Master an order for two months further time to answer, and then ob- tained, by petition at the Rolls, an order for liberty to sue out a commission to assign them a guardian ad litem. An application by the plaintiff, under the 32nd Order of May 1845, to assign them a guardian ad litem, on the ground of default in not putting in their answer, was refused, with costs. Saunders v. Walter, 19 Law J. Rep. (n.s.) Chanc. 409; 2 HaU & Tw. 199. (LL) Pauper. [See (PP) Appeal.] A peeress allowed to sue in formd pauperis. WeU lesleyy. Wellesley, 16 Sim. 1. PRACTICE, IN EQUITY. 587 A party sued as executor will not be allowed to defend in formd pauperis, though, in addition to the usual affidavit, he swears that he has been prevented by injunction from receiving any part of the testator's estate. Semble — A party in contempt for non-payment of costs in the suit may move for leave to defend in formd pauperis. Oldfieldv. Cobbett, 15 Law J. Rep. (n.s.) Chanc. 116; 1 Ph. 613. A defendant in contempt is not precluded by the circumstance of his being sued as executor from obtaining the benefit of the 1 Will. 4. c. 36. s. 15. rule 7; e.c. 11 Beav. 25. The affidavit for leave to sue or defend in formd pauperis, means that the party has not 51. besides &c. available for the prosecution or defence of the suit, and it need not set forth the details of his means and the circumstances which render them unavail- able. Dresser v. Morton, 2 Ph. 286. A party in possession and enjoyment of the pro- perty in question, which was worth 140Z. and 101. a year, dispaupered. Taprell v. Taylor, 9 Beav. 493. A plaintiff was entitled to an annuity of 201. a-year, whtclvTIer brother ordered to be secured to her. She tiled a bill to have it secured, and obtained an order to sue in formd pauperis. The executors of her brother, though they did not admit assets, paid the annuity, but this fact was not stated to the Court, and in consequence the order to sue in formd pau- peris was discharged. Butler v. Gardiner, 1 9 Law J. Rep. (n.s.) Chanc. 473 ; 12 Beav. 525. The legal personal representative of a testator beneficially interested under a will, filed a bill to redeem a mortgage, offering to pay what should be found due ; — Held, that she could not. Fowler v. Davies, 17 Law J. Rep. (n.s.) Chanc. 287 ; 16 Sim. 182. (MM) Pkooeedings in different Courts. [See Injunction — Practice.] [See also Hammond v. Smith, 15 Law J. Rep. (n.s.) Chanc. 40. St. John v. Phelps, 12 Beav. 606.] l^Barrs v. Jackson, 5 Law J. Dig. 644; 1 Ph. 582.] Where one of the Judges of the Court of Chan- cery has made an order on petition for the payment out of court of monies deposited by the committee of management of a railway company under the standing orders of the House of Commons, one of the other Judges of the Court has jurisdiction, upon bill filed, to grant an injunction to restrain the com- mittee from receiving the money. Castendieck v. De Burgh, 15 Law J. Rep. (n.s.) Chanc. 425. Where a motion for the discharge of a prisoner is made before one of the Vice Chancellors in a cause attached to another branch of the court, the Vice Chancellor cannot, unless specially authorized by the Lord Chancellor, make any order though the pri- soner is brought beforehim by habeas corpus — semble. Newton V. Askew, 6 Hare, 321. Where in the vacation the Vice Chancellor heard and refused a motion for the Master of the Rolls, no application for the same purpose was afterwards al- lowed, though on different grounds. Man v. Ricketts, 9 Beav. 4. Where two creditors' suits have been instituted in two different branches of the Court, and a decree has been made in one of them, an application to stay proceedings in the other suit should be made to the Judge in whose court that cause is ; and the Lord Chancellor will not interfere to authorize it to be made to the Judge from whom the decree in the other suit was obtained. White v. Johnson, 17 Law J. Rep. (n.s.) Chanc. 427. Where a cause had been transferred from one branch of the court to another, the latter will not question the correctness of the exercise of judicial authority by the former on a previous application. But where it appears that a plaintiff, on obtaining ex parte an injunction from one branch of the Court, had withheld information which might have induced it to make a different order, the injunction so ob- tained may be dissolved on that ground by another branch of the Court to which the cause has been transferred. Sturgeon v. Hooker, 1 De Gex & S. 484. A bill for relief and a cross bill for discovery were attached to the Vice Chancellor of England's Court. The original bill was transferred to another Vice Chancellor's court, where it was heard, and dismissed, with costs. The Lord Chancellor, on appeal, reversed the decree, directed issues, and reserved the costs. The answer to the cross bill was not put in until after the original hearing, and was not used on the hear- ing of the appeal : — Held, that the Vice Chancellor of England had jurisdiction to dispose of the costs of the cross suit. Watts v. Penny, 17 Sim. 45. Injunction granted by a Vice Chancellor in a Rolls cause cannot be dissolved by the Master of the Rolls. Paredes v. Lizardi, 9 Beav. 490. By an order made at the Rolls, a solicitor was ordered to deliver his bill of costs to A, and the bill was delivered. A motion subsequently made by A, before another branch of the Court of Chancery, that the solicitor should deliver all A's deeds, &c., in his custody, to A, — Held, to be irregular. In re Mills, 17 Law J. Rep. (n.s.) Chanc. 102; 1 De Gex & S. 643. A Vice Chancellor has no jurisdiction to dis- charge for irregularity an order made as of course at the Rolls, though in a suit attached to his own court. Stuart V. Stuart, 17 Sim. 44. Where two suits have been instituted in different branches of the court having relation to the same subject-matter, the Coui;t will, as a general rule, direct the suits to be heard by the Judge in whose branch the first suit was mstituted. Elliott v. Lyne, Gibbard V. Pike, 1 Hall & Tw. 436. (NN) Petition of Riqht. [In re Barm de Bode, 2 Ph. 85.] When a petition of right is referred to the Lord Chancellor, with the indorsement, " Let right be done," if such right, supposing it to exist, be subject to certain rules of proceeding for its ascertainment and enforcement, those rules must still be followed, and the rights of the parties will be bound by all equities to which they are properly subject. Monck- ton V. Attorney General, 2 Mac. & G. 402. Where a petition of right has received the usual royal indorsement, " Let right be done," a commis- sion will not be issued without notice of the appli- cation being given to the Attorney General. In re Robson, 16 Law J. Rep.(N.s.)Chanc. 105; 2Ph. 84. 588 PRACTICE, IN EQUITY. (00) Eeheaking. In a caae in which neither fraud, collusion, nor concealment were complained of by the plaintiff, but where the plaintiff's claim was allowed by the Master twenty years previously" to the ' plaintiff 's application to re-hear an order, and where the plain- tiff, by using reasonable diligence, might have known all the facts and proceedings in the suits of prior date, the Court refused a motion on behalf of the plaintiff to re-hear an order of the Court made nine- teen year? prior to the date of the application, but gave the plaintiff leave to renew his application at the hearing of a supplemental suit recently instituted by him seeking to vary that order. Gwynne v. £(?e«arrfs,l-5LawJ.Rep.(N.s.)Chanc.»4; 9 Beav.22. Service of the order for setting down an appeal is necessary to stop the- enrolment of a decree. Where a decree had been enrolled after the defen- dant had presented a petition of appeal, and had obtained the usual fiat of the Lord Chancellor for the re-hearing, and had left the petition with the registrar to have the order drawn up, and paid the deposit, and had informed the plaintiff's solicitor of all these circumstances, but had not obtained the order from the registrar and served it on the plain- tiff's solicitor, a motion to vacate the enrolment was refused, although the enrolment had taken place a few hours only before notice was served of the order for re-hearing. Groom v. Stinton, 17 Law J. Rep. (N.s.) Chanc. 1; 2 Ph. 384. The Court will not vacate the enrolment of a decree on the ground of surprise, if the party enrol- ling has done nothing to mislead his opponent, and so induce him not to enter a caveat. Lewis v. Hinton, 16 Law J. Eep. (n.s.) Chanc. 268. A person affected by a decree, but not a party to the cause, obtained upon petition as of course an order to rehear the cause : — Held, that the petition was irregular, and it was ordered to be taken off the file, with costs. A person not a party to the cause cannot petition for a rehearing without the special leave of the Court first obtained. Berry v. the Attorney General, 19 Law J. Rep. (n.s.) Chanc. 232; 2 Mac. &G. 16; 1 Hall & Tw. 520. (PP) Appeal. [See Practice, on Appeals to the House of Lor6s.] The rule that there cannot be an appeal for costs alone does not apply where the error of the decision as to costs appears on the face of the decree. Chap- pell V. Purday, 16 Law J. Rep. (n.s.) Chanc. 261; 2 Ph. 227. Mode of proceeding by a party who wishes to appeal, and to carry on the appeal informd pauperis. Clarice v. Wyburn, 17 Law J. Rep. (n.s.) Chanc. 159. Motion to stay proceedings to sell an estate pend- ing appeal refused where applicant himself had not appealed. Rowley v. Adams, 9 Beav. 348. Where the question in a suit was, whether a suffi- cient quantity of foreign stock might be appropriated for the purpose of securing an annuity for the tes- tator's widow during her life, or whether she was entitled to have it secured by an appropriation of Zl per cent consols, and the Court had decided that it ought to be secured in Zl. per cent, consols, and the residuary legatees appealed to the House of Lords, the Court stayed proceedings pending the appeal, upon condition that the shares of the appel- lants in the residuary estate should be liable to make good any loss which might arise in consequence of such stay of proceedings. Prendergast v. Lushington, 17 Law J. Rep. (n.s.) Chanc. 364. It is competent for the plaintiff, on appeal to the Lord Chancellor, to withdraw from the evidence any portion of the answer which may have been read in the court below. Allfrey v. Allfrey, 1 Mac & G. 87; 1 Hall & Tw. 179. The rule which forbids an appeal on the question of costs alone does not preclude the Court, where the appeal embraces other matters also, from vary- ing the decree as to costs, though it affirms it as to such other matters ; but such variation will not protect the appellant from the costs of the appeaL Lewis V. Smith, 1 Mac. & 6. 417. Where, upon an appeal, the Court is of opinion that it is proper to send a case for the opinion of a court of law, the regular course is, to reverse the order of the Court below, and then direct the case ; and thereupon the cause is remitted in its subsequent stages to the Court below. Salkeld v. Johnston, 18 Law J. Rep. (n.s.) Chanc. 493; 1 Mac & G. 242 ; 1 Hall & Tw. 329. A party in whose favour an order has been made by one of the Vice Chancellors under the Joint- Stock Companies Winding-up Acts may enrol such order, so as to prevent the other party appealing to the Lord Chancellor, and there is nothing in either of the acts (the 1 1 & 12 "Vict. c. 45. and the 12 & 1 3 Vict. e. 108.) which affects the rule of practice of the Court of Chancery applicable to such enrolment. In re tlie Direct London and Exeter Rail. Co., 1 Mac. & G. 534; 1 Hall & Tw. 587. (QQ) Jurisdiction op the Court. W & Co. were in the habit of consigning wools for sale to T R, a wool-fector; and bills were drawn by W & Co. upon and accepted by T R against the wools. W & Co. became bankrupt, and such bills were then outstanding to a large amount. T R, with the concurrence of the assignees of W & Co., by deed assigned certain scheduled debts, due to him in respect of such wools, to A & B, in trust to get in the same, and apply the monies in such manner as T R would by law be entitled to apply the same. T R afterwards became bankrupt. A & B, having got in the debts to a large amount, filed their bill against the assignees of W & Co. and of T R, praying that the trusts of the deed of assign- ment might be executed under the direction of the Court. The decree, after ordering payment into court of the funds in the hands of A & B, directed inquiries as to the scheduled debts, and also as to the bills, whether the same were drawn and accepted against the wools generally, or any particular part thereof, and who were the then holders thereof; and the Master was to be at liberty, if he should think fit, to publish advertisements for the persons claiming to be the holders of such bills to come in ?nd make out their claims before him ; and further directions were reserved. In pursuance of the advertisement, the holders of the bills brought in their claims before the Master, who, by his report, found that all the bills were drawn and accepted against the wools PRACTICE, IN EQUITY. 589 generally in the hands of T R. The cause coming back upon the report, it was held, that the bill- holders were not entitled to appear on the further directions; and that the Court of Equity, by its d^ree, could only order the fund to be paid over to the bankrupt's estate found entitled to it, leaving the claims of the bill-holders (if any) to be settled under the administration in bankruptcy. Laycock v. Johnson, 16 Law J. Rep. (n.s.) Chanc. 350 ; 6 Hare, 199. The Judges of the courts of common law being upon the circuit, a prohibition out of the Petty Bag OiBce was applied for and was granted by the Court of Chancery to the Judge of the county court, to prevent him from carrying into execution a judg- ment obtained therein upon a matter stated not to be within its jurisdiction. Wright v. Cattell, 19 Law J. Rep. (n.s.) Chanc 527; IS Beav. 81. Qutere — Whether the Master of the Rolls has jurisdiction to enforce the orders of the Commis- sioners for the Sale of Encumbered Estates in Ire- land. In re Scott ex parte Barron, 12 Beav. 361. The defendant in a suit, instituted by an incor- porated company, appealed from a decree of the Vice Chancellor of England to the Lord Chancellor, who heard the appeal on the merits, and affirmed the decree of the Vice Chancellor of England, with costs. The defendant subsequently ascertained that the Lord Chancellor was a shareholder in the company : and on the ground that he had an interest in the matter in dispute, and that he could not be a Judge in his own cause, the defendant moved the Lord Chancellor that the decree made on the appeal might be discharged ; that the petition of appeal might be restored to the paper of the Lord Chancellor ; and that directions might be given, by issuing a commis- sion, or otherwise, to hear the appeal before the Master of the Rolls, assisted by two of the Judges of the courts of common law at Westminster. The Master of the Rolls, at the request of the Lord Chan- cellor, heard the motion, and considered that the rule of law " that no one ought to be a Judge in his own cause" ought not to be departed from without necessity ; that there might be a necessity to depart from the rule to avoid a denial or failure of justice ; that where the jurisdiction is vested in a sole Judge, or in deputies, whose conclusions are not final till adopted by the sole Judge, it may be difficult to conform to the rule; that the signing a decree by a superior Judge to allow of an appeal to a still higher tribunal was a judicial and not a ministerial act ; that the Lord Chancellor had no authority to issue a com- mission to hear appeals made to him ; that the Lord Chancellor had authority to require the assistance of the Master of the Bolls in judicial matters ; that it did not authorize the Lord Chancellor to depute the authority vested in him by law to reverse the decree of the Vice Chancellor of England ; that if the Lord Chancellor requested the Master of the Rolls with or without assistance to hear an appeal, still the Lord Chancellor alone could make the order; that what- ever his interest may be, a sole Judge in matters within his jurisdiction is not incapacitated from making a decree or order, if a refusal would be a denial or cause a failure of justice ; that, with the consent of the parties interested, the hearing might be before other Judges for and instead of the Lord Chancellor, but the decree or order, as it must be enrolled upon the Lord Chancellor's signature, would not be entirely free from objection ; that if no court of appeal existed, it would be the duty of the Lord Chancellor, or other sole Judge, though interested, to hear a cause on the merits, if there was no other way of preventing a failure of justice ; that the decree or order which the Lord Chancellor or other sole Judge, though interested, might make in his discretion, would not be void for incapacity, and ought not to be treated as a nullity ; that it was the duty of the Lord Chancellor to enable the defendant to enrol the decree made on the appeal, and also the order to be made on this motion, and the Master of the Rolls advised the Lord Chancellor that the present motion ought to be dismissed, with costs. Grand Junction Canal Co. v. Dimes, 18 Law J. Rep. (n.s.) Chanc. 365; 12 Beav. 63. The injunction having been granted, and made perpetual on the hearing of the cause, to restrain the defendant from doing any act to impede the naviga- tion of the Grand Junction Canal, the defendant appealed from the order to the Lord Chancellor, who continued the injunction. The defendant then ap- plied to the Lord Chancellor, by motion, that that decree might be annulled, on the ground of his Lord- ship being a shareholder in the company, and there- fore incompetent to decide the case : — Held, upon motion to commit for breach of the injunction, that the Vice Chancellor had no power to alter or dis- charge an order made by the Lord Chancellor, but that such order must be taken, as it appeared to be, without reference to the power of his Lordship to make such an order. Held, also, that the defendant, by employing a clerk to take the number of the barges that passed on the canal, and to inform the bargemen that they were trespassers, had not thereby committed a breach of the injunction ; but that his having brought actions against the company in respect of such barges having peissed, was contrary to the tenour of the decree, and in that respect an injunction was granted to restrain the actions. Grand Junction Canal Co. v. Dimes, 18 Law J. Rep. (n.s.) Chanc. 419; 17 Sim. 38. By a decree of the Vice Chancellor of England, made in a suit by an incorporated company against the defendant, claiming an interest in lands taken by the company, a perpetual injunction was granted; and this decree was affirmed, on appeal, by the Lord Chancellor. A motion, by the defendant, that the order for the injunction might be discharged, or in the alternative, that the bill might be taken oif the file, on the ground that the Lord Chancellor was a shareholder in the company, was refused, with costs. Grand Junction Canal Co. v. Dimes, 19 Law J. Rep. (n.s.) Chanc, 345 ; 2 Mac, & G. 285 ; 2 Hall & Tw, 92 . (RR) CaEDiTOE's Claim. A covenanted with a person to pay 5001. for the benefit of J and B, and afterwards died. In order to obtain payment of that sum a suit was instituted by J and R against the devisees of the real estate of A, and against D, who was the personal representative of the covenantee, and who had also procured a grant of letters of administration to the eflFects of A, limited for the purposes of this suit. The objection, that there was not a sufficient representation to the estate of A was held good : the Court being of opinion that general letters of administration might have been 590 PRACTICE, IN EQUITY. procured by the plaintiffs. Rohimon v. Bell, 17 Law J. Rep. (n.s.) Chanc. 3 ; 1 De Gex & S. 630. In a creditors' suit a claim was carried in before the Master in respect of transactions which occurred as far back as the year 1793. The principal witness in support of the claim was sixty-three years of age, and the circumstances to which he deposed had taken place when he was between thirteen and sixteen years old ; and, upon minute investigation of his evidence, it appeared to contain some variances and inconsistencies which were not explained: — Held, that considering the circumstances and the age of the witness, and the length of time since the event hap- pened, the claim ought to be disallowed. Strother v. Button, 17 Law J. Rep. (n.s.) Chanc. 87. In a creditors' suit for the administration of the assets of an intestate who had joined in a bond as surety, the bond creditor, being aware of the suit, omitted to prove till the time limited by advertise- ment for creditors to come in had expired, a decree on further directions had been made, the adminis- tratrix had admitted assets, and the principal debtor in the bond had become bankrupt: — Held, that he might still be let in on terms, the fund remaining undistributed. An admission of assets by an administratrix em- bodied in an order made on a petition in the cause, is qualified by a declaration in a subsequent order. Arrangement of priorities between simple contract creditors coming in within the time limited by the advertisements and bond creditors coming in subse- quently. Brown v. Lake, ] De Gex & S. 144'. (SS) Jurisdiction and Duties of the Masters. Attendance of Masters at the public office discon- tinued by the 10 & 11 Vict. c. 97 ; 25 Law J. Stat. 268. A Master in Chancery may distribute the business of his office between his clerks in such manner as he may tbmk proper; but not so as to defeat the inten- tions of the legislature, in requiring certain qualifica- tion for the clerk to whom the performance of par- ticular duties is entrusted. In re Whiting, 15 Law J. Rep. (n.s.) Chanc. 242; 1 Ph. 650. Under a decree to take an account of the testator's debts and to compute interest, the Master cannot allow compensation to a party for unliquidated da- mages on a breach of covenant ; but the Court will on application direct the claim to be investigated. Cox V. King, 9 Beav. 530. The Master has a discretion to give the conduct of a sale under a decree to other persons instead of the plaintiff, for the benefit of the parties interested. Therefore, where a plaintiff, not being guilty of any default or misconduct, obtained a decree for the sale of lands vested in trustees for sale, with liberty for himself to bid, and the Master gave the conduct of the sale to the trustees instead of the plaintiff, it was held, on motion by the plaintiff, that the Master had a discretion to confide the conduct of the sale to other persons besides the plaintiff, where such course would be most beneficial to the parties interested in the proceeds, and it being shewn that considerable expense would in the present case be thereby saved, the Court refused to disturb the Master's decision. Bixon V. Pyner, 19 Law J. Rep. (n.s.) Chanc. 402 ; 7 Hare, 331. The Masters are not themselves actors in applying the General Order of the 23rd of April 1796 against defaulting receivers ; and the Court will not open accounts against such receivers for the purpose of depriving them of their poundage and the costa^f passing their accounts, when the parties beneficially interested have not raised any objection to the allow- ance of such poundage and costs before the Master. Ward V. Swift, 8 Hare, 139. (TT) Preliminary Inqulries. A testator died seised of a moiety of a plantation in Jamaica. A and B, the owners of the other moiety, granted a lease of it to the trustees and exe- cutors of the testator's will. He died before the lease expired. After his death, certain persons resident in Jamaica were appointed receivers and managers of the testator's estate in a suit in this country for the execution of the trusts of the will; and a merchant in London was appointed consignee and receiver of the produce of the estates. The managers and re- ceivers took possession of the entirety of the planta- tion and shipped the produce to the consignee, but did not pay A and B any rent. A and B, though not parties to the suit, petitioned in it to be paid the arrears of rent due to them, out of the funds in the cause which had arisen from the balances paid in by the consignee. The Court directed a preliminary inquiry with a view to granting the prayer of the petition. Neati v. Pink, 15 Sim. 450. What evidence is sufficient to justify the Court in directing the usual preliminary inquiries as to parties. Under what circumstances the Court will hear a cause on the merits without previously directing such preliminary inquiries. Miller v. Priddon, 1 Mac. & G. 687. (UU) Service of Papers. [Murray v. Vibart, 5 Law J. Dig. 650; 1 Ph. 521.] Service on absent defendant. Gibson v. Ingo, 2 Ph. 402. Under the 28th of the New Orders, extending the time for service of a copy of the bill, it is not neces- sary to serve on the defendant a copy of the order extending the time. Teuton v. Clayton, 15 Law J. Rep. (n.s.) Chana 141. Order made for service of process of the Court on the defendant's solicitor, the defendant having ab- sconded, and not having been heard of during two years and upwards last past. Wright v. King, 15 Law J. Rep. (n.s.) Chanc. 178 ; 9 Beav. 161. The order for the serjeant>at-arms may be served on the London agent of a solicitor. Thomeycrqft v. Crockett, 15 Law J. Rep. (n.s.) Chanc. 344. Where all parties in a suit appeared by one soli- citor, it was held sufficient to serve him with one copy only of an order nisi confirming the Master's report, allowing certain parties to be purchasers of property sold in the suit. Gervis v. Gervis, 15 Law J. Rep. (n.s.) Chanc. 32. An order for leave to serve a party abroad is not irregular because the affidavit on which it is ob- tained states only the place of the party's residence, without other circumstances to warrant the order. Blenkinsopp v. Blenkinsopp, 2 Ph. 1. A defendant appeared by his six clerk, and de- scribed himself as resident at C. After the abolition of the six clerks, he stated no address for service, as PRACTICE, IN EQUITY. 591 required by the 29th Order of May 1842, and went to America. An application that service of proceed- ings at C should be deemed good service was refused. Hughes V. Wheeler, 1 1 Beav. 178. Where a defendant, who had been personally served with a, subpcena to appear and answer, had taken no step in the suit except serving the plaintiff with a notice of intention to change his solicitors, and the latter had some correspondence with the solici- tors of the plaintiff on the proceedings, but refused to give the address of the defendant or accept service for him, the Court gave leave to serve a copy of a traversing note upon such new solicitors. WalUs v. Darly, 18 Law J. Rep. (n.s.) Chanc. 216 ; 6 Hare, 618. Where a defendant has entered a special appear- ance, it is not necessary to enter a memorandum of service of the copy bill. Attorney General v. the Donning ton Hospital, 12 Beav. 551. An appearance was entered for the defendant, and a traversing note filed. An order was made for ser- vice of it at his last place of residence. Horlock v. Wilson, 12 Beav. 545. Motion to dispense with service of a copy of a de- cree, taken pro confesso, and all other proceedings in the suit, upon a defendant who had never appeared, refused. Vaughan v. Rogers, 11 Beav. 165. It is flot compulsory upon a plaintiff, in serving a copy of the bill under the 23rd Order of August 184], to omit the interrogatory part of such bill. Mason v. Brest, 18 Law J. Rep. (n.s.) Chanc. 105 ; 16 Sim. 429. Where an appearance has been entered by the plaintiff for defendants who are within the jurisdic- tion, but have not put in any answer, and the plain- tiff has filed a traversing note, the Court has juris- diction to order a copy of the traversing note to be served upon the defendants personally, although the case is not provided for by the General Orders. Moss T. Buckley, 17 Law J. Rep. (n.s.) Chanc. 414; 2 De Gex & S. 359. A bill having been filed by a shareholder in an Irish railway, on behalf of himself and all other shareholders, except the defendants, to restrain the improper payment by the defendants of the monies of the railway company, — Held, that, notwithstand- ing one only of the defendants was permanently resident in England, and all the others in Ireland, and the books and papers of the company were in Ireland, an order of the Court, directing service of a subpoena to appear and answer the plaintiff's bill on the railway company in Ireland, was valid and proper. Lewis v. Baldiiiin, 17 Law J. Rep. (n.s.) Chanc. 377; 11 Beav. 153. A copy of the subpoena to appear and answer the bill was inclosed in a letter from the plaintiff's solicitor to the defendant. The defendant, by a letter in answer, acknowledged the receipt of the letter written to him and the subpcena, and stated that he would attend to it : — Held, that the defen- dant had not been properly served. Gaiheroole v. Wilkinson, 17 Law J. Rep. (n.s.) Chanc. 101; 1 De Gex&S. 681. Quare — Whether in a suit not concerning lands, stocks, or shares within the meaning of the 2 Will. 4. c. 33. and 4 & 5 Will. 4. c. 82. the Court can by those statutes, or the 33rd Order of May 1845, order service of a letter missive on a defen- dant out of the jurisdiction. Anonymous, 18 Law J . Rep. (n.s.) Chanc. 229. Service of an order directing a defendant to trans- fer a sum of money into court before a specified day, ordered to be made on his solicitor in the cause, upon an affidavit of Ineffectual attempts to serve, and inquiries for defendant at his residence and of his solicitor, and of other facts shewing that defen- dant w£tB keeping out of the way to avoid service, and on an affidavit of the witness's belief to that effect, and of his inability to serve defendant within the time specified. Skegg v. Simpson, 2 De Gex & S. 454. , Order refused for ser-vice of a copy of the bill, under the 23rd Order of the 26th of August 1841, upon a defendant in Ireland. Lorton v. Kingston, 2Mac.&G. 139. (VV) Delay. A plaintiff was required to account for the delay of nineteen years in filing his bill, where the circum- stances of the parties had changed by deaths ; and the foundation of the suit being a legal demand, the Court after such delay declined to act, unless the demand were established in an action. Blair v. Ormond, 1 De Gex &. S. 428. (WW) Tkaversins Note. [See (UU) Service of Papers.] The plaintiff having served some of the defen- dants, residing out of the jurisdiction, under the 4 & 5 Will. 4. c. 82, and entered an appearance for them, and filed a traversing note under the 52nd Order of May 1845, moved, under the 56th Order of May 1845, that a copy of the traversing note might be served on them. Motion refused. Anderson v. Slather, 16 Law J. Rep, (n.s.) Chanc. 152. Where the defendant has not taken any step in the cause, either personally or by solicitor, so that the mode of service prescribed by the 56th Order of May 1845 is not applicable to the case, the plaintiff may, by leave of the Court, serve the defendant personally with a copy of a traversing note. Laurie V. Bum, 17 Law J. Rep. (n.s.) Chanc. 384 ; 6 Hare, 308. The time for answering expired on the 23rd of January. The plaintiff filed a traversing note on the 3rd of February. The answer was engrossed on the Sth of February. Motion to take the traversing note off the file, granted. Towne v. Bonnin, 16 Law J. Rep. (n.s.) Chanc. 182 ;■ 1 De Gex & S. 128. (XX) Wkits of Fi. Fa. Where a fi. fa., issued under the General Orders of May 1839, has failed to satisfy the de- mand, another writ may issue into another county. Spencer v. Allen, 2 Ph. 215. (YY) Ikbegulaeity. A defendant, being in contempt for want of an answer, filed a demurrer and answer, and the plain- tiff took an office copy: — Held, that the filing the demurrer and answer being irregular they ought to be taken off the file with costs, and that the taking an office copy was no waiver of the irregularity, I'he Attorney General v. Shield, 18 Law J. Rep. (n.s.) Chanc. 176; 11 Beav. 441. 592 PRACTICE, IN EQUITY— PRACTICE, IN THE HOUSE OF LORDS. The legal representatives of the survivor of two trustees, who had been appointed by the Court, and in whom the legal estate in real and personal estate was vested, were served with a copy of a bill of revivor, which prayed that they might be bound by the proceedings : they gave notice of their intention not to appear, as they considered the proceedings irregular, on the ground that they ought to have been served with a subptena ; but they allowed the pro- ceedings in the causes to go on. Various orders were made, for the appointment of new trustees, maintenance, &c., and finally, for the division of the funds; and also for the delivery to the new trustees of the title deeds of the real estate, which had been brought into court by the original trustees : — Held, that the trustees, with notice, having permitted the parties to proceed, and obtain orders, without apply- ing to the Court for leave to be heard, could not subsequently be heard to say that no valid order had been made against them. Held, also, that they could not be prejudiced by the order to deliver the deeds out of court, as they were never in their hands; and the petition was dismissed, with costs. Doyle v. Doyle, 19 Law J. Rep. (n.s.) Chanc. 246; 12 Beav. 471. (ZZ) Attachment. In 1838 the usual four day order was made for the defendant to pay money into court, and was duly served in 1839, shortly after which the defen- dant became bankrupt. In October 1845, the fiat was annulled, and in July 1846, the defendant was arrested under an attachment for disobedience to the order of 1838. The attachment was discharged for irregularity, with costs, on the ground that no writ of execution of the order had been served pur- suant to the practice existing before the Orders of August 1841, and that the order did not contain the indorsement required by the 12th Order of August 1841. Semble — the plaintiff ought to have applied to the Court for a new order. Where a party in custody is discharged on the ground of the attachment being irregular, the Court will not, in general, make it a condition of his dis- charge that he shall bring no action ; but will restrain him if he subsequently bring an action for false im- prisonment without leave. Morison v. Morison, 15 Law J. Rep. (n.s.) Chanc. 439. The plaintiff having been arrested under writs of attachment out of the Court of Chancery, for non- payment of costs of less amount than 20^. each, was afterwards ordered to be discharged from custody by one of the Judges of the Court of Exchequer ; that order was afterwards discharged by that Court, but the Court declined to re-commit the plaintiff, for want of jurisdiction. Under an order of the Court of Chancery, new writs were, on the application of the defendant, ordered to be issued in the place of the former writs ; but prior to the issumg thereof, the defendant obtained a vesting order against the plaintiff from the Insolvent Debtors Court, but the plaintiff refused to file either a schedule or a list of creditors: — Held, that the obtaining the vesting order under the circumstances was no ground for discharging the plaintiff from custody under the new writs. Wenham v. Bowman, 17 Law J. Rep. (n.s.) Chanc. 479; 11 Beav. 138. (AAA) Allowance of Interest. After the death of one who had covenanted to pay an annuity, a suit was instituted for the admin- istration of his assets, pending which the annuity became in arrear. The Court refused to allow in- terest on the arrears. Jenkins v. Briant, 16 Sim. 272. PRACTICE, ON APPEALS TO THE HOUSE OF LORDS. To sustain a bill of review proceeding on facts discovered subsequent to the decree complained of, it must be shewn that leave of the Court to file it was regularly obtained. To sustain a bill of review for error apparent on the decree complained of, it is not enough that it contains allegations'that the decree is erroneous, but error must be shewn on the face of it. Tommey v. White, 1 H.L. Cas. 160. The register of protests for non-acceptance and non-payment of bills of exchange and promissory notes, established by the Scotch Acts of 1681 and 1696, and the 12 Geo. 3. c. 72. and the 23 Geo. 3. c. 18, is a public document, to which every body has a right of access, and the publication of which in a printed paper does not constitute » libellous publication. A person whose name was upon this register applied to the Court of Session for an interim inter- dict to prevent, so far as his own name was con- cerned, the publication of a copy of the register. The Court decreed for the application : — Held, by the Lords, reversing that decree, that the interdict ought not to have been granted, and also that the costs in the court below should be given. An interdict, though in form ad interim only, must be treated as a final judgment, and may be the subject of appeal to this House. Fleming v. Newton, 1 H.L. Cas. 363. An insolvent debtor has not such an interest in property assigned under the Insolvent Debtors Acts, as to entitle him to enter into any litigation respecting it. The circumstance that a person has been made a party to a suit in the court below, if improperly so made, will not entitle him to appeal to this House against a decree made in that suit. W R was the owner in fee of certain estates in Ireland, which, on his marriage with E, he charged with an annuity by way of jointure. W R had issue a son, W H R, and died. For some years the annuity fell into arrear. The widow (under the terms of the settlement) entered into possession of the estates, and received the rents. W H R became insolvent, and the assignments usual under an in- solvency were executed. W H R afterwards mortgaged to B his interest in the estates, with- out giving notice to the mortgagee of his previous insolvency. He gave, as further security, a bond and warrant of attorney, it being thereby provided that B, on redemption of the mortgage, should reconvey the lands, and sign satisfaction on any judgment which might have been entered up on the warrant of attorney. The mortgage was duly regis- tered, and therefore, under the Irish Acts, took priority over the assignments, which had not been PRACTICE, IN THE ECCLESIASTICAL COURTS— PREBENDARY. 593 registered. A bill for foreclosure or redemption was filed by B, the mortgagee, who made the jointress, the insolvent, and the assignees, parties thereto. The Court decreed the jointure to be the first charge on the estates, and the mortgage to come next, and directed accounts to be ta}cen accordingly. The assignees did not appeal against this decree. The insolvent presented an appeal against it : — Held, that he ought not to have been made a party to the suit, and therefore had no title to appeal against the decree. An objection to the competency of an appeal ought to have been presented to the Appeal Commit- tee, but was not noticed till the case came on for hearing at the bar of this House : the objection was in its nature fatal.'. The House, therefore, dismissed the appeal; but, because the objection had not been taken till so late a period, dismissed it, without costs. Rochfort V. Battersby, 2 H.L. Cas. 388. Semble — that a decree appealed from, but not adjudicated on further than the dismissing the appeal generally, may be included in a subsequent appeal. Semble, also, that decrees and orders which have not been enrolled, may, after any length of time, on being enrolled, be brought under appeal with a re- cent order made in the same cause, and duly enrolled. A judgment of the House of Lords is conclusive, and cannot be reversed or corrected, except by act of parliament. Tommey v. White, 3 H.L. Cas. 49. chants sustained, and the report sent back to be amended. The Alfred,^ Rob. 232. PRACTICE, IN THE ECCLESIASTICAL ' COURTS. [See Will, Probate.] A Judge having acted ad instantiam partis, and not ex mero motu, cannot be cited to answer to an appeal. The admission of proctors to practise is not a matter of arbitrary discretion in a Judge. An appeal fi:om the admission of proctors is not perempted by the party objecting thereto not having appealed on the simple fact of their admis- sion; enrolment and registration of names are a part of the admission, which is not complete with- out them. A plurality of persons joined in one citation is irregular ; but an objection thereto after issue joined is not fatal : if taken before, it would probably be sustained. Fell v. Law, 1 Robert. 726. The conclusion of a cause rescinded after publica- tion, to allow a party, taken by surprise, to plead and prove an exhibit to be in the handwriting of an adverse party, one of whose witnesses could not depose thereto on cross-examination. Quait f. Manby, 1 Robert. 752. PRACTICE, IN THE ADMIRALTY COURT. Where witnesses are examined vivi voce in the Court of Admiralty, under the statute 3 & 4 Vict. c. 65. s. 17, the examination is to be conducted on the same system as is adopted at Nisi Prius, viz. by examination in chief by counsel for the plaintiff, and cross-examination by the counsel for the defence. The Glory, 3 Rob. 187. Objection to the report of the registrar and mer- DiGEST, 1845—1850. PRACTICE, IN CRIMINAL CASES. [See WiTHESS,,Examination.] Counsel will be heard in support of the conviction, on a Crown case reserved, though no one appears on behalf of the prisoner. A question raised in the court below in arrest of judgment, is a question arising "on the trial," and properly reserved under the 10 & 11 Vict. c. 78. A count for receiving stolen goods in a different county from that in which the trial takes place, coupled with other counts for the larceny, under the II & 12 Vict. c. 46, must, by distinct and express averments, shew upon the face of it jurisdiction within the 7 & 8 Geo. 4. c. 29. s. 56. J M and two others were charged in several counts of an indictment with sheep-stealing, and counts were also added for receiving under the 11 & 12 Vict. c. 46. The trial took place at the Sessions for the county of Dorset, and J M was convicted upon one of the latter counts, which charged him with feloniously receiving, "at the parish of T, in the county of Somerset, one wether sheep, &c. (being the same property as is mentioned in the fifth count of this indictment), of the cattle, goods, &c." : — Held, bad, in arrest of judgment, as not shewing on the face of it jurisdiction to try the offence under the 7 & 8 Geo. 4. c. 29. s. 56, although the fifth count, on which the other two prisoners were convicted,"charged them with the sheep-stealing at the parish of S, in the county of Dorset. Regina v. Martin, 18 Law J. Rep. (n.s.) M.C. 137; 1 Den. C.C. 398; 2 Car. & K. 950. Where the clerk of the peace executed the oflSce by deputy clerks, one of whom had acted as such for above forty years, and signed a certificate of former conviction: — Held, sufficient proof of the conviction and sentence, under 5 Geo. 4. c. 84. s. 24. Regina v. Jones, 2 Car. & K. 524. PRACTICE, IN THE PRIVY COUNCIL. [See Pbivy Council.] PREBENDARY. The 28 Hen. 8. c. U. s. 3, gives the " tithes, fruits, oblations, obventions, emoluments, commodities, ad- vantages, rents, and all other whatsoever revenues, casualties, or profits, certain and uncertain, affering, or belonging to any" dignity, prebend, or benefice therein mentioned, which shall accrue between the occurrence of a vacancy and a new appointment, to the appointee. The 5 & 6 Will. 4. c. 30. directs the profits of dignities or benefices, without cure of souls, becoming vacant during the existence of a certain ecclesiastical cqmmission, to be paid to the treasurer of Queen Anne's Bounty, who is to keep an account of the receipts and expenses, and retain the balance, until he shall be otherwise ordered " by competent authority." By a subsequent statute the Crown is declared entitled to appoint, notwithstanding the existence of the commission in question, three persons 4 G 59t PREROGATIVE— PRINCIPAL AND AGENT. to certain prebends therein named. One of these appointees, having duly demanded from the treasurer of Queen Anne's Bounty the profits received by him during the vacancy, brought an action for money had and received, to recover them. A special verdict (on a verdict found in his favour) , declared these to be " the net profits of the prebend :" — ^Held, that a j udg- ment for the plaintiff given on this verdict could not be sustained, because it did not distinguish the sources from which these profits might arise, nor shew whe- ther they were derived from the corpus of the prebend to which he was individually entitled, or from sums due to him in respect of his share of the funds of the corporationVggregate, of which, as prebend, he was a member. Repton v. Hodgson, 3 H.L. Cas. 72. PREROGATIVE. An action of trespass quare clausum fregit, between subject and subject, having been brought in the Common Pleas, the defendant having pleaded justi- fying as servant of Her Majesty, and the plaintiff having traversed the title of the Crown, the cause was (after notice to and hearing the plaintiff) removed into the Oifice of Pleas of this court, by a rule abso- lute in the first instance, on the statement of the At- torney General, that the interest of the Crown came in question in the cause. A tivo days' notice of the motion is suflBcient. The jittorney General \. Hallett, 15 Law J. Rep. (n.s.) Exch. 246 ; 15 Mee. & W. 97 ; 3 Dowl. & L. P.C. 685. Origin of the jurisdiction of the Church, in cases of testament and intestacy, not distinctly traceable. The Church never had, at any time, in this country by law, any beneficial interest in the property of in- testates, but merely the right or duty of jurisdiction and administration, and the right of possession for the latter purposes. The right to goods belonging to persons dying in- testate, without leaving husband or widow, and with- out kindred, as bona vacantia, has, from the earliest times, been vested in the King, in right of his Crown. In 1.377, Edward III., by charter, granted to his son, John of Gaunt, Duke of Lancaster, the county of Lancaster, as a county palatine, within his duchy of Lancaster, "et quascumque alise libertates et jura regalia ad Comitem Palatinum pertinentia, adeo integr6 et liberS sicut Comes Cestrise infra eundem Comitatum Cestriae dinoscitur obtinere." By sub- sequent charters and acts of parliament, the duchy, and such rights as were originally granted with it, became vested in Her Majesty, by a title distinct froni her Crown : — Held, that the words of the charter carried the right to bona vacantia, as jura regalia, to the count palatine ; and that the Queen, being en- titled to the duchy of Lancaster, separate from the Crown of England, was entitled to the goods of a bastard intestate, dying without next-of-kin, in right of her duchy of Lancaster, and administration granted to the nominee of Her Majesty, in right of her duchy. Held also, that it was not necessary for the Duke of Lancaster to shew an enjoyment of such right, by the Earl of Chester, as, in the absence of evidence to the contrary, the Court would presume the enjoyment of the right, by the Earl of Chester. DyUe v. Walford, 5 Moore, P.C. iSi. PRESCRIPTION. [See Tithe.] Where a defendant pleads an enjoyment of an easement as of right for thirty years, under the 2 & 3 Will. 4. c. 71, and the plaintiff relies on the existence of a life estate, or any of the other portions of time which, by section 7, are to be excluded from the computation of the thirty years, not being inconsis- tent with the actual fact of enjoyment, he is bound, under the 5th section of the above statute, to plead such life estate, &c. specially. Piie v. Mumford, 1 7 Law J. Rep. (n.s.) Q.B. 138 ; 5Dowl. & L. P.C. 414; 11 Q.B. Rep. 666. Case by reversioner for digging and widening a channel. Plea, that H and previous occupiers of G Mill as such occupiers had for twenty years enjoyed a watercourse, and had for twenty years as such oc- cupiers of right scoured and widened the channel as often as was required. Replication, traversing the enjoyment of the watercourse and the scouring and widening of right for twenty years. On special demurrer, the replication was held good, the quasi prescription in the plea not being severable. Semble — that the plea would have been bad if it had stated the right to scour and widen, without shewing for what 25urpose it was enjoyed. Peter v. Daiiiel, 17 Law J. Rep. (n.s.) C.P. 177 ; 5 Dowl.& L. P.C. 501; 5 Com. B. Rep. 568. Under the statute 2 & 3 Will. 4. c. 71. s. 4. a party is not entitled of right to the access and use of light over contiguous land, unless his enjoyment thereof has been for the full period of twenty years in the character of an easement, distinct from the enjoy- ment of the land itself. The access and use of light is in this respect placed upon the same footing as the positive easements provided for in the 2nd section of the same statute. Harbidge v. Warwiclr, 18 Law J. Rep. (n.s.) Exch. 245 ; 3 Exch. Rep. 552. PRESUMPTIONS. [See Inclosure.] To raise the presumption of death of a cestui que vie, there should be evidence of his not having been heard of by persons who would naturally have heard of him if alive, or that search has been ineffectually made to find him. An entry in a parish book, kept at the church, of a burial in the workhouse cemetery, held evidence of the death of the person named, though the entry was not made from the personal knowledge of the in- cumbent. Doe A. France v. Andrews, 15 Q.B. Rep. 756. PRINCIPAL AND AGENT. [See Anhuity— Ship and Shipping.] (A) Powers, Duties and Liabilities or Agent. (B) Contracts by Agent. PRINCIPAL AND AGENT. 595 (A) Powers, Duties and Liabilities op Agent. By the deed of co-partnership of a joint-stock company, certain forms were to be observed by any transferee of shares, before he could become a mem- ber of the company. A purchased shares, and exe- cuted some of the acts required to constitute him a member of the company ; but left one of these acts unexecuted : — Held, that the execution of these aqts was a duty cast on the purchaser for the benefit of the company, and that his non-execution of one of them did not enable him, as respected the company, to retire from his contract. A joint-stock marine insurance company had de- clared dividends, which, as it afterwards appeared, were not warranted by the real condition of the com- pany. The law agent of the company, who was also a member of it, when applied to for information, mentioned these dividends as proofs of the flourish- ing state of the company. The person to whom he so mentioned them became afterwards a purchaser of shares : — Held, that he could not relieve himself from his contract on account of these representations. Held, also, that the law agent of the company was not its agent to bind it in such matters; nor could he bind it as a partner, for a joint-stock company is not, like an ordinary partnership, bound by the acts of any individual member of it. If the directors of a company agree to publish felse statements of the affairs of the company, under such circumstances as shew a fraudulent intent to deceive, they are not only civilly liable to those whom they have deceived and injured, but may be criminally prosecuted and punished. Burnes v. Pmnell, 2 H.L. Cas. 497. A Review was established by an association of shareholders, who passed certain written resolutions for its management and regulation. A committee of shareholders was appointed " to assist the editor in promoting the prosperity and circulation of the Re- view, and to obtain, as far as possible without expense, literary contributions, and to aid the editor as he might require in all matters connected with his de- partment": Held, that this resolution did not em- power one of the committee to contract with any person for the supply of literary articles, or to bind the shareholders to pay for them when supplied and inserted in the Review. Heraud r. Leaf, 17 Law J. Eep. (N.S.) C.P. 57; 5 Com. B. Rep. 157. The defendant ordered the plaintiff, a stock- broker, to purchase for him twenty shares in a certain railway at a certain price, which the plaintiff did accordingly. The defendant paid the amount, with commission, and the transfer was made. Before the sale a call had been made, but was not then due, and no mention was made of it. Immediately after the sale the vendor paid up the call though not then due, which it was necessary under the 8 & 9 Vict. u. 16. 8. 6. to do in order to make the transfer. The plaintiff, pursuant to a rule of the Stock Exchange, paid the amount of the call over to the vendor : — Held, that the defendant in employing a stock- broker on the Stock Exchange must be taken to have contemplated that which was the rule of the Stock Exchange ; and that the plaintiff was entitled to recover from the defendant the amount paid over in an action for money paid to the defendant's use. Bat/ley v. Wilkim, 18 Law J. Rep. (M.S.) C.P. 273 ; 7 Com. B. Rep. 886. The plaintiffs, who were London merchants, sent to the defendants, who were commission agents in China, certain goods, to be sold by the latter on the terms contained in the following letter: — " If tea is not obtainable at our limits, you may invest one half of the whole proceeds in silk, at prices not exceeding, &c. If silk is obtainable much below these prices, you may substitute it in part for tea, even if the latter is to be had within our limits, at your discre- tion": — Held, that on looking at the whole of the letter the words " you may invest" were to be con- strued as directory, and not as giving the defendants a discretionary power. The declaration stated, that in consideration that the plaintiffs at London would consign to the defen- dants at China goods for sale and receipt of the pro- ceeds by the defendants for the plaintiffs for reward, the defendants promised to invest and remit the pro- ceeds to the plaintiffs within a reasonable time after receiving the said proceeds, by the purchase, to the amount of 500?., of any other article than tea and silk, if the defendants thought fit ; that if within such reasonable time tea could not be bought by the defen- dants, and silk could, within certain prices agreed upon, and if the defendants did not purchase any other article than tea and silk, then they would purchase silk to the extent of half the proceeds, and consign it to the plaintiffs. That the defendants received the goods, sold them, and received the pro- ceeds thereof; that while they held them for more than a reasonable time, they did not invest any part of them in any other article than tea or silk Tvithin the prices so agreed on, for more than a reasonable time after they had received the proceeds. Plea, that after the defendants received the proceeds they could not have bought silk within the prices agreed upon : — Held, that the question raised on this issue was not whether the defendants could have bought silk after they had received the whole proceeds, but whether they could have bought it after they had received a part or parts, for the remittance of which more than a reasonable time had elapsed, such time commencing as soon as a part considerable enough to be remitted was received. Entwistle v. Dent, 18 Law J. Rep. (n.s.) Exch. 138 ; 1 Exch. Rep. 812. Where A had instructed B to order certain goods for him from C, and promised to indemnify him against the consequences of the order, and goods were supplied of a kind not required by A, but with- out negligence on B's part, and were refused by A, but not returned at once to C, C having brought an action against B for the price, under circumstances in which C ought not to have recovered against B, and the fact of such action having been brought to A's knowledge and not defended by him, — Held, by Wilde, C.J. and Maule,J. (dissentiente Cressuiell,J.), that these circumstances gave B an implied autho- rity to compromise the action, exercising the best judgment he could, and that having so compromised the action he was entitled to sue A for money paid to his use. Held, by Cresswell, J., that C having no right of action against B, B was bound to defend the action, and that an authority to compromise an action which might reasonably have been defended, could not be implied. 596 PRINCIPAL AND AGENT. TaJfourd, J. thought there was evidence of an ex- press or implied authority to compromise the action from the above circumstances, coupled with the fact that the defendant, shortly before the compromise, conferred with the plaintiff and his attorney about the action. Pettman v. Keble, 19 Law J. Rep. (n.s.) C.P. 32.5. The plaintiff lent money to C, taking as security an equitable mortgage of copyhold premises, the deed whereof contained a covenant by C to surrender the premises to the use of the plaintiff. A receipt for the mortgage-money was signed by an attorney, who acted for both parties, and on the title-deeds being delivered to the attorney, a schedule of them, with a memorandum acknowledging the receipt of them, and undertaking to return them to C on repayment of the principal and interest, was shortly after the delivery signed by the attorney and delivered to C, but not in the presence of or with the knowledge of the plaintiff. The attorney, with the consent of the plaintiff, retained possession of the deed, and from time to time received and paid the interest to him. The attorney afterwards received from the plaintiff the whole of the principal money, and having appro- priated it to his own use, died insolvent: — Held, first, that the plaintiff was entitled to recover the amount from the representatives of C; secondly, that the receipt of the principal money and the memorandum relating to the title deeds were re- ceivable in evidence for the defendant. Willdnson V. Candlish, 19 Law J. Rep. (n.s.) Exch. 166; 5 Exch. Rep. 91. The plaintiff had placed goods in the warehouse of E & Co. at Huddersfield, for sale; and while they were there, he sold two parcels to the defendant, who resided in London. After the defendant had paid the plaintiff for one parcel, he received a letter from T, clerk to E & Co., inclosing the invoice of the other parcel, and requesting payment, and stating that E & Co. were authorized to receive the money for the plaintiff. The letter purported to be signed by E & Co., per procuration of the plaintiff. The defendant remitted the amount as requested, but T intercepted the letter at the office of E & Co., and appropriated the money. T only had authority from the plaintiff to receive payments over the counter for the goods deposited Held, that the receipt by T was no pay- ment to the plaintiff. Kaye v. Brett, 19 Law J. Rep. (N.s.) Exch. 346; 5 Exch. Rep. 269. An agent who had purchased lands of his principal, and who previously to the contract had entered into a secret negotiation for a re-sale of part of the pro- perty at a profit, declared a trustee for his principal to the extent of that profit. In a suit by principal against agent, involving charges of fraud against the defendant, the latter was held to lie under the burden of disproving several particulars of the plaintiff's case, although the truth of those particulars was not directly proved, but rested oh circumstantial evidence only. Barker v. Harrison, 2 Coll. C.C. 516. (B) Contracts by Agents. In a written contract for the sale of goods, the plaintiff described himself as the agent of other per- sons, whom he named therein. The buyer accepted the goods, and paid for part of them, having at the time notice that the plaintifF was not the agent, but the real principal in the transaction : — Held, that the plaintiff might sue in his own name for the non- acceptance and non-payment of the remainder of the goods. Rayner v. Grote, 16 Law J. Rep. (n.s.) Exch. 79; 15 Mee. & W. 359. In an action on a charter-party, which purported to be made by A B, " owner of the ship Ann," &c., it is not competent to give parol evidence that A B acted not as owner, but as agent for the real owner in making the charter-party. Humble v. Hunter, VJ Law J. Rep. (n.s.) Q.B. 360; 12 Q.B. Rep. 310. There is in general sufficient privity of contract to maintain an action if the party actually making the contract with the defendant was acting for the plain- tiff, and intended at the time to make the contract for him, though the defendant was not aware that the contract was made for the plaintiff. , The name in which the contract is made is primd faeie evidence of the party for whom the contract was made ; but it is not conclusive (except by the custom of trade in the case of bills of exchange). There- fore where two plaintiffs sue on a contract between them and the defendants as bankers, and it appears at the trial that the bank account was opened in the name of one only of the plaintiffs, it is competent for the plaintiffs to prove that the account was opened on behalf of them both ; and it is sufficient to main- tain the action if it is proved that the plaintiff who actually opened the account at the time intended it to be the account of the two, without shewing that the defendants had before the action any notice that he had so intended. It lies on the plaintiff to prove this intention affirmatively; and the fact that the plaintiffs were partners, and that the money paid into the account belonged to the partnership, is not alone sufficient evidence to go to the jury that the contract was intended to be made on behalf of the two. Cooke V. Seeley,l7 Law J. Rep. (n.s.) Exch. 286 ; 2 Exch. Rep. 746. A party who executes an instrument in the name of and expressly as agent for another, cannot be treated as a party to the instrument so as to be sued upon it, unless he be shewn to be the real principal. Semble — that one who contracts as agent for an- other, without in fact having any authority to do so, may, if he acts maid fide, be liable to the party with whom he contracts, in an action on the case for falsely representing himself to have had authority, Jenkins V. Hutchinson, 18 Law J. Rep. (n.s.) Q.B. 274. The plaintiffs carried on business in Manchester under the firm of J P & Co., and at Glasgow under the firm of A S & Co. M & Co. Indian agents, re- siding in England, ordered goods from the plaintiffs for the defendant, a member of the firm of A A & Co. in Bombay. It was arranged at the request of J P & Co. between M & Co. and the plaintiffs, who were then aware that the goods were for the defen- dant, that A S & Co. should draw bills on M & Co. for the amount, which was done accordingly. After the goods were shipped to Bombay, and A A & Co. debited with the bills, and before the bills became due, A A & Co. remitted large sums to M & Co. from Bombay. Before the bills became due, MSrCo. stopped payment, being at that time indebted to A A & Co. in a large balance. The bills having been dishonoured, the plaintiffs brought their action for goods sold and delivered against the defendant: — Held, that M & Co. were the buyers of the goods. PRINCIPAL AND AGENT. 597 That supposing the defendant to have been an un- disclosed principal at the time of the order, the re- mittances to M & Co afterwards constituted a pay- ment which exonerated him, although made before the expiration of the credit, and before the bills fell due, because the plaintiffs in taking M & Co.'s bills, must be understood to have been cognizant of, and parties to, the whole transaction. Held, also, that this defence could be set up under the plea of rion assumpsit. Smyth v. Anderson, 18 Law J. Eep. (n.s.) C.P. 109; 7 Com. B. Rep. 21. The defendant, on the 10th of March 1817, em- ployed the plaintiffs, who were stock and share brokers, to sell for him ten scrip certi6cates for fifty shares each in a projected railway company, and then delivered the certificates to them for that purpose. The plaintiffs, on the 27th of March, sold them to different purchasers, and paid the defendant the proceeds of the sales. The certificates were afterwards discovered to be forged, and the plaintiffs were called upon by the purchasers, on the llth of May, to pay them respectively the value put on them by a resolution of the Stock Exchange com- mittee passed with reference to the forged certificates in that railway company, of which there were seve- ral in the market, and which resolution was come to subsequently to the sales by the plaintiffs. The plaintiffs accordingly paid those sums, which were larger than the sums for which they had sold the certificates. The present action was brought to re- cover the sums so paid by the plaintiffs. The decla- ration contained a special count on an alleged warranty by the defendant that the certificates were genuine, and a count for money paid. The defendant paid into court the amount received by him from the plaintifi^s, with interest : Held, that the plain- tiffs were not entitled to recover. That the first count failed, inasmuch as the law only implies a pro- mise by a principal to indemnify his agent when acting according to his instructions, and no express promise was proved. That the common counts also failed because the sale was void on account of the forgery, and the purchasers were therefore (inde- pendently of Stock Exchange rules) entitled to nothing more from the plaintifis than the sum the purchasers had paid them, and, consequently, that the plaintiff could recover no more from the defen- dant; and that no difference was produced^ by the Stock Exchange resolution, it being made subse- quently to the sale by the plaintiffs, and there being no rule of the Stock Exchange at the time of the sale which required brokers to be bound in respect of their contracts by resolutions to be made on the subject. Westropp v. Solomon, 19 Law J. Eep. (N.S.) C.P. 1 ; 8 Com. B. Eep. 345. If a broker enter into a contract for an undisclosed principal, the latter may sue on such contract in his own name ; and a rule of the Exchange on which the contract was made, which declares that a con- tract made by a broker for an undisclosed prin- cipal shall be regarded as the contract of the broker only, does not controul this right, even although the principal was cognizant of such rule. Humphrey v. Lucas, 2 Car. & K. 152. In 1827, the administratrix of an intestate, who had carried on business at Calcutta, sent out letters of attorney to C & Co., to collect the assets in India. C & Co. collected the assets and remitted the pro- ceeds in 1829 to B & Co., their correspondents in London, with directions to pay the same to the administratrix upon having a proper discharge. The letters of administration being insufficient, B & Co. refused to pay over the money. On a bill filed by the next-of-kin against the administratrix and B& Co., an injunction was obtained restraining the adminis- tratrix from collecting the assets, and B & Co. from paying over the fund. B & Co. by their answer admitted the possession of the fund, and offere(J to pay it upon being indemnified. No further steps were taken in the suit until 1841, when a bill of revivor and supplement was filed; and under an order in the cause, the fund, minus the expenses, was paid into court without prejudice to the ques- tion of interest. Since 1829 the fund had been lying at the bankers of B & Co. mixed up with other monies of the firm : — Held, that B & Co. were merely the agents of C & Co., and no demand having been made by a person competent to give a discharge, B & Co. were not liable to pay interest on the fund in their hands ; and that B & Co. were in no default in not themselves applying to pay the fund into court, there being no personal representa- tive, properly constituted by the Court. Wolfe v. Findlay, 16 Law J. Eep. (n.s.) Chanc. 241; 6 Hare, 66. The plaintiff, who was captain of one of the East India Company's ships, sailed from London to Madras with a cargo, and there purchased from the East India Company certain cotton on his own account, which was taken by him in the company's ship to Canton, and sold there. Upon first arriving at Madras, the plaintiff had reported himself to the Government Board, and had been directed by that board to place himself under the orders of the Marine Board of Madras. The negotiations for the purchase of the cotton were carried on between the plaintiff and the Marine Board, by whom the plaintiff was allowed to ship the cotton free of freight to Canton. The con- tract as to freight was not confirmed by the Govern- ment Board, who had previously stated to the Marine Board that freight was to be paid by the plaintiff: — Held, upon the construction of the different negotiations between the plaintiff and the Marine Board, that the government must abide by the contract entered into by their agents, the Marine Board; and if the latter had exceeded their authority in allowing the plaintiff to take the cotton free of. freight, the plaintiff, who was the innocent purchaser, was not to suffer the loss. Smith v. the East India Company, 17 Law J. Eep. (k.s.) Chanc. 178 ; 16 Sim. 76. A shareholder in an incorporated railway company insti'ucted a stock-broker to sell his shares. The broker agreed with a jobber for the sale of them, but the name of the purchaser -vas not mentioned. The jobber had been instructed to purchase by B (another broker) who, as the jobber knew, was not purchas- ing on his own behalf. B afterwards requested time for completion, his principal not being ready, and the jobber granted the time on B giving his own name as that of the principal. A deed of assign- ment was prepared from the vendor to B, who paid the price to the vendor, and took the . deed of assignment executed by the vendor : — Held, upon a bill filed by the vendor, that B was bound to exe- cute the assignment, to procure himself to be regis- 598 PRINCIPAL AND FACTOR— PRINCIPAL AND SURETY. tered, and to pay the calls made since the execution of the assignment by the vendor, and to indemnify the vendor against future calls : and a decree was made to that effect. IVynne v. Price, 3 De Gex & S. 3)0. PRINCIPAL AND FACTOR. A declaration in assumpsit stated, that in consi- deration that the plaintiffs had consigned to the defendants, as factors, a cargo of wheat, to be sold by them on commission to be paid them by the plaintiffs, the defendants promised to obey the law- ful orders of the plaintiffs to be given by them to the defendants in regard to the sale and disposal of the wheat. Breach, that the defendants sold contrary to orders. Pleas: third, that the defendants were under advance to the plaintiffs in respect of the cargo ; that the defendants gave notice to the plain- tiffs that they required repayment, or that they would sell the wheat and pay themselves ; that the plaintiffs did not repay, and that for the purpose of reimbursing themselves, it was necessary for the defendants to sell the wheat; that they therefore sold the wheat for the best prices that could be ob- tained, and repaid themselves. Fourth, a similar plea, except that the advances were stated to have been made in respect of other consignments, and averring that the defendants had a lien on the wheat in question for such advances. Upon special demurrer to these pleas — held, that there is no principle of law by which, independently of contract, authority is given to a factor (after notice to his principal) to sell at any time for repayment of advances, without reference to its being for the interest of the principal to sell at that time and for that price, and that there was nothing in the plead- ings in this case from which a contract of that nature could be inferred; and that the pleadings, therefore, afforded no answer to the action. Smart v. Sandars, 16 Law J. Rep. (n.s.) C.P. 39 ; 3 Com. B. Rep. 380. A factor for sale cannot sell the goods of his prin- cipal, in the exercise of a sound discretion, contrary to the principal's orders, for the purpose of reimburs- ing himself for advances made to the principal, after the consignment. There is not, in such a case, an authority coupled with an interest which is irrevo- cable; although the advances made subsequently to the consignment might be a good consideration" for an agreement that the original revocable authority to sell should become irrevocable. The declaration (which was in assumpsit) stated that the plaintiffs had consigned a cargo of wheat to the defendants as corn-factors for sale; that the de- fendants promised to obey the lawful orders of the plaintiffs; that the defendants sold a portion of the wheat for 6s. id. per bushel, and that the plaintiffs ordered them not to sell any more for less than 7s. Breach, that the defendants sold for less. Furst plea — That after the consignment, the de- fendants were under advances to the plaintiffs in respect of the consignment; that they gave notice to the plaintiffi to pay the amount, or that they would sell the residue of the cargo to reimburse themselves, that the plaintiff's failed to pay, and that the defen- dants, in the exercise of a sound discretion, for the benefit of the plain tifft, and to reimburse themselves, sold at the best price which could be obtained. Second plea, that the defendants had a lien on the residue of the cargo for advances made after the consignment, and, after notice and default, sold in the exercise of a sound discretion foy the best price. On demurrer, held that these pleas were bad in substance. Smart v. Sandars, 17 Law J. Rep. (n.s.) C.P. 258; 5 Com. B. Rep. 895. A principal intrusted goods to his factors T & Co., who sold them to K. K bought, knowing that T & Co. sold as factors. At the time of the sale T & Co. were indebted to K in an amount beyond the sum agreed to be paid for the goods : — Held, that in an action by the principal against the purchaser of goods from a factor " as factor," the purchaser is not entitled to set off a debt due to him from the factor. Fish v. Kempion, 18 Law J. Rep. (n.s.) C.P. 206; 7 Com. B. Rep. 687. PRINCIPAL AND SURETY. [kSee Devise, Charges — Will, Construction.] To an action against the defendant on his bond for 250Z., the defendant set out on oyer the condi- tion of the bond, which recited that R J had agreed to become tenant to the plaintiffs of a public house; that it was stipulated that he should take from them ale, wine, Stc. to be consumed there; that he should become bound with a surety to pay for the same to the amount of 501. before he should have a fresh supply, as long as he should continue tenant of the plaintiffs; that when he should cease to be their tenant, the surety should be liable to the plaintiffs in such sum, not exceeding 50^., as R J might then owe the plaintiffs for ale, &c. The condition then stated, that if R J should pay the plaintiffs for all ale received from them to an amount not exceeding 601. before he should have a fresh supply,, and when he should become indebted to them in that sum, and if he should pay them for all sums which he should owe them for ale, &c., not exceeding 50/., when he should cease to be tenant, the obligation was to be void. The plaintiffs permitted R J to become in- debted to them in a larger amount than bOl. : — Held, that the defendant was not discharged by reason of the plaintiffs having supplied R J with ale, &c. to an amount exceeding 50i. upon credit, but that, in any event, on default of the principal, the defendant was liable to the extent of SOt Seller v. Jones, 16 Law J. Rep. (n.s.) Exch. 20; 16 Mee. & W. 112. The plaintiff, being a shareholder in a bank- ing co-partnership, became surety for money ad- vanced by the co-partnership to the defendant, who afterwards, by a composition deed, to which the plaintiff and the bank were parties, assigned his property to trustees for the benefit of creditors. By this deed the rights of the creditors against sure- ties were reserved: — Held, that the plaintiff, who had been compelled to pay the debt to the bank, was entitled to recover the amount from the defen- dant. Kearsley v. Cole, 16 Law J. Rep. (n.s.) Exch. 115; 16 Mee. & W. 128. One of two co-sureties to a bond received from the principal a promissory note for the sum secured PRINCIPAL AND SURETY. 599 by the bond. In an action for contribution brought by such surety against his co-surety, — Held, that it was a question of fact for the jury to say, whether the note was given in pursuance of an arrangement between the parties that the defendant should be thereby discharged, or simply as a collateral security from the principal to the plaintiff; in which latter case the defendant would not be discharged. Dane V. Whalley or Walley, 17 Law J. Rep. (n.s.) Exch. 225; 2 Exch. Rep. 198. Debt on bond by the overseers of a parish against the defendants as sureties of an assistant overseer. The condition was that the principal should at all times, so long as he should continue in the office of assistant overseer, pay, &c. By a resolution of the vestry by which he was elected, his salary was to be 8rf. in the pound for some sums collected by him, and id. for other sums, and his appointment was to continue from the 25th of March 1840 till the 2Sth of March 1841. Subsequently, two Justices, by their warrant of the 9th of July 1840, reciting the above resolution, and that his salary had been fixed for the execution of his office until the 25th of March then next, stated, that in pursuance of the statute 59 Geo. 3. c. 12. they appointed him assistant overseer. On the 25th of March 1841, he was re-elected by the vestry at an annual salary of SOf., and was as before re-appointed by the Justices, and continued to be so re-elected and appointed by the vestry and the Justices annually on the same terms until March 1846. On ceasing to hold office in 1846 he was guilty of a default in not paying monies«over to the overseers : — Held, that the sureties were not liable upon the bond. Bamfard v. lies, 18 Law J. Rep. («.s.) M.C. 49; 3 Exch. Rep. 380. The plaintiff became co-surety with K in a bond given to the defendants, the guardians of a union. The bond recited that B had been appointed trea- surer to the union ; and the condition of the bond was, that if B should feithfully discharge the duties of the office of treasurer, by receiving all monies tendered to he paid to the board of guardians, and placing the same to thek credit; by paying out of the monies of the guardians in his hands all orders on him in their behalf; and on being removed from the office, should pay over to the guardians all balances, monies, &c. due to the union, the bond should be void. B was a partner in a banking firm. No money belonging to the defendants was paid to or received by B solely; all payments on behalf of the defendants being made to and cheques drawn upon the firm. The firm became bankrupt, and B was removed from the office of treasurer. The plaintiff was called upon to pay, and did in ignorance of the facts pay the defendants 1542. as the balance of monies due to the defendants from B as treasurer of the union at the time of his removal from the office : — Held, that the plaintiff was entitled to recover back the money so paid, and that K could not be joined as a plaintiff in the action. Mills v. the Guardians of the Alderhury Union, 18 Law J. Rep. (N.s.) Exch. 262; 3 Exch. Rep. 590. A signed a joint and several bill of exchange as surety for a firm, on the faith that B would join as co-surety. B never signed and A was compelled to pay by action. One of the firm died and the rest became bankrupt: Held, first, that the firm could not avail themselves of the bill, and were liable to repay the amount and costs at law and equity. Se- condly, that the claim was not proveable under the bankruptcy, and therefore not barred by the certifi- cate. Thirdly, that the claim of A was sufficient to support a creditors' suit for the administration of the estate of the deceased partner. Rice v. Gordon, 11 Beav. 265. A firm of three partners agreed to make advances to a consignor on certain terms as to commission, and as to a lien on the return proceeds of the shipments. They accepted on the faith of this agreement bills drawn on them by the consignor, and on one of those bills approaching maturity they requested the holders to give them an extension of time, which the latter agreed to do, on having the acceptance of a distinct firm of six, in which the three were also partners. A bill was accordingly drawn by the three, accepted on behalf of the six, and indorsed by the consignor to whose credit it was carried by the holders of the former bill. Afterwards the holders were parties to an arrangement between the consignor and his credi- tors, whereby they released the consignor and the shipments from all liability in respect of the bills: — • Held, that they thereby discharged the firm of six. Ex parte Webster re Acraman, 1 De Gex, 414. The estate of A having been decided to have been charged by way of surety only for securing payment of the mortgage and specialty debts of B, and to be entitled to be recouped the sums paid thereout due from B's estate, it was held, that the personal repre- sentatives of A were not entitled to interest out of the estate of B, on the sums so paid. Lancaster v. Evors, 16 Law J. Rep. (n.s.) Chanc. 308. A having accepted bills for the accommodation of B, who was unable to take them up, agreed to provide for half their amount as they became due, C (a party to the agreement) charging certain property to the extent of l,500i. for the benefit of A by way of secui rity, which property C alleged to be his own, and a security amplysufficient in value above incumbrances. More than half the amount of the bills was paid by A, but the property of C proved to be heavily in- cumbered and insufficient; — Held, in a suit by A against the executors and devisees of C, that the mis- representation as to the value being proved, A was entitled to have so much of the sum of l,500i. and interest as the specific property was insufficient to pay, raised and paid out of C's general estate. Ingram v.'Thorp, 7 Hare, 67. The testiator advanced 1,000J. to W on his bond, in which J joined as surety. W becoming involvedin his affairs, arranged with his creditors to pay lis. in the pound, the testator guaranteeing the payment of the composition. The assets of W would not have been sufficient for payment of the composition if the testator had enforced payment of his bond debt : — Held, upon appeal, that the effect of the transaction was to give time to the principal debtor, as thetestator, after having joined in the compromise, could not have enforced his demand upon the bond to the dis- appointment of the trade creditors, and, consequently, that the surety was discharged. Cross v. Sprigg, 19 Law J. Rep. (n.s.) Chanc. 528 ; 2 Hall & Tw: 233; 2, Mac. & G. 113 ; reversing s. c. 18 Law J. Rep. (n.s.) Chanc. 204; 6 Hare, 55'A F & Co., bankers, were creditors of the firm of 600 PRINCIPAL AND SURETY— PRISONER. H, B & Co., which consisted of M A H, and J B. S H, who was a married woman, having property settled for her separate use, joined as surety with J B in several promissory notes and bills of exchange to F & Co., to secure the debt due to them from the firm of H, B & Co. The firm of H, B & Co., being greatly in debt to F & Co., dissolved partnership. Articles of agreement were entered into between M A H and J B and F & Co., which provided that J B should carry on the business alone; that J B should pay the debt due to F & Co. by monthly in- stalments. F & Co. also agreed not to sue M A H or require payment from her of the partnership debt; but the remedies of F & Co. against the sureties of M A H and J B were expressly reserved. This bill was filed by F & Co. to make the securities of S H as surety available; and upon a motion for a receiver of the income of her separate property, — Held, that the deed made a material alteration in the relation subsisting between the creditors and principal debtors ; but that from the state of the authorities respecting the reservation of the rights of creditors against sure- ties, the Court was bound to give effect to what ap- peared to have been the law as administered in this court, and if the defendant could not give security for what the plaintiffs might recover out of her settled estate, to appoint a receiver to secure the fruit of the suit if the law should be ultimately established in favour of the plaintiffs. Owen v. Homan, 1 9 Law J. Rep. (n.s.) Chanc. 519. A bill was filed by the corporation of Berwick against the treasurer of the borough fund and three persons who were his siu'eties, for thepurpose of obtain- ing an account of monies which had been paid to the treasurer. The defence of the treasurer was, that he had been proceeded against before the magistrates under a clause in the Corporation Act, and that the plaintiffs' claim could not now be enforced by a court of equity. The defence of two of the sureties was, that the corporation by their act were only em- powered to appoint a treasurer from year to year, and as he had been continued beyond the first year, without a renewal of the bond of the sureties, they were no longer liable. The defence of the third surety was, that he had given notice that he would no longer continue surety, and that, although no deed had been executed by the corporation to exonerate him. It was also contended, that the sureties were not necessary patties to the suit. The Court held, that the treasurer having taken upon himself a fidu- ciary trust, it was the duty of a court of equity to enforce the due performance of it ; that, as the bond to which the sureties were parties contained a clause extending their liability to any annual or other future election of the treasurer, that liability still remained ; and that no deed having been actually executed to exonerate the third surety, he was also liable. It was further held, that the-sureties were necessary parties to the suit. The plaintiflT having examined witnesses on parti- cular points, the defendant is at liberty to cross- examine those witnesses upon any other point he thinks fit. The Mayor, Sfc. of Berwick-upon-Tweed V. Murray, 19 Law J. Rep. (n.s.) Chanc. 281. PRISONER. [See Bankkuptct.] (A) PillSONS. (B) Rights and Privileges. (Cj Discharge. (A) Prisons. The raising of money by corporations for building or repairing prisons facilitated by the 11 & 12 Vict, c. 39 ; 26 Law J. Stat. 75. The expenses of providing lock-up houses on the borders of counties provided for by the 11 & 1 2 Vict, c. 101; 26 Law J. Stat. 263. An act for the better government of convict prisons. 13 & 14 Vict. c. 39 ; 28 Law J. Stat. 67. (B) Rights and Privileges. To an action of trespass for false imprisonment, the defendant justified as the keeper of the Queen's Prison, under a writ of attachment against the plaintiff out of the Court of Chancery for contempt for non-payment of costs, and under the warrant of Lord Denman, made pursuant to the 5 & 6 Vict. e. 22. s. 2, for the transfer of the plaintiff ftom the Fleet Prison to the custody of the defendant as keeper of the Queen's Prison: — Held, that as the Court is bound to take judicial notice of the course of pro- ceedings in Clancery, the plea was not bad for not stating ^ return to the writ, such writ of attachment for costs being final process. Secondly, that the writ being directed to the warden of the Fleet, no warrant of commitment was necessary. Thirdly, that the warrant of Lord Denman was legal, although there was no warrant of commitment against the plaintiflF, the object of the statute being to authorize the removal of all persons in lawful custody. Cobiett v. Hudson, 18 Law J. Rep. (n.s.) Q.B. 233; 13 Q.B.Rep. 497. An insolvent prisoner in the Queen's Prison was ordered to file his schedule under the 1 & 2 Vict. c. 110. 3. 36, by an order made before the passing of the 11 & 12 Vict. c. 7. After the passing of that act the insolvent was removed to a ward in the first class of the prison, pursuant to the directions of the 2nd section, as a debtor neglecting or refusing to file a schedule of his property when ordered to do so by the Insolvent Court, under the 1 & 2 Vict. e. 110. s. 36. A petition by the prisoner, under the 32 Geo. 2. c. 28. s. 11, to be removed from the first class into the general prison, on the ground that the act of the 11 & 12 Vict. c. 7. applied only to cases where the order to file the schedule had been made pre- vious to the passing of the act, was dismissed, with costs. Stead v. Anderson, 19 Law J. Rep. (n.s.) C.P. 264; 1 L. M. & P. 109. A person who has been committed to prison for default of sureties to keep the peace, and who has been discharged at the sessions, is not afterwards entitled to demand a copy of the examinations on which the commitment proceeded. Section 27. of the statute 11 & 12 Vict. c. 42. gives the right to such a copy only when the person has been bailed or committed to prison for some oflTence for which be is to be tried, and with a view of enabling him to PRISONER. 601 prepare for trial. Ex parte Humphrys, 19 Law J. Rep. (n.s.) M.C. 189. (C) Dischahge. [See Bakok and Feme — Tbespass.] Where the defendant was detained in custody under a writ issued in July 1838, and no further proceedings having been taken by the plaintiffs in the action, in October 1839 a vesting order was made by the Insolvent Court upon the petition of one of the creditors of the defendant ; it was held,, that the defendant's right to be discharged from . custody was not affected by section 41. of the 1 & 2 Vict. c. 110, as, at the time of the proceedings in the Insolvent Court, he was entitled to his discharge in consequence of no proceedings having been taken in the action for more than a year. A prisoner has a right to apply de die in diem for his discharge, and is not prejudiced by a former ap- plication having been unsuccessfully made. Hallett V. Cresswell, 15 Law J. Rep. (n.s.) Q..B. 129; 3 Dowl. & L. P.O. 561. The public officer of a banking company, who was plaintiff in an action, died after the issuing of a writ of ca. sa., but before its execution : — Held, that it was not necessary to bring a sci. fa. ; and that the defendant was therefore not entitled to be discharged on the ground that the action had abated. Semble — that if there was no registered officer of the company after the death of the plaintiff, the defendant might apply to the Court to have one appointed in order to give the defendant a discharge. Toddv. Wright, 16 Law J. Rep. (n.s.) Q,.B.311. The Court refused to discharge a prisoner out of custody on his affidavit that the plaintiff had died in 1836, and that he had been informed and believed that no legal personal representative of the plaintiff had revived the action, or had taken any proceedings whatever since the death of the plaintiff. Taylor v. Burgess, 16 Law J. Rep. (n.s.) Exch. 204 ; 16 Mee. & W. 781; 4 Dowl. & L.P.C. 708. A writ of ca. sa., issued in the lifetime of the plaintiff, was in 1844 directed to the sheriff of C, who transferred it to his successor. On the 12th of October 1846, the plaintiff died; on the 13th the sheriff issued his warrant, and on the 14th, the de- fendant was arrested : — Held, that the arrest was good, although made after the death of the plaintiff; and that the defendant was not entitled to be dis- charged out of custody. Ellis v. Griffith, 16 Law J. Rep. (n.s.) Exch. 66; 16 Mee. & W. 106; 4 Dowl. & L. P.C. 279. The defendant was arrested by a Judge's order, on an affidavit of the 20th of October, which stated that an advertisement had appeared in the Times of the 15th of September of an edict of the Austrian consul at Smyrna on the lst,of August, stating the defendant to have absconded from Smyrna, and to stand accused of fraudulent bankruptcy, and calling on him to appear in seventy days. The defendant, on being arrested, applied to an- other Judge, to set aside the order to hold to bail, and all subsequent proceedings ; but the Judge reftised to interfere : — Held, that whether the Judge secondly applied to wasright or not in refusing to order the defendant's discharge, he was right in not order- ing the capias to be set aside. Secondly, that the Digest, 1845—1850. seventy days having elapsed before the application to the Judge, the order had proceeded on insufficient groimds, and the defendant was entitled to his dis- charge. A party arrested by a Judge's order may apply to another Judge for his discharge, and may appeal to the Court against the decision of the latter Judge. Where a defendant has been arrested under the 1 & 2 Vict. c. 1 10. 8. 6, the Court from which the process issues has power to discharge him, either by virtue of its general jurisdiction over the acts of a single Judge, or of that given by the statute, if the Judge has acted on insufficient materials, or has ex- ercised an improper discretion. In such a case the defendant may use affidavits to explain or contradict those on which the order was granted ; and the de- fendant's affidavits may be answered by the plaintiff on shewing cause. Quare — Whether, if the Judge secondly applied to should differ from the first, on the same state of facts, he has power, or ought, to order the prisoner's discharge. Qutsre, also — If it should appear on the fresh affidavits before the Court, that the person arrested was about to quit England at the time the affidavits were made, but it is not clear that he was about to quit England, or even though it be shewn that he was not, when the order was made, the Court ought to discharge him. Graham v. Sandrinelli and Talbot V. Bulkeley, 16 Law J. Rep. (n.s.) Exch. 67; 16 Mee.&W. 191,193; 4 Dowl. Si L. P.C. 317. A defendant in custody on a ca. sa. received on Saturday, the 12th of November, an order from the creditor for his discharge. The order on being shewn to the gaoler was by him forwarded to the sheriff, who lived at some distance from the gaol. Onibe Sunday following a warrant of detainer, founded on a ca. sa. which had been issued on the previous day, was served upon the gaoler, who thereupon detained the defendant: — Held, that the defendant had no right to his discharge, as the sheriff was entitled to a rea- sonable time to search his office for other writs against the defendant, and that the service of the warrant on the Sunday made no difference in the case. Samuel v. Sutler, 17 Law J. Rep. (n.s.) Exch. 54; 1 Exch. Rep. 439. An aflSdavit of debt stated that the defendant was indebted to the plaintiffs in l,050i., being the balance due for principal and interest on four bills of ex- change, one dated, &c. drawn by the defendant on and accepted by K for 400^. at three months, and by the defendant indorsed to the plaintiffs, which said bill was duly presented, &c. and dishonoured, and due notice of dishonour thereof given to the defendant — another bill for 5001. drawn, &c. and in- dorsed to the plaintiffs (no presentation or dishonour was alleged). The two other bills were for 250i and 4001 respectively, and the affidavit shewed a good cause of action on each existing in the plaintiffs against the defendant. By order of a Judge a capias was sued out indorsed for bail for 1,0501. The de- fendant, after arrest, applied to the Judge to be dis- charged, as no good cause of action for 1 ,050^. was shewn on the affidavit. The Judge reduced the amount for which bail was to be given to 5501. : — Held, that the Judge's order varying the indorse- ment was correct, and that the defendant was not entitled to his discharge. Cunliffe v. Maltass, 18 4H 602 PRISONER— PRIVY COUNCIL. Law J. Rep. (n.s.) C.P. 2.33 ; 7 Com. B. Rep. 695; 6 Dowl. & L. P.C. 723. The 48 Geo. 3. c. 123. applies to plaintiffs in execution for costs only; and, therefore, the lessor of the plaintiff in ejectment who had been in custody for twelve months, for non-payment of costs under 20?., pursuant to a rule of court, was held entitled to his discharge. Doe d. Smith v. Roe, 18 Law J. Rep. (n.s.) Q.B. 89; 6 Dowl. & L. P.C. 544. An execution issued out of the Palace Court sub- sequently to the 1st of August 1849 is valid, not being an " action or suit" commenced after the pass- ing of the 12 & 13 Vict. c. 101. within the meaning of section 13. A warrant of imprisonment from the Palace Court directing a defendant to be imprisoned thirty-five days, but not naming any day for the commencement of such imprisonment, is good, as in such a case the imprisonment begins to run ftom the time of the defendant being taken into custody. Braham v. Joyce, 19 Law J. Rep. (n.s.) Exch. 1; 4 Exch.Rep. 487. Where a Judge having made an order for the arrest of a party under the 1 & 2 Vict. c. 110. is afterwards of opinion that the party is entitled to his discharge, the proper course is not to set aside the order and capias, but to direct the party to be dis- charged out of custody. Barness v. Guiranovick, 19 Law J. Rep. (n.s.) Exch. 110; 4 Exch. Rep. 520. A defendant, in a case of misdemeanour, for which he was indicted at the Quarter Sessions, and in which he was entitled to traverse, did traverse: — Held, that his traverse was to the next sessions, and not to the assizes, which came before the next ses- sions, and the defendant being imprisoned in the gaol on this charge, the Judge, at the assizes, would not discharge him on his own recognizance. If a prisoner be committed to the gaol for trial at the Quarter Sessions which are to be held after the assizes, the Judge at the assizes will discharge him on his own recognizance if there be no indictment preferred against such prisoner at the assizes. The Judges' commission of gaol delivery applies only to untried prisoners in the gaol, and not to un- tried prisoners in houses of correction^ Regina v. ^rlett, 2 Car. & K. 596. The Court of Common Pleas has no power to discharge upon a habeas a prisoner from custody under process of the Court of Chancery, and cannot entertain any question as to the irregularity of such process. In re Andrews, 4 Com. B. Rep. 226. The Court cannot discharge a plaintiff from an execution for the costs of a judgment as in case of a nonsuit, although the defendant has absconded, and his attorney consents. Pearce v. Skaif, 6 Com. B. Rep. 200. A party who had been arrested and taken to the Fleet on a writ of attachment for non-payment of costs, was discharged out of custody by consent, on the ground that he was privileged at the time of his arrest : — Held, that the issuing of a subsequent writ of attachment for the same costs, and an arrest there- under, were regular. The voluntary discharge of a party irregularly arrested, will not prejudice the right of the other party to enforce his demand by the same process or by a new writ. Andrewes v. Walton, 19 Law J. Rep. (n.s.) Chanc. 249; 1 Mac & G. 380; 2 Hall & Tw. 154. The Court of Chancery refiised to discharge, under the 1 Will. 4. c. 36. b. 15. r. 17, a defendant in custody under an attachment for non-payment of costs. Semble — that the only relief is under the Insol- vent Debtors Acts. Snowball v. Dixon, 2 De Gex & S. 9. A defendant, in contempt for not appearing, was brought up to the bar of the court, and ordered to be handed over to the warden of the Fleet, and an appearance was ordered to be entered for him, within the first four days of Michaelmas term, the defen- dant having then been in custody more than thirty days, the last of which expired in the vacation : Held, that this order was regular, and that he was not entitled to be discharged, although the time mentioned in the 10th rule, on the expiration of which he was entitled to apply to be discharged, had previously expired. Smyth v. Tuck, 15 Law J. Rep. (N.S.) Chanc. 367. Where an insolvent, on his return from attending the Court of Bankruptcy on his own petition for protection under the 5 & 6 Vict. c. 116, was arrested under an attachment of the Court of Chancery, his application to the Court of Chancery to be dis- charged was held improper, and refused. Plomer v. Macdonough, 1 De Gex & S. 232. The Lord Chancellor has jurisdiction, as the Judge of one of the superior courts of record at West- minster, to discharge a prisoner under the 48 Geo. 3. e. 123. Lister v. Lister, 2 Hall & Tw. 174. PRIVY COUNCIL. Phactice on Appeals to. The Charter of Justice of the Island of the Mauritius does not provide for appeals in matrimo- nial suits, yet upon petition for that purpose, the Judicial Committee recommended the allowance of an appeal against a decree for the restitution of con- jugal rights. Semble — if an appeal is incompetent, the respon- dent should move, on appeal, to dismiss the same on such ground, and not wait till the hearing to object to its competency. Shire v. Shire, 5 Moore, P.C. 81. Though allowance is to be made for the technical difference of the proceedings in the courts of Canada and those of England, yet where, trial by jury pre- vails, a special verdict ought to be the finding of facts by the jury irom which the Court is to pro- nounce its judgment on the law, and the verdict ought not to leave facts to the Court to draw an inference; such as, whether negligence has or not been established, negligence being a question of fact and not of law. The negligence of a bailee in disobeying the in- structions of a bailor, given more than a year prior to the cause of action, and not specifically declared upon, — Held, not sufficient, though proved in the cause, to entitle the plaintiff to recover damages thereon. A venire de novo awarded, with liberty to amend the pleadings. Tobin v. Murison, 5 Moore, P.C. 110. The Royal Court of Jersey having, on the remis- PRIVY COUNCIL. 603 sion of a doliance and petition, pronounced certain arrests and seizuies made by the attorney general of the island, for alleged frauds against the revenue laws of the island, to have been illegal ; the original petitioner brought a petition and remonstrance in the Royal Court of Jersey, against the attorney general, for damages thereby occasioned. The attorney general, upon being called upon to answer this remonstrance, summoned the Lieutenant - Governor, the bailiff and jurats, (who were the Commissioners of the imp6t duties,) alleging that, as he had acted under their advice, they were proper parties to the suit, and they were joined with him as parties to the suit. The bailiff and jurats con- stituted the Royal Court. The attorney general then put in a plea, that the Court, thus constituted, was incompetent, as being interested in, and parties to, the suit, whereupon the Court declared itself incompetent to adjudicate in the cause. The peti. tioner took no further steps fo^ two years, when he presented a doliance and petition, to the Queen in Council, and obtained a summons for the attorney general to appear. The attorney general petitioned to dismiss such summons, first, because no leave to appeal had been granted by the Court below ; se- condly, because the other parties to the suit ought to have been summoned; and thirdly, because, if it was an appeal, it had not been duly prosecuted within three months from the date of the act of the Court : — Held, by the Judicial Committee that such objections were fatal, and the summons discharged. In re fVhilfield, 5 Moore, P.C. 157. By the Order in Council of the 1 8th of Decem- ber 1834, for regulating appeals from the island of Malta, to the king in Council, an appeal is allowed only where the sum or matter at issue involves, directly or indirectly, any civil rights amounting to, or of the value of, VfiOOl. But, leave to appeal was granted by the Judicial Committee, from the de- crees of the Courts of the first and second instance of the island, which directed children to be removed from the guardianship of their mother. Camilkri v. Fieri, 5 Moore, P.C. 161. F, and three others, W D, F D and J D, pur- chased from J a herd of cattle in the following shares — P one-third, W D, F D and J D, two- thirds between them. At the time of the purchase, F and W D wrote a letter to W & Co., which, after stating the purchase, and that they had given their promissory notes for the purchase-money, at one and two years' date, proceeded thus : — " We request you to indorse these bills for the satisfaction of Mr. J, for which indorsement we will allow you the usual commission of 21. 10s. per cent. ; and will, for your security, place at your unreserved disposal the whole of the herd in question, and its increase ; trusting, however, that our recommendation of allowing such part of it to be disposed of as will cover the amount of your indorsements, and con- fiding to J D, acting under your instructions from us, to remit you all the proceeds as they arise, will meet with your satisfaction." W & Co. assented to this arrangement, indorsed the notes, and handed them over to J. At the same time F and W D wrote a further letter to W & Co. as follows : — " In conse- quence of your complying with our request to indorse our bills for the purchase of J's herd, we hereby make over the said herd to you, requesting you to give J D instructions how to dispose of the herd, and remit you the proceeds, until by such re- mittances your indorsement is covered." W & Co. in no way interfered with the sale of the cattle, nor was any part of the proceeds of the sale ever handed to them, and the herd was lost. Upon a bill filed by F against W & Co. seeking to make them liable, as trustees, for the loss, — Held, by the Judicial Com- mittee, affirming the decree of the Supreme Court of New South Wales, that, under the above agreement W & Co. could not be considered as having been in possession of the cattle, as mortgagees, or as equit- able assignees, and that the letter operated only as a collateral security, and that they were not liable in equity to account for the loss. The bill, besides seeking to make the defendants liable to account, for a particular transaction, prayed for a, general account. No general account, how. ever, was asked for in the court below. Upon the Judicial Committee affirming the decree of the Court below, deciding against the liability of the defendants as to the particular transaction, they refused to decree a general account, as it had not been asked for at the hearing in the courts below. The Charter of Justice of New South Wales, of the 13th of October 1823 (made in pursuance of the powers conferred by the 4 Geo. 4. c. 96.) gave a right of appeal from the Court of Appeals in the colony to the King in Council, where the subject at issue involved the sum of 2,000/. sterling. The 4 Geo. 4. c. 96. being about to expire, the 9 Geo. 4. c. 83. was passed, in which no provision was made for the continuance of the Court of Appeals ; but power was given to His Majesty, by Charter, Orders in Council, or Letters Patent, to make rules for allowing appeals from the Supreme Court of the colony. No new Charter, Order in Council or Let- ters Patent issued under this act. In such circum- stances, the Judges in New South Wales held that they had no jurisdiction to allow an appeal from the Supreme Court to Her Majesty in Ccuncil: the Judicial Committee, upon special petition, under their general jurisdiction, advised Her Majesty to admit such appeal. Flinty. Walker, 5Moose,F.C. 179. Under the Bombay Charter of Justice, the Supreme Court of Bombay is invested with full and absolute power to allow or deny an appeal in crimi- nal casts, and no power is reserved to the Crown, by such Charter^ to grant leave to appeal in such cases. The case of Christian v. Corren (1 P. Wms. 329) observed upon. Regina v. Alloo Paroo, 5 Moore, P.C. 296 ; Regina v. Stephenson, 3 Moore, In. App. 488. The Bombay Charter of the 8th of December 1823, (granted in pursuance of the powers conferred on the Crown, by the 4 Geo. 4. u. 71,) after providing " That in all indictments, informations, and criminal suits and causes whatsoever, the said Supreme Court of Judi- cature at Bombay shall have the full and absolute power and authority to allow or deny the appeal of the party pretending to be aggrieved," proceeds thus, " And we do hereby also reserve to ourselves our heirs and successors, in our or their Privy Council, full power and authority, upon the humble petition of any person or persons aggrieved by a judgment or determination of the Supreme Court of Judicature at Bombay, to refuse or admit his, her or their ap- 604 PRIVY COUNCIL. peal thereupon, upon such terms and under such limitations, restrictions, and regulations, as we or they shall thmk fit, and to reform, correct, or vary, such judgment or determination as to us or them shall seem meet/' Upon a petition, praying for leave to appeal from a conviction for felony, — Held, by the Judicial Com- mittee of the Privy Council, that there was no power reserved to the Crown by the charter to allow ap- peals in criminal cases, such appeal being confined to civil cases only. Held also, that the charter having been granted by the Crown by force of an act of parliament, must be construed with reference to the powers conferred by the act, even though the prerogative of the Crown were limited by such construction : and that the Supreme Court alone has full and absolute power to allow or deny permission to appeal in criminal cases. Semble — No appeal lies, in caees of felony, to the Queen in Council, from any of the dominions of the Crown of Great Britain, which are governed by the law of England. liegina i'. Ediiljee Byramjee, 5 Moore, P.C. 276 ; 3 Moore, In. App. 468. The Scotch Sequestration Act, the 2 & 3 Vict. c. 41. s. 78, enacts, "that the moveable estate and eifects of the bankrupt, wherever situate, so fer as attachable for debt, should, by virtue of the act and warrant of confirmation in favour of the trustee, be transferred to and vested in him, or any succeeding trustee, for behoof of the creditors, absolutely and irredeemably, as at the date of the sequestration." C & Co. carried on business in co-partnership in Scotland, and also in the island of Tobago. A sequestration issued against them in Scotland; — Held, by the Judicial Committee, first, that the sta- tute 2 & 3 Vict. c. 41. extended to the colonies ; and, secondly, that the interim factor and trustee under such sequestration, had a right against a creditor in Tobago, to moveables seized by the provost marshal in Tobago, under an execution, in an action brought by him against C & Co., in Tobago, subsequent to the date of the sequestration. Quare Whether the Interpleading Act (1 & 2 Will. 4. c. 58.) extends to the colonics. By an act of the Colonial Legislature of Tobago, passed in 1841, and confirmed by the Queen in Council, it was declared that such of the common law sai all statutes and parts of the public and general statute laws of England as are or shall be or become applicable and suitable to the circum- stances and population of the colony, should be in force in the island. Quitre — Whether, by this ia>lonial act, the Interpleading Act could be held to extend to Tobago. And Quare — Whether, if such Interpleading Act ex- tended to the colonies, an appeal from a judgment, entered up on a feigned issue, would lie to the Queen in Council. The Colonial Bank v. Warden, 5 Moore, P.C. 340. The executors of B, parties to the suit below, had not been served with the appeal : the Coiut, before giving judgment, directed the appeal to stand over for six months, with hberty for them to attend, and to be heard on the appeal. Gordon v. Horsfall, 5 Moore, P.C. 393. H & Co., of Newfoundland, by order of Messrs. D, of Jamaica, shipped a cargo of fish on board a vessel, chartered by Messrs. D, and consigned it, by Messrs. D's request, to S & L, Messrs. D's factors, in Jamaica. Messrs. D were, at that time, indebted to S & L for large advances made to them ; and, after they had ordered the cargo, they applied to S & L for a further advance, informing them that they might expect the cargo, and authorizing them to sell it on their account, and give them credit for the proceeds. S & L made the required advance. No agreement was reduced into writing as to the pledge of the cargo. Before the arrival of the vessel, Messrs. D, being in insolvent circumstances, in- formed S & L that, in the circumstances of the firm, they could not think of receiving the cargo ; and, on the arrival of the vessel, Messrs. D, by letter to 5 & L, repeated their determination not to receive the cargo, and desired them to sell it; to render the sales to them, and to remit the proceeds, after deducting freight, &c. to H & Co. Messrs. D also wrote, to the same effect, to Messrs. H & Co., who, by letter, acquiesced in this repudiation (the letter did not arrive in Jamaica until some months after the sale). S & L offered no objection to Messrs. D's proposal, and sold the cargo ; they did not then claim any lien on the cargo, but they afterwards refused to account for the proceeds to H & Co., claiming a lien on the goods as the factors and cre- ditors of Messrs. D : — Held, by the Judicial Com- mittee, upon a bill of exceptions to the Judge's direction, in an action of assumpsit brought by H 6 Co. against S & L, that S & L, having sold the cargo under the direction of Messrs. D, must be considered as the agents of H & Co., and that, if they had originally any lien on the cargo, they had, by their conduct, waived it. Where there are questions of law raised by the proceedings in the inferior courts in the colonies, this Court will favour an application for leave to appeal direct to the Queen in Council, under the 7 & 8 Vict. c. 69, without resorting to the inter- mediate Court of Appeal in the colony. Harrison V. Seott, 5 Moore, P.C. 357. An order made by the Judges of the Supreme Courtof Madras, dismissing the Master of that Court from his otfice, for alleged official misconduct in the taxation of a bill of costs, reversed, upon appeal, by the Judicial Committee of the Privy CouncU. Such an order, being made by the Court at its own instance, is not an appealable grievance, within the Madras Charter of Justice of December 1800. An appeal having been allowed by the Court below, and referred by Her Majesty to the Judicial Committee for adjudication in the ordinary way, their Lordships, though of opinion that there existed no charter right of appeal, •thought it a fit case for the allowance of a special appeal; and having heard the case upon the merits, directed a petition for special leave to appeal to be presented to Her Majesty ; of which, on its being referred to them, they recommended the allowance, and that the appeal be placed in the same plight and condition as that originally referred to them. In re Minckin, 6 Moore, P.C. 43; 4 Moore, In. App. 220. By the 35th section of the rules respecting appeals from the Vice Admiralty Courts abroad, made under the authority of the statute 2 & 3 WiU. 4. c. 51, all appeals are to be asserted within fifteen days after the date of the decree appealed from. In March 1846, a decree was pronounced by the Vice Admi- PRIVY COUNCIL. 605 rally Court at Saint Helena, restoring a vessel seized by a British cruizer for an alleged infraction of the Slave Trade Act, and referring the amount of costs and damages to the Registrar. No appeal was asserted by the seizor's proctor, who attended before the Registrar under the decree. In the month of December of that year, a. petition of appeal was brought in by the Queen's proctor, on behalf of the seizor, which the Registrar (in consequence of the appeal not having been asserted within fifteen days) refused to receive. On an application made ex parte, supported by affidavits stating that it was the seizor's proctor's ignorance of the rule for asserting the appeal which alone prevented him from appealing, leave was given to appeal, subject to a counter pe- tition being presented by the respondent to dismiss the appeal. Upon an act on protest against the right of appeal by the respondent : — Held, by the Judicial Committee, that there was ■ no sufficient ground to enable them to allow the appeal. Regina V. Joze Alves Bias (The Aquila), 6 Moore, P.C. 102. If an instrument contains distinct engagements, by which a party binds himself to do certain acts, some of which are legal and some illegal at common law, the performance of those which are legal may be enforced, though those which are illegal cannot. By a deed of settlement, a joint-stock banking company, called "the Bank of Australia," was established as a bank of issue and deposit, at Sydney, in New South Wales. The deed contained clauses conferring powers upon the directors, " for the better management of the concerns of the said company," &c., whereby it was declared that they shall have^ and be expressly invested with, "full power and authority to superintend, order, conduct, regulate and manage all and singular the affairs and business of the said company, to the best of their discretion and judgment, imder and subject to the provisions thereinafter contained." Such board of directors were further empowered to " devise and make such provisions, rules, orders and regulations, touching the government, carrying on, and management of the affairs of the said company, the same not being repugnant to the general rules and regulations therein contained, as they should think expedient." In the year 1843, the Bank of Australia became involved in pecuniary difficulties, whereupon the directors at Sydney applied to the Bank of Austral- asia for a loan, and borrowed from that bankj at various times, the sum of 1 54,000/., for which the directors gave their promissory note. Upon the negotiation of this loan, the directors of the Bank of Australia entered into an agreement with the Bank of Australasia, whereby they stipulated that the Bank of Australia should cease to be a bank of issue, deposit and discount, and should become a loan company ; and that no transfer of shares or stock should be made without the consent of the Bank of Australasia; they also agreed to wind up, and get in their capital as a loan company. Pay- ment of the note for 1 54,0002. was reftised by the shareholders of the Bank of Australia, on the ground that the stipulations contained in the agreement were uliravires of the directors. Onan action brought by the Bank of Australasia on the promissory note against the chairman of the Bank of Australia, the Supreme Court at New South Wales, at a trial at bar, found for the defendant. Upon appeal, — Held, by the Judicial Committee (reversing the verdict and judgment of the Supreme Court), first, that the directors of the Bank of Australia had the powers of managing partners in an ordinary banking part- nership, and that, amongst these, was the power of borrowing money for the purpose of discharging the existing liabilities of the bank till the assets should be realized, and of discontinuing the bank if they thought such conduct essential to the interests of the shareholders. Secondly, that the circumstances of the engage- ments of the directors to repay the loan being accom- panied by other stipulations, some of which were ultra vires, did not discharge the bank from liability to repay the loan, as the only effect of those stipu- lations was, that they could not be enforced. Held, also, that the proceeding before the Judicial Committee from the verdict of the Supreme Court was in the nature of an appeal, and not a writ of error, and that this Court had power, under its common law jurisdiction, to give subsequent interest upon the judgment debt. Although no power is given by the Charter of Justice or the act of parliament creating the Supreme Court at New South Wales, to allow an appeal to the Queen in Council from that Court, yet, to pre- vent a failure of justice, this Court will, upon a special petition for that purpose, grant leave to appeal from b judgment of that Court. Bank of Australasia v. Breillat, 6 Moore, P.C. 152. Appeal allowed, under the statute 7 & 8 Vict. c. 69, direct to Her Majesty in Council, upon a bill of exceptions, to prevent the delay and expense of bringing a writ of error returnable before the Governor and Council of the Island of Jamaica.; Attorney General of Jamaica v. Manderson, 6 Moore, P.C. 239. By the Charter of Justice of the 23rd ofu De- cember 1823, establishing the Supreme Court at Bombay, that Court was prohibited (in like manner as the Supreme Court at Calcutta, under the 21 Geo. 3. c. 70. s. 8), from entertaining any jurisdic- tion in any matter concerning the revenue, under the management of the Governor and Council,' or any act done in the collection thereof. In an action of trespass brought against the collector of revenue at Bombay, for distraining for arrears of government " quit-rent," the: (defendant; pleaded " not guilty" only. The Supreme Court at Bombay held, that the "quit-rent" was not "re- venue'' within the meaning of the charter, and that the act complained of was not warranted .by the usage of the country and the company'sregulations, and that the Court had jurisdiction to entertain the action, and found for the plaintiffs : — Held, reversing such finding and judgment, first, that the" quit-rent'! was part of the revenue of the East India Company at Bombay; and Secondly, that it being a matter concerning the revenue and the collection thereof, the Supreme! Court had no jurisdiction, and that the Court beingi excluded by the charter from any matter concerning the revenue, the plea of " not guilty" was sufficients and that the Judge ought at the trial to have directed a nonsuit or a verdict to be entered for the defendants. A plea in abatement to the jurisdiction' of the Court must point out another Court before which 606 PRIVY COUNCIL— PRODUCTION AND INSPECTION OF DOCUMENTS. the matter is cognizable. A plea in bar, if well founded, is sufficient, without pointing out the Court in which the suit ought to haTe been brought. If a party hand fide, and not absurdly, believes that he is acting in pursuance of a statute, he is entitled to the special protection which the legisla- ture intended for him, although he has done an illegal act. The Supreme Court in overruling the objections to the jurisdiction of the Court refused leave to appeal; the subject-matter of the action being trifling, and under the amount required by the rules of the Privy Council. Upon petition, the Judicial Committee granted leave to appeal, but upon the terms of the East India Company paying the respondent's costs of the appeal, to enable him to appear to prevent the question being argued ex parte. Spooner v. Juddow, 6 Moore, P.C. 257. Leave to appeal in formd pauperis allowed, and sureties for prosecuting appeal dispensed with. Brouard T. Bumaresq, 6 Moore, P.C. 412. After the institution of an appeal from the Arches Court, in a suit against a clergyman for adultery, fornication, or incontinence, this Court refused to receive additional articles charging acts of adultery, alleged to have been committed subsequently to the close of the case in the Arches Court, or to examine vivd voce the witnesses examined in the court below, upon the allegation that they had been tampered with previous to their examination. Craig v. Farnell, 6 Moore, P.C. 446. Bounties awarded under the statute 6 Geo. 4. c. 49, to the commander, officers, and crew of Her Majesty's ship Samarang, upon the capture and destruction of piratical prahus, in the Straits of GU- lolo, in respect of the piratical crew on board the prahus. Leave to appeal against an interlocutory decree of the Admiralty Court, awarding such bounties, granted to the Admiralty proctor, on behalf of the Crown, notwithstanding an appeal had not been interposed within due time, the circumstances of the case en- titling the appellants to such indulgence. Regina v. Belcher, 6 Moore, P.C. 471. Parties to an appeal agreed to compromise the same, and that the appellant should have paid over to him a certain sum of money, the amount of com- pensation in respect of slaves attached to an estate, the subject of the appeal. Upon petition to dismiss the appeal, an order of dismissal was made, con- taining also an order for the Accountant General of the Court of Chancery to pay to the appellant the compensation money in question. M'Turk v. Douglas, 6 Moore, P.C. 500. To an action for recovery of arrears of rent due to the plaintiff, under a sub-lease of a pergunna, the defendant pleaded, that the sub-lease was part of a loan transaction, for the purpose of securing to the plaintiff an illegal interest upon the loan, and was void, under Eeg. XV. of 1793. The Courts in India held that it was an usurious transaction, and dismissed the action. Upon appeal, this decision was confirmed by the Judicial Committee of the Privy Council. No appearance having been entered by the re- spondents to an appeal from India, and the appel- lant's case being ready to lodge for hearing, their Lordships, upon the application of the appellant, made an order that the respondents should be served with notice that unless they brought in their case without delay the appeal would be heard ex parte ; giving the appellant liberty to proceed in the court below, to render such service effectual ; and the Court was ordered to certify to the Judicial Committee what had been done with respect to the same. Wise Y. Kisherikoomar Bous, 4 Moore, In. App. 201. Their Lordships declined to hear an appeal from the Sudder Dewanny at Madras, ex parte, without evidence of the respondent having been personally served with notice that the appeal was pending ; and ordered the appeal to stand over, with leave for the appellant to proceed in the court below, to render service of such notice effectual. Konadry Vatabha v. Valia Tamburati, 4 Moore, In. App. 213, n. PROCHEIN AMI. When an infant plaintiif is nonsuited, a rule for an attachment absolute in the first instance will be granted against the prochein ami, if after personal service of the Master's allocatur for the costs in the action, and demand made, he does not pay them. If the affidavit in support of the motion states a demand of the costs in the allocatur, it is good, although it does not specify the amount. It is not necessary that the affidavit should state the place where the demand was made. The prochein ami was a barrister, and attended at the Central Criminal Court, at the Old Bailey, as counsel foi the prosecution in an indictment about to come on for trial. He was conversing with the prosecutor in the passage between the Old and New Courts, when the demand of paj'ment of the costs was made : — Held, that the demand was good. Newton v. the London, Brighton and South Coast Rail. Co., 19 Law J. Rep. (u.s.) Q.B. 12 ; 7 Dowl. & L. P.C. 328. PRODUCTION AND INSPECTION OF DOCUMENTS. [See Bill of Exchakgb, Evidence — Pbactice, IN EauiTY, Productipn of Documents.] In an action against the Bank of England for not paying dividends upon certain stock, the Bank admitting that the stock had, up to a certain day, stood in the Bank books in the plaintiff's name, alleged that the plaintiff had, on that day, trans- ferred it. Upon the affidavit of the plaintiff, that she had never signed or authorized any transfer, and that if such alleged transfer existed it was a forgery, the Court made absolute a rule allowing her to inspect the particular entry in the transfer book, purporting to transfer the stock. Foster v. the Bank of England, 15 Law J. Rep. (U.S.) Q.B. 212;8Q.B. Rep. 689. In a town cause, a service of a notice to produce by putting the notice into the letter-box at the office of the attorney in London, on the evening before the trial, is not a good service. Semble — that in an action in the Exchequer, a notice to produce is not bad by reason of its being entitled " In the Common Pleas." Lawrence v. PRODUCTION AND INSPECTION OF DOCUMENTS— PROHIBITION. 607 Clark, 15 Law J. Rep. (n.s.) Exch. 40; H Mee. & W. 250 ; 3 Dowl. & L. P.C. 87. The plaintiff, an allottee of railway shares, brought an action for money had and received against the defendant, a director of the company, to recover his deposit. The subscribers' agreement and parliamentary contract, signed by the plaintiff and the defendant, were in the possession of the attornies for the railway company. The Court ordered the defendant to give the plaintiflF an in- spection and copy of the documents, upon an affidavit, stating that they were necessary for the purpose of framing the plaintiff's case. Steadman v. Arden, IS Law J. Rep. (n.s.) Exch. 3 10 j 15 Mee. & W. 587 ; 4 Dowl. & L. P.C. 16: s.P. Ley v. Bar- loui, 17 Law J. Rep. (n.s.) Exch. 105 ; 1 Exch. Rep. 800; 5 Dowl. & L. P.C. 375. By section 9 of the 7 Geo. 2. c. 8. " every broker shall keep a book and enter therein all contracts, &c. which he shall from time to time make in buying and selling stock, and shall produce such book when thereunto lawfully required." Plaintiff, a sworn broker, brought an action as indorsee of a bill of exchangeagainst the defendant as acceptor. On application by the defendant for a rule calling on the plaintiff to produce his book, the affidavit alleged that the bill was accepted for the accommodation of the drawer, who indorsed the bill to the plaintiff in payment of monies due on illegal contracts in the public stocks : — Held, that the defendant was not directly interested in the document he applied to inspect, and the Court re- fused the rule. Per, Wilde, J, — That the intention of the statute was that the broker should be compelled to produce the book to be inspected by his principals. Pritchett V. Smart, 18 Law J. Rep. (n.s.) C.P. 211 ; 7 Com. B. Rep. 625. In an action by the secretary against provisional committee-men for arrears of salary, a judge at chambers having ordered that the defendant shouM be at liberty to inspect and take copies of resolu- tions parsed by the managing committee, being referred to in the plaintiff's particulars as the foun- dation of his claim, the Court refused to rescind the order, the plaintiff not satisfactorily shewing that it was not in his power to comply with it. Shaw V. Holmes, 3 Com. B. Rep. 952. Notwithstanding a statement in the defendant's answer that a deed of conveyance, the production of which is sought by the plaintiff for his inspec- tion, is his title deed, and does not in any manner evidence the plaintiff's title, the deed will be or- dered by the Court to be produced if i tappear on the face of the answer that its contents may prove material to the plaintiff's case. A partition was made, prior to the reign of King Henry VIII., of an ancient manor, by dividing it into two reputed manors, to which divers tenements were respectively allotted in severalty, but a con- siderable portion of waste lands of the original an- cient manor continued undivided, the property of the two lords of the reputed manors, as tenants in common. The information stated that part of the defendant's ancient freehold tenements, situate. with- in one of the reputed manors, consisted of unin- closed lands, and that some portion thereof was waste land held of the ancient manor, and that of such the informant was tenant in common with the defendant: the defendant admitted, by his answer, that there were such waste lands, but stated that the same were allotted, and formed part of the de- fendant's ancient freehold tenements, and that the defendant, in the year 1829, obtained from the lord of the reputed manor in which his ancient tene- ments were situate, a conveyance of the manorial and other rights, fine rents, &o. belonging to the lord over those tenements, except the right to tin- stuff and sporting. The information insisted that the uninclosed lands, except the ancient tenements, were held by the two lords as tenants in common, and were subject to tin-bounds, and that waste and unallotted lands only were subject to tin-bounds. The defendant stated that there was a difference of opinion, as to whether lands subject to 'tin-bounds were always waste lands, and insisted that the deed of conveyance of 1829 was the title deed of the de- fendant, and in no manner evidenced the infor- mant's title. The deed and the map delineated thereon, were, notwithstanding, ordered to be pro- duced for the informant's inspection. Attorney General v. Lambe, 17 Law J. Rep. (n.s.) Chanc. 154; 11 Beav. 213. An information charged that the defendants claimed under some charter. Sec, and that certain charters and documents were in the possession of the defendants relating to the matters aforesaid (that is, the plaintiff's title), and that none of such documents contained any grant to the defendants of, or recognition of their title to, the matters in question in the suit : — Held, that the defendants were bound to answer, whether they claimed under some charter, and as to the possession of such do- cuments, and whether or not they contained any such grant or recognition, and that they could not excuse their production by stating their belief that such documents did not contain evidence of the plaintiff's title, but must distinctly negative the grounds upon which the plaintiff called for their production. It is not sufficient for a defendant, in order to protect himself from production of documents, to negative the plaintiff's title ; but he must set out such a title in himself as, if proved, would' shfew thkt he is entitled, and not the plaintiff. ' ' An agent claiming an adverse title, proved by acts of ownership, must distinctly negative the con- clusion that such acts of ownership are to be attri- buted to his character of agent. Attorney Gene- ral V. London (Corporation), 19 Law J. Rep. (n.s.) Chanc. 314 j 2 Mac. &G. 247; 2' Hall & Tw; I' ; affirming s.c. 18 Law J. Rep. (n.s.) Chanc. 314, 339j I2Beav. 8, 171. PROHIBITION. , [See Practice, in EauiTY, Jurisdiction of the Court.] ,,, (A) When it lies. (B) Setting aside. (C) Pleading and Pbactice. 608 PROHIBITION. (A) When it lies. The Judge of a county court, notwithstanding an admission by the plaintiff that i plea of judg- ment recovered in another court for the same debt was true, gave judgment for the plaintiff. This Court refused to grant a rule nisi for a pro- hibition, the question decided being within the jurisdictionof the Judge. Ex parte Rayner, 17 Law J. Rep. (N.s.) C.P. 16 i 5 Dowl. & L.P.C. 342. The defendant having been sued in the county court, without any notice of the proceedings, judg- ment was given against him and his goods seized in execution. He then applied to the Judge under the 80th section of the Small Debts Act, the 9 & 10 Vict. c. 95, to set aside the judgment and execu- tion ; but the Judge having imposed certain terms to which the defendant declined to accede, the latter paid the debt and. costs under protest, and moved this Court for a prohibition;— Held, that the Judge had jurisdiction over the matter, and that no prohibition ought to issue. In re Robinson V.' Lenaghan, 17 Law J. Rep. (n.s.) Exch. 174; 5 Dowl. & L.P.C. 713; 2 Exch. Rep. 333. ' The plaintiff, the indorsee of two bills of ex- change amounting together to 23t, brought a plaint in a county court to recover from the defendant, whose wife had accepted the bills in her husband's name, the sum of il. 19s., as the balance remaining due on the bills. The plaintiff treated as part payment of the- bills the proceeds of the sale of some articles of jewel- lery belonging to the defendant which had been ob- tained from the defendant's wife by the drawer of the bills, and by him handed over to the plaintiff. The defendant produced evidence to shew that his wife had no authority to accept the bills or to de- liver the articles, and that the plaintiff had no right to sell or appropriate the proceeds of the sale in payment of the bills; and hfe contended that as the original amount of the bills exceeded 201., the Judge of the county court had no jurisdiction. The Judge, however, held the defendant liable on the bills, and treated the giving of the articles as part payment, and gave the plaintiff judgment for the balance claimed. The defendant applied for a prohibition to re- strain the Judge of the county court from proceed- ing further in the plaint j but as the plaint stated a matter within the Judge's jurisdiction, and the ob- jection to the jurisdiction arose on contested facts, and he had clearly power to inquire into the facts which raised that question, and as also the decision on the merits turned on the very point on which the question of jurisdiction arose, and as the affi- davits were conflicting, the Court refused the mo- tion. Joseph V. Henry, 19 Law J. Rep. (n.s.) Q.B. 369 ; 1 L. M. & P. 388. Under the 9 & 10 Vict. c. 38, ' An Act to em- power the Commissioners of Her Majesty's Woods to form a Royal Park in Battersea Fields,' a jury was regularly impannelled before the sheriff of Surrey, to ascertain what recompeuce should be made to a claimant for the value of certain lands required for the purposes of the act, and found a verdict for the sum of 750/., which the sheriff then gave judgment for and ordered to be paid to the claimant. Thereupon the claimant applied for a writ of prohibition to prohibit the sheriff and the Commissioners from entering and recording the said verdict and judgment and further acting upon or making available the same, on the ground of an excess of jurisdiction and misdirection by the sheriff, and was ordered to declare in prohibition. Held, upon demurrer to such declaration, that the verdict and judgment were valid and conclu- sive in themselves, and that neither the recording of them under section 30. of the act, nor the proceed- ing which the Commissioners were empowered to take under section 40, were acts in respect of which the prohibition could be granted. Semble — that the case was not one to which a writ of prohibition was at all applicable. Chabot v. Lard Morpeth, 19 Law J. Rep. (n.s.) Q.B. 377 ; 15 Q.B. Rep. 446; and see In re Chabot, 17 Law J. Rep. (N.s.) Q.B. 336. (B) Setting aside. A Judge of a county court having ordered the defendant in a plaint before him to pay the amount recovered or to be committed to prison, notwith- standing the defendant, after the judgment, and before the last-mentioned order, had obtained his discharge from the Insolvent Court, and had in- serted the debt in his schedule; the defendant by an ex parte application obtained a writ of prohibi- tion out of the Petty Bag Office of the Court of Chancery to prohibit the county court from exe- cuting the judgment. This Court, on motion, set aside the writ ; first, because no ground for prohibition was stated therein ; and secondly, because there was no excess of juris- diction, since the order of the Insolvent Court did not take away the jurisdiction of the county court, though it might entitle the defendant to be relieved from payment of the debt. Still v. Booth, 19 Law J. Rep. (N.s.) Q.B. 521 ; 1 L. M. 8c P. 440. A writ of prohibition issued out of the Court of Chancery is a proceeding within the meaning of the 12 & 13 Vict. c. 109. s. 39, and a motion to set such writ aside may be made in either of the su- perior courts at Westminster. It is no answer to such motion that the attorney of the applicant has not entered his name and ad- dress in a book at the Petty Bag Office, pursuant to the 12 & 13 Vict. o. 109. s. 44. Baddeley v. Denton, or. In re Baddeley, 19 Law J. Rep. (n.s.) Exch. 44 ; 4 Exch. Rep. 508. (C) Pleading and Pkactice. The declaration, in prohibition, stated, (amongst other things) that the defendants, by their libel in the spiritual court, alleged that the parish of F was within the parish of B, and that there was a custom for the inhabitants of F to contribute to the repairs of the parish church of B, " and all expenses necessarily laid out by the churchwardens of B" in a certain proportion. It also stated that the plaintiff, by a "negative issue" in that court, "denied the allegations of the libel," and also by his " personal answer" traversed in terms both the parochiality and the custom, and then went on to state that the plaintiff afterwards " articulately pro- pounded" that F was a distinct parish, and that it was untruly alleged that F had contributed to the sums raised by the churchwardens for the repair of PROHIBITION— PROTECTOR. 609 the charcli of B, or in due execution of their office as churchwardens, for that the truth and fact was, that there was no such custom " of the inhabitants of F contributing towards the maintenance and reparation of the parish church of B." To this declaration the defendants pleaded that there was a custom for the inhabitants of F " to contribute to repairs of the parish church of B" in the proportions already specified in the libel: — Held, that the plea was no answer to the decla- ration, which clearly shewed that the spiritual court was proceeding to try a different custom from that stated in the plea, and also a question of parochial boundary. Dolby v. Rimington, 15 Law J. B,ep. (U.S.) Q.B. 326 ; 9 Q-B. Rep. 179> A declaration in prohibition stated that before and at the time of exhibiting the libel after men- tioned, the plaintiff was not impropriator or pro- prietor of the tithes of T, that T was not a parish, and that the chancel did not belong to the im- propriate rectory in the libel mentioned, nor was the plaintiff in possession of the said chancel ; that from time whereof, &c. there had been a custom in T that the inhabitants of T should repair, and still of right ought to repair, at their own cost, the chancel; and that from time whereof, &c. there was another custom in T, that when any repairs were necessary in the said chancel the chapel- wardens had given directions and paid for such repairs ; that neither the plaintiff nor any of his ancestors had ever repaired or paid for the repairs of the said chancel; that from time whereof, &c. there was another custom in T that church and chapel rates for the repairs of the church or chapel of T had been collected in T by the chapelwardens thereof, and that the repairs of the said chancel had been paid for out of the said rates by the said chapelwardens ; that from time whereof, &c. there had been another custom in T that the chapel- wardens of T passed their accounts with the inha- bitants of T; that church-rates had always been paid in respect of the tithes of T, and that the plaintiff had agreed to accept 70?. per annum in lieu of tithes, leaving the remainder, about 151., to be taken in lieu of church and other rates. It then averred that the defendants exhibited against the plaintiff in the spiritual court a libel on articles alleging that the plaintiff was impropriator of the parish of T, and that the chancel of the said church belonged to the rectory, and was in possession of the plaintiff, and that the rectorial tithes were suffi- cient to sustain the said chancel; that the chancel was dilapidated, and that the plaintiff had refused to repair; that the plaintiff appeared in the spiritual court, and pleaded a negative issue, and also put in a responsive allegation alleging the customs and matters before mentioned ; that the said Court was proceeding to determine the said customs and mat- ters, &c. The defendants traversed that there was a custom that the inhabitants of T should, at their own cost, repair, or that they had, in fact, repaired the said chancel, modo etformd, and also traversed that there was a custom that the costs of repairing the chancel had been paid for out of the *ates, modo et formd. Issues were joined on these traverses, and the de- fendants had a verdict upon both issues. Upon a rule to enter judgment non obstante veredicto, — . Digest, 1815—1850. Held, first,, that the alleged customs that the chapelwardens of T ordered and paid for the repairs of the church of T, and that the chapel- wardens of T accounted to the inhabitants of T for the money collected and expended by them on account of chapel-rates, were only incidental to, and evidence of the customs which were traversed; and were immaterial and irrelevant to the question to be decided in the spiritual court; and that the omission to traverse these customs afforded no ground for a prohibition. Secondly, that the question whether T was or was not a parish was not properly triable in the spiritual court, and that the allegation to that effect in the declaration was material, and if admitted, would entitle the plaintiff to judgment. Thirdly, that the defendants having traversed two only of the allegations in the declaration, leav- ing wholly unanswered a material allegation, the plaintiff was entitled to a repleader, but not to judgment non obstante veredicto, because the imma- terial pleas, being traverses merely, contained no more than a conditional admission of the allega- tions not traversed, in case the plaintiff proved the allegations traversed, which he did not. Duke of Rutland v. Bagskawe, 19 Law J. Rep. (n.s.) aB. 23*. PROMISSORY NOTE. lii a suit for the administration of the estate of A, B, one of his executors, produced, in the Master's office, a promissory note, signed by A, whereby A promised to pay B 1,0002. on demand, for value received, and claimed a proof of debt on it. In support of his claim B made the fallowing case : about 1822 A lent C 1,0002., but declared that G should hold it in trust for B. In 183S C became insolvent. In 1837 A, B and A's solicitor, had an interview in respect of the loss of the 1,0002. ; and a few days afier, A gave the note in question; - In- terest had always been paid by A to B,from thfe time of the loan until A's death. A died in 18')!l: — Held, that ,B had a right of proof on the note. Burkitl V. Ransom^ 15 Law J. Rep., (n.s.) Chanci 174; 2 Coll. CO. 395. . , PROTECTOR. Form of petition, evidence and order on an ap- plication to the Court to consent as protector of the settlement to the barring of an entail. In re Grme- Bor, 1 De Gex & S. 700. Under section 3. of the 3 & 4 Will. 4. c. 74. the Lord Chancellor of Great Britain has jurisdiction, as protector, to consent to the enlargement by the tenant in tail of a base fee in lands in England, the tenant for life being a lunatic so found in Ireland, and resident there. The Lord Chancellor, however, refused his con- sent in the absence of the remainder-man, and where the effect of such consent would have been to vest the estates in the hushand of the tenant for life, to the exclusion of her issue, and also of the brother of the lunatic, that brother being the re- mainder-man. In re Graydon, 1 Mac. & G. 655 ; 2 Hall & Tw. 182. 41 610 PUBLIC WORKS— RAILWAY. PUBLIC WORKS. [See Lands Clauses Consolidation Act.] Provisions of the 1 & 2 Vict. c. 1 17. as to the custody of monies paid under the standing orders by subscribers to works or undertakings to be effected by authority of parliament, repealed and re-enacted by the 9 Vict. c. 20 ; 24 Law J. Stat. 61. Money advanced out of the Consolidated Fund for carrying on public works, fisheries, and the employment of the poor by the 9 & 10 Vict. c. 80 ; 24 Law J. Stat. 198. Provisions usually contained in acts respecting the constitution and regulation of Commissioners for carrying on undertakings of a public nature, con- solidated by the 10 Vict. c. 16 ; 25 Law J. Stat. 43. QUARE IMPEDIT. A statute, regulating the building, &c. of a new church in a parish, enacted, that during the life of the incumbent of the old church, the curate of the new church should be appointed by such incumbent, and that, after his death, the new church should become the mother church, with all the rights, &c., and the old church should become a chapel of ease thereto, to be served by a minister capable of having cure of souls, and the patronage of or right of pre- sentation to the same chapel, as well as the patron- age of or right of presentation to the said new church, should be vested in the patron of the rectory, so nevertheless that the minister of the said chapel should not be removable at pleasure : — Held, that the right of appointment to the chapel given by this statute was presentative and not donative. Semble — that if it had been a donative, it would have ceased to be such, after a single presentment by the patron. Regina v. Foley, 15 Law J. Rep. (n.s.) C.P. 108 ; 2 Com. B. Rep. 664. In quare impedit the Bishop has no right to coun- terplead the patron's title, by setting up title in the Queen by lapse. — [Confirming Elvis v. ArchUshop of York, Hob. 315, and ApperUy v. Bishop of Hereford, 9 Bing. 681.] The incumbent of a parish church presenting him- self to a district church within the parish, established under the 58 Geo. 3. c. 45. and the 59 Geo. 3. c. 134, and the yearly value of the two livings exceeding l,000i., the parish church, under the provisions of the 1 & 2 Vict. u. 106. ss. 4, 11, becomes ipso facto void. Storie v. Bishop of Winchester, 19 Law J. Rep. (N.s.) C.P. 2ir. QUEEN'S PRISON. The act establishing the Queen's Prison amended by the 11 Vict. c. 7; 26 Law J. Stat. 20. The Master of the Rolls cannot inquire whether the keeper of the Queen's Prison obeys the regula- tions established for the government of the prison, or give directions as to the mode of treating a per- son committed for contempt. Oldfield v. Cobbett, 11 Beav. 258. QUO W.ARRANTO. [Rowley v. Regina, 5 Law J. Dig. 665 ; 6 Q.B. Rep. 668.] A proceeding by information in the nature of a quo warranto will lie for usurping any office, whether created by charter of the Crown alone, or by the Crown with consent of parliament, provided the office be of a public nature and a substantive office, and not merely the function oi? employment of a deputy or servant held at the will and pleasure of others. The office of treasurer of the public money of the county of the city of Dublin is an office for which an information in the nature of a quo war- ranto will lie. Barley v. Regina, 12 CI. & F. 520. An affidavit stating that the deponent had seen the defendant " present at meetings of the town council, and acting as town councillor," is sufficient to ground a rule for an information in the nature of a quo warranto. A rule nisi had been obtained for such an informa- tion, on affidavits stating the badness of severalvotes given for the defendant. In shewing cause against it, the defendant produced affidavits, impeaching such a number of votes given for the other candi- date, as would leave him (the defendant) in a majo- rity, if all the votes attacked on both sides were striick off The Court made the rule absolute, declining to try the right between the parties on these affidavits. Regina v. Quayle, 10 Law J. Rep. (n.s.) Q.B. 231 ; 11 Ad. & E. 508. In 1556 certain lands were demised by Sir J P to trustees, for the purpose of providing a weekly allowance and almshouses for six poor men in the parish of E ; and also for finding a schoolmaster, who was to preach twice a year in the parish church of E. By charter of King James I. the hospital and school were incorporated by the name of " the master, schoolmaster, &c. of Sir J P," and the charity and appointment of master was subsequently regulated by private act of parliament : — Held, that an information in the nature of a quo warranto would not lie in respect of the office of master. Regina v. Mousley, 15 Law J. Rep. (n.s.) Q.B. 89 ; 8 Q.B. Rep. 946. Upon a quo warranto information for exercising the office of coroner for a borough (appointed under the 5 & 6 Will. 4. u. 76.) judgment having been given for the Crown, — Held, that the relator was not entitled to costs by the 9 Anne, c. 20. Regina V. Grimshaw, 17 Law J. Rep. (n.s.) Q.B. 19 ; 5 Dowl. & L. P.C. 249. RAILWAY. [See Company — Ejectment — Lands Clauses Consolidation Act — Practice, at Law, Particulars of Demand — Pboduction and In- spection OF Documents — Stamp.] Notices given and plans and sections of an in- tended railway deposited, in pursuance of the standing orders of the Houses of Parliament, pre- vious to an application for an act, are not to be regarded in construing that act afterwards, unless they are so referred to as to be incorporated there- with. A vertical deviation of the level of a railway, RAILWAY. 611 not exceeding five feet, calculated with reference to the datum line shewn on the plans and sections deposited in pursuance of the standing orders of ■ the Houses of Parliament, is within the powers of deviation conferred by the Railways Clauses Con- solidation Act for Scotland (8 & 9Vict. c. 33. s.ll), although the deviation may exceed five feet, calcu- lated with reference to the surface line shewn on the said plans and sections. North British Rail. Co.v. Tod, 12 CI. &F. 722. The Railways Clauses Consolidation Act does not impose on a railway company, acting as car- riers, any further liabilities than those which attach to common carriers. Therefore, although the com- pany carry coals and other goods for hire from one end of their line to the other, and carry goods other than coals from an intermediate sta- tion, they are not bound to carry coals from that station, unless they have publicly professed to do so j and even if they have held themselves out as carriers of coals from that station, no action for refusing to carry coals from it will Ue, unless it be shewn that the company have conveniences at the station for receiving and carrying the coals. Johnson v. Midland Rail. Co., 18 Law J. Rep. (n.s.) Exch. 366 ; 4 Exch. Rep. 367- By the Railways Clauses Consolidation Act 1845 (8 Vict, c 20.) it is provided, by section 49, that where any railway is carried by a bridge over any turnpike road, the width of the arch is to be such as to leave thereunder a cigar space of not less than thirty-five feet; and by section 51. where the former average available width of the road for the passage of carriages is less than thirty-five feet, the width of the arch need not be greater than such average available width, but so as not to be less than twenty feet j provided that if the average available width of the road be afterwards increased, the railway company shall, if required, increase the width of their bridge to an extent not exceeding the width of the road so widened, or the maximum width therein or in the special act prescribed for a bridge. By the special act (9 & 1 Vict. c. ccxxxiv.) it was provided "that in every case in which the rail- way shall cross a specified road otherwise than at right angles, the bridge shall be made with skew arches so as not in any manner to ^Iter the direction of, or interfere with, the Une of the roads, or the footpaths to the same." fleli, that the latter section applied only to the case of a road being turned so as to carry it at right angles under a bridge and again bending it back after passing the bridge to its original direction, but that it did not affect any question as to the width of the bridge or the narrowing of the road. Held, also, that the meaning of the above clauses of the general act is, that where the average avail- able width for the passage of carriages on any road exceeds thirty-five feet, it may be narrowed to thirty-five feet under the arch ; where it is less than thirty-five feet, the arch may be of the same width as the road, so as it be not less than twenty feet, and if the road be afterwards increased, the arch must be proportionably widened up to, but not beyofld, thirty-five feet. .A turnpike road, with footp9,ths on each side, was crossed by a bridge having a skew arch. Tl(e average available width for the passage of carriages was unaltered, and the arch exceeded twenty feet in width. The piers projected upon and narrowed the footpaths by the side of the road, and were built parallel to the line of the carriage road. Held, that the acts had been complied with, and that the footpaths could not be taken as part of the turnpike road over which the arch was to be thrown, within the meaning of the acts. Regina v. Rigby, 19 Law J. Rep. (n.s.) Q.B. 153. The holder of a railway bond, transferred to him in pursuance of the 8 & 9 Vict. c. 16. ss. 46, 47, must sue upon it in his own name. Vertue v. East An- glian Rails. Co. ; Mills v. East Anglian Rails. Co., 19 Law J. Rep. (n.s.) Exch. 235 ; 5 Exch. Rep. 280, An agreement was entered into between a land- owner and a railway company, that the former should not oppose a projected railway, on condition that there should be a reference to arbitration for, among other purposes, defining the line of approach to his premises from a turnpike road which it was pro- posed to divert. After the award indicating such ap- proach had been made, it became expedient for the company further to divert the turnpike road, but within the limits of deviation, and consequently necessary to alter the line of approach to the land- owner's premises : — Held, that the company were not precluded from making such alteration. Wood v. North Staffordshire Rail. Co., 1 Mac. & G. 278; 1 Hall &Tw. 611. By a clause in a special railway act, after recit- ing that plans and sections of the railway, shewing the respective lines and levels thereof, and alsp books of referen~ce, containing the names of the owners, &c. of the lands through which the respective lines of railway were intended to pass, had been depo- sited with the clerks of the peace, it was enacted that, subject to the provisions in that and the re- cited acts contained, it should be lawful for the company to make and maintain the railway and works on the line and upon the lands delineated upon the said plans. On the said plans was shewn by a cross-section the manner in which a street, intersected by the railway cutting, was to be carried across by means of a bridge, and also the ascent to the same bridge as 1 in 40. The company, in executing these works, proceeded to make the ap- proach to the bridge by an ascent of 1 in' 115, whereby the embankments were extended at a higher level along the front of the plaintiff's pre- mises, to his damage: — Held, that the recital of the plans deposited did not incorporate them into the special act so as to preclude the company from exercising the power of altering the level of streets, &c. given by the 16th section of the Bail- ways Clauses Consolidation Act. Also, that the plans deposited were referred to as shewing the datum line and level of the railway itself, and constituted no contract between the parties, except so far as they were incorporated into the act. The wprds "other engineering works," in the 14th section of the Lands Clauses Consolidation Act, refer to engineering works ejusdem generis, that is, in the formation of the railway itself. Rules by which the Court is guided in putting a construction upon two sections of a statute which are apparently inconsistent with each other. 612 RAILWAY— RATE ; (A) Chukch Rate. • Where an order for an injunction was discharged upon an appeal, the defendants were held entitled to the costs of the original motion. Beardmer v. London and North- Western Rail. Co., 18 Law J. Rep. (N.s.)Chanc.432; IMac. &G.112i lHall& Tw. 161. A railway act (incorporating the Railways Clauses Consolidation Act) authorized the con- struction of a railway in the line and upon the lands delineated in the plans deposited, ahd cross- ing a turnpike road on a level, as represented in the plans. By an agreement with a landowner, it was recited that the company had purchased tlie land for the purpose of constructing the railway "ac- cording to a certain plan and section deposited:" — Held, that they had power to carry the turnpike road under the line instead of on a level. Breynton V. London and North- Western Sail. Co., 10 Beav. 238. Eayment of or security for compensation in re- spect of damage consequential upon the execution of certain works hy a railway company, is not, under the Railways Clauses Consolidation Act, 1845, made a condition precedent to the commence- ment of such works. Therefore, where a company, in the lawful execution of its powers, commenced the construction of works, by which the enjoyment of an easement by a neighbouring occupier of land might be interrupted, and damage sustained, a bill by such occupier to restrain by injunction the fur- ther progress of the works until the prospective damage should be ascertained, and the amount thereof paid or secured by the company, pursuant to the Lands Clauses Consolidation Act, 1845, was dismissed, with costs. Button v. London and South- Western Rail. Co., 18 Law J, Rep. (h.s.) Chanc. 345 ; 7 Hare, 259. RAPE. Where, on the trial of a case of rape, it was wished on the part of the prisoner that the jury should see the place at which the offence was said to. have been committed, and the place was so near to the court that the jury could have a view with- out inconvenience, the Judge allowed a view, al- though the prosecutor did not consent to it. Begina V. Whalley, 2 Car. & K. 376. An acquittal on an indictment for a rape could not be successfully pleaded to a subsequent indict- ment for an assault with intent to commit a rape, nor could an acquittal on an indictment for felo- niously stabbing with intent to do grievous bodily harm, be successfully pleaded to an indictment for an assault, although, in each case, the transaction was the same,j and the accused might have been convicted of an assault, under section 11.. of the sta- tute 1 Vict, c 85. Regina v. Gisson, 2 Car. & K. 781. RATE. [See Statutes,] (A) Chdkoh Rate. (a) Validity of. (6) Persons and Property raieabki (c) Recovery of. (B) PooK Rate. (a) Validity of. (b) Publication, (c) Persons and Property rateable, (1) In general. (2) Exemption under the 6 ^ 1 Vict. c. 3( (d) Rateable Value. (e) ^udit of Accounts. (/) Re-valuation. Ig) Right to Copy. (C) County Rate. (D) BoROCQH Rate. (E) Highway Rate. (F) Paving Rate. (G) Seweks Rate. (H) Retrospective Rate. (I) Distress FOK Rates. (K) Commitment for Non-payment op Rates. " Overseers and surveyors of highways enabled to recover the costs of distraining for rates by the 12 Vict. c. 14 J 27 Law J. Stat. 16. A mode of levying and collecting rates in pa- rishes jsituated partly within and partly without the limits of boroughs not liable to such rates'provided by the 12 &, 13 Vict. u. 65j 27 Law J. Stat. 91. An act for better assessing and collecting poor and highway rates on small tenements, 13 & 14 Vict. c. 99 ; 28 Law J. Stat. 294. (A) Church Rate. (a) Validity of. The Court will not interfere by mandamus to enforce the making of a valid church rate, on the ground that the irregularity of the. proceedings at the vestry, at which a church-rate has already been voted, has rendered such rate wholly void, it not appearing that such rate was actually made. Semble, also that, were it made, the Court is not the tribunal to decide on its validity; Regina v. Churchwardens of St. John the Baptist, Cariff, 16 Law J. Rep. (n.s.) M.C. 54. The obligation of the parishioners to repair the body of the church is by the common law, and is not qualified or voluntary, but absolute and im- perative; and when repairs are needful the only question on which the parishioners in vestry can by law deliberate is, how the obligation may be best, most effectually, most conveniently, and fairly be- tween themselves carried into effect. If at a vestry meeting duly convened under a monition from the ecclesiastical court, calling upon the parishioners to make a rate for the repair of the church, the majority refuse to make any rate, no question being made as to the necessity and amount of the rate required, the minority can make a valid rate. So held, per Plait, B., Cresswell, J., Maule, J, and Alderson, B., affirming the judgment of the Court of Queen's Bench, (16 Law J. Rep. (k.s.) Q.B. 201; 7 Q.B. Rep. 406.) Dissentientibus Rolfe, B., Parke, B. and Wilde, C.J. At a meeting of the parishioners of Braintree, duly assembled in vestry, in pursuance of a mo- nition from the ecclesiastical court directing them to make a rate for the necessary repair of the church, a rate of 2s. in the pound was duly proposed and RATE ; (A) Chubch Rate. 613 seconded. No one disputed the necessity of the repairs, or objected to the amount of the estimate, or questioned the propriety of the amount of the rate ; but an amendment was proposed, put from the chair, and carried by the majotity on the show of hands, objecting to all church-rates on general principles, and declaring that the vestry refused to make a rate. The question was then put, whether any other amendment was proposed, or any propo- sition as to the amount of the rate was made ; and no answer was given. The original proposition was not again formally moved or put from the chair j but the churchwardens and the minority proceeded then and there to make the rate of 2s. in the pound: — Held, per Piatt, B., Cresswell, J., Maule, J. and Al- derson,B., affirming the judgment of the Court of Queen's Bench («6s supra) (dissentientibus Rolfe, B., Parke, B. and Wilde, C.J.), that such rate was valid, because the conduct of the persons refusing to make such rate was equivalent to taking no part in the proceedings, and could not prevent the minority from obeying the law and performing their duty by making the necessary rate. In prohibition to prevent the rate being enforced, the declaration, after stating the above proceedings until the question was put, whether there was any other amendment or proposition, averred that no answer in the affirmative was given, and " that the majority of the said vestry having by the acts and means aforesaid refused to furnish the churchwar- dens of the said parish with the necessary funds as aforesaid, the now defendants, the churchwardens aforesaid and others of the rate-payers and pa- rishioners of the said parish then and there present in vestry, on &c. did, in obedience to the aforesaid monition, and in discharge of the aforesaid obliga- tion, cast upon them and the other parishioners of the parish of Braintree by the law and custom of this realm, at the said meeting of the said parish, and while the parishioners continued as aforesaid in vestry assembled," make the rate of 2s. in the pound : — Held, per Piatt, B., Cresswell, J. and Rolfe, B., that it sufficiently appeared that the rate was made by persons other than the majority, who had previously voted for the amendment ; and per Alder- son, B. and Parke, B., that if the matter wtere left doubtful prohibition ought not to be granted j but per Wilde, C.J., that the prohibition ought to be granted, because the question had hot been properly put to the meeting, and the rate did not appear to have been made by any majority of the vestry con- stituted in any manner. Semble — Per Cresswell, J., Maule, J. and Alder- son, B., that a rate is the only mode by which the parishioners in vestry assembled can compel the repair of the church. Gosling v. Veley, 19 Law J. Rep. (N.S.) a.B. Ill J 12 as. Rep. 328. A chapel rate, duly made, but objectionable from extrinsic circumstances, can only be questioned in the ecclesiastical court. Where a chapel-rate was laid on the occupiers of land in the chapelry, excluding the owners and occupiers of mills and housesy-^Held, that an occu- pier of land in the chapelry who had been sum- moned for non-payment of the rate, and had not objected to it before the Justices, could not question its validity in an action of replevin after distress on his goods under the Justices' warrant. An order of Justices for payment of a chapel-rate need not state the proceedings to have been on oath. Ramsbottom v. Duckworth, 19 Law J. Rep. (n.3.) M.C. 74 J 1 Exch. Rep. 506. (6) Persons and Property rateable. By an act for rebuilding a parish church, (the preamble of which recited, that the steeple, by fall- ing on the body of the church, had utterly demo- lished the same,) trustees were empowered to borrow money, and for payment thereof to make rates upon the yearly rent of all " lands, houses, shops, ware- houses, vaults, mills, or other tenements within the parish." By other clauses one half of the rate wa:3 payable by the owner or landlord of the premises so assessed, and the other half by the occupier or tenant thereof, and the tenant was to pay the whole of such rate, and deduct one half of the rate out of the rent to the landlord. If any person assessed should quit his land, dwelling-house, warehouse, shop, vault, mill, or other tenement,' without payment, the collector was authorized to follow and distrain the goods of such person. By another clause, the collector was at liberty to inspect the books of thfe poor-rates or land-tax, in order to ascertain the rates and assessments to be raised and levied by virtue of the act : — Held, that under the flrst-meh- tioned clause, the vicar was not rateable in res'pebt of the tithes. Regina v. Neville, 15 Law J.^Rep. (N.3.) M.C. 33 ; 8 Q.B. Rep. 452. (c) Recovery of. A proposition for a church-rate having been re- jected by a majority 6f the parishioners assembled in vestry pursuant to a monition from the ecclesiasti- cal court, the churchwardens proceeded to lay a rate of their own authority, with the consent of the minority of the vestry meeting. The plaintiff, who was a rated inhabitant of the parish, having re- fused to pay his proportion of this rate, was sum- moned by the churchwardens before two Justices, and his liability and: default having been proved, he was asked if he had anything to say against payment of the rate ; when he said, he shouldinot try the validity of the rate before the Justices^ bat that he wouldput in a writtennotice,whichheaccotd- ingly served on the Justices before making the order. The notice stated, iirst,a'protest against church-rates in general, as being unscriptural and oppressive ; secondly, a declaration that the plaintiff wouldl not contest the validity of the rate in the ecclesiastical court J and, lastly, that he would commenoer actions in the courts of common law against all persons concerned in any proceedings connected with the rate which he might be advised were illegal.;' At the time of the hearing, the Justices were aware that the plaintiff disputed the right of the minority to impose a church-rate : — Held, that this amounted to a notification of an intention to dispute the va- lidity of the rate so as to oust the jurisdiction of the Justices under the 63 Geo. 3. c. 127. Dale v. Pollard, 16 Law J. Rep. (N.s.) Q.B. 322 j 10 Q.B. Rep. 504. •'" ' Though the Justices, under the 53_Geo. 3. c. 127. s. 7, have nopower to inquire into the goodness of a church-ratcj yet the Court "will not grant a manda- mus to compel Justices to convene a party before 614 RATE; (B) Pook Rate. them for non-payment of a rate, which is bad or very questionable on the face of it. Semble — that a church-rate, which purports in the heading of it to be made "for and towards the repairs of the church, and other incidental charges of the said parish and hamlet," is a rate had on the face of it. Regina v. Byron, 17 Law J. Rep. (H.s.) M.C. 134; 12 Q.B. Rep. 321. In an indictment for disobeying an order of two Justices made under the statute 53 Geo. 3. c. 127, for the payment of a church-rate, an averment, stating (inter alia) by way of inducement, that a rate was duly made as by law in that behalf re- quired, and that the same was afterwards duly allowed as by law in that hehalf required, &c., and that the defendant was in and by the said rate duly rated, &c. is sufficient, without setting out the facts which constituted the alleged due making, allow- ance, and rating aforesaid. Such an averment would not he sufficient, where it purported to be an allegation of the matter of the offence itself, and not merely by way of in- ducement. Where the same count of the indictment, after the ahove averment by way of inducement, went on to aver {inter alia) an information by the proper parties to the Justice by whom the warrant was issued, that the said rate was duly made, &c,, and that the same was afterwards duly allowed, &c., and that the defendant was duly rated, &c., and that the party refused to pay, such information as ahove will give jurisdiction to the Justices making the order, irrespective of the truth of the facts de- posed to ; and that, therefore, the count would have been sufficient, even had the ahove averment by way of inducement been insufficient or omitted. Under the statute S3 Geo. 3. c. 127. s. 7, the fact of a rate duly imposed on a party, and the non-payment of it by such party, are not conditions precedent to the jurisdiction by the Justices to make an order for payment; and, therefore, an order pur- porting to he made on such an information as is above given would be valid, and could be enforced, whether de facto there was a proper rate, and a pro- per demand and refusal, or not. It is sufficient in an indictment to aver that the churchwardens were authorized to collect and re- ceive the rate at the time of refusal, without aver- ring that they were so at the time of the demand. A warrant (by way of summons) whereof the mandatory part is substantially set forth, but the inducement merely as follows ; — " after reciting as is therein recited'' — is sufficiently averred; such warrant need not be dated. It will be intended in favour of an order, that the above warrant was served a reasonable time before the day of appearance ; as otherwise the Justices would have acted unjustly in making the order, which will not be presumed. The order need not be set out according to the tenour ; the substance of it is sufficient. If- in the indictment it sufficiently appears by implication that the rate was in force when the order was made, that fact need not be positively averred. Semble — under the statute 43 Elir; c. 2. s. 4. in a special plea by a Justice to an action of trespass, it would be enough to state " a poor-rate duly pub- lished, and that the plaintiff Was an occupier and rated, and that there was a complaint on oath by the overseer, that he did not pay on demand, and that such iact was proved to the satisfaction of the Justice," even though it might turn out, on further inquiry, that there had not, in truth or fact, been any such demand and refusal as was alleged before the Justice. Regina v. Bidwell, 17 Law J. Rep. (n.s.) M.C. 99; 2 Car. & K. 564; 1 Den. C.C. 222. (B) Poor Rate. (o) Validity of. To an action of trespass for hreaking and entering the plaintiff's mill, and taking his goods, the defen- dants pleaded a justification under 1 Vict. c. Ixxix. (local), that the defendants, as commissioners under the act, completed one of three reservoirs mentioned therein ; that the plaintiff's mill was benefited by the supply of water therefrom; that a certain rate was made, and that the trespass was committed and the goods were taken as a distress for the non-payment of the rate. The plaintiff replied that only one reservoir had been completed. General demurrer. The 38th section enacts, that " no rate shall be levied or assessed under the pro- visions hereinbefore contained, until the said reser- voirs shall be actually made and in use, and water supplied therefrom." — Held, on error in the Ex- chequer Chamber, (affirming the judgment of the Court of Exchequer), that, upon the true construc- tion of the act, the completion of one reservoir entitled the commissioners to levy a rate on the class of persons mentioned in the act actually benefited by it; and therefore that the plea was good. Sidebottom v. the Commissioners of the Glossop Reservoirs, 1 Exch. Rep. 611. The district of D, which is locally situate within the parish of W, before the dissolution of the mo- nasteries, had a chapel with a chantry and an en- dowment of land. The chapel and lands were granted in the 31 Eliz. to trustees, who always nominated the minister to the exclusion of the vicar of W. Before the 43 Eliz. c. 2. the chapel had all parochial rights, and its own churchwardens sepa- rate from W. The inhabitants of D have never contributed to the repair of the church of W, and D has always had its own surveyors of highways and constable. The titheable lands within D have always paid tithes to the vicar of W. The minister of the chapel is supported by the profits of the land with which it is endowed, but never received any tithes. There was originally only one overseer appointed for D, but since 1785 two overseers have been appointed. Separate poor-rates have always been made for D and W, and the poor in each have been maintained separately as to out-door relief. The amount in the pound raised has always been the same in both districts, the overseers of D taking the amount fixed by the overseers of W, or con- sulting with them as to the amount to be fixed, according as their rate was made subsequent or prior to that of W. There is no workhouse in D, bat its poor were sent to the workhouse of W, and there maintained out of the rate levied on the parish. At the end of the year, the officers of D and W compared accounts, and the balance was handed over. The accounts of D, after being allowed by their own vestry, were submitted to the RATE; (B) Poor Rate. 615 Testry of W, and allowed by them, but not vice Held, under these circumstances, that D was not, within the 13 & 14 Car. 2. c. 12, entitled to make a distinct rate. That D was not at the time of the 43 Eliz. c. 2. a parish or reputed parish separate from W, in regard to the msdntenance of its poor. The fact of the Poor Law Commissioners, under the 4 & 5 Will. 4. c. 76, and the auditor, under the 7 & 8 Vict. e. 101, having treated these districts as separately maintaining their own poor, will not alter their actual relation to each other. Regina v. Clayton, 18 Law J. Rep. (n.s.) M.C. 129 j 13 Q.B. Rep. 354. The St. Pancras local act, 59 Geo. 3. t. xxxix, empowers seven or more of the vestrymen to meet and make a poor-rate, and a notice of such meeting and of the purpose thereof is to be given on the Sunday immediately preceding. The rate so made is to be signed by seven or more of the vestrymen and to be allowed by two Justices. After due notice given, a meeting of vestrymen took place on the 1 2th of August, and it was unanim- ously resolved by those present, more than seven, in number, that a rate of Is. in the pound should be made and laid according to law and collected forth- with. On account of the size of the parish the assessment on each parishioner could not then be ascertained, but the meeting was continued by several adjournments until the 14th of September, when the rate was produced written out in four books, according to the form required under the Parochial Assessment Act, and was then signed by nine of the vestrymen. Notice of this meeting and of the purpose thereof had been given to the vestrj'- men by letters of summons, but not such notice as was requisite for making a rate, and it was then resolved that an application should be made to the Justices to allow and confirm the rate. Held, that if the rate was duly made by vestry- men de facto, it was not invalid because they had not been lawfully elected, or because notice of the meetings had not been given to those persons who by reason of the election of the other vestrymen being void continued vestrymen dejure. Held, also, that the rate was made on the 12th of August, although not signed until after several adjournments of that meeting, and although con- tained in four books. Held, also, that due notice having been given of the original meeting and the purpose thereof, no notice of the purpose of the adjourned meetings was necessary. Held, also, that the signatures of eight vestrymen to a declaration that the rate was true and correct as far as they knew, as required by the Parochial Assessment Act, was a snflScient signing under the local act. To a declaration in replevin for taking the goods of a party rated, the avowry alleged a rate made under the provisions of the said St. Pancras local act on the 12th of August, and that after the making, and before the allowance thereof, to wit, on the i4th of September, at another meeting then held, the rate so made was duly signed: — Held, that the facts above stated proved the avowry, in- asmuch as the meeting of the 12th of August was continued by the several adjournments, and after the assessment was presented complete on the 14th of September, the meeting then holden might, if necessary, be considered as another meeting for the purpose of the rate being signed. Lorant v. Scadding, 19 Law J. Rep. (N.s.) M.C. 5 ; reversing Seadding v. Lorant, 16 Law J. Rep. (n.s.) M.C. Jt, 163; 9 Q.B. Rep. 858. Jfh^ (6) Publication. An ancient chapel in the township of T having fallen into decay, a new church was built and con- secrated in the year 1832, and divine service had been regularly performed there since, but parish meetings were sometimes held, and christenings and burials performed in the chapel. There was also a school-house in the township where divine service was performed on Sundays: — Held, that the new church was de facto the church of the place, and that the publication of a poor-rate by affixing the notice required by the 1 Vict. c. 45, at or near the principal door thereof only, was sufficient. Or- merod v. Chadmck, 16 Law J. Rep. (n.s.) M.C. 143 ; 16Mee. & W. 367. (e) Persons and Property rateable. [Regina v. Trustees cf Taunton Market, s.c, nom. Regina v. Badcock, 5 Law J. Dig. 683 ; 6 U.B. Rep. 787.] [Regina v. Hull Dock Co., 5 Law J. Dig. 683 ; 7 a.B. Rep. 2.] [Regina v. Paynter, 5 Law J. Dig. 683 ; 7 Q.B. Rep. 255.] (1) In general. Bethlem Hospital is an institution for the recep- tion and cure of poor lunatics, and by charter of the 38 Hen. 8. the mayor, &c. of London are constituted trustees, keepers, and governors of the hospital, and pursuant to the statute SO Geo. 3. c. cxcviii. certain lands held by them in the parish of G were demised to trustees, and a new hospital, for the reception of lunatics, erected thereon. The hospital is for the reception of indigent lunatics, as many of whom are admitted as the building will hold ; but none possessed of any estate or money sufficient to main- tain thera elsewhere are received. The patients are provided with maintenance, medicine, and every necessary, except clothing, for twelve months or more, free of all charge ; if not cured, then they are admitted into the incurable class, for some of whom their friends or the parish officers make payments towards their maintenance, but in no instance sufficient to affiird any profit to the hospital. , Part of the hospital is appropriated to the reception of criminal lunatics, detained under warrant from the Crown, and under the controul of and paid for by government. All the funds of the hospital (in- cluding the sums paid for the incurable patients, and by government for the criminal patients) are applied to the general objects of the charity. The governors derive no emolument at all from the hos- pital. • Bridewell Hospital was instituted by charter of Edw. 6. for the purpose of harbouring, correcting, and employing destitute persons and vagabonds, and was granted to the mayor, &c. of London, who were directed to commit destitute persons and vaga- 616 RATE ; (B) Poor Rate. bonds to the house of occupations in Bridewell, which they were ordered to erect, and to make rules for their goTernment. A house of occupations was erected on lands situate in the, parish of G, and demised to trustees for that purpose ; and has ever since been used for the reception of destitute per- sons, vagabonds, &c. of both sexes, from any place whatever, found in London, Middlesex, or part of Surrey, who are maintained entirely at the charge of Bridewell Hospital, and are employed as directed by the charter, in " learning and exercising honest sciences and occupations." The raw materials necessary for exercising the trades practised are bought by the governors of the hospital, and manu- factured by the inmates ; such articles as are not required for consumption in Bridewell and Bethlem Hospitals are sold, and the proceeds form part of the general fund for the purchase of other materials to be manufactured, and no profit is made by such sale. All the funds of Bridewell Hospital are applied solely for the purpose of the charity, and the governors derive no profit therefrom whatever : — Held, that the occupation by the corporation of London of Bethlem Hospital and of the house of occupations was for public purposes only, and not a beneficial occupation, and that they were not rate- able under a local act, which imposed a rate upon all persons who should hold, use, occupy, or possess land, &c. in the parish of G. Regina v. St. George the Martyr, Southwark, (Bethlem Hospital and Bridewell Hospital), 16 Law J. Rep. (n.s.) M.C. 129; 10 Q.B. Rep. 852. By a private inclosure act of the 25 Geo. 2. it was enacted, that an annual rent or sum of 90^. should be vested in the rector of the parish of N and his successors for ever, issuing out of and charged upon the lands and grounds intended to be inclosed, as well such as should be allotted to the rector in lieu of his glebe lands lying in the common fields, &c. as the lands of the other landowners in the said common fields, &c., ''and should be paid and con- tributed free and clear of and from all deductions, defalcations, or abatements for or in respect of re- prizes and outgoings whatsoever, other than and except such proportion of the tax charged upon land by authority of parliament as the said annual rent of 90i. shall bear to the yearly value of the lands thereby charged with or made liable to the payment of the same rent." And it was declared that the yearly rent of 90J. should be in lieu and satisfaction of all tithes, &c. arising and renewing in the said common fields, &c. and payable by the inhabitants of the town of N, with certain exceptions ; but the rights of the rector to the tithes of other parts of the parish of N were reserved as before. For the tithes of these last-mentioned portions of the parish, the rector had always since the passing of the act been rated to the poor: — Held, that he was not rate- able in respect of the yearly sum of 90i. Regina v. Shaw, 17 Law J. Rep. (n.s.) M.C. 137 ; 12 Q.B. Rep. 419. By » private act of parliament commissioners were appointed for the purchase of land for making reservoirs, &c. for supplying the parish and town- ship of H with water, at a fixed rate, and to bor- row money on mortgage of the works and water rents ; and it was provided that in order to com- pensate the owners and occupiers of certain mills, &c. in the township of L, which had been pre- viously supplied by water from the springs pro- posed to be diverted and used for the purpose of the act, one reservoir should be provided at the expense of the commissioners, in the township of L, for the purpose of impounding and keeping back a certain supply of water available to the purposes of such owners and occupiers ; and it was further provided, that when the whole of the principal and interest due on the mortgages should be paid oif, the water rents should be reduced so as the proceeds should only cover the current expenses. Under the powers of the act the commissioners borrowed money, and constructed two reservoirs, one for supplying the township of H with water, and one in the township of L, for compensating the owners of mills in that township. The water rents had been, applied to the purposes directed by the act, and had been reduced to half their original amount : — Held, that the commis- sioners, though no profit was derived from the works, were rateable to the poor of the township of L. Regina v. the Churchwardens of Longwood, 18 Law J. Rep. (n.s.) M.C. 65; IsaB.Rep. 116. The Baptist Missionary Society occupy premises solely for religious and charitable purposes. Other religious societies also occupy portions of the same premises, for which they contribute sums equal only to the expenses of lighting, firing, and cleansing, no profit being made from such con- tributions. Works published by the Baptist Mis- sionary Society are sold upon the premises under cost price, and the proceeds devoted to the general purposes of the society. The whole income is ap- plied to religious and charitable objects, and no member derives any private advantage whatever from the connexion with the society: — Held, that the society had such a beneficial occupation of the premises as rendered them rateable to the relief of the poor. Regina v. Baptist Missionary Society, 18 Law J. Rep. (n.s.) M.C. 194 ; 10 a.B. Rep. 884. Under the powers of a local act (22 Geo. 3. c. Ivi.) certain trustees, on behalf of the parish of St. Luke, purchased land in the parish of St. Leonard for the purpose of building a workhouse ; and it was by that act provided that the said land, immediately after it should be conveyed to the said trustees, or any workhouse to be erected thereon for the reception of the poor of St. Luke's, should not be liable to pay any greater parochial or parliamentary taxes, rates, or assessments (during such time as it should be used for the said purposes) than to such amount as such land, &c. was assessed before it became vested in the said trustees. By the 48 Geo. 3- c. xcvii. the 22 Geo. 3. c Ivi. was repealed, and all conveyances made under it were confirmed; and by section 74. all workhouses, &c. which by virtue of former acts (specifying the 22 Geo. 3. c. Ivi.) had been vested in trusteesfor the parish of St. Luke, for or towards the relief, &c. of the poor were vested in the guardians of the poor of the said parish, con- stituted by that act, as fully, effectually, and bene- ficially, and in as large and ample a manner and form, and to all intents and purposes as they were vested in and possessed by the former trustees (subject only to be held on the former trusts). By the 53 Geo. 3. c. cxii. it was provided, that a rate for the parish of St. Leonard should be laid upon RATE ; (B) Poor Ram. 617 all persons who inhabit, hold, or occupy any land, &c. or other building, tenement, or hereditament within the parish, according to the annual rent or value of all such messuages, &c. respectively: — Held, that the 48 Geo. 3. c. xcvii. had the effect of keeping alive the special mode of rating the work- house provided by the 22 Geo. 2. c. Ivi., and that the S3 Geo. 3. u. cxii. did not alter the mode of ascer- taining the annual value for the purposes of rating. Regina v. Inhabitants of St, Leonard^ Shoreditch, 19 Law J. Rep. (n.s.) M.C. 71. (2) Exemption under the 6 SfJ Vict. c. 36. A society is not exempted from rates under the 6 & 7 Vict. c. 36. s. i, unless it has among its laws an express provision, prohibiting the making any dividend or bonus in money among its members. It is not sufficient that no dividend has, in fact, ever been made, and that the making a dividend would be altogether hostile to the constitution and spirit of the society. Semble — the Religious Tract Society is not a society instituted for the purposes of science, litera- ture, or the fine arts exclusively, and is therefore, on that ground, not exempt from rates under the same section. Regina v. Jones, 15 Law J. Rep. (n.s.) M.C. 129;' 8 as. Rep. 719. A society was established for promoting the education of the labouring clashes, and its rules provided, that a school was to be maintained' by it to educate children; it was to support and train up young persons for supplying teachers to the inhabitants of all such places in the British' do- minions at home and abroad as should be de- sirous of establishing schools on the British sys- tem ; and a normal school formed the principal part of the institution. No member of the cbmmittfee was to receive any pecuniary advantage from the society, nor was any dividend, &c., either in money or otherwise, to be made to any of the membei:s. It was supported in part by voluntarj' contribu- tions, but the teachers in the normal school and some others paid a weekly sum towards their board, but such payments did not amount to the expenses incurred; and no profit was made by the sale of books :— HeM, that the society was not'in- stituted for the purposes of science, literature, or the fine arts exclusively, within the statute 6 & 7 Vict. c. 36, and was therefore liable to be rated to the poor and other rates. Held, also, that under section 6. an appeal might be entered against the certificate of the barrister, which allowed the exemption, within four months after the first assessment made after forinal notice of the granting and filing 'the' certificate had been given to the parties who made the rate, though this was some 'months after the filing of the certificate', Regina v. Pocock, 15 Law J. Rep. (n.s;) M.C. 132 ; 8 Q.B. Rep. 729. The statute 6 & 7 Vict. c. 36. s. \>. exempts from rateability persons occupyirigbuildings for the pur- poses of science,literature, or thefine arts exclusively: provided such society shall be supported wholly, or in part, by annual Voluntary contributions, and shall not, and by its laws may not, make any dividend, &c. between its members ; aiid provided it shall obtain the certificate of the barrister appointed to Digest, 18+5— 1850. certify the rules of friendly societies that it is en- titled to the'benefit of the act. Sections, provides, tliat in case such certificate is refused, the Quarter Sessions may order the rules of the society to be filed, which is to have the same effect as a certificate. Section 6. gives an appeal to the Quarter Sessions against the certificate to any person assessed to the rate, who is to state the grounds of his appeal, and the Sessions may, if they think the certificate was granted contrary to the act, annul it, and their determination is to be conclusive and binding on all parties to all intents and purposes. Held, that the certificate is not made conclusive proof of the other requisites of the statute having been complied with ; but is merely one of the seve'ral conditions precedent, which must all concur to give a right of exemption. > ' ■The "Birmingham News Room" is a society by which the periodical publications and newspapers of the day are taken in and supplied far the perusal of subscribers. Share lists and advertisements of sales, &c. are laid on the table by subscribers and others for pei-usail. Any individual (not personally' objectionable) is permitted to become a subscriber on complying with the rules of the soeiety. The library contains several statistical and topographical works and directories for the use of' commercial persons who are siibscribers. The society is sup- ported by the annual subscriptions of members'. One ofthe rules provides for the receipt of fees for notices and advertisements piit up in the news-room,' and the keeper thereof is to account for' and' dispose of the balance of such receipts as the committee'may direct. No surplus of receipts or expenditure has' ever arisen. The building was erected from a fund subscribed in shares by the proprietors, who let the news-room and library to the news-room subscribers at an annual renti in whom the possession of the news-room is vested :— Held, not to be' a society instituted for the purposes of science or literature' exclusively, nor one which might not by its laws make a dividend 6r gift d,m'oh'g its members, and therefore not exempt from liability by the 5 & '6 Vict. c. 36. Regina v. Phillips, 17 Law' J. Rep. (n.s.) M.C. 83j 8 Q.B. Rep. 745. A society called "The Greenwich Society for the Acquisition and Diffusion of Useful Knowledge," and originally established for those purposes only, and for which the baifrister had given a certificate under the 6 & 7 Vict. c. 36, was possessed of a lec- ture hall, library, and reading-room, wliich'were ojjeri'to the use of the members of the' Society; a librarian attending daily, but no person resided there; The "society did not make any dividend, gift, division, or bonus between its members* and was prohibited by its rules from" so doing. '■' The h^ll had on several occasions been' let bythe society for meetings relating-fo church-rates, the com laws, the people's charter; and building societies ; for the exhibition of a dwarf and the North American In- dians, and for sales by auction, &c. The money accruing from such lettings of tlie premises wSiS applied tO the purposes Of the society, and formed one-fdnrth part of the income, the remai'rider con- sisting of voluntary contributions : — ^^Heldj that the trustees of'the society were' liable" 't6 Jioor-rates as not coming within the exemption 'i'elating to a 4K 618 RATE ; (B) Poor Rate. *' society instituted for purposes of science, litera- ture, or the flue arts exclusively," in the 6 & 7 Vict. c. 36. s. 1. Purvis v. Traill, 18 Law J. Rep. (N.s.) M.C. 57; 3 Exch. Rep. 344. A society, called " The Birmingham New Library," was formed for creating and maintaining a library or collection of books, which the mem- bers were to have the use of either in the room or at their own houses, on payment of an admission fee of two guineas, and afterwards the annual sub- scription of 20s., payable on the 1st of January in advance, in each year, and by the rules it was pro- vided that any subscriber being in arrear for three months should be deprived of all privileges of a subscriber till the subscription was paid, and also that no dividend, gift, or bonus in money should be made unto or between any of the members : — Held, to be exempt from poor-rate, under the provisions of the statute 6 & 7 Vict. u. 36. A poor-rate made upon the occupier of the pre- mises used by the society was duly published and allowed, but no appeal was made by the party rated : — Held, that he could not set up the statutory exemption as a ground for refusing to pay the rate, and that the magistrates were bound to issue a warrant to enforce payment of it. Ex parte the Overseers of Birmingham, in re Birmingham New Liprary, 18 Law J. Rep. (n.s.) M.C. 89; nam. Churchwardens of Birmingham v. Shaw, 10 Q.B. Rep. 868. (d) Rateable Value. The rateable value of land occupied and used as a cemetery, was decided by the Court of Quarter Sessions, on an appeal against a poor-rat« by the London Cemetery Company, to be the gross revenue derived by the company from the cemetery, after deducting therefrom Wl. per cent, for tenants' pro- fits, and the amount of outlay for local expenses connected with the cemetery itself, and also a sum in respect of the general management of the com- pany, including office expenses and salaries to directors, auditors, a secretary, and an office clerk : ■ — Held, that the expenditure for general manage- ment was collateral to the occupation of the ceme- tery, and an outlay of part of the revenue; and, therefore, that the Sessions were wrong in deducting the amount of such expenditure. Regina v. In- habitants of St. Giles, Camberwell, 1 9 Law J. Rep. (fl.s.)M.C.122. In calculating the rateable value of a briok-iield, in any particular year, with reference to the statute 6 & 7 Will. 4. c, 96, the royalty payable in respect of the number of bricks made, as well as the rent, may be taken into account, and neither the circum- stance of the rapid exhaustion of the material, nor the casualties to which the article is subject in the process of manufacture, can affect the principle of calculation. But if the sum for which it might be expected to let from year to year as a brick-field can be ascertained, such sum will be the true esti- mate of its annual value. E W rented a brick-field of ten acres at 21. per acre (without reference to the use made of the land), and was also liable to pay to his landlord a royalty or realty of 1*. 6d. per thousand bricks moulded on such land. The Sessions confirmed a rate at a rate- able value of 1591, which they calculated on the amount of rent and royalty, making all proper deductions ; and they also found that the rent per acre, which a tenant might be expected to give for the same field, with the liberty of taking the brick earth, and without any liability to pay any royalty in respect of the number of bricks made, would be 101. per acre, or 1001. Held, that the latter sum, and not the former amount of 1591., was the true criterion of the rate. H E rented a brick-field of twenty-six acres, under an agreement to pay>25. 3d. per thousand bricks made. The Sessions confirmed a rate, at a rateable value of 5501., calculated at Is. per thousand bricks made. It was admitted, that if the sum paid under the agreement was to be considered as a rent, 550^. did not exceed the rateable value. No state- ment was made as to the sum which a tenant might be expected to give. The rateable value of ordinary agricultural land in the parish was 11. 10s., and of garden ground of 31. 10s. Held, that none of these amounts gave the true rateable value ; but that the case must go back to the Sessions to ascertain what a tenant would give within the meaning of the statute 6 & 7 Will. 4. c. 96. Regina v. Westbrook, 16 Law J. Rep. (n.s.) M.C. 87; 10 as. Rep. 178. A water company possessed works, situate in several different parishes, consisting partly of works directly productive of profit (as service-pipes which deliver the water to the consumers), and partly of works indirectly productive of profit (as buildings, mains, reservoirs, &c. which assist in bringing the water to the service-pipes). The rateable value of the entire works having been ascertained by the net estimated rental (30,800i.), the proper mode of ap- portioning the rate in the different parishes is as foDows ; — The portion of the works indirectly pro- ductive of profit should be first assessed in the ordi- nary way, by valuing the land and buildings, and the amount so ascertained deducted from the whole rateable value, and distributed to the districts in which those parts of the works are situate. The residue of the whole rateable value should be appor- tioned among the parishes in which the parts of the works directly productive are situated, in the ratio of the rent to be expected if the parts situate in each parish were let separate ; this ratio is correctly ascertained by the ratio of the net profits in each of the several parishes, or the ratio ofthe gross receipts in the several parisheswherever the total of expense is common to the whole apparatus. Regina v. Churchwardens and Overseers of Mile End Old Town, 16 Law J. Rep. (n.s.) M.C. 184; 10 Q.B. Rep. 208. By act of parliament the Hammersmith Bridge Company were empowered to erect a bridge across the Thames, from the parish of F to the parish of B, and to make proper roads and approaches thereto, communicating with the high roads on each side of the river, and to take certain tolls for the use of the bridge and approaches ; it was also enacted that the half of the bridge adjoining the parish of F should be deemed to be in the parish of F, and the other half in the parish of B. The company accordingly erected the bridge, and made approaches thereto on land purchased by them for that pur- pose, and received tolls for the bridge and approaches at one gate at the entrance to the bridge in F. The length of the approaches in F was 678 yards, and RATE ; (B) Poor Rate. 619 of those in B 5,328 yards. The net rateable value at which the company ought to be assessed in the two parishes, based upon the amount of tolls actually received, after making all proper deduc- tions, including the cost of maintaining the ap- proaches, was 7201.: — Held, that the net rateable value ought to be apportioned between the two parishes in the ratio of the value produced in each parish by the transit over the bridge, i. e. according to the length of the bridge in each parish, which was in this case in equal moieties. QunBre — Whether the approaches to the bridge were separately rateable. Regina v. Hammersmith Bridge Co., 18 Law J. Rep. (n.s.) M.C. 85 ; 15 aB. Rep. 369. The Great Western Railway Company were the owners and occupiers of a railway, which they had constructed. They were also the occupiers of two branch railways, which they rented. They were carriers for hire upon the three railways, and used the whole as one concern. The main line passed through the parish of T, in which the company was rated on the following principle : the gross receipts on the three lines were added together, and those were divided by the total number of miles on the three lines ; the expenses on the three lines, which were allowed as deductions from the rateable value, under the Parochial Assessment Act, were also added together, and divided by the total number of miles as before ; the expenses on the number of miles in T, on the above calculation, were then subtracted from the receipts on those miles, and after making allowance for interest on the plant, or moveable stock, and for tenants' profits, including profits of trade, the assessment was made upon the residue. This assessment being appealed against, the following further deductions were claimed at the Quarter Sessions by the company; the pro- priety of which was stated in a case for this Court : — First, for stations and other erections appurte- nant to the main line and the two branch lines, and necessary for the profitable enjoyment of them, but which are rated or rateable separately from the railway, and none of which are in'the parish of T. Secondly, in addition to an allowance for " mainte- nance of way," the appellants claimed a deduction, in respect of depreciation, and wear and tear of rails and sleepers, being the solid timber and iron- work of the Great Western Railway alone. No fund had been set apart for these repairs ; but the expense had been, theretofore, taken from the capi- tal, and not from the revenue. Thirdly, a deduc- tion of 51. per cent interest on the outlay expended in forming the Great Western Railway Company, obtaining their act of parliament, raising their capi- tal, and other expenses. Fourthly, income; tax paid hy the company, in pursuance of the statute 5 & 6 Vict. c. 35, amounting in the whole to lOjOOOt Fifthly, additional parochial assessments, not paid, but which will be payable, in consequence of the decisions of the Court on rating railways. Sixthly, the annual total loss on the two branch lines. . . Held, that a further deduction was to be made in respect of the stations and oth^r bttildings, under the first item ; and also in respect of the fourth item, as far as the income-tax imposed related to occupation, but not in respect of the other items. It was also referred to this Court to find the proper mode of ascertaining the tenants' profits, in order to their deduction from the rateable value : — Held, that this was a question for the Sessions, as it involved no principle of law. In ascertaining the tenants' profits, the rate had been made on a calculation of the per-centage'on the original value of the moveable stock ; but the Sessions found, that, at the time of the rate being made, that value had decreased. The respondents contended that the per-centage should be taken on the decreased, and not on the original, value : — Held, that it ought to be taken on the decreased value. Regina v. Great Western Rail, Co., 15 Law J. Rep. (n.s.) M.C. 80 J 6 a.B.Rep. 179. (e) Re-valuation. The churchwardens and overseers of the parish of B represented, through the guardians of the Union of B (within which the parish was included), to the Poor Law Commissioners, that a survey atid valuation of the rateable property in the parish was necessary under the 6 & 7 Will. 4. c. 96. s. 3. The Commissioners, under that statute, directed a siir- vey and valuation, and ordered the guardians to appoint a person for the purpose, and to contract with and pay him ; and that the money should be provided for hy a charge on the poor-rates of this parish, which charge should contain the provision required by the statute for payment of principal and interest in five years. P was appointed by the guardians, and the work done by him under a con- tract entered into with them, upon which he sued them for non-payment. The guardians made several orders on the officers of the parish of B to, provide funds, by making a separate rate for the required sum. On a mandamus to enforce obe- dience to these orders, — QuiBre — Whether the order of the Poor Law Com- missioners ought not to have been addressed to the' officers of the parish, from whom the representation came, and not to the guardians of the union. Qa«re— Also, whether the 6 & 7 Will. 4. o. ^G. s. 3, vests the discretion as to determining the mode of raising the funds in the guardians! or in the Poor Law Commissioners; hut. Held, that supposing the guardians to have such a discretion, yet they can only acquire it in conse- quence ofa direction from the Poor Law Commis- sioners to them to provide for payment in one or other -of the ways mentioned in the statute ; and that the orders of the guardians Were, therefore, bad, as being unauthorized hy the Commissioners. ! Qucere — Whether orders of the Poor Law Com- missioners, bad in themselves, must be obeyed, until quashed on certiorari^ unAer the 4 & 5 Will. 4. c. 76, s. 105. Regina v. Churchwardens and Overseers of Bangor, 16 Law J. Rep. (n.s.) M.C. 58; IQ-Q.B. Rep. 91. (/) Audit of Accounts. .. The solicitor to a parish included within an audit district, who has been elected to, and has accepted the office of auditor, must perform all the duties; and his audit of accounts, including 'those contained in his own bill of Costs, is not, therefore; void, and his allowances, &c. are reviewable on cer- tiorari under the 7 & 8 Vict. c. 101. s. 35. 620 RATE ; (B) Poor Rate. The appointment, however, of such a person to the ofRoe of auditor, is not looked upon by the Court with approbation. A rate for the relief of the poor was made by the parish officers of B in November 1842, which was subsequently abandoned by them, and a fresh rate made and published in Tebruary 1843. Both these rates were bad for want of a proper declaration under the 6 & 7 Will. 4. c. 96, but at the Midsummer Sessions 1843 an appeal against them was entered by the parish officers in the name of a friendly rate- payer, and they consented to an order quashing these rates, and directing two new rates to be made in lieu thereof, which was accordingly done, and the new rates were duly made and published.^ At the October sessions 1843 the G. W. Company appealed against the new rates, but the appeal was dismissed; and in December 1843 the company brought up by certiorari the orders made at the Midsummer and October sessions respectively, and obtained rules nisi to quash them. Previously to the argument of these rules the parish officers ob- tained a rule to quash so much of the company's certiorari as related to the orders of the Midsummer Sessions, which was afterwards discharged, with costs to be paid to the company. The company's rules to quash the order of Sessions were opposed by the parish, and were ultimately made absolute: — Held, that the expenses incurred in these pro- ceedings were unnecessary and improper, and that the costs paid by the parish officers to their solicitor on account of these proceedings ought not to be allowed to them by the auditor ; and that the case was not altered by the fact of all these proceedings having been sanctioned by the vestry of the parish, or of their having been adopted by the parish officers under advice of counsel. The Court, on a rule to quash the audit and allowances under the 7 & 8 Vict. u. 101. s. 35, dis- allowed the above items of account, but without Costs to the prosecutors, and refused to reimburse the auditor the costs of defending his allowances. Regina v. Great Western Rail. Co., 18 Law J. Rep. (n.s.) M.C. 145 ; 13 aB. Rep. 327. Although rates are not to be inade retrospectively, yet when overseers, by reason of a balance in hand of an old rate, or the getting in of an uncollected rate, on which a particular debt is chargeable, are enabled to defer the making of a new rate, such debt may be properly paid out of the new rate; and this applies peculiarly to the expenses of litigation. ' The solicitors for the parish of C were employed by the overseers in business connected with the parish between January and March 1845. _ The succeeding overseers, appointed in March 1845, alsO' employed the same solicitors- on parish busi- ness, as did also the overseers appointed in March 1846, the business on which they were employed between March 1845 and March 1846 having no connexion with the business done in the previous year. No bill was delivered by the solicitors till August 1846, when several bills amounting after taxation to 422i. 9«. 2d. were delivered to the then overseers, who paid them. Of the amount, 49Z. was for business done before March 1845, and 213?. for business done between March 1845 and March 1846. The overseers for the year ending Maieh 1845 handed over to their successors a sum of i51l. after paying all charges on them, and there was a sum of 5,728^ of uncollected rate. The overseers for the year ending March 1846 handed over to their successors m lis., and there was 3,376/. of uncollected rate, and the sum of lit lis., together with so much of uncollected rates as were got in before the 25th of March 1847, exceeded the amount of the costs due to the solicitors for business prior to the 25th of March 1846, after deducting all payments and liabilities. The bills were paid out of a rate made in July 1846. The auditor having disallowed the suras of 213t and 49?., — Held, that he was right as to the 49?., but wrong as to the 213?. Regina v. Read, 18 Law J. Rep. (N.s.) M.C. 164; 13 Q.B. Rep. 524. (g) Right to Copy. An overseer who refuses, upon demand, to give an inhabitant copies of the poor-rate, is still liable to the penalty imposed by the statute 17 Geo. 2. c. 3, that statute not being repealed by the 6 & 7 Will. 4. c. 96. Tennant v. Creston, 15 Law J. Rep. (U.S.) M.C. 105 ; 8 Q.B. Rep. 707. It is a question for the jury, whether an overseer upon whom a demand has been made for a Copy of the poor-rate, under the statute 17 Geo. 2. c. 3, has complied with the demand within a reasonable time. Tennant v. Bell, 16 Law J. Rep. (N.s.) M.C. 31 ; 9 Q.B. Rep. 684. (C) County Rate. Before the passing of the Municipal Corporation Act, the 5 & 6 Will. 4. c. 76, the borough of Marl- borough was a place with a separate jurisdiction derived from charter, and also a place which, before the statute 55 Geo. 3. u. 51, was subject to rates in the nature of county rates, imposed by its own Justices, and therefore, by section 1. of that statute, exempt from county rates. After the passing of the 5 & 6 Will. 4. c. 76, the borough, which was in Schedule B of that act, had no grant of a separate Court of Quarter Sessions ; but the Justices of the borough had acted in some criminal matters con- currently with the county Justices, and the town council had maintained a gaol, and repaired a bridge, and made a contract with the county for the mainte- nance of prisoners : — Held, that the borough was, under the provisions of the statute last mentioned, liable to be assessed to the county rate by the county Justices. Regina v. Justices of Wilts, 17 Law J. Rep. (n.s.) M.C. 106 ; 11 0.3. Rep. 758. (D) BoEOUGH Rate. The town council of the borough of R made an order that a fair and equal borough rate, under the provisions of the 5 & 6 Will. 4. c. 76. should be made on the several parishes, &c. for raising 1,654?., and that the proportion of that part of the parish of S lying within the limits, &c. should be 365?. 8s., the sums to be rated at Is. in the pound; and that the churchwardens, &c. should levy, collect, and pay the amounts assessed on their respective parishes, and that a warrant under the corporate seal should be directed to the town clerk autho- rizing him to demand, collect, and receive the amounts so rated, and for that purpose to issue his warrants to the churchwardens, &c. requiring them to levy, collect, and pay the same amounts, &c. RATE. 621 A warrant was accordingly issued to the town clerk, commanding him to " demand, collect, and receive " the amounts rated. The town clerk issued his precept to the special overseer, who had heen previously appointed for that part of the parish of S which lay within the limits, requiring him to " levy, collect, and pay," by a fair and equal rate, the sum of 8651. 8s, The special overseer thereupon made a rate, headed " a borough rate, &o. upon the lands, &c. within that part of the parish of S situate within the borough after the rate of Is. 2d. in the pound," and calculated to produce 4272. 17s. The town council having at the same time also" ordered a watch-rate to be made for raising 685i. 2s. at 6d. in the pound, the proportion of the parish of S being 15SI. 7s., similar proceedings were taken to raise the amount, and the special overseer made a watch-rate on the lands within that part of the parish of S, at 6d. in the pound, and calculated to produce 1602. 5s. The plaintiff having refused to pay both rates, the amounts were levied by two several warrants, of dis- tress on his goods ; and an action of trespass being brought, — Held, first, that the order of the town council that the overseers should levy, collect, and pay, empowered them to make rates in the above form. Held, secondly, that the watch-rate being for the amount in the pound mentioned in the order, and free from all objection, the warrant of distress relating thereto was valid, and was a defence to the action. Quare — If the borough-rate was good. Cobb v. Allan, 16 Law J. Rep. (n.s.) O-B. 397 Ji 10 Q B. Rep. 683., Where a fund has been collected by a municipal corporation by means of a rate, the Court has juris- diction as to the application of the fund, which it treats as a trust fund ; but whether the Court has also jurisdiction over the means by which the fund is proposed to be raised: — quiere. A municipal corporation ought to provide, as far as is practicable, for the expenses of each year out of the income of that year ; but this rule will not be so strictly applied as to prevent, under all cir- cumstances, the payment of a prior debt out of the monies raised by a subsequent rate. An information was filed, stating that a municipal corporation having considerable corporate property, but having incurred debts' which their income was not sufiicient to discharge, were endeavouring to raise money for the payment of their debts by means of a rate, and an application was made for an injunction to restrain the corporation from so doing, which was opposed on the ground that the Court had not jurisdiction to interfere in such a case to prevent the rate being collected, and; that the corporation was entitled to raise money by a rate for payment of their prior debts. The injunction was refused. Attorney General v. Lichfield, {Cor' poration of), 17 Law J. Rep., (n.s.) Chanc. 472! 11 Beav. 120. (E) Highway Rate. By the i5,& 6 Will. i. c. 50. ?. 27.;the highway- rate is to be levied on all property .liable to the poor-rate.' By section 113. nothing in the act con- tained is to be applied to any roads, bridges, &c. paved, repaired, or cleansed under any local act : — Held, that the 113th section does not exempt a bridge paved, &C. under a local act from the high- way-rate. The exemption in section 113. applies only to the interference of the surveyors of highways with such abridge. Regina v. Paynter, 18 Law J. Rep. (n.s.) M.C. 169; 13 a.B. Rep. 399. (F) Pavino Rate. A paving rate imposed under authority of an act of parliament is not an incorporeal heredita- ment, and may therefore be sued for in a county court. Baddeleg v. Denton, 19 Law J. Rep. (n.s.) Exch. a i 4. Exfch, Rep. 608. (G) Sewers Rate. Commissioners of sewers have power to join several levels,, formerly assessed separately, for the purpose of drainage ; and a level which derives benefit from the drainage after the union, although it derived no benefit from the junction itself, is liable to he rated in respect of the whole united district. St. Katharine's Dock Co. v. Higgs, IS ha,vi J. Rep. (n.s.) aB. 377 ; 10 Q.B. Rep. 641. (H) Retkospective Rate. There is no rule of law which prohibits a retro- spective rate. In every case of rating the question is, whether the act under which, a rate is made, either.expressly or impliedly, prohibits such rate from being retro- spective.) ',.-,'■ ■ i; The 2 Will. 4. c. 50, (public, local) for draining the lands of Holderness, in the East Riding of the county of York, contains no prohibition against a retrospective rate., The commissioner under that act borrowfed money (on which interest became dne)j for the purposes of the Works directed by the act : — Held, that a rate made to pay off the debt thus incurred was, under the provisions of that act, a valid rate. Harrison v. Stickney, 2 H.L. Cas. 108. (I) Distress for Rates. A distress warrant may issue against any one of a number of tenants in common refusing' to pay the amount of a rate assessed on all of them. :, . i In a notice of allowance of a rate it is not neces- sary to shew how the rate was allowed. Therefore, it was not held necessary, where it appeared Ithat the rate was allowed by a police magistrate,, to allege that he had made the allowance at a police COUtt.' , i, . , , , , , A ra te is not invalid un der the 6 & 7 Will. 4. c. 96. s. 2, foT not following in precise words theprescribed form, if it is duly sigiied by the churchwardens and overseers before it is allowed. ' Paynter 'yj , Regina, 16 Law J. Rep. (n.s.) M.C. 136 j 10 Q.B. Rep. 908. " -. A warrant of distress for poor-rates recited, that the rate was made on the 25th of November, that being in fact the date of its allowance, it having been made on the 24th of September. And it alleged the refusal of the p jrties to pay the rate to have been "duly proved," instead off proved On oath:' — Held, that the warrant was good. Ormertod 622 RATE— RECOGNIZANCE. V. Chadwick, 16 Law J. Rep. (n.s.) M.C. 143; 16 Mee. & W. 367. After a highway rate for a parish has been regu- larly made and assessed, and an occupier of pre- mises included in such rate has neglected to appeal within the time allowed by the statute for that pur- pose, he cannot afterwards successfully set up a claim to exemption from that particular rate j and under the Sth section of the 11 & 12 Vict.c. 44, the Court will grant a rule to compel the issuing of a distress warrant for the amount, where the Justices applied to for that purpose refuse to issue their warrant after hearing the grounds of such exemp- tion, even though the claim of exemption appear to he a substantial one. Regina v. Justices of Oxfordshire, 18 Law J. Rep. (n.s.) M.C. 222. A distress warrant, granted under the statute 53 Geo. 3. c. 127. s. 7, to levy the amount of a church rate from a person not a Quaker, is bad if it directs the sale of the goods distrained to be " forthwith." It ought to fix a limit of a certain time, not less than four nor more than eight days, before the sale, pursuant to the statute 27 Geo. 2. c. 20. s. 1. Regina v. Williams, 19 Law J. Rep. (n.s.) M.C. 126. (K) Commitment for Non-payment of Rates. The 43 Eliz. c. 2. a. 4. does not extend to costs. Where, therefore, a warrant of two Justices of the county of S commanded the constable to appre- hend and tale A B to the house of correction, there to remain until the payment of a sum, made up of the arrears of poor-rate due from him and of costs awarded, — Held, that such warrant was altogether bad ; and that an action of trespass lay against the Justices and the constable for the arrest and im- prisonment under it. The backing of such a warrant b)' a magistrate, xinderthe 24 Geo. 2. c. 55, is merely a ministerial act, and the Justices who originally issued the warrant are responsible for the arrest under it, although made in a different county from that in which it wa,s issued. Where a party arrested under such warrant paid under protest the whole amount mentioned therein, he was entitled in an action of trespass brought for such arrest to recover as damages the whole amount so paid by him. Under the 24 Geo. 2. c. 44. a demand of the perusal and copy of the warrant, under which a constable has acted, which is in writing and signed by the plaintiff's attorney, is sufficient, although it has been left at the constable's place of abode by a person other than the attorney. When, previous to such demand being made, the plaintiff has by other means obtained a copy of the warrant, that does not excuse the constable from complying with the demand, if he seek to avail himself of the protection given by that statute. The mere fact of the Justices who issued the warrant being sued jointly with the constable, does not entitle the latter to a verdict, the last clause of the 24 Geo. 2. c. 44. n. 6. only applying to actions brought after the demand of the perusal and "copy of the warrant has been complied with by the con- stable. Clark V. Woods, 17 Law J. Rep. (n.s.) M.C. 189; 2 Exch. Rep. 395. REAL PROPERTY. The provisions of the 1 1 Geo. 4. & 1 Will. 4. c. 47. as to payment of debts out of real estate ex- tended by the 11 & 12 Vict. t. 87 ; 26 Law J. Stat. 226. RECEIVING. [See Practice, in Criminal Cases.] Where a prisoner was charged in several counts of an indictment, varying the description of the offence, with one act of larceny, and the indictment also contained other counts of a similar kind, charg- ing the prisoner, under the 11 & 12 Vict. c. 46, with feloniously receiving the property stolen : — Held, no objection that there was more than one count for receiving, and that the counsel for the prosecution had properly not been called upon to elect upon which count for receiving he would pro- ceed. Regina v. Beeton, 18 Law J. Rep. (n.s.) M.C. lit ; 1 Den. C.C. 414 ; 2 Car. & K. 960. Without proof of an actual taking into pos.ses- sion, an indictment for receiving goods knowing them to have been stolen, cannot be sustained. Where, therefore, the evidence upon which a conviction under such an indictment had taken place, was that the prisoner (a married woman)had called at a coach-office, to which the stolen goods had been sent from a distance in a box not directed, by the thieves, her husband and another; and had there inquired for the box, and upon its being pro- duced, claimed it as the box she had come for, and which had been sent to her; and that thereupon she was taken into custody without the box being delivered up to her: — Held, that there was no suf- ficient proof of a receiving, and that the conviction was wrong. Quare — Whether the fact of the stolen goods having been sent to the prisoner by her husband could have availed her as an excuse, although she knew that the goods had been stolen. Regina v. Hill, 18 Law J. Rep. (n.s.) M.C. 1 99 ; 1 Den. C.C. 453 ; 2 Car. & K. 978. J had employed M to load sacks of oats, the pro- perty of J, from a vessel on to the trams of K, who was to carry them on the trams to the warehouse of J. By previous concert between M and K oats were taken by M from two of the sacks and put into a nose-bag in the absence of K, and hidden under a tram. K. returned in a few minutes, and took the nose-bag and its contents from under the tram and took them away, M being then within three or four yards of him : — Held, that both were principals in the larceny, and that K was not a receiver ; and that, as it was all one transaction and both had concurred in it, and both had been present at some parts of the transaction, both could be convicted as principals in the larceny. Regina v. Kelley, 2 Car. & K. 379. RECOGNIZANCE. When a party is convicted at petty sessions and sentenced to imprisonment under the statute 6 Geo. 4. u. 129, which in section 12. gives a power of appeal, and provides that the execution of every REGISTRY— RENT AND RENT-CHARGE. 623 judgment appealed from shall be suspended if the person convicted shall "immediately" enter into certain recognizances with two sureties, it is not necessary that the recognizances should be taken at the time of conviction ; but the prisoner is en- titled to be discharged, if he makes his application to have the recognizances taken promptly and ex- peditiously after the conviction, regard being had to all the circumstances of the particular case. Regina v. Jstm, 19 Law J. Rep. (n.s.) M.C. 236 ; IL. M. & P. 491. REGISTRY. 0/ Deeds. A conveyance of lands in Middlesex by settler ment upon the marriage of the settlor, registered under the statute 7 Ann. c. 20, is efiectual against a prior unregistered conveyance, notwithstanding the party claiming under the settlement had notice of the unregistered conveyance after the marriage, but before the registry of his settlement. Elsey v. Lutyens, 8 Hare, 1 59. Of Births, Sfc. Indictment under the H Geo. 4. & I Will. 4. c. 66. s. 20. for destroying, defacing, and injuring a register of baptisms, marriages, and burials. Ob- jection: 1. That there was neither a destroying, defacing, nor injuring within the statutes, because the register when produced had the torn piece pasted in, and was as legible as before ; 2. That the indictment was bad for^ uncertainty, for alleging three distinct and different offences; 3. For not containing an express averment of a scienter. In- dictment held good on all points. Regina v. Bowen, 1 Den. C.C. 22. A woman went to a registrar of births and asked him to register the birth of a. child ; she stated to him the particulars necessary for the entry, and he made the entry accordingly, and she signed it as the person giving the informatioii. Every particu- lar which she stated was false: — Held, that this amounted to the felony of causing a false entry to be made, within the statute 6 & 7 Will. 4. c. 86. s. 43, and was not merely the misdemeanour of making a false statement, under section 41. of that statute. Regina v. Dewitt, 2 Car. & K. 905. RELEASE. Where, in an action by a provisional committee suing on behalf of a railway company, one of the plaintiffs, who has a real interest in the concern, and is not a mere trustee for. others, executes to the defendant a release of the cause of action, a court of law cannot interfere to prevent the defendant pleading the release. Rawtthorne, or Rauistorne, V. Garidell, 15 Law J. Rep. (n.s.) Exch. 291 ; 15 Mee. & W. 304 ; 3 Dowl. & L. P.C. 682. An aunt and niece lived together, the former be- ing devisee, residuary legatee, and executrix under her husband's will, and the latter being a legatee of 2,000/. under the same will. An agreement was entered into that the niece should release hsr legacy on the aunt devising to her part of the testator's lands. The release and will were accordingly exe- cuted, and the will remained unrevoked until after the niece's death, when the aunt married: — Held, that the relea.se was binding on the niece's repre- sentative. Penny v. Watts, 2 De Gex & S. 501. RELIGIOUS SOCIETIES. The titles of congregations and societies for the purpose of religious worship to property held for such purposes, simplified by the 13 & 14 Vict, c. 28 ; 28 Law J. Stat. 36. REMITTER. [See Deed, Construction of.] RENT AND RENT-CHARGE. Payment of chief rents, &c., for the space of any three whole years within twenty years before the passing of the statute 4 Geo. 2. c. 28, though those three years may not he consecutive, is sufficient to satisfy the provisions of the 5th section of that statute. In replevin an avowry alleged that R was seised as of fee and right of and in an annual fee-farm rent, payable for and issuing put of the dwelling-house in which, &c., and j ustified the distress for arrears of the fee. farm rent. Issue was joined, upon a plea in bar, denying that B was so seised of the fee.^farm rent. After verdict for the defendant, — Held, upon motion in arrest of judgment, that it was, too late tgi object that the avowry ought to have shewn the origin of the rent, this being at most a defective statement of title which was cured by verdict., Quiere — Whether the objection would have pre- vailed upon demurrer. Musgrave v. Emmerson, 16 Law J. Rep. (U.S.) Q.B. 174; 10 a.B. Rej). 326, ,, The defendants in replevin avowed that Henry- the Eighth was seised in fee in right of his crown of the said shop, in which, he, and being so, seised, by letters patent granted it to Sir E W in tail male, to be held by knight's service, paying to the king- an annual rent of il. lis. id. at Michaelmas in every year, whereby the said E W became seised, in tail of the said shop in which, &c., and the said king became seised in fee of the reversion expectant on the determination of the said estate tail. The avovvry then traced the title to the reversion tlirough :the successive sovereigns down to Charles, the, Second. That Charles the Second by letters patent (made after the 22 Car. 2. c. 6, and before the 24th of June 1672, and referring to the letters patent of Henry the Eighth) .granted to, certain trustees and their heirs the said annual rent oiil. ll«.4,rf. so as afore- said reserved and issuing out of the said shop, in which, &c. to hold to the use of (the said trustees, their heirs and assigns for ever, upon trust, to sell and convey the same as therein mentioned: > That the said trustees being so seised, &c. by an indenture, for a money consideration, granted the said rent of il. Wa.id. to the Dean andChapter of St. Paul's and their successors for ever, whereby the said dean and chapter became and until the 11th of October 1845, 621 RENT AND RENT-CHARGE— REPLEVIN. and from thence until the said time when, &c. continued to be seised as of fee of and in the said rent of 4/. lis. 4rf. ; that the said rent was duly paid for three years within the space of twenty years next before the session of parliament holden in the fourth year of Geo. 2, and because 271. ISs. of the said rent for six years, ending the 11th of October 1845, at the said time when, &o., was due and in arrear to the said dean and chapter, the defendants well avowed, &c. Held, fn the Exchequer Chamber, that the Court ofQueen'sBench(18LawJ.Rep.(N.s.)Q.B.97.)had rightly decided that theavowryaodcognizance could not be supported under the 22 Car. 2; and that the reversion giving the right to distrain was in the Crown, independently of that act Held also, (the objection being taken for the first time in error) that the want of an express averment of attornment by the terre-tenant upon the grant by the trustees was a fatal defect in the defendants' title, upon general demurrer, and one not cured after verdict, or by the Statutes of Jeofails. And semble, that upon the pleadings the Court of Queen's Bench were right in deciding that the grant of Charles the Second was not voi4 on the ground that the Crown had been deceived, inasmuch as having title only to the rent service during the estate tail, the grant was of a rent in fee. And further, that the Statutes of Mortmain did not apply to the conveyance to the dean and chapter. But that the Court were wrong in intimating that no express averment of the continuance of the estate tail was necessary. Vigers v. Dean and Chapter of St. Paul's, 19 Law J. Rep. (n.s.) a.B. 84. A testator devised his freehold estates to trustees, in trust to permit his wife to receive the rents for her life, and after her decease upon trust to permit his nephew, his heirs and assigns, to hold and enjoy the said estates and receive the rents and profits, subject to the payment of 201. yearly and every year for ever to his niece, her executors, administrators and assigns ; and the testator made chargeable his said freehold estates with the payment of the said sum. The annuitant died, and her devisees con- tracted to sell the rent-charge, which was stated to have been given to the testator's niece, her heirs, exe- cutors, administrators and assigns: — Held, that the rent-charge might be legally distrained for, and that the thing contracted to be sold was within the words of the contract; and a decree was made for specific performance. Ramsay v. Thomgate, 18 Law J. Rep. (N.s.jChanc. 238; 16 Sim. 575. A on his father's death became tenant in tail in possession of estates, with remainder to his younger brother in tail. After the father's death a suit was instituted on behalf of A and his younger brother (both infants), and a receiver appointed. The younger brother was made a party to the suit, as being entitled to a portion out of the estates. A died under twenty-one and without issue. At his death the estates were held, as they had been ever since his father's death, by yearly tenants under parol demises : — Held, that A's administratrix was entitled to a proportionate-part of the rents which were accruing due at his death. Kevillv. Davies, 15 Sim. 466. REPLEADER. [See Pbohibition,] In an action of debt, the defendant pleaded five pleas. Upon demurrer to the fourth plea (pleaded to the whole declaration) the Court gave judgment for the defendant, and expressed their opinion that the declaration disclosed no cause of action. The plaintiff at the trial of the issues in fact had a verdict on the first, second, and third issues, and the defendant on the fifth, which raised an immaterial issue : — Held, that the plaintiff could not have judgment non ob- stante veredicto on the fifth issue, nor was he entitled to a repleader. Willoughbyv. Willoughby, 16 Law J. Rep. (n.s.) O.B. 251 ; 6 aB. Rep. 722. The declaration stated that it was agreed between the plaintiff and the defendant that the plaintiff, the defendant, and J R, the son of the defendant, should, at the expiration of a' reasonable time, execute a deed by which J R was to be apprenticed to the plaintiff, and that the defendant should pay a pre- mium ; that a reasonable time had elapsed for exe- cuting the deed and paying the premium, and that although the plaintiff was ready and willing to exe- cute tlie deed and to receive J R, and although the plaintiff requested the defendant to execute the deed and pay the premium, yet he refused, and the defen- dant exonerated and discharged the plaintiff from tendering the deed for execution. Plea — that the defendant did not exonerate the plaintiff. A verdict having been found for the defendant, a rule nisi for a new trial, for judgment for the plaintiff non obstante veredicto, or for a repleader, was refused. And it was held, that the declaration, without the averment of exoneration, would have been bad ; that the issue as to the exoneration was a material issue ; and that a repleader cannot be granted unless the Court does not see how to give judgment upon the issues as found on the record. Doogood v. Rose, 19 Law J. Rep. (n.s.) C.P. 246. REPLEVIN. A replevin bond which has been assigned by the sheriff, is admissible in an action against him for taking insufficient pledges, without proof of its exe- cution, though there is an attesting witness. The acts and declarations of the person who acted as replevin clerk are admissible against the sheriff, though there is no other evidence of his being such clerk than his acting as such on the occasion in question. A writ of jj. fa., in an action on promises for the rent is also admissible against the sheriff, to shew that the proceedings taken against the plaintiff in replevin had proved fruitless. The costs of an action against the sureties are recoverable as damages against the sheriff. It is sufficient for the declaration to allege that the sureties were insufficient in fact, without noticing the tenant or shewing that the sheriff did not make due inquiry or even use reasonable caution. Whether he used due caution is a question for the jury. Plumer v. Briscoe, 17 Law .1. Rep. (n.s.) a.B. 158; 11 Q.B. Rep. 46. Debt on a replevin bond. The declaration stated a removal of the plaint into the superior court, on the 2nd of November, and a declaration in replevin REPLEVIN-REVENUE. 625 on the 30th of April; an avowry, on the 9th of July; and the death of the plaintiffin replevin on the 16th of November; and charged as a breach that J S (the plaintiffin replevin) did not prosecute his suit without delay; but, on the contrary, delayed the prosecution of the said action for an unreasonable time, and until the said J S long after a reasonable time had elapsed for the trial, died before issue joined. This breach was traversed modo etformd : — Held, that, the plaintiff was at liberty, under this issue, to shew a delay in the proceedings prior to the delivery of the declaration. Held, also, that the condition to prosecute with- out delay may be broken by a delay which does not exceed the time for proceeding allowed by the prac- tice of the superior courts. Gent v. Cults, 17 taw J. Rep. (N.s.) Q-B. 55; 11 Q.B. Rep. 288. Although the 9 & 10 Vict. c. 95. takes away the jurisdiction of the sheriff's county court in replevin, it is still the duty of the sheriff to take replevin bonds under the 1 1 Geo. 2. o. 19. s. 23 ; and a bond taken in the terms of that statute will he valid. But a bond taken in the form usually employed before the statute of Victoria, conditioned " to appeal at the- next county court of Middlesex, holden at the sheriff's office, &c., and then and there prosecute the action with effect," is insufficient since that statute, the jurisdiction being transferred by the' 119th section to the new court for the district in which the distress was taken. Even if the bon4 would have been good otherwise, the omission of the condition to prosecute "without delay" would have been fatal. At the trial of an action against the sheriff for taking an insufficient replevin bond, the plaintiff's counsel called for the original bond. The defen- dants' counsel refusing to produce it, a copy was tendered, and was ahout to he read ; the defendants' counsel then produced the original, and objected to its being read without the evidence of an attesting witness. The Judge allowed it to be read : — Held, that the plaintiff was entitled to read the copy, and that the copy -must be taken to have been read. In an action against a sheriff for taking an insuffi- cient replevin bond, the amount of the rent due and the expenses of the distress may be recovered as. A declaration alleging that the county court had not jurisdiction at the time of the taking of the re- plevin bond was held to shew sufficiently, after verdict, that the Court had no jurisdiction at the time of the plaint. Edmonds v. Challis, 18 Law J. Bep. (N.s.) C.P. 164; 7 Com. B. Rep. 413. In replevin, an avowry by the bailiff of a manor, justifying the seizure as a distress for an amerciar ment, stated that the plaintiff had unlawfully ob- structed the jurors of the manor in their examination of the weights and measures, and that the jury had presented that the plaintiffhad so obstructed them, whereupon he was amerced, &c. : — Held, bad, on special demurrer, for not stating in what the obstruc- tion consisted. Frost v. Lloyd, 16 Law J. Rep, (n.s.) Q.B. 13 ; 9 a.B. Rep. 130. Where the defence rested on several cognizances, — Held, that a person under whom one of such cog- nizances was made was competent to prove matters distinct from and independent of that particular cognizance. Walker v. Giles, 2 Car. & K. 671. Digest, 1845—1850. In replevin, the defendant avowed for a distress for rent, and the plaintiff pleaded that the goods were taken between sunset and sunrise, and the defendant replied that the goods were t^ken between sunrise and sunset, without this, that they were taken between sunset and sunrise : — Held, that, on these pleadings, the plaintiffhad the right to begin. In replevin, the plaintiff had given a. bond under section 121. of the, 9 & 10 Vict. c. 95. (the County Courts Act), to prosecute his suit with effect and without delay, and prove that the title to corporeal property was in question : — Held, that he was not entitled to obtain a certificate from the Judge at Nisi Prius that he had done so, if he did not succeed in the cause ; and that, not having done so, he had not prosecuted his suit with effect. Tunnictiffe v, Wilmot, 2 Car. & K. 626. RESTITUTION. [See Landlobd and Tenant.] RESTRAINT OF TRADE. [See Stamp, Agreement.] RETURNED TRANSPORT. ; ..Where a prisoner \vas indicted uhiei; the 5 Geo. 4, c. 84. s. 22. for being found at large in England before the expiration of a terra for which he had been sentenced to be transported,— Held, that the fact of such, sentence being in force at the time he was so found at large was sufficiently proved by the certificate .of his conviction and sentence, — the judgmen^t remaining unreversed, — although, on the face of such certificate, it appeared that the sen- teiic'e, viz., transportation for fourteen years, was one which cofild not haye Tjeen inflicted on him for the offence of which, according to such certi- ficate, he had been committed, viz., larceny. R(- gina v. Finney, 2 Cax. Si'K. IT i. REVENUE. [See Prekogative — Scire Facias.] (A) Prerogative of the Crown. (B) CRovfN Lands, [See Rent and Rent- Charge. (C) Customs and Excise,. , i - (a) Duties. (fi) Penalties. Ic) Officers. (rf) Licence. (c) Ivformaiion and Conviction. if) Appeal (D) Taxes* ,, -.a ,■ Certain customs duties altered by t'he lOVibt. c. 23 ; 25 Law J. Stat 75. ' " " ' ' ' The collection and management of certain duties transferred from the Commissioners of Stamps and 4L 626 REVENUE ; (C) CnsTOMS and Excise. Taxes to the Commissionere of Excise by the 10 & 1 1 Vict. c. 41 ; 25 Law J. Stat 155. "^ Duties on timber, seeds, &c. altered by the 9 & 10 Vict. c. 23 ; 24 Law J. Stat 64. The laws relating to the customs amended by the 9 & 10 Vict c. 102 ; 24 Law J. Stat 275. The Boards of Excise and Stamps and Taxes consolidated into one Board of Inland Revenue by the 12 Vict c. 1 ; 27 Law J. Stat 1. The duties on bricks repealed by the 13 Vict. 0.9; 28 Law J. Stat 11. Sugar duties altered by the 13 & 14 Vict c. 67 ; 28 Law J. Stat 131. The laws relating to the customs amended by the 13 & 14 Vict c. 95 ; 28 Law J. Stat 266. The laws relating to the customs amended by the 12 & 13 Vict c. 90 ; 27 Law J. Stat 173. The use of stills by unlicensed persons prohibited by the 9 & 10 Vict c. 90 ; 24 Law J. Stat 215. The laws as to dealers in spirits and permits altered by the 11 & 12 Vict. u. 121 ; 26 Law J. Stat 314. The law as to the warehousing of spirits and the export of spirits made from malt amended by the 11 & 12 Vict. c. 122 ; 26 Law J. Stat 320. (A) Pkebogative or the Crown. A vessel, having a quantity of fire-arms on board, was seized by the officers of the Board of Customs, and after being detained for some time, was delivered up, unconditionally, to the owners. An action of trespass having been commenced in the Court of Common Pleas, for such seizure and detention, this Court made a rule absolute in the first instance, upon the application of the Attorney General, for the removal of the cause into this court. Adams v. Freemantle, 17 Law J. Rep. (n.s.) Exch.312; 2 Exch. Rep. 453. (B) Ckown Lands. [See Rent and Rent-Charge.] (C) Customs and Excise. (a) Duties. The statute 9 Geo. 4. c. 60, repealing certain acts which laid duties on foreign corn imported for con- sumption in the United Kingdom, imposed new duties, to be graduated, according to the average price of British corn, which average was to be cer- tified by the comptroller of Customs, who, for that purpose, was to strike a six-weeks' average on the prices for the last week, as ascertained from returns for that week, transmitted to him, and the averages certified by him in the five preceding weeks. The Customs Act, 3 & 4 Will. 4. o. 56, in the table of duties inwards, has the words " Corn. See 9 Qeo. 4. c. 60." The statute 5 & 6 Vict o. 14. repeals the statute 9 Geo. 4. 0. 60. (except as to the repeal of former acts), and enacts that there shall be levied and paid, from and after the passing of the statute 5 & 6 Vict. c. 14, the duties on corn specified in the table annexed. The table graduates the duties according to the average price, "made up and published in the manner required by law." Sec- tion 28 enacts, that the comptroller shall strike a six-weeks' average, from the prices transmitted to him for the last week, and his last five averages, and shall on every Thursday transmit a certificate ■of the average so struck to the collectors at the ports ; and the duties to be paid shall be regulated by the last of such certificates received by the collector. Section 30. authorizes the comptroller, till there shall have been a sufficient number of weekly returns under the act, to use his own weekly averages published before the act passed. Held, by the Court of Exchequer Chamber, (reversing the judgment of the Court of Queen's Bench), that the statute 9 Geo. 4. c. 60. was not kept alive by the statute 3 & 4 Will. 4. c. 66. for the purpose of striking the first average under the statute 5 & 6 Vict. c. 14 j and that, therefore, no duties were payable upon corn imported between the passing of the statute 5 & 6 Vict c. 14, and the receipt by the collector of the comptroller's first certificate under the last-mentioned statute. Held also, by the Court of Exchequer Chamber, that the collector was liable, under the statute 3 & 4 Will. 4. c. 52. s. 18, to an action on the case by the importer, for not signing the bill of entry for such corn until he received a certain sum which he claimed as duty. And that the corn having been delivered up to the importer on his paying, under protest, the sum claimed as duty, the measure of damages was the amount so paid, together with the loss sustained by the detention of the corn, taking into account a fall of prices which had occurred between the refusal to sign and the delivering up of the corn. Barrow v. Arnaud, 8 Q.B. Rep. 595. The 7 & 8 Geo. 4. c. 52. s. 33. imposes a penalty on any maltster treading or forcing together corn in a couch-frame. The 1 Vict. c. 49. s. 5. empowers oflScers of Excise to throw the corn out of the couch-frame, and return itj and if any increase be found in the gauge of the corn after its being returned and laid level in the couch-frame (in any greater proportion, &c.), the increase so found is to be deemed conclusive evidence of such corn having been trodden and forced together ; and the maltster is to be convicted in the said penalty. Upon an information, and conviction, before Justices, for the above penalty, it appeared that the uniform mode recently adopted by the Excise of returning the corn was by piling it up in the centre of the couch, in the form of a cone, and then levelling it, instead of by casting the corn equally all over the floor of the couch-frame as formerly usual: — Held, by the Court of Exchequer, upon the construction of the above statutes, that the officer of Excise had some discretion — and it might be, that he had an absolute discretion — as to the mode of returning the grain, and that the above mode not appearing to be improper, an increase so found in the gauge of the corn (beyond the allowed increase) was conclusive evidence of the offence in the 7 & 8 Geo. 4. c. 52. s. 33, and that the conviction was right. Regina v. Speller, 17 Law J. Rep. (n.s.) M.C. 9; 1 Exch. Rep. 401. The 74th section of the 2 & 3 Will. 4. c. 120. requires every licensed postmaster to insert in the Excise Office Weekly Account rendered by him to the Excise certain particulars of each respective REVENUE ; (C) Cdstoms and Excise. 627 letting of horses to hire hy him during that week, and in case of neglect to insert such particulars in the weekly account rendered by him, subjects him to a penalty. A count in an information framed upon that section, after stating that the defendant was a licensed postmaster, and that he had delivered to him certain blank forms of Excise Office Weekly Accounts, and that he had let to hire certain horses upon which letting to hire cer- tain duties had become payable, stated that the defendant did not nor would at any time truly insert in the weekly account by him then made and rendered as required by the statute the par- ticulars of such letting for hire; hut on the con- trary, that he neglected to insert in his said weekly account so by him made and rendered as aforesaid, each of the particulars of such letting to hire as required by the statute, contrary to the form of the statute, &c. : — Held, bad in arrest of judgment, it being consistent with the count that the defendant had not rendered any weekly account whatever. So, also, a count similar to the preceding one for several omissions, and which stated that the de- fendant did not insert in any weekly account, was held bad for the same reason-. The 81st section inflicts a penalty on every licensed postmaster who shall wilfully conceal the letting of any horse for hire, or who shall make or render any false or fraudulent account concerning duties payable by him in respect of such letting to hire, or who shall be guilty of any other fraudulent contrivance whatsoever, with intent to defraud the Crown of the post-horse duties: — ^Held^ that the latter part of the clause applied to all the ante- cedents J that a count in an information for ren- dering a false and fraudulent weekly account of duties which did not contain any averment that the defendant rendered it with intent to defraud the Crown of the duties, was bad in arrest of judgment. Attorney General v. Shillibeer, 18 Law J, Rep. (N.s.) Exch. 481 ; 3 Exch. Rep. 71. The 2 & 3 Vict. c. 24. s. 18. enacts, " that it shall be lawful for any person to make bricks for the sole purpose of draining wet and marshy lands, without being charged or chargeable with any duty for or in respect of such bricks, &c. ; provided always, that it shall not be lawful for any person to employ or make use of any such bricks for any other purpose than in draining wet and marshy lands, and in constructing the necessary drains, gouts, culverts, arches and walls of the brickwork proper and necessarily required for eifecting and maintaining the drainage of such lands," under a penalty of SOL : — Held, hy Parke, B., Alderson, B, and Rolfe, B. (Pollock, C.B. dissentiente), that under this section the exemption from duty applied to Buch bricks only as were used in works physically necessary for the construction of drains, and not to bricks employed in works which were not necessary for the purposes of drainage, although those works would not have been constructed if the drainage had not been made. Per Pollock, C.B., that the exemptions applied to all drain bricks used in constructing drains, and all gouts, culverts, .arches and walls which were physically or legally necessary for the existence and maintenance of drainage. Attorney General^. Walker, 18 Law J. Rep. (n.s.) Exch. 179 ; 3 Exch. Rep. 242. (6) Penalties. The 25th and 26th sections of the Excise Licence Act, 6 Geo. 4. c. 81, itjnpose penalties on any manufacturer of, or dealer in, or seller of, tobacco, who shall not have his name painted on his entered premises in manner therein directed; or who shall manufacture, deal in, retail, or sell tobacco, without taking out the licence required for that purpose:— Held, that the etfect of those sec- tions was to impose a penalty on an offender, fox the benefit of the revenue, but that they did not render void a contract for the sale of tobacco made by a manufacturer or dealer, who failed to comply with their requisites. If the legislature had intended to prohibit the contract itself, if only for the purposes of revenue, it would have been illegal, and no action could have been maintained on it. A plea which alleged that the tobacco for the price of which the action was brought, was sold by the plaintiffs as manufacturers of tobacco, after the 6 Geo. 4. c. 81, without having a licence under that act, was held bad, on the ground that it did not sufficiently allege that the plaintiffs were manufacr turers of tobacco to bring them within the provi- sions of the act. Smith v. Mawhood, 1 5 Law J. Rep. (n.s.) Exch. 149 ; 14 Mee. & W. 452. The 6 Geo. 4. c. 80. s. 6. enacts, that no person shall keep any still whatever for making or distil- ling spirits without having fir^t obtained a licence< Section 7. enacts, that such licence shall be renewed annually, and that if any person shall continue to keep or work any still, or shall distil any lowwines, spirits, &c., contrary thereto, he shall forfeit 500^.: — Held, that a party who distils spirits, whatever may he their ulterior use, is a distiller within, the meaning of the act of parliament ; and therefore that the defendant, who distilled alcohol to be made into sweet spirits of nitre by the addition of nitric acid, was a distiller within the meaning of the act, and required a licence. Attorney General v. Bailey, 16 Law J. Rep. (n.s.) Exch. 63; 16 Mee. & W. 74. Sweet spirits of nitre are not " spirits" within the meaning of the statutes 6 Geo. 4. e. 80. s. 101, 6 & 7 Will. 4. c. 72, and 5 Yict. c. 75. A party buying sweet spirits of nitre from one who is not a licensed distiller, and without a, per- mit, and removing, and i]eceiving them after their removal, knowing that no fluty has been paid in respect of them, and that they have been illegally distilled, is not liable to be convicted under the statutes 6 Geo. 4. c. 80. s. 133, 7 & 8 Geo. 4.c 53. s. 32, and 2 Will. 4. c, 16. s. 10. The term "spirits" within the meaning of the 6 Geo. 4. 0. 80. signifies an inflammable liquid, produced by distillation, either pure or mixed only with ingredients which do not convert it into some article of commerce not known in common parlance under the generic appellation of spirits. Attor- ney General v. ISailey, 17 Law J. Rep. (N.s.) Exch. 9; 1 Exch. Rep. 281. To assumpsit for goods sold and delivered the defendant pleaded, secondly, that the goods were spirits of wine which the plaintiff had illegally dis- tilled and compounded with nitre and other sub- stances, .and sold and delivered to the defendant under the name of sweet spirits of nitre, and that 028 REVENUE ; (C) Customs and Excise. tlie goods being therefore liable to seizure before the defendant had appropriated them, were seized and condemned in the Exchequer, whereby the defendant was deprived of them, and the considera- tion for the promise wholly failed. The third plea stated as the ground of forfeiture, that the sweet spirits of nitre had been mixed with spirits of wine, and illegally removed and deposited. The fourth plea stated that the action was brought for the price of sweet spirits of nitre sold by the plaintiff to the defendant, and which had been mixed and com- pounded with spirits of wine, and afterwards re- moved without a proper permit: — Held, first, that sweet spirits of nitre not being " spirits" within the 6 Geo. 4. c. 80. and the 2 Will. 4. c. 16, the fourth plea was ill. Held, secondly, that though the plaintiff was liable to a penalty for distilling the spirits of wine, imder the 6 Geo. 4. c. 80, and though the article so distilled was liable to seizure, yet that there was nothing to shew that it continued liable to seizure after it had been mixed with sweet spirits of nitre, and that in that case the plaintiff could not be de- prived of his right to the price by reason of the wrong condemnation of the Court of Exchequer. Held, also, that in order to sustain the second and third pleas, it should have been shewn that the plaintiff had notice of the seizure, and had therefore an opportunity of resisting the condemna- tion. Held, lastly, that the pleas did not amount to the general issue, as they admitted an actual sale and delivery. Bailey v. Harris, 18 Law J. Ilep.,(N.s.) a.B. 115; 12 aB. Rep. 905. (c) Officers. "Where a custom-house agent entered into a custom-house bond, with respect to goods consigned to him by the plaintiff, and claimed a per-centage on the sum mentioned in the bond, and no contract or usage for the payment of such was proved, — ■ Held, that the plaintiff was not entitled to any such per-centage, and that therefore no question as to the reasonableness of the amount claimed could be put to a witness. Hall v. Gurnet/, 2 Car. Si K. 644. ((Z) Licence. The act 6 & 7 Will. 4. c. 38. s. 3. extends to pre- vent a person who is already a publican from obtaining a licence to carry on the business of a grocer on the same premises, as absolutely as it does to prevent a person, licensed as a grocer, from carrying on in the same premises the business of a publican. M'Kenna v. Pape, 1 H.L. Gas. 6. (e) Information and Conviction. By the Excise Act, 7 & 8 Geo. 4. c. 53. s. 82, the officer or any party aggrieved by the decision of Justices has a right of appeal to the Quarter Ses- sions upon giving certain notices. Section 84. requires the Quarter Sessions to rehear upon oath, and to examine the same witnesses, and no others, on which the original judgment was given, and gives them power on such appeal to reverse or confirm, either in whole or in part, the judgment appealed against, or to give such new and different judgment as they in their discretion shall think fit. An information contained four counts ; and the Justices convicted the defendant on the fourth, and acquitted him on the others : — Held, that a notice of appeal by the defendant against the said judg- ment was limited to the judgment on the fourth count; and that, on the hearing of the appeal, the evidence must be confined to that cotint. Upon a case stated under the 84th section, it is unnecessary to bring the record before the Court by certiorari; if the facts appear by affidavit it is sufficient. In an information for offering a country bank- note to an Excise officer by way of bribe, qutere, whether the value of it need be .stated. Regina v. Gamble, 16 Law J. Rep. (n.s.) M.C. 149; 16 Mee. & W. 384. In an Excise information, where the Crown, if successful, is entitled to full costs of suit, the Crown is entitled to full costs as in an ordinary suit between subject and subject, notwithstanding that the Crown solicitor conducting the information is employed by the Crown at an annual salary. Where one count of an information charges several penalties, the Crown having established a right to one penalty alone, is entitled to the costs of proving that penalty only. Attorney General V. Shillibeer, 19 Law J. Rep. (n.s.) Exch. 115; 4 Exch. Rep. 606. Where a maltster had by collusion, and for the purpose of exonerating himself from penalties under the revenue laws, procured a conviction of one of his servants for the same offence which he had himself committed, and a certificate of two Justices which operated as a discharge of himself, the Court, upon certiorari, quashed the conviction. Regina v. Gillyard, 17 Law J. Rep. (u.B.) M.C. 153; 12 Q.B. Rep. 527. (/) Appeal. Upon the hearing before Justices of an informa- tion for penalties, the officer of Excise, by whom the information was exhibited, was absent, and the case was conducted by another officer of Excise. There being an appeal on the part of the Crown to the Quarter Sessions, under the? & 8 Geo. 4. c. 53. s. 82, — Held, that the notices of appeal, required by the 83rd section of that act, might, by virtue of the 4 & 5 Will. 4. u. 51. ss. 22, 23, be signed by the ofiicer who was present conducting the case. Under the 5 & 6 Vict. c. 93. s. 3, a dealer in and retailer of tobacco is liable to the penalty of 200i for having in his possession adulterated tobacco, although he had bought it as genuine, and had no knowledge or reason to think that it was not so. Regina v. Woodrow, 16 Law J. Rep, (n.s.) M.C. 122 ; 15 Mee. & W. 404. (D) Taxes. The effect of the statutes 43 Geo. 3. c. 99. and 43 Geo. 3. c. 161. is to make the assessment by the assessors of assessed taxes final, subject to a right of appeal, by a party charged, to the Commissioners of Assessed Taxes, and from their decision to the Judges. Where, therefore, assessors had assessed an in- habitant of the district for which they were ap- pointed to duties payable by him as "a horse- dealer," under the statutes 48 Geo. 3. c. 55. Sch. H. REVERSION-SALE. 629 and 52 Geo. 3. c. 93. Sell. H, and upon refusal to pay the same a distress had teen levied ofhis goods: — Held, upon replevin brought for the goods so taten, that such an assessment was an answer to the action ; and that an allegation in the avowry that the plaintiff did in fact " exercise the trade and business of a horse-dealer" was immaterial. Qursre, as to what constitutes "a horse-dealer" within the meaning of the statutes relating to assessed taxes. Allen v. Sharp, 17 Law J. Rep. (N.s.) Exch. 209 i 2 Exch. Rep. 352. REVERSION. A declaration in trespass alleged that the de- fendants with force and arms broke and entered a dwelling-house, and seized and took divers goods of the plaintiff. The defendants pleaded that one M being seised in fee of the messuage demised it to L for twenty-one years, who demised it to de- fendant for the residue of the twenty-one years less one day; the plea then gave colour to the plaintiff ill the usual form, "under colour of a charter of de- mise pretended to be made to him, whereas nothing passed by it," and then justified the entry and seizure. Replication, that before L demised the dwelling-house to the defendant, he demised it to one F for three years, and that F assigned his term to the plaintiff, who entered into the dwelling-house and became possessed of it. Rejoinder, that the demise by L to F was subject to a condition of re- entry, reserved to L, his executors, administrators and assigns, in case the premises ' should not be kept in repair ; that they were not kept in repair, and therefore that the defendant entered: — Held, upon special demurrer, first, that the defendant, being under-lessee for the remainder of a term, less one day, was an assignee within the meaning of the 32 Hen. 8. o. 34, and could take advantage of the covenants entered into by the tenant with the under- lessor; secondly, that the colour given in the plea did not shew a title in the plaintiff, notwithstanding that livery of seisin is rendered unnecessary by the 8 & 9 Vict. c. 106. s. 2 ; thirdly, that a breach of the peace is not to be inferred from the averment of vi et armis; fourthly, that the rejoinder was not a departure from the plea. Wright v. Burroughes,16 Law J. Rep. (n.s.) C.P. 6; 4 Dowl. & L. P.G.438; 3 Com. B. Rep. 685. In an action by A against B, for an injury to the reversion of a copyhold estate, A's reversion being put in issue by the pleadings,' evidence was given of the receipt of rent by him from the tenant in possession. B proved a surrender of the estate in question, twenty-one years before the receipt of such rent by A, to a stranger: — Held, that this evidence did not throw the burthen upon A of proving a re-conveyance afterwards of such estate to him. Daintry V. Brocklehurst, IS linVi J . Rep. (N.s.) Exch. 57 ; 3 Exch. Rep. 207. An estate was settled on A for life, with re- mainder to B in fee. In 1822 B sold his reversion to C. In 1830 A died. In 1846 B filed a bill to set aside the sale of the reversion on the ground of its having been sold at an undervalue. No evidence was given by B to explain or account for the^ delay : — Held, that B was barred by the lapse of time. An estate was settled on A for life, with re- mainder to B in fee, subject to mortgages to C and D. In 1822 B sold his reversion to C. In 1823, in consideration of the mortgage debt due to C, the payment of D's debt by C, and the payment of a sum to A by C, A, B, and D conveyed the estate to C. Whether the transaction of 1823 did not prevent B from availing himself of the rule in equity as to the sales of reversions at an undervalue —tjutsre. Sibbering v. Earl of Baloarras, 19 Law J. Rep. (n.s.) Chanc. 252. A reversion depending upon the contingency of a tenant for life dying without issue, the tenant for life being fifty-six and his wife in her fifty-fourth year, and the only issue of the marriage having been a still-born child eleven years previously, is the subject of estimate or calculation, Boothby v. Boathhy, 1 Mac. & G. 604 i 2 Hall & Tw. 214. REWARD. Where a handbill relating to a stolen parcel offered a reward to " whoever would give such in- formation as would lead to the early apprehension of'the guilty parties," — Held, that the infonnatiou must be given not in mere conversation, but with the view of its being acted on, either to the person offering the reward, or his agent, or some person having authority by law to apprehend the criminal. Where the information which led to the apprehen- sion of the guilty person was given not by A alone' to whom the communication was first niade, but by A and B jointly, — Held, that both must join in an action for the reward. Lockhart v. Barnard, 1 5 Law J. Rep. (n.s.) Exch. 1 ; 14 Mee. & W. 674. A party robbed put forth a handbill, in which it was stated " the above sum will be paid by A on recovery of the property and' conviction of the offender, or in proportion to the amount recovered." F, a soldier, gave the information of a confession by the offenderto his Serjeant, who inlbrraed the police. No suspicion had before attached to the offender. Four days afterwards, the plaintiff, a policeman, apprehended t^he offender, and, as the jury found, *' was most active and mainly instrumental in procuring the recovery of the property and the conviction of the offender" : — Held, that the plain- tiff was not the party entitled to the reward. ^rfT Semble, per Tindal, C:J. and Cresstvell, J, that F was the party entitled. . , ' Qumre — per Coltman, J., whether F and plaintiff might not have jointly sued. - Thatcher v, England, 15 Law J. Rep. (n.s.) C.R 241; 3 Com. B. Rep. 254. SALE. ' ' [.Company, ShareSj-vFBAUDS, Statute of — In- terpleader— Revebsion^Stamp — Vendor and Purchas;er — Wariianty.] C & Co. and H&Co. were merchants at Cal- cutta. H & Co. sold to C & Co. a large' quantity of indigo, through the medium of a broker, who drew up a sold note addressed to H & Co., and submitted it to H for -his approval, when H having objected to a particular word remaining, the bioker 630 SALE— SALVAGE. took the sold note to C, and informed him of H's objection. C struck his pen through the word ob- jected to by H, placing his initials over that era- sure, and returned it to the broker, who thereupon delivered it, so altered, to H & Co. The broker delivered to C & Co., on the following day, a bought note, which differed in certain material terras from the sold note. In an action brought by H & Co. against C & Co. for non-performaUce of the con- tract contained in the sold note, the Supreme Court at Calcutta was of opinion, that the sold note alone formed the contract, and found for the plaintiffs. Upon appeal, held by the Judicial Committee, re- versing such finding, that the transaction was one of bought and sold notes, and that the circum- stances attending C's alteration of the sold note and afiSxing his initials, were not sufficient to make that note, alone, a binding contract ; and that there being a material variation in the terms of the bought note with the sold note, they together did not con- stitute a binding contract. Cowie v. liemfry, 3 Moore, In. App. 448. To an action of trover by the assignee of an in- solvent, to which the defendant pleaded that the insolvent was not possessed of the goods in ques- tion, the plaintiff, for the purpose of proving that at a certain time the insolvent was possessed of the goods, gave in evidence a bill of sale of the goods made by the insolvent to the defendant, and then gave further evidence of its being fraudulent. The bill of sale in its terms gave to the defendant an absolute right of property in the goqds. A verdict having been found for the plaintiff, the Master allowed him the costs of impeaching the bill of sale. Held, that the taxation was correct; that the plaintiff was justified in giving evidence of the fraudulent character of the bill of sale, inasmuch as the 1 & 2 Vict. c. 110, which renders bills of sale void as against the assignees of insolvents, does not apply to an absolute bill of sale like the present, but to an executory bill of sale only. Hardy v. Tingey, 19 Law J. Rep. (n.s.) Exch. 233 ; 5 Exch. Rep. 294. A custom of the Liverpool corn market, that, when corn is sold by sample, if the buyer does not, on the day the corn is sold, examine the bulk and reject it, he cannot afterwards reject it, or refuse to pay the whole price: — Held, to be a reasonable custom. Semhle — ^that an article sold by sample cannot in any case be rejected as not corresponding with the sample, except within a reasonable time. Sanders 1. Jameson, 2 Car. & K. 557. One of the members of the committee of manage- ment of a joint-stock company sold his shares to the committee on behalf of the company at a price not exceeding the market price of the shares at the time. The shares were transferred to trustees in trust for the company , and the vendor thenceforward ceased to interfere in their affairs. Three years after it was known to the shareholders generally that the shares had been sold to the company, the company having during that time continued the business, and having obtained new parliamentary powers, the plaintiffon behalf of himself and all the share- holders in the company filed his bill against the vendor to set aside the sale and transfer as fraudu- lent, and to obtain contribution from the vendor towards the debts of the company. — The Court refused to disturb the sale, and dismissed the bill, with costs. Walford v. Adie, 5 Hare, U 2. SALVAGE. A sailing vessel, having a licensed pilot on board, got on the Goodwin Sands, but was rescued by a steam-tug, which, after rendering her salvage ser- vices, was employed to tow the vessel to the Downs, but in consequence of the misconduct of the pilot, and the negligence of the master of the steam-tug, the vessel was run ashore on the Sandwich Flats : — Held, in such circumstances, that the steam- tug had no claim for salvage, as the master of the steam-tug was not released from all responsibility respecting the direction of the vessel towed, by reason of a licensed pilot being on board, and that it was the joint duty of the pilot and the master of the tug to do their utmost for the safety of the ship. Held also, that the master of the steam-tug could not separate the towing of the vessel from his claim for salvage services for getting her off ths sands, as it was one transaction of salvage. Shersby V. Hibbert, 6 Moore, P.C. 90. Upon a tender for salvage services in getting a vessel off the Newcombe Sand, it appeared, that in order to get the vessel off the sand, both her bower anchors and chains were slipped, and that the salvors, after getting her off, called in the aid of another boat to recover the anchors : — Held, tliat the general salvage was completed when the vessel was off the sand, and that the getting up of the anchors formed no ingredient in the salvage services, so as to entitle those who recovered the anchors to share in the general salvage of the ship and cargo. Where the salvors took no step in the Admiralty Court to issue a commission of appraisement of the vessel proceeded against, this Court, as the Court of final appeal, will not admit affidavits appraising the vessel. Colby v. Watson, 6 Moore, P.C. 334. A shipowner who has paid a sum of money under the 9 & 10 Vict. c. 99, in order to release the ship and cargo from a claim for salvage, has a lien on the cargo for the proportion of those expenses pay- able to him by the owners of the goods, and an in- surable interest in the cargp in respect of such lien. The owners of goods on board a ship are bound to contribute to the salvage of the ship and cargo as in a case of general average. Briggs v. Mer^ chant Traders' Ship Loan and Assurance Association, 18 Law J. Rep. (h.s.) Q.B. 178 ; 13 Q.B. Rep. 167. _ Pilots going on board a vessel in a leaky condi- tion and assisting the crew, and keeping down the water by pumping, entitled to be rewarded as sal- vors. A tender of i2l. overruled, and 651. awarded. The Hebe, 2 Rob. 246. A person who, under an agreement with the mas- ter of a stranded vessel, had taken charge of the ship, and had succeeded in saving and warehousing a portion of the cargo, the vessel having gone to pieces, held entitled to a salvage remuneration, al- though his services were to be considered in the character of a meritorious agency rather than of salvage services. The Favorite, 2 Rob. 255. SALVAGE. 631 A claim of salvors setting up an inftamed and exaggerated statement of alleged salvage services dismissed, and the salvors condemned in the costs. The crew of a vessel proceeded against coming for- ward uno ore to depose against the interest of the owners, causes a suspicion in the mind of the Court. The Towan, 2 Rob. 259. Defence in a suit for salvage, that the salvors undertook to perform the alleged service for a sti- pulated reward, overruled, as contrary to the pro- babilities of the case. Semble, where steamers go out of port for the express purpose of rendering assistance to vessels represented to be in distress, the .time and expense incurred in reaching the vessel is to be taken into the calculation in fixing the amount of the salvage remuneration. The Graces, 2 Rob. 294. Rule laid down by the Court respecting the pro- duction of protests, viz., that in all cases of salvage they ought to be brought in. In cases of salvage, it is the usage of the Court to take the whole value ' of the ship and cargo, and assess the amount of the remuneration upon the whole, each paying its due proportion. It is not competent to parties to aver that the services were of greater importance to the ship than they were to the cargo, and therefore that the ship should bear the greater burthen, or vice versd. Tender overruled. The Emma, 2 Rob. 315. The crew of a stranded vessel having taken to their boats, in making for the nearest land fall in with another vessel also stranded and abandoned by the crew. Having boarded the vessel, they suc- ceeded in getting her oft' and bringing her safely to England. A claim to participate in the salvage set up by the owner of the vessel to which the sal^ vers belongedi upon the ground that the salvors were enabled to reach the vessel salved solely by means of the boats and the use of his compass ; 2ndly, that some of the salvors were his appren- tices. 3001. awarded to the actual salvors. Claim pf the owner rejected. The Two Friends, 2 Rob. 349. A written agreement to stay by a vessel in dis- tress and see her safe into port for the sum of 5001., signed by the masters of the two vessels, upheld by the Court. Plea of the salvors, that the agreement was con- ditional, and signed upon the understanding that . the service was not to extend beyond the following morning, overruled. The Repulse, 2 Rob. 396. Salvage service performed to a British ship by one of Her Majesty's cruizers on the coast of Africa. Bill for iOOl. as salvage remuneration, drawn by the master upon the owners in England in favour pf the salvors. In the course of the homeward voyage the vessel founders, and the bill upon presentation is refused payment by the owners. Monition against the owners refused by the Court. The Chieftain, 2 Rob. 450. A claim of salvage set up by a steam tug dis- missed, and the alleged, salvors condemned in the costs of the proceedipgs,,upon the ground that by their own misconduct they had run the vessel into difficulty and danger, by towing her aground upon the Sandwich Flats. The Duke of Manchester, 2 Rob. 470. The commander and crew of a vessel of war, upon the African station held to be entitled to a salvage remuneration for putting a sailing master and two seamen on board a homeward bound merchant vessel to assist in navigating the vessel, the master and one of the mariners of the merchant vessel being invalided with fever, and incapable of discharging the duties on board. Deductions claimed by the owners for the value of the ship and cargo on account of freight, primage and insurance, disallowed. The Charlotte Wylie, 2 Rob. 495. By the strict rule of court, where a tender has been rejected and has afterwards been adjudged a sufficient tender, the salvors are liable to a con- demnation in the costs. The inclination of the Court, however, is not to press the rule with rigidity in all cases. Tender pronounced for, but without cost^. The W'iffiam, 2 Rob. 521. The owners of boats rendering a salvage service, not having been personally present at the time the service is rendered, are not entitled to sue as salvors. Some remuneration, however, is due to them for the use of their boats, by way of equitable compensation. The Charlotte, 3 Rob. 68. Where a fishing smack is actually taken off" a lucrative employment in order to render a salvage service, the circumstance of her being so diverted from her occupation will form an essential ingre- dient in the salvage award. Where, however, she is not so engaged at the time, the award of the Court will not be influenced by the consideration of the earnings she might have gained during her deten- tion in the salvage service. Where salvage money has been paid into the registry for the purpose of distribution, the Court has no power to decree from the fund in court the payment of advances made tp the salvors by their agent. The Louisa, 3 Rob. 99. Claim for salvage partially disallowed, upon the ground that the salvors in the performance of the salvage service had displayed great want of skill, and had brought the vessel into danger and diiBculty thereby. Semhle — the , deduction in the amount of-the salvage award is to be measured, not by the amount of damage sustained, but in proportion to ihe quantum of negligence or ignorance displayed by the salvors. The Cape packet, S Rob. 122. Claim of the salvors overruled, upon the ground that their services, under the circumstances of the case, did not exceed a service of towage. The general rule with respect to costs, that they should follow the decision of the cause, modified and re- laxed in respect to salvors. Claim of alleged salvors dismissed, without costs. The Princess Alice, 3 Rob. 138. Where part of the crew of a light ship assist in rendering salvage service, the claim for salvage re- muneration is' confined to the persons actually en- gaged in the service, and does pot extend to the persons left on board, the light ship, as in ordinary cases of fishfng smacks and ,othe,r vessels. The Emma, 3 Rob. 151. An agent of Lloyd's at an outport, who ,!iad undertaken to relieve a vessel from her diSiculties in that character, and ha4. merely employed the necessary hands to 'perform the service, without having himself incurred any personal risk in the 632 SATISFIED TERMS ACT— SCIRE FACIAS. transaction, allowed to claim as salvor. The Pu- rissima Concepqion, 3 Rob. 181. Where salvors are embarked in a salvage service with the consent and sanction of the master of a stranded vessel, and are disturbed in their salvage operations, and are ousted from the vessel by persons illegally intruding themselves into the service, no salvage benefit can accrue to the parties so intruding themselves, for any portion of the ship and cargo they may save, but the same will accrue to the original salvors. The Fleece, S Rob. 278. SATISFIED TERMS ACT. In the year 1830, an owner of land, having mort- gaged it, levied a fine to confirm the mortgage, and at the. same time assigned a satisfied term to a trus- tee for the mortgagee. In 1835, the defendant purchased the land from the mortgagor, and paid off the mortgage, on which occasion indentures of lease and release were executed by the mortgagor and mortgagee, by which thciegal estate and the equity of redemption were conveyed to the defen- dant, and the outstanding term was assigned by the trustee of the mortgagee to a trustee of the defen- dant to attend the inheritance. In 1845, a party, claiming by title paramount to that of the mort- gagor, brought ejectment against the defendant, and laid one of the demises in the name of the defen- dant's trustee: — Held, that the defendant did not require the protection of the 8 & 9 Vict. c. 112; that the term ceased and determined by virtue of that act on the 3Ist of December 1845, and that the plaintiff could not recover on the demise of a trustee of the term. Semble — that if the defendant had wanted the protection of the act, it would have been necessary for him to apply either to a court of equity, or to this Court to strike out_of the declaration the demise in the name of the trustee. Doe d. Cadwalader v. Price, 16 Law J. Rep. (m.s.) Exch. 159; 16 IVIee. & W. 603. In 1838, A being seised in fee of premises, as- signed them for a term of 1,000 years by way of mortgage to B, and in 1842 A mortgaged the pre- mises in fee to C, subject to the term of 1,000 years, and on the 1st of October 1844 conveyed the equity of redemption to the lessor of the plaintiff. On the 21st of October 1844, the amount secured by the mortgages was paid off by D, to whom the term of 1,000 years was assigned by the executors of B, with a proviso for the redemption of the premises on re-payment of the mortgage-money by the lessor of the plaintiff. To an ejectment, the defendant set up a conveyance to himself in fee by A in October 1839,— Held, that the term of 1,000 years was not a satisfied term, so as to cease and determine by the operation of the 8 & 9 Vict. c. 112. Doe d. Clay V. Jones, 18 Law J. Rep. (k.s.) G.B. 260. SAVINGS BANK. [See Trust and Trustee.] A was appointed to be the actuary and cashier of a savings bank. By one of the rules of the savings bank, it was declared that the bank should be open for receiving deposits every Saturday from eleven till two, at the house of A, when the committee or some of them would attend to receive deposits and pay money out. None of the committee ever at- tended. A received the deposits without controul, and, at the time of his bankruptcy, was a defaulter in respect thereof to a considerable amount : — Held, that A did not receive the deposits by virtue of his ofiice, and that the amount due from him was not payable out of his estate in priority to his other debts. Ex parte Fleet re Jar dine, 19 Law J. Rep. (n.s.) Bankr. 10. SCHOOL AND SCHOOLMASTER. The acts for granting sites for schools extended and explained by the 12 & 13 Vict. c. 49; 27 Law J. Stat. 70. The contributions of unions and parishes in 'school districts provided for by the 13 Vict, ell; 28 Law J. Stat. 1 2. The relationship in the ordinary case of trustee and cestui que trust does not exist between the dean and chapter of a cathedral church and the head master of the grammar school attached to it, where both the cathedral and school are governed by the statutes of the founder and subject to the juris- diction of a special visitor, and where the head master is paid out of the common funds of the endowment. Therefore, where the dean and chapter of the cathedral church of Rochester, in exercise of a power vested in them by one of the statutes of the founder, summarily dismissed the head master of the grammar school attached to the cathedral from his oflBce without hearing him in his defence, the Court refused to interfere by in- junction, either durante lite or otherwise, to restrain the dean and chapter from removing him from his office or appointing another head master in his stead. Whision v. Dean and Chapter of Rochester, 18 Law J. Rep. (n.s.) Chanc. 473 ; 7 Hare, 532. SCIRE FACIAS. [See Patent, Repealing — Practice, at Law, Execution.] Proceedings in scire facias. Orders of December 20, 1848, xi. to xix., 18 Law J. Rep. (n.s.) Chano. 504. The rule of Hilary term, 2 Will. 4. pi. 7-9, does not apply to a scire facias against the ter-tenants, which can only be founded on a previous scire facias against the personal representatives ; and a rule nisi is, therefore, unnecessary, though the judgment is more than fifteen years old. Wright v. Maddox or Madocks, 15 Law J. Rep. (n.s.) a.B. 81; B Q.B. Rep. 119. Upon a scire facias to recover 262/. lOt., found to be due to the Crown for Customs duties by an inquisition taken under a commission, it ap- peared by the record, that the commission (which was set out upon oyer, tested on the 21st of Feb- ruary, and returnable on the 15th of April 1843,) authorized the commissioners to inquire " whether J D is now indebted in any or what sums of money." The inquisition (also set out on oyer) was taken SCIRE FACIAS—SEQUESTRATION. 633 and returned on the 1st of March 1843, and con- tained a finding hy the jury, that J D was on the day of taking the inquisition justly and truly in- debted to the Queen in 2621. 10s. for the duty of customs on silk imported by him between the 8 th and 14th of February 1«4!3, and that the said 262?. 10s., and every part thereof, still remained due and unpaid : — Held, that the finding of the debt in the inquisition was sufficient, and was war- ranted by the commission. The scire facias was tested on the 30th of March 1843 : — Held, that the fact of its having issued he- fore the return day named in the commission, was merely an irregularity, and not ground of error. Dean v. Regina, 15 Law J. Hep. (n.s.) Exch. 236; 15 Mee. & W. 475; 3 Dowl. & L. P.C. 714. The plaintiff having obtained a verdict against the defendants, subject to a special case, with liberty to turn the same into a special verdict, ob; tained judgment on the special case. The defen- dants then brought a writ of error; after which, on the 12th of August 1845, the then plaintiflT died, having made the present plaintifl'his executor. I'n December 1845, the judgment below was affirmed. The defendants having sued out a writ of error in the House of Lords, and assigned errors thereon, on the 6th of March 1846 petitioned the House Of Lords that the present plaintiff might he a party to the writ of error. On the 11th of Maythe Lords ordered the record to be remitted to the Exchequer. On the 24th of August the defendants below again petitioned the House of Lords that the personal re- presentative of the deceased plaintiff might be made a party to the judgment, but no order was made thereon. On the 10th of November the plaintiff sued out e Croismare, 17 Law J. Rep. (n.s.) Chanc. 466 ; 11 Beav. 184. A marriage settlement contained a covenant by the intended husband and wife, that all the personal estate to which the intended wife should, at any time during the coverture, become entitled, should be called in, and converted into money, and invested in the names of the trustees on the trusts therein mentioned. At the date of the settlement the father of the intended wife had in his hands a sum of money belonging to her. After the death of the father this circumstance became for the first time known to the husband: — Held, that this sum of money was not bound by the trusts of the settle- ment. Otter V. Melville, 17 Law J. Rep. (n.s.) Chanc. 345 ; 2 De Gex & S. 257. (D) Failure and Revocation of. By an indenture, made in contemplation of mar- riage, certain leasehold property, belonging to the intended wife, was conveyed to trustees on certain trusts ; and the trusts of a sum of stock, also belonging to the intended wife, which had been transferred into the names of the trustees, were declared. The marriage did not take effect, and, soon after the date of the indenture, the lady mar- ried another person. In a suit instituted by the hushand and wife against the trustees, it was ordered that the leasehold property should be conveyed to the husband, and the stock transferred into his name. Thomas v. Brennan, 15 Law J. Rep. (n.s.) Chanc. 420. By a settlement executed in contemplation of a marriage, a bond payable to the trustees, twelve mouths after its date, was {inter alia) settled upon trusts, with a proviso that until the marriage should be solemnized the trustees should be possessed of the trust monies, &c. in trust for the lady. The marriage never took place. After the obligee's death the bond was found among his papers, with the words " Cancelled, the marriage never having taken place," written across it. The Court held that the lady was not entitled as cestui que trust of the bond, though it was not invalidated. Mitford v. Reynolds, 16 Sim. 130. A mortgage in fee was conveyed to trustees on cer- tain trusts of a contemplated marriage. Afterwards and before the marriage the intended husband and SETTLEMENT— SHERIFF. 643 wife revoked the trusts of the settlement. Upon a hill hy the hushand claiming the mortgage jure mariti, the Court referred it to the Master to inquire under what circumstances the revocation had heen executed. Qutere — Whether a revocation is valid in such a case. Pagev. Home, 9 Beay. 570, (E) Settlement by the Court of Chancery. [See Infant.] Where the Master has approved of a settlement of the property of a femalp ward of court, and of her intended hushand (the settlement heing for the benefit of the hushand and wife and their issue,) and the approval has been confirmed hy the Court, it was held not to be competent to the husband and wife, by delaying the marriage until after she attained her majority, and entering into a fresh settlement, toilefeat that approved by the Court. Principles on which the Court acts in relation to the marriage of infants and the settlement of their property. Holism v. Fenabg, 2 CoU. C.C. 412. (c) Executions. (d) Return. (e) Extortion. {/) Attachment. SEWERS. [See Rate, Sewers Rate.] The Metropolitan Commission of Sewers con- solidated and continued by the 11 & 12Vict. c. 112 ; 26 Law J. Stat. 269. The laws relating to sewers further amended by the 12 & 13 Vict. c. 50 ; 27 Law J. Stat. 72. The Metropolitan Sewers Act (11 & 12 Vict. c. 112.) amended by the 12 & 13 Vict. c. 93 ; 27 Law J. Stat. 187. SHARES. [See Company.] Certain shares in two public companies were assigned, by a voluntary settlement, to a trustee, for the life of the settlor, and then to his great- nephew; no formalities were used for completing the transfer of the shares. It appeared that both the companies had rules relating to the transfer of shares for valuable consideration, and to the dis- posal of shares belonging to deceased persons, but no forms were prescribed for the assignment of shares by a voluntary deed: — Held, that these shares had not heen effectually passed, according to the intention of the deceased settlor, to his great- nephew, but must be handed over hy the trustee to his personal representatives. Searle v. Law, 15 Law J. Rep. (n.s.) Chanc. 187 ; 15 Sim. 95. SHERIFF. [See Practice, at Law, Execution.] (A) Rights AND Privileges. (a) In general. (6) Fees and Possession Money. (B) Duties AND Liabilities. (a) Arrest. Q>) Escape. (A) Rights and Privileges. (a) In general. A sheriff" who has levied under &fi.fa., issued by the Court of Chancery, under the 1 & 2 Vict. c. 110, is not entitled to an injunction to restrain proceed- ings against him by a stranger to the suit, by ana- logy to the case of receivers or sequestrators ap- pointed by the Court, or to the practice at law under the Interpleader Act, or otherwise. Rocke V. Cooke, 2 De Gex & S. 493. (b) Fees and Possession Money. Where the execution creditor paid the expenses of a sale by appraisement of the goods sold under the fi. fa., — Held, that in the absence of all proof of the circumstances under which such appraisement took place, he could not set off" the amount so paid against the sherifi''s demand for poundage. Marshall V. Hicks, 16 Law J. Rep. (n.s.) Q.B. 134; 10 Q.B. Rep. 15. The attorney who engages the bailiff to execute process, and not the client, held liable to the officer for his fees. Walbank v. Quarterman, 3 Com. B. Rep. 94. Where a sheriflT, having seized certain horses which were claimed by a third party, applied for relief, under the Interpleader Act, and obtained a Judge's order that, on payment of a sum of money into court, and on payment to the sheriff" of /josses- sion money from the date of the order, the sheriff should withdraw from possession, — Held, that the sheriff was not entitled to detain the horses for the expense of their keep. Gaskell v. Sefton, 1 5 Law J. Rep. (N.s.)Exch. 107; 14 Mee. & W. 802 ; 3 Dowl. & L. P.C. 267. (B) Duties and Liabilities. (a) Arrest. [Clifton V. Hooper, 5 Law J. Dig. 715; 6 Q.B. Rep. 468.] The sheriff is liable to the 501. penalty imposed by the 32 Geo. 2. c. 28, if he takes a person arrested to prison within the twenty-four hours, without ex- pressly informing him of his right to name a conve- nient dwelling-house to which he may be carried. Gordon v. Laurie, 16 Law J. Rep. (n.s.) Q.B. 98 ; 9 aB. Rep. 60. In an action on the case against a sheriff for negligence in not arresting A B, while he was in the bailiwick, on a ca. sa. issued by the plaintiff, and also alleging as a breach of duty that the de- fendant illegally arrested A B under a false writ, and detained him until discharged by a Judge's order, whereby, while A B was so imprisoned, and for a reasonable time after his discharge, the defen- dant was unable to arrest him under the plaintiff's writ, but was obliged to let him depart out of cus- tody, whereby the plaintiff's writ became useless ; the defendant pleaded not guilty, and traversed that he could have arrested A B modo etformd. It ap- 644 SHERIFF I (B) Duties and Liabilities. peared that after the delivery to the sheriff of the plaintiff's writ, another writ (which was void) was delivered at the suit of J S, and that the sheriff granted a warrant on this last-mentioned writ to the officer who arrested A B under it, having at the time no other warrant in his possession, and de- tained him in custody under that writ until he was discharged by a Judge's order. After that order the sheriff still detained A B in custody under the plaintiff's writ, until a second order for his discharge from that writ was made. A B immediately after- wards left the country. The Judge directed the jury that there had been no arrest at the plaintiff's suit, and that the Judge's order was no justification to the sheriff; and that if the jury believed the evidence, the sheriff was liable for negligence in point of law, and that the plaintiff was entitled to a verdict: — Held, that the ruling was correct; that there had been no arrest at the plaintiff's suit; and that the Judge's order was no justification ; but that it was a-question of fact which ought to have been submitted to the jury, whether the sheriff had been guilty of negligence in arresting A B on the sup- posed writ at the suit of J S instead of the plaintiff. Hooper y. Lane, 17 Law J. Rep. (n.s.) (i.B. 189; 10 aB. Rep. 546. The sheriff, in the execution of mesne process (a capias under the 1 & 2 Vict. c. 110), is bound to provide such a force as will enable him to effect his caption in spite of any resistance he has reason to anticipate. If, after a caption, the party taken be rescued by force, the sheriff may return the rescue. The declaration alleged that a writ of capias under the 1 & 2 Vict. c. 1 10. against K was delivered to the defendant (the sheriff), thatK was within his bailiwick, and that the defendant could and might have taken him, but did not take him, though often requested so to do, and falsely returned mora est in- ventus. Pleas, not guilty; and that the defendant could not nor might have taken K: — Held, that directions given by the plaintiff to the sheriff not to arrest K at a time when he might have done so, being affirmative matter in excuse, were not ad- missible in evidence on those issues; and that the allegation, "though often requested so to do," was immaterial. Howdcn v. Siandisk, 18 Law- J. Rep. (N.S.) C.P. 33; 6 Com. B. Rep. 504. In case against the sheriff for not arresting, the declaration stated that L being indebted to the plaintiff, the plaintiff according to the statute, &c., and under and by virtue of a special order duly made in that behalf by a Judge, caused a capias to be issued in due form of law against L, duly in- dorsed, &c., directed to the sheriff, &c. : — After verdict for the plaintiff judgment was arrested, on the ground that the declaration did not shew that/ the plaintiff was a plaintiff against L, or that he was entitled to sue out the writ of capias. Williams V. Griffith, 18 Law J. Rep. (n.s.) Exoh. 195 ; 3 Exch. Rep. 584. (6) Escape. The attorney for the plaintiff, where the defen- dant has been taken in execution upon a ca. sa., although as such attorney he has authority to re- ceive the fruits of the judgment, has no authority to enter into any other arrangement with the de- fendant for his discharge from custody under such writ. Where, therefore, such attorney acting fairly and bond fide had, upon receiving a portion of the debt in money from the execution debtor, and for the residue his warrant of attorney for the amount, ordered the sheriff to discharge him from custody, and who, accordingly, discharged him, — Held, an escape on the part of the sheriiff, and that the exe- cution creditor was entitled to recover the amount of such residue in an action against the sheriff for an escape. Connop v. Challis, 17 Law J. Rep. (n.s.) Exch. 319; 2 Exch. Rep. 484. In case against the sheriff of R for an escape of a party, whose family were residing in London, and whither he intended to return, and who petitioned the Courtof Bankruptcy for protection, nnder the 5 & 6 Vict. c. 116. and the 7 & 8 Vict. c. 96, upon which a warrant was directed to the sheriff to bring him up for examination, and under which the party was taken on Saturday, the 19th of September, and his petition dismissed for informality : — Held, that the petitioner had been a sufficient resident within the London district to entitle him to present his peti- tion there, and that the sheriff was bound to yield obedience to the warrant. It appeared that the prisoner's state of health was such as not to permit his return to R on the Saturday evening ; and before five o'clock of that day a habeas corpus issued, and a copy was served on the officer who had him in custody, and, on the return of the writ on the following Monday, he was taken before a Judge and committed to the Queen's Bench Prison, having in the interval been allowed, in company of the ofiicer, to visit various places in London, &c. : — Held, that the officer being only obliged to return with the prisoner to R in con- venient time, and to guard him with a reasonable degree of strictness whilst out of his bailiwick, no escape had been permitted. Nias v. flaws, 4 Com. B. Rep. 444 ; 2 Car. & K. 280. (c) Executions. Plea, in trover against the sheriff for certain spe- cified goods, that he seized and sold them under an execution at the suit of T; replication, that the conversion was not in respect of the goods taken and sold under that writ, but for other and dif- ferent goods, &c.' It appearing that the defendant had seized under the writ at the suit of T goods of the debtor, including the specified goods, and on the first day's sale sold enough to satisfy the debt of T ; and that having received a second writ at the suit of C, which afterwards turned out to be invalid, he proceeded to sell on a second day to satisfy C's execution, — Held, that the sheriff was liable in trover for the goods sold beyond the amount of T's debt, and that the plaintiff properly newly assigned, and not merely traversed the allegation of the plea, that the goods were sold under C's writ. The sheriff, after sale of sufficient goods to satisfy the writ, is not justified in a further sale, al- though by accident, not through his default, the amount levied should become insufficient. Aldred V. Constable, 6 O.B. Rep. 370. Goods having been seized under a writ against the plaintiff, at the suit of G, a claim was made SHERIFF ; (B) DrTiEs and Liabilities. 645 under a bill of sale, with a schedule annexed. The clerk of G's attorney, in consequence, called on the officer, and was told by him, that the goods were being compared with the schedule j and subse- quently, in the course of the day, G, being indis- posed to contest the claim, the clerk gave the fol- lowing notice to the officer : — " G. v. Walker — Withdraw under thej!./a. herein, the goods having been claimed." The officer afterwards discovered that part of the goods were not included in the schedule, and these he retained and sold, and he also for some time retained possession of part of the goods claimed, which, when seized, were in the plaintiff's possession. Three days afterwards, in consequence of the plaintiff's application, the clerk called on the officer, to inquire why he did not withdraw, and being told that there were goods which did not belong to the claimant, expressed his approbation of their detention. The plaintiff having brought trespass to his house and goods, the sheriff and his officers pleaded a justification under the fi. fa. To this, the plaintiff replied, that G or- dered the defendants to withdraw from the house and possession of the goods, and that he brpught his action for their staying after such discbarge. Some of the defendants pleaded not guilty, and others traversed the order as alleged. The jury found a verdict for the defendants upon these facts, under the direction of the Judge, and, upon motion, — Held, that the terms of the order, though primd facie giving a direction to the sheriff to withdraw generally, were to be interpreted with reference to the circumstances under which it was given, and that they sufficient!}' negatived an intention on the part of G that it should be treated as a general order. Held also, that the act of detention having been done for G's use and benefit, a ratification by him had a retrospective operation, and would have rendered him liable to an action of trespass, had it not been justifiable; and lastly, that the issue was, whether the order was a general order, and was not divisible, and therefore, the plaintiff could not re- cover for the subsequent detention of part of the goods to which the order extended, though his pos- session of them was not disputed. Walker v. Hun- ter, 15 Law J. Eep. (n.s.) C.P. 12; 2 Com. B. Rep. 324. Trespass against the sheriff for breaking and en- tering the plaintiff's dwelling-house ; plea, that the defendant entered under a J?, /a. and seized a lease under which the plaintiff possessed the house, and, before the return of the writ, sold the term, and continued in possession of the house for the further execution of the writ. The plaintiff new assigned, that defendant continued in possession an unrea- sonable time after he bad seized and sold the lease : pleas, not guilty, and that the house was not the house of the plaintiff. The term was sold by auction, but there was no assignment executed. The jury found for the plaintiff on not guilty : — Held, that trespass was maintainable ; that the seizure did not vest the term in the sheriff until he executed an assignment to the purchaser; that whether the word " sold" meant an actual assign- ment or not, the sheriff could not remain in the house after he had sold the term, and that the plaintiff was entitled to recover on the second plea to the new assignment. Playfair v. Musgrove, 15 Law J. Rep. (n.s.) Exoh. 26 ; 14 Mee. & W. 239 ; 3 Dowl. & L.P.C. 72. At the trial of an action by an execution creditor against the sheriff, for not levying a debt of 601. under afi. fa. the landlord of the debtor was called as a witness, and stated, that iSl. was due from the debtor for rent, and it appeared that the sheriff had withdrawn the execution upon notice thereof from the landlord, who had subsequently distrained and realized less than the rent due. The landlord having admitted that the debtor held under a lease, but which was not produced, — Held, that the plaintiff was entitled to recover from the sheriff the amount realized under the distress. Augustin or Augustien V. Chains, 17 Law J. Rep. (n.s.) Exch. 73 ; 1 Exch; Rep; 279. * In an action against the sheriff the declaration stated that certain writs of fii fa. against the plain- tiff's goods having been directed to the sheriff, he seized goods of much greater value than were suffi- cient to pay the sums of money, interest, poundage, and expenses indorsed on the writs, although he knew that the money arising from the sale of part of the goods would be sufficient to satisfy the said sums of money, interest, and expenses so indorsed and directed to be levied. That he sold more goods than were necessary to pay the said sums of money, interest, &c., and levied thereout a greater sum than was sufficient to pay all the said sums of money, &c. And that he sold the said goods for a less sum than the same were really worth, and for which he could and might and ought to have sold them : — Held, on motion in arrest of judgment, that the declaration was good, although the last two breaches might be open to special demurrer. ' The duty of the sheriff, in the first instance, is to seize so much goods as will be reasonably sufficient, if sold, to satisfy the sum indorsed on the writ ; and his duty to seize in respect of rent does not arise until the landlord has made a claim, when on the refusal of the tenant to pay the rent the sheriff is bound to levy it under the writ, and, conse- quently, to seize to a larger amount. Gamier v. Chaplin, 18 Law J. Rep. (n.s.) Exch. 42 ; 2 Exchj Rep. 503. Where goods seized under a former writ, founded on a judgment fraiudulent against creditors, are capable of being seized by the sheriff, 'he is com- pellable under the 13 Eliz. c. 5. to seize and sell such goods under a writ received by him subse- quently, and founded on a bond fide debt ; and if after notice of such fraud he neglects to sell, and returns nulla bona to the latter writ, he is liable to an action for a false return. Nor does the fact that the sheriff has assigned the goods upon the prior execution to a supposed bond fide purchaser (but who is in truth a party to the fraud), innocently and in ignorance of the fraud, excuse the sheriff from such liability. Christopherson v. Burton, 18 Law J. Rep. (n.s.) Exch. 60; 3 Exch. Rep. 160. Where the defendant had wrongfully seized the plaintiff's goods, but had not removed them from the house in which the plaintiffresided, and another wrong- doer, against the will of the defendant, seized the goods while thus in the defendant's possession, the plaintiff was held entitled in an action of trespass^ to recover as damages from the defendant the amount she has been forced to pay to the second 046 SHERIFF; (B) Duties AND Liabilities. wrong-doer to redeem the goods from him. Keene V. Dilke, 18 Law J. Rep. (n.s.) Exch. 410 j 4 Exoh. Rep. 388. Trespass may be maintained against the sheriif for seizing under afi-fa. goods of A mortgaged to B, though in A's possession. Watson v. Macquire, 5 Com. B. Rep. 836. (ct) Return. The sheriff is not bound to levy under a fi. fa., whatever the value of the goods may be, unless the execution creditor (having notice) first satisfies the landlord's rent. And therefore where, in an action for a false return, the declaration alleged that there were within the bailiwick goods not only sutBcient to satisfy five other writs and also the rent, but also goods whereof the sheriff might have levied the monies indorsed on the plaintiff's writ, and that the sheriff had returned that he had received five other writs before the plaintiff's, and had seized under them ; and also had notice of a year's rent due to the landlord of the premises where the goods were seized ; and that the other execution creditors, as well as the plaintiff, had notice that it was due, but had not paid it, and that there were no other goods, &c.; and the sheriff pleaded that there were no other goods of the debtor besides the goods suffi- cient to satisfy the said five other writs oi fi. fa. whereof the sheriff had notice, or could have levied the monies indorsed on the plaintiff's writ: — Held, that on proof by the sheriff of the facts stated in the return, he was entitled to a verdict on this plea. Cocker V. Musgrove, 15 Law J. Rep. (U.S.) Q.B. 365 j 9 Q.B. Rep. 223. (e) Extortion. The statute 1 Vict. c. 55. does not repeal the statute 29 Eliz. c. 4. s. 1, so far as regards the penalty thereby imposed upon sheriffs for exceeding the specified rate of poundage upon writs. "Where, therefore, a declaration in debt against the sheriff for treble damages alleged that after the passing of the 1 Vict. c. 55. the Judges sanctioned the taking of certain fees by sheriffs upon the exe- cution of aft. fa. j that a writ of fl. fa. issued against the goods of the plaintiff, indorsed to levy 2961. and interest, and 11. Is. for execution; that the defen- dant, as bailiff to the sheriff, levied of the plaintiff's goods 2961. and interest, and also 1/. Is. as directed j that the defendant was also entitled to take certain specified fees as allowed by the Judges under the 1 Vict c. 55, but that the defendant over and above those fees took more than allowed by the Statute of Elizabeth, and injured the plaintiff to the amount of the excess : — Held, on special demurrer, that the declaration was good. Wrightup v. Greenacre, 16 Law J. Rep. (n.s.) a.B. 246 ; 10 Q.B. Rep. 1. The statute 1 Vict. c. 55. does not repeal the 29 Eliz. c. 4; its only effect is to exempt from the penalties of the statute of Elizabeth those cases in which the sheriff takes no larger fees than shall be allowed by the Judges. It is therefore unneces- sary, in a declaration on the case for extortion on the statute of Elizabeth, to negative the defendant's having had authority under the statute of Victoria to take the fees complained of-, that is matter of defence which should be pleaded. The Court will not judicially notice an order of the Judges, allowing a scale of fees under the 1 Vict. c. 55, so far as to recognize its having been made before the time of the alleged extortion, stated in the declaration. A declaration on the case against the sheriff for extortion, on the statute of Elizabeth, stated, that the defendant levied under a j!. /a. upon the goods of the plaintiff's debtor a certain sum, to wit, 281 lOs.; and that he wrongfully took of the plaintiff, for the serving and executing the execution, a large sum of money, to wit, 16/., the same being a larger recompence than in the same statute is limited of and for the sum so levied, that is to say, a large sum, to wit, the sum of 15/. more than in the said act is limited in that behalf: — Semble, that this allegation was bad in point of form, inasmuch as the poundage upon the levy allowed by the statute being 11. &s., the allegation that the defendant took 16L, which was excessive by 15/,, was repugnant; and if the words, " to wit, the sum of 151." were re- jected as surplusage, there would be no sufficient allegation of the damage. Pilkington v. Cooke, 17 Law J. Rep. (n.s.) Exch. 141 ; 4 Dowl. & L. P.O. 347 ! 16 Mee. St W. 615. (/) Attachment. An attachment against the sheriff, for not bring- ing in the body of the defendant, was set aside, on perfecting special bail and payment of costs. Those terms, not having been complied with, and a habeas corpus having issued to the coroner to bring up the body of the sheriff, it was arranged that the habeas should not be executed, the sheriff paying to the plaintiff the penalty in the bail-bond, beiug double the amount of the debt indorsed on the writ, with- out prejudice to any application to be made by him to the Court : — Held, that the plaintiff was only entitled to retain the sum indorsed on the writ, and costs, and was bound to refund the residue to the sheriff. Regina v. Sheriff of Middlesex, 15 Law J. Rep. (N.s.) Exch. 93 ; 15 Mee. & W. 146 ; 3 DowL & L. P.C. 472. Where a sheriff^s officer has been guilty of extor- tion, the injured party may, by one and the same rule, call upon the sheriff to shew cause why he should not pay over the excess, and upon the officer to shew cause why an attachment should not issue against him. Blake v. Newburn, 17 Law J. Rep. (U.S.) Q.B. 216 ; 5 Dowl. & L. P.C. 601. On an application to set aside an attachment issued against a sherifffor not returning a fi.fa., it appeared that the writ was issued on the 21st of July; the goods were seized on the 22nd; the sheriff was ordered on the 24th to return the writ ; the goods were claimed on the 27th ; the sheriff applied under the Interpleader Act, on the 30th ; the plaintiff attended the summons and various adjournments thereof, and declined to contest the claim, which was allowed on the 12th of August; on the 14th of September the sheriff returned nulla ioKa;— Held, that the delay on the part of the sheriff having caused no damage to the plaintiff, the attachment might be set aside on payment of all costs by the sheriff. Regina v. Sheriff of Devon, in re Nathan v. Ehoorthy, 17 Law J. Rep. (n.s.) C.P. 116. ^ The Court, in considering the terms of setting aside an attachment against the sheriff for the SHERIFF— SHIP AND SHIPPING. 647 escape of an execution debtor will be guided by the principle adoptjed by the legislature in the act 6 & 6 Vict. c. 98. s. 31. in the case of actions against the sheriff. Where the Court had not sufficient materials for deciding upon affidavit what was the damage sus- tained by the plaintiff, an action was directed, in which the only question was to be the amount of damage sustained by the plaintiff in the former action, by reason of the escape. Regina v. Sheriff of Leicestershire, (In re Arden v. Bingham), 19 Law J. Rep. (n.s.) C.P. 320 ; 1 L. M. & P. 414. The sheriff having taken a defendant under an attachment for non-payment of a large sum of money, in obedience to an order of the Court, received a part of the amount, and a deposit of title-deeds, as security for payment of the balance on the return of the writ. At the return of the writ, the defendant did not pay the balance. Upon the motion of the sheriff, the Court permitted him to pay the sum he had received into court, and to issue an attachment in the names of the plaintiffs, without prejudice to the question of his liability to them ; he also indemnifying them against con- sequent costs, and undertaking to allow the defen- dant inspection of the title-deeds, deposited as security. Thomas v. Hall, 2 De Gex & S. 264. SHIP AND SHIPPING. (A) Chaktek-party. (B) Insurance. (C) Bill of Lading. (D) Bottomry. (E) Owners. (F) Master. (G) Pilot and Pilot Act. (H) Seamen's Wages. (I) Broker. ^ (K) Supercargo. ( L) Carriers by Sea. (M) Registry. (N) Sale and Transfer. (O) Freight. (P) Average. (G) Demurrage. (R) Deviation. [See (B) Insurance.] (S) Derelict. ( T) Necessaries. (U) Lien and Mortgage. (V) Costs. (X) Attachment. (Y) Collision and Damages. Regulation • of steam navigation and sea-going vessels, by 9 & 10 Vict. c. 100 ; 24 Law J. Stat. 262. The Passengers' Act, 5 & 6 Vict. c. 107. amended by the 10 & 11 Vict. c. 103; 25 Law J. Stat. 278. Steam navigation further regulated and the number of passengers conveyed in steam vessels limited by the 11 & 12 Vict. c. 81 ; 26 Law J. Stat. App. iii. The laws for the encouragement of British ship- ping and navigation amended by the 12 & 13 Vict, c. 29 ; 27 Law J. Stat. S3. The carriage of passengers in merchant vessels regulated by the 12 & IS Vict. c. 3S; 27 Law J. Stat. 41. The laws relating to pilotage amended by the 12 & 13 Vict. c. 88 5 27 Law J. Stat. 172. An act for improving the condition of masters, mates, and seamen, and maintaining discipline in the merchant service. 13 & 14 Vict. o. 98; 28 Law J. Stat. 243. (A) Charter-party. A declaration by the owner of a vessel against the charterers upon a charter-party, by which the defendants agreed to load the vessel with a cargo at Liverpool, without detention, and to receive the same at Stettin, setting out the usual clause of exception as to restraints of princes, 8cc., during the said voyage : breach, that the defendants did not load a cargo at Liverpool without detention, — Held, sufficient, without any averment that the detention did not arise from any of the excepted causes. Crow V. Falk, 15 Law J. Rep. (N.s.) Q.B. 183 ; 8 Q.B. Rep. 467. A ship being chartered to take coals to Algiers, it was stipulated in the charter-party that the ship should be unloaded, weather permitting, at a certain rate per diem, to reckon from the time of the vessel being ready to unload, and " in turn to deliver." In an action by the owner against the charterers for an alleged detention, the defendants proved at the trial that the coals in question were for the use of the French Marine, who made special regulations with all their contractors with respect to " the turn to deliver ;" that according to these regulations the delivery was " in turn," and that these regulations formed part of the general regulations of the port: — Held, that the defendants had a right to prove that the contract was entered into with reference to a known recognized use of the words " in turn to deliver" among persons conversant in the trade ; and that a question put by the defendants, whether there was any general understood meaning of those words among ship-owners and merchants entering into charter-parties with respect to the commerce then under investigation, was unobjectionable. Sobertson v. Jackson, 15 Law J. Rep. (n.s.) C.P. 28 ; 2 Com. B. Rep. 412. A vessel was chartered by the defendant from London to Bombay, addressed to G & Co., the defen- dant's agents at the latter place; and it was stipu- lated by another charter-party of the same date, that the vessel should discharge her cargo at Bombay, and then take in a homeward cargo, the defendant agreeing to pay freight as to one-half the cargo at 31. per ton ; and as to the rest at the current rate of freight when the ship should be loading. It was also agreed, that the master of the vessel and the agents at Bombay should be at liberty to make such alterations in the charter-party as they might mutually think proper, without prejudice to the agreement. Shortly after the arrival of the vessel at Bombay, G & Co. agreed, by a memorandum indorsed on the charter-party, that, before loading her homeward cargo, the vessel might proceed to Aden with government coals and stores and return to Bombay with all possible despatch. The plain- tiffs accordingly entered into a charter-party with the East India Company ; and the vessel proceeded to Aden in February and returned thence in May, 648 SHIP AND SHIPPING ; (A) Chaeter-paety. having earned freight, which was paid to the plain- tiffs : — Held, that G & Co. had authority to permit the voyage to Aden, and that the defendant was bound by the alteration in the charter-party j and, therefore, that he was bound to pay the charter rate of 31. per ton for half the cargo, although that ex- ceeded the current rate of freight at the time of loading, and although the alteration might he pre- judicial to him ; and that he was not entitled to bring into the account the freight earned by the owners on the Aden voyage. Wiggins v. Johnston, 15 Law J. Kep. (n-s.) Exch. 202 ; 14 Mee. &. W. 609. Declaration in assumpsit upon a charter-party, by which the plaintiff let a ship to the defendants to proceed to T, and there load from the defendants a cargo of coals, the ship to be loaded in turn. First breach, that the defendants did not within a reasonable time after the arrival of the ship at T load a cargo. Second, that they did not load the ship in turn. Pleas, first, that the defendants did load a cargo within a reasonable time after the arrival of the ship at T. Second, that they did load the ship in turn. Third, that after the arrival of the ship at T, and before the defendants could load any cargo, and while the plaintiff was the master of the ship, and had the care, direction, and management thereof, the ship was damaged by the carelessness, misdirection, and mismanagement of the master and crew, and rendered unfit to receive any cargo. The jury found that the ship was damaged by the carelessness of the master and crew, and their dis- obedience to the orders of the harbour-master of T, while the latter, who by law had authority to direct and controul all ships there, was superintending her entrance into the port. The ship was loaded by the defendants as soon as she was in a fit state to receive a cargo, having been delayed two months by the damage : — Held, that these facts entitled the defendants to the verdict upon all the issues ; for that the " reasonable time" and " the turn" were to be calculated from the time the ship was ready to re- ceive a cargo, and not from the time of her arrival at T, and that the plaintiff had the care and management of the ship within the meaning of the third plea. Held, also, that the jury were properly directed to find for the defendants on the last issue, if the plaintiff's misconduct contributed to the damage done to the vessel, though it did not entirely cause it. Taylor v. Clay, 16 Law J. Rep. (n.s.) Q.B. ii ; 9 Q.B. Rep. 713. In an action on a charter-party made between the plaintiffs and the defendant, the declaration alleged, as breach, that the defendant did not ship a full cargo of linseed according to the terms of the charter-party. The defendant pleaded, setting forth the charter-party, which stated that it was mutually agreed between the plaintiffs, as original charterers of the vessel called the Dove, A, 1, "now at sea, having sailed three weeks ago," and the defendant, that the said ship should sail to Mar- seilles, and there load a full cargo of linseed, and should then proceed to one safe port in the United Kingdom, and deliver the same on being paid freight. Averment, that upon the making of the said charter-party time was an essential part of the contract, and that the probable situation of the vessel, with reference to the date of her sailing, was also a material and necessary part of the contract ; that at the making of the charter-party, the vessel had not sailed three weeks before, but, on the contrary, had sailed at a materially and unreasonably later time, to wit, one week later, which plaintiffs, at the time of the making of the charter-party knew, wherefore the defendant declined to load any cargo. Replication de injurid. A verdict having been found for the defendant on this issue, — Held, on motion for judgment nora obstante veredicto, that the fact of the vessel having sailed three weeks was a condition precedent to the defendants' liability to load, and that the defendant was entitled to judg- ment. Semble, per Parke, B., that the averment of the plaintiff's knowledge was an immaterial averment. Ollive V. Booker, 17 Law J. Rep. (n.s.) Exch. 21 i 1 Exch. Rep. 416. Assumpsit on a charter-party in these terms : — It is this day agreed between E O (the plaintiff), agent for the owner of the Lydia, new ship now on the stocks, of 1,100 tons, or thereabouts, now at Quebec, to be launched and ready to receive cargo in all May, guaranteed to sail in all June, and Messrs. F & Co., merchants (the defendants), that the ship shall proceed to, &c. and there load a full cargo of timber : — Held, that the readiness to re- ceive a cargo in all May was a condition precedent to the plaintiff's right to recover against the defen- dants for not loading a full cargo, and that a plea stating the ship was not ready to receive cargo in all May was good. Oliver v. Fielden, 18 Law J. Rep. (n.s.) Exch. 353 j 4 Exch. Rep. 135. The plaintiff insured eighty-one bales of waste silk free of particular average in a ship from Leg- horn to Liverpool. The ship met with bad weather, and she made so much water and was so damaged by perils of the seas as to be obliged to put into Gibraltar, where she was surveyed and detained for repairs. 'The cargo was (necessarily) unloaded, and twenty-three of the bales of silk found to be so much damaged by, and in such stinking condition from the effects of sea-water, that the master, under the advice of the surveyors, sold them at Gibraltar as damaged silk. The plaintiff claimed as for a total loss of the twenty-three bales. The jury found that a portion of each bale, if cleaned, &c. at a moderate expense, could have been brought home in specie by some other vessel, and that the master had acted in the matter as a prudent un- insured owner would have acted ; — Held, that the above facts shewed a partial loss, not a total loss, and that the plaintiff was not entitled to recover. Navone v. Haddon, 19 Law J. Rep. (n.s.) C.P. 161. A ship-owner is entitled to take merchandise on board as ballast, provided it occupies no more space than the ballast would have done, and leaves to the charterer the full space of the vessel for his cargo. There is no undertaking on the part of the ship- owner that the vessel which he charters shall be free from suspicion of unseaworthiness or any other matter. Towse v. Henderson, 19 Law J. Rep. (N.s.) Exch. 163 ; 4 Exch. Rep. 890. The stipulation in a charter-party that a vessel shall proceed to a certain place, or as near thereto as she can safely get, and there load a full cargo. SHIP AND SHIPPING. 040 means a place to which she can safely get, and from which, wlien loaded, she can safely get away. Shield V. mikins, 19 Law J. Rep. (n.s.) Exch. 238; 5 Exch. Rep. 304. By a charter-party, the owner of the ship agreed that she should proceed direct to lohaboe, and there load a full and complete cargo of guano, by the ship's boats and tackle, and by the labour of the crew; and being so loaded, should proceed therewith to Cork or Falmouth, &c., and deliver the same, on being paid freight, at it. 15s. per ton, restraint of princes and rulers, the acts of God, and the Queen's enemies, fire, and perils of navigation always excepted. Twenty-one working-days to be allowed to the charterers, if the ship were not sooner discharged, at the port of vtnloading. The charterers to ship bags and other materials requisite for loading the ship, and to supply the stores for the vessel, at cash prices, for the voyage, and to deduct the amount from the balance of freight; but, in the event of the vessel being lost, or any other unforeseen causes preventing the completion of the charter-party, the owner agreed to pay the charterers the amount of their disbursements for such stores. To a declaration on this charter-party, alleging as a breach of it that the defendant, the ship-owner, did not load a full and complete cargo of guano on board the ship at Ichaboe, he pleaded a plea, which stated in substance that he was pre- vented from doing so by an unforeseen cause, namely, that on the arrival of the ship at Ichaboe, and within a reasonable time afterwards, no guano was to be found there ; and that he had paid to the plaintiffs the amount of their disbursements for stores for the vessel: — Held, that this plea was had in substance, for that the fact of no guano being to be found was not such an "unforeseen cause pre- venting the completion of the charter-party," as entitled the defendant to pay the amount of the disbursements, and treat the charter-party as at an end, but that he was nevertheless bound by his positive contract to load a full cargo. Hills v. Sugbrue, 15 Mee. & "W. 253. Where a charter-party stipulates for seventy-five running days, and twenty days on demurrage, if the ship is detained for extra days, the remedy is not by an indebitatus count for demurrage, but by action on the charter-party itself. Cropton v. Pick- emell, 16 Mee. & W. 829. (B) Insubance. A vessel insured under a time policy from August 1841 to August 1842, encountered very severe weather in the Indian seas, and was com- pelled, in May 1842, to put into the Mauritius. The master wrote to the owners, telling them of the injuries which the vessel had received, of the ne- cessity to make extensive repairs, of his intention to borrow money on bottomry for that purpose, of the sum required, and of the impossibility of get- ting the money except on the undertaking to return direct to England, instead of proceeding to Bombay, as originally intended. He further stated, that on account of the very low state of freights in India, this would be better for their interests, which he said he consulted in everything he did. The agents for Lloyd's, at the Mauritius, who were employed by the captain to act for him, wrote letters to the Digest, 1845—1850. same effect. These letters were received at intervals between September and December 1842, and in the latter month the owners wrote to the agents ex- pressing their surprise at the amount required, but saying, at the same time, that they supposed what was done was the best that could be done under the unfprtunate circumstances in which the ship was placed. The owners wrote to agents in London, apprising them of the expected arrival of the vessel, and directing them to do what was needful. The vessel did arrive on the 27th of March, and was at first taken possession of by the agents for the owners. On the 30th of March the owners abandoned to the underwriters: — Held, that under these circumstances they were not entitled to recover as for a total loss ; for, first, assuming notice of abandonment to be necessary in a case of constructive total loss, the notice here had not been given in time; and secondly, the conduct of the owners on the receipt of the letters amounted to an election to treat this as a partial loss, and they could not afterwards, on the arrival of the vessel, when they found that the cost of repairs much exceeded the market value of the vessel itself, convert this partial into a total loss. Though the master may, by an ordinary rule of law, be considered, whenever the vessel is, by cap- ture or other detentions and casualties, prevented from continuing, the voyage, as the agent for all parties concerned, yet the owners, even under such circumstances, may by their conduct make him their sole agent, so as to be bound by his acts. Per Lord Campbell — Notice, of abandonment is necessary in order to convert a constructive into an absolute total loss. The cases of Cambridge v. jinderton and Roux v. Salvador shew that where a ship, in consequence of the inability of the master to get it off the rocks where it has struck, has been actually .sold, or where a cargo of a perishable nature has been so damaged by the sea that its substance is gone, and it can never reach the destined port in specie, the loss, in each instance, is actual, and not construc- tive total loss. Where a prudent owner uninsured would have sold, the case amounts to one of actual total loss. Fleming M. Smith, 1 H.L. Cas. 513. A policy of insurance was effected on goods on board the ship Penang, on a voyage from L to various ports in China; amongst others, to Macao, Hong Kong, and Canton, with liberty to trans-ship the goods on board any other vessel; and for the Penang, or the vessel on board of which the interest might have*been trans-shipped, to touch at any port in China, and discharge there, or remain at the same until it should be deemed expedient to pro- ceed to the port of discharge, and continuing the risk until the goods should arrive at their final port of destination. The policy contained a provision for the return of a portion of the premium if the Penang discharged at a port in China in the usual course, the port being open. The Penang and the cargo sustained damage on the voyage ; in conse- quence of which, on her arrival at Macao, the con- signees chartered the James Laing, in order to trans- ship the cargo, and ascertain the extent of the damage. The Penang and Jarnes Laing proceeded to Hong Kong; the intention of the consignees 40 630 SHIP AND SHIPPING ; (B) Insukance. being, after the trans-shipment at Hong Kong, to keep the goods on board the James Laing there until they could be safely sent to Canton. It was unsafe and inexpedient to send them at that time to Canton, in consequence of the hostile feeling exhibited by the Chinese against the English. There had been no proclamation of war by England against China. While the trans-shipment was pro- ceeding, the James Laing was driven ashore by a storm, and the goods lost; — Held, that|these facts did not shew any agreement to make Hong Kong the final port of destination ; that the risk was not determined, and that the insurers were entitled to recover the amount of the damage. A second policy of insurance upon other goods in the same ship contained no clause authorizing their trans-shipment. The facts being the same as above stated, and it being admitted that the goods were transshipped without any intention of re- turning them to the Penang, — Held, that this was a deviation not warranted by the terras of the policy. OUverson v. Brightma^, Bold v. Rotherham, 15 Law J. Eep. (n.s.) aB. 274; 8 aB. Rep. 781. A policy of insurance upon a ship contained the clause, " The ship is allowed to he seaworthy for the present voyage." The ship met with a storm, and was obliged to put into a port, where, on being examined, it was found that from the damage caused by the storm, and the age and decayed state of the ship, she was not worth repairing. It ap- peared that, but for the storm, the decayed parts would have been strong enough for the voyage : — Held, that the underwriters were liable for a total loss, and that it was not necessary for the jury to be directed to exclude from their estimate, in consi- dering the repairs that were necessary, all such repairs as the decayed state of the ship made neces- sary. Phillips V. Nairne, 16 Law J. Rep. (n.s.) C.P. 194; 4 Com. B. Rep. 343. A policy of insurance was eifected on a vessel at and from Liverpool to ports and places in China and Manilla, all or any, during the ship's stay there for any purposes, and from thence to her port or ports of calling and discharge in the United Kingdom, with liberty to call and stay at all or any ports or places on either side of, and at the Cape of Good Hope. The vessel sailed direct from Liver- pool to a port in China, having on board a cargo for that port, and also for Manilla. She afterwards discharged a portion of her cargo at a port in China, and thence proceeded to Manilla, where she discharged the remainder of her outward cargo. At Manilla the captain took on board on freight 230 chests of opium for Tongkoo, and 'sailed from Manilla (the vessel not being a tenth part laden), intending to seek there a freight hack to England, and whilst he was sailing towards Tongkoo the vessel was by the perils of the sea totally lost. Tongkoo is altogether out of the regular course of a voyage from Manilla to England : — Held, by the Court of Exchequer, and also on error in the Ex- chequer Chamber, that the sailing from Manilla to Tongkoo was not a deviation ; the words in the policy meaning not " from Manilla" only, but " from ports or places in China and Manilla, all or any." Ashley v. Pratt, Pratt v. Ashley, 17 Law J. Rep. (N.S.) Exch. 135 ; 16 Mee. & W. 471 ; 1 Exch. Rep. 257. Where the jury found that the necessary outlay in repairing would exceed her value, when repaired, held to amount to a total loss, and that the value stated in the policy was immaterial to the question. Manning v. Irving, 1 Com. B. Rep. 168 ; affirmed, Irving V. Manning, 2 Ibid. 784. In an action by a ship-owner against under- writers, on » policy of insurance, where the plain- tiff's claim rested on the abandonment of the vessel by the captain, and. a consequent right to recover as for a total loss, evidence that previous to the voyage insured against the captain was habitually a drunkard is admissible, as being material to the inquiry, and tending to shew that he could not have exercised a sound judgment in reference to the abandonment. Alcock v. Royal Exchange Insurance Co., 18 Law J. Rep. (n.s.) Q.B. 121 ; 13 a.B. Rep. 292. Where there is a legal certainty that profit will be made on goods expected to arrive by a specified time, and they are ready to be shipped under a valid contract, the party entitled to such profit has an insurable interest in respect of which he may recover. The plaintiff purchased, by bought and sold notes in the usual way, rice which was supposed to have been then shipped on board a vessel at M, and which was expected to arrive in May 1847, and he subsequently re-sold it at an advance by a valid contract. The ship, which had been chartered for the purpose, was at M, ready to receive the rice, the whole of which was lying there ready for shipment, and had taken a portion on board, when she was blown out to sea, and so much damaged that the rice on board was obliged to be re-landed, and no portion of the cargo was brought to England by May, and the expected profit was consequently lost by the plaintiff. Subsequently to the re-sale of the rice by him, the plaintifi'had effected an insurance at and from M " on profit on rice loaded or to be loaded, beginning the adventure at and from the loading at M " : — Held, that he had such an interest in the rice as was insurable, and that he was entitled to recover against the underwriters in respect of the ■ expected profits on the rice which was not actually on hoard as well as on that which had been in fact shipped at M. M'Swiney v. Royal Exchange Assur- ance, 18 Law J. Rep. (n.s.) Q.B. 193. A declaration on a policy of assurance stated, that the plaintifl" insured the goods, body, tackle, &c. of the ship Cumberlatid , valued at 5,000^., that the ship and freight were warranted free from average under SI. per cent., unless general or the ship were stranded, that the G M Assurance Company be- came insurers for the sum of l,500i. upon a policy which provided that the capital stock of the said company should alone he liable to make good all claims under that policy, and that no proprietor should he charged beyond the amount of his share in the stock of the company ; that the defendants were directors who executed the policy, and in con- sideration of the payment of the premium at their request undertook that the company should perform the policy. The declaration then alleged, that the bower anchor and kedge anchor were left in the sea, and lost to the plaintiff, whereby he sustained a general average loss ; and as a second breach, that the ship being strained and damaged the plaintiiT SHIP AND SHIPPING; (B) Inscbanoe. 651 sustained an average loss on the said ship, her masts, ropes and cables, to a larger amount than 31. per cent, on all the monies insured thereon, to wit, to the amount of 50i. by the hundred, for all and every hundred insured thereon, whereby the said company became liable to pay to the plaintiff a. certain sum of money, to wit, 2001., being their proportion of the said average loss in respect of the said sum of 1,S002., and that the company's funds were sufficient. Third plea, that the said anchors and cables were not left in the sea and lost. Fourth plea, that the plaintiff had not suffered an average loss on the said ship or vessel, her masts, ropes and cables, to the amount of 31. per cent, on all the monies insured thereon : — Held, first, that the pleas were bad, the traverses being too large. Secondly, that the declaration shewed a personal responsibility of the defendants, the funds of the company being sufficient. Thirdly, that the second breach was bad, as it did not suffi- ciently aver that the loss exceeded 31. per cent on the value of the articles insured. And fourthly, that upon demurrer to the plea to the second breach, although the plea was bad, the defendant on that demurrer was entitled to judgment. Dawson v. Wrench, 18 Law J. Rep. (n.s.) Exch. 229 j 3 Exch. Rep. 359. Policy of assurance on a vessel "at and from Liverpool to Quebec, during her stay there, and from thence back to her discharging port in the United Kingdom, and until she had moored at anchor twenty-four hours in good safety." The vessel was chartered to take on board a cargo at Quebec and proceed therewith to Wallasey Pool in the River Mersey, or as near thereto as she could safely get, and there discharge her cargo. She arrived from Quebec in the Mersey on the 4th of September, and was towed up the next morning and came abreast of Wallasey Pool, where, being unable to enter the pool by reason of her great draft of water, the captain anchored and reported the vessel at Liverpool, He engaged lumpers to discharge the cargo at a fixed rate of payment and discharged the crew. The deck cargo and also a considerable portion of the other cargo having been discharged, on the 14th of September the vessel fell over and sustained injury. The captain had always intended to take the vessel into Wallasey Pool with as much of the cargo as she could safely carry: — Held, that the vessel had arrived at her port of discharge, was in the course of discharging her cargo, and had moored twenty-four hours in safety; and that the underwriters were not liable. Whitwell v. Harrison, 18 Law J. Rep. (n.s.) Exch. 465 ; 2 Exch. Rep. 127. The defendant and four others were jointly sued upon a policy of insurance upon a ship and cargo, for a total loss. The declaration was in the usual form, and amongst the other stipulations in the policy alleged an agreement between the plaintiff and the insurers, "that the capital stock and funds of the company should alone be liable to answer and make good all claims and demands whatsoever under or by virtue of the said policy," and, further, that jio proprietor of the company should in anywise be liable or charged, by reason of the said policy, beyond the amount of his shares in the capital stock of the company. There was an express averment that sufficient capital stock and funds of the com- pany existed to pay the amount of the policy: — Held, upon demurrer, that notwithstanding the above stipulation, the declaration shewed that the policy had been properly declared upon as a joint contracti Dowdallv. Hallett, 19 Law J. Rep. (n.s.) Q.B. 37. To a declaration on a policy of insurance upon a ship and cargo, alleged to have been duly made and subscribed by the defendants and three others joint- ly, as proprietors and shareholders in an insurance company, it was pleaded by one of the defendants, that he did not subscribe the policy modo etfarmd, and by both respectively that his name was not ex- pressed or specified in or upon the said policy, by reason whereof the same became void under the statute 25 Geo. 3. c. 63 : — Held, upon demurrer to the pleas, that it was not necessary that the defen> dants' names should be subscribed to the policy or expressed therein, and, therefore, that the plea was no answer. And per Wightman, J., that the plea was bad, as amounting to the plea of non assumpsits Dowdall V. Allan, Dowdall v. Clark, 19 Law J. Rep. (N.s.)Q.B. 4L There is no difference between a time policy and one for a particular voyage, with reference to the implied warranty of seaworthiness ; and the period to which such a warranty applies is that at which the risk of the underwriters first attaches. Small v. Gibson, 19 Law J. Rep. (n.s.) Q.B. 147. M, the plaintiff below, agreed to buy 6,000 bags of rice, supposed to have been .shipped at Madras on board a certain ship to arrive in England on or before the end of May. In a few days after making this contract he agreed to sell the same 6,000 bags on terms exactly similar, except at an advanced price. He thereupon, with a view of insuring the expected profit which would accrue to him on the arrival of the rice by virtue of these contracts,- caused a policy of assurance in the usual form to be effected with the defendants " at and from Madras to London," &c., "on profit on rice," &o., " begin- ning the adventure upon the said goods and mer- chandise from and immediately following the load- ing thereof on board the said ship at Madras." He did not communicate to the defendants the terms of the contracts. The 6,000 bags of rice were ready to be shipped at Madras, and 1,200 bags were put on board the vessel, when the vessel was driven out to sea by a gale of wind, which spoiled the 1,200 bags ' of rice, and so injured her that she was disabled from taking on board the remaining 4,800 bags, which were consequently sent to London in another vessel, and arrived there in June, The injured ship, after having been repaired, arrived in London in the November following without any of the rice. The assurance company paid M for the loss of profit on the 1,200 bags of rice, but refused to pay anything for the loss of profit on the remaining 4,800 bags : — Held, that M had, under the contracts, an in- surable interest in the expected profit on the rice, and might, by a policy adapted to the case, have insured that special interest against the several contingencies by which it was defeasible, viz., loss of all the rice, loss of part of the rice, loss of the ship, and delay in the arrival-of the ship. That the policy actually effected by M insured 652 SHIP AND SHIPPING; (B) Ins0BAKCE. his special interest as a profit on rice, but only against losses by perils of the sea, or other perils specified in the policy directly aifecting the goods ; and that as the risk on goods insured by a similar form of policy would not commence until the goods were put on board, the insurance on the profit on goods (which ordinarily is only the excess of their value at the port of discharge over their value at the port of loading) would in like manner not com- mence until the goods were shipped ; consequently, that under this policy the' risk had not commenced with respect to the profit on that portion of the rice which had not been shipped on board the vessel. That even if the risk were assumed to have com- menced with respect to the profit on the rice on shore, the company were not liable as for a totalloss, or bound to indemnify M further than in respect of the profit on the portion of the rice which had been shipped and injured by the sea; as the loss of the whole profit under the contracts by reason of the damage occasioned by the sea to the part shipped, was not a loss by peril of the sea, or any peril in- sured against directly afiecting the rice on shore ; and the loss of profit arising from the retardation of the voyage was not a loss by any peril covered by the policy. Royal Exchange Assurance Co. V. M^Swineyj 19 Law J. Rep. (n.s.) Q.B. 222. To entitle the assured to recover under a policy of insurance upon a ship, as for a constructive total loss, where no such urgent necessity is shewn as rendered a sale of the ship by the master valid as against the insurers, there must have been due notice of abandonment to the insurers. Whether a notice of abandonment may be dis- pensed with, where there has been a sale by the master, under such urgent necessity as to make the sale valid as against the insurers, quare. Under a time policy upon a ship, a claim for partial loss, occasioned by a peril insured against during the continuance of the risk, may be recover- ed, although the extent of the damage done to the ship be not ascertained until after the expiration of the time insured against. A total loss, for which the insurers are not liable, following a partial loss occasioned by the perils in- sured against, has not the efiect of exempting the insurers from liability for such partial loss, where it continues prejudicial to the assured. A ship insured for 1,000/. by a time policy end- ing on the 23rd of September 1846, whilst endea- vouring to make the harbour of Santa Cruz, on the Ifitb of September 1846 got aground, and so re- mained for some time until the flowing of the tide, when she was got off and taken into the harbour. There she continued discharging her cargo, and without any injury, until the middle of October, when she was beached and surveyed, and then for the first time it was discovered thatshe had received considerable damage from the accident of the 16th of September. It was found impracticable either to repair her at Santa Cruz, or to take her to any place where she could have been prudently repaired, and ultimately she was sold by the masterfor72i. No notice of abandonment was given to the underwriters: — Held, in an action of covenant upon the policy, that there had been no actual total loss, and that the underwriters were not liable as for a constructive total loss ; but that they were bound to indemnify the assured to the amount of the partial loss, which the ship had sustained from the accident of the 16th of September. Knight v. Faith, 19 Law J. Rep. (n.s.) Q.B. 509 ; 15 as. Rep. 649. A ship was insured by two policies : the first on the ship itself, the second on her freight She received damage by perils of the sea, but might have been repaired at an expense such as a prudent owner would have incurred with reference to the value of the ship : — Held, that although the expense of such repairs might have exceeded the amount of freight contracted for, the insured could not recover as for a total loss of freight. Moss v. Smith, 19 Law J. Rep. (n.s.) C.P. 225. In an action by an assured against the defendant the declaration stated thit the defendant with others, to wit, 500, were united in co-partnership under the style of the General Maritime Assurance Company; that the company had a capital stock of 1,000,0002. divided into 10,000 shares of lOOZ. each ; that the defendant was the proprietor of 100 shares of which 51. only on each share had been paid ; that it was declared and agreed between the company and the assured that the capital stock of the company should alone be liable to answer all claims, and that no proprietor should be liable or be charged by reason of the policy beyond the amount of his share in the capital stock of the company ; it being one of the fundamental principles of the company that the re- sponsibility of the individual proprietors should be limited to their respective shares ; that in consi- deration of the payment of premiums by the plain- tiffs the defendant promised the plaintiflTs that he would become an insurer to them of l,500i. and perform all things in the policy on his part as such insurer, and that he became an insurer for 1,5002.; that the ship was lost, and that the funds of the company were sufficient to pay all the claims under the policy of insurance. Breach, non-pay- ment by the defendant. Plea, that the policy was made after the passing of the 35 Geo. 3. c. 63, and that the defendant did not subscribe the policy, nor was the name of him, the defendant, expressed or specified in or upon the policy according to the true intent, &c. of that act, by-reason whereof the policy was wholly void :■ — Held, on demurrer, that the plea was bad, inasmuch as the 35 Geo. 3. c. 63. s. 1 1. does not require that in insurance partner- ships and companies the name of every individual subscriber should be expressed in the policy, but only the name of the firm. Sembte — also, that the plea was double in raising the defence under the statute, and also in putting in issue the execution of the policy. Held, also, that the declaration was good, the action being rightly brought against the defendant, and not against the directors who subscribed the policy. Reid v. Allan, Cross v. Allan, 19 Law J. Rep. (n.s.) Exch. 39 ; 4 Exch. Rpp. 326. A declaration on a policy of assurance stated, that J S, before his bankruptcy, made a policy of assurance on the ship Defiance, that the ship, &c. should be valued at 2,5002., averring a loss and non-payment by the defendant of the sum insured. Plea, that G M, official assignee of J S, made a certain other policy upon the said ship and goods valued at 2,5002., in case of loss on average the adjustment to be made irrespective of any other SHIP AND SHIPPING. 653 assurance, averring the identity of the ship, the interest, the risk, the amount of the interest and loss, and that the insurers had paid the plaintiffs, who had accepted 2,590i. as the agreed indemnity for the loss, and which was a full indemnity. Re- plication, de injuriti: — Held, on special demurrer, that the replication was bad; as the plea amounted to a discharge, and not to an excuse. Secondly, that the plea was good on general demurrer. Mor- gan V. Price, 19 Law J. Rep. (n.s.) Exch. 201 ; 4 Exch. Rep. 615. A declaration on a policy of insurance stated, that the policy was duly entered into by the defen- dants for twelve months, subject to the limitations thereto annexed, and certain warranties were speci- fied. It then averred that at the time of making this policy the defendants were accustomed to allow all persons insuring ships with them for twelve months to take the ships off the risks insured against for any one or more months, upon notice thereof; in which case "^ proportionate return of the premium was to he made. That the plaintiff, on the faith of such custom, took the ship off risks for a month, and gave the defendants notice there- of, and that afterwards the amount of premium to be returned was agreed upon and returned ; and it was agreed that the ship should be considered again upon the risks insured against for the residue of the time, and that the policy and the limitations should continue in force for the said residue. Mu- tual promises as to the residue of the said twelve months. Th^t during the continuance of the said risk the ship sailed and was lost by the perils of the sea ; and that from and after the continuance of the said policy and the said risks insured against, and during the remaining currency of the policy, the warranties were complied with ; and stated as breach the non-payment of the sum insured: — Held, that the declaration was bad, for not shewing compliance with the warranties during the whole period insured against, or, if the usage was to be relied on, for not shewing any consideration for the new contract as to the residue of the twelve months. Hutchinson v. Read, 19 Law J. Rep. (n.s.) Exch. 222 ; 4 Exch. Rep. 761. (C) Bill of Lading. A vessel laden with goods arrived in the port of London, and was taken into the Commercial Dock to discharge her cargo. For this purpose she was fastened by tackle, on the orte side to a loaded lighter lying outside her, and on the other to a barge lying between her and the wharf. The crew were discharged, except the mate, and lumpers were being employed in unloading her, when the tackle broke whereby she was fastened to the lighter, and in consequence she canted over, water got in through her ports, and the goods still on board were damaged : — Held, that this was a loss within the exception in the bill of lading, of " all and every the dangers and accidents of the seas and navigation." Held, also (in an action by the freighters against the ship-owners to recover damages for this loss), that the jury were properly directed, "that the owners were only bound to take the same care of the goods as a person would of his own goods," that is, an ordinary and reasonable care. Laurie V. Douglas, 15 Mee. & W. 746. The indorsee of a bill of lading cannot maintain an actioh on the case for non-delivery of the goods. The master of a ship, after waiting a reasonable time at a foreign port, and no person having pro- duced the bill of lading, may deliver the goods to some person to keep till the bill of lading is pro- duced. ' A declaration in case stated, that the defendant, a ship-owner, received on board thirty casks of cochineal, shipped by R to Bombay ; that the mas- ter delivered bills of lading to R, and that the de- fendant undertook to deliver to the order of R or assigns ; that by the custom of merchants the goods were deliverable to a bond fide assign of the bill, on production J that R assigned the bills to the plaintiff as security for monies due ; that the plaintiff was bond fide assign, and that it was the defendant's duty to deliver to the plaintiff. Breach, that the defendant delivered to other persons, not bond fide holders. Plea, that R was agent for M D & Co. at Bombay, and the plaintiff was a broker ; that R had an order from M D & Co.; that the plaintiff was agent for R to purchase, and did purchase the goods, and sent the invoice to R, and that R sent a notice and copy of the invoice to M D & Co. ; that the bill of lading was delivered to the plaintiff as agent of R ; that the plaintiff did not deliver or send the bill to R or to M D & Co. ; that the plaintiff fraudulently procured R to indorse the bill to the plaintiff to secure a debt ; that the ship remained at Bombay four months, and no holder producing the bill, the master delivered to M D & Co., who produced the invoice and letter of advice : — Held, on demurrer to the plea, that the declara- tion was bad as a declaration in case ; also that it was substantially bad as a declaration in trover for not averring property in the plaintiff, or a conver- sion. Howard v. Shepherd, 19 Law J. Rep. (n.s.) C.P. 249. (D) Bottomry. A hill was filed to set aside a bottomry bond, which had been given at Trieste, without any com- munication from the captain to the owners in Eng- land, and, as was alleged, by a fraudulent con- spiracy between the captain and the obligee. The Court supported the bottomry bond, but, instead of dismissing the bill, at the request of thd defendant (the obligee) directed inquiries as to the amount due to him upon the bond. Practice of the Court as to dismissing a bill and refusing secondary relief,' where allegations are made of fraud which is not proved. Glascott v. Lang, 16 Law J. Rep. (n.s.) Chanc. 429 ; 2 Ph. 310. Bottomry bond given at Pernambueo upon the ship, freight and cargo, resisted by the consignees of the cargo, upon the ground, first, that the ad- vances were made by persons acting in the capa- city of ship-agents at the time the bond was given ; secondly, that the disbursements were made with the understanding that they should be covered by bills of exchange upon the owners of the ship ; thirdly, that the repairs upon the ship were impro- vidently undertaken, and the vessel should have been sold, and the cargo trans-shipped. Objection 654 SHIP AND SHIPPING. overruled, and the bond sustained. The Lord Coch- rane, 2 Rob. 320. Where a bond-holder advances his money upon tlie security of the ship alone, it is not cotnpetent for him to extend that security beyond the express terms of the bottomry bond. Three bonds of bottomry were granted upon the same vessel ; two of the bonds upon the ship alone, the third bond upon the cargo only. In marshalling the assets, the Court directed the two bonds upon the ship to be paid out of the pro- ceeds of the ship exclusively; the bond upon the cargo to be paid out of the proceeds of the freight in the first instance, and the cargo only held liable if the proceeds of the freight should be insufficient. La Constancia, 1 Rob. 404. Advances made for the service of a ship, to pay debts bond fide incurred previous to the advances, may be legally included in a bond of bottomry. The general validity of a bond will not be vitiated by the fact that the lender of the money was him- self partially indebted to the ship at the time he lent the money, the bond will be invalidated pro tanto only ; and the amount of the deductions must be ascertained by reference to the registrar and merchants. The Hebe, 2 Rob. 412. A bottomry bond was granted in the port of London upon an American vessel, stipulating that the payment of the bond should be made within twenty-four hours after the ship's arrival in any port of the United States. The vessel sailed from London, took in a cargo at Shields, and was in the actual progress of her voyage, when she was com- pelled to put into Plymouth, and was condemned as unseaworthy. Payment of the bond decreed by the Court; and the maritime interest allowed, upon the ground that the maritime risk had been par- tially incurred and was interrupted by the damaged condition of the vessel. Semble — if the vessel had not left the port of London, the maritime interest would not have been allowed. The Dante, 2 Rob. 427. Validity of a bottomry bond was contested upon the grounds, first, that there was no necessity for a bond of bottomry ; secondly, that the bond was vitiated personali excepHone of the lender ; thirdly, that some of the items in the bond consisted of simple contract debts bought up from the ship's creditors, at a discount of about 501. per cent. Bond generally referred to the registrar and mer- chants to report thereon. The Ocean, 2 Rob. 429. Where a bond of bottomry is given upon the ship alone, and another bond is likewise given upon the cargo only, demands for pilotage, towage and seamen's wages must be satisfied pro ratd out of the proceeds of the ship and freight. An application of the bond-holder upon the ship only, to have these demands satisfied out of the pro- ceeds of the freight in the first instance, rejected. La Constancia, 2 Rob. 460. Objection to the report of the registrar and mer- chants in a cause of bottomry in part sustained. Where the bond-holder had bought up the debts of certain creditors upon the ship, at a discount of 501, per cent., the bondholder was not at liberty to convert them into a lien upon the ship, by repaying himself out of monies advanced by him upon bot- tomry. Allowance of the registrar and merchants, that euch debts should be included in the bond and the amount of the sums actually paid for them, over- ruled, and the claim directed to be struck out. The Ocean, 2 Rob. 466. A vessel being carried into a foreign port by a mutinous crew, with the master dispossessed and in irons, the expenses incurred by a party employed by the British vice-consul to investigate into the mutiny, and re-invest the master in his command, allowed by the Court to be a good foundation for a bottomry transaction, although no mention was made of a bottomry bond iti the outset of the in- quiry, and the bond was taken from the master on the eve of the vessel's sailing from the port The Gauntlet, 3 Rob. 82. A bond of bottomry given by the master to release his vessel from an arrest on account of debts owing by the owner to his agent at Malta, upon the balance of accounts current between them, such accounts being incurred anterior to the voyage in which the vessel was engaged at the time, not sustained. The general principle, that bonds of bottomry can alone be given for the furtherance of the voyage in which the vessel is actually engaged, not aifected by the circumstance that by the law of the country where she is seized the vessel may be arrested and sold for any debt owing by the owner to a creditor resid- ing in that country. The Osmanli, 3 Rob. 198. A bottomry bond granted in New York by the master of a vessel whose owners were residing at St. John's, New Brunswick, (a communication by electric telegraph existing between the two cities) held to be valid, although the bondholder had pre- viously acted as agent in the concerns of the ship, and no intimation had been made to the owners of the. bottomry transaction until after the bond was executed. The Oriental, 3 Rob. 243. A bond of bottomry upon the ship and cargOj granted by the master in the country where the owners of the ship resided, and with their consent, but without any previous communication with the owners of the cargo, upheld by the Court. The opposition of the owners of part of the cargo, who were resident at Hull, the bond being given in a port of Sweden, overruled. The Bonaparte, 3 Rob. 298. (E) OWNEKS. A part-owner is entitled as against the other part-owners to have his disbursements for the outfit and repairs of the ship, so far as the same were necessary and proper for the joint adventure, re- paid to him out of the freight earned by the ship before any division of profits is made. A mortgagee of seven-eighths of the ship and freight can only claim his share of the freight, sub- ject to the like deductions. Green v. Briggs, 17 Law J. Rep. (n.s.) Chanc. 323 ; 6 Hare, 395. (F) Master. Where a ship is so damaged during a voyage that she cannot prosecute it, the master has authority to sell her for all parties interested, and the person whom he may have employed to sell her and re- ceive the money may pay over the proceeds to him or his agent ; and such payment, in the absence of SHIP AND SHIPPING. 655 any notice not to do so from the parties interested, will be good, Ireland v. Thomps/an, 17 Law J. Rep. (N.s.) C.P. 2*1 ; 4) Com. B. Rep. 14-9. The master of a ship, in ordering repairs of such ship, or borrowing money on bottomry bond for such repairs, is exclusively the agent of the ship- owner. Where, therefore, the master of a ship damaged by perils of the sea, hypothecated at a foreign port, by one bottomry bond, for necessary repairs, the ship, freight and cargo, amongst which were the plaintilTs goods; and in consequence of the ship and freight realizing less than the sum borrowed, the plaintiff was obliged to contribute towards the difference, and also to pay his. proportion of the costs of a suit instituted in the Court of Admiralty by the obligee of the bond, — Held, (affirming the judgment of the Court of Exchequer, 17 Law J. Rep. (N.s.) Exch, 238 ; 1 Exch. Rep. 537), that the plaintiff might maintain an action against the owner of the ship on an implied promise to indem- nify. Held, also, (affirming the judgment of the Court of Exchequer) that a plea stating that the bond was executed by the master without express authority from the defendant, and that when the same was executed, the costs of the repairs exceeded the value of the ship and freight, and that as soon as the defendant had notice he abandoned the ship and freight, and never did ratify the act of the master, was bad on general demurrer. Held, also, that the non-delivery by reason of the proceedings on the bottomry bond was not caused by the " perils of the seas," within the ex- ception of the bill of lading. Held, also, that to a count upon the bill of lading, a plea alleging acts shewing the money to have been borrowed for the repairs, but that a prtfdent owner would not have repaired, that the master acted without authority from the defendant, and that the defendant never had the controul of the goods after the arrival of the ship at its port of destination, was bad after verdict. If upon a replication to a plea which is substan- tially bad, an immaterial issue is found for the plaintiff, but the declaration is good, the defendant cannot have judgment. Benson v. Duncan, 18 Law J. Rep. (n.s.) Exch. 169 ; 3 Exch. Rep. 844.. Construction of the Irish Bankrupt Act, 6 Will. 4. c. 14. Plea of the master, that the owners of the vessel were bankrupt, not brought within the provisions of the 22nd section of the statute. The Great Northern, 2 Rob. 509. (G) Pilot and Pilot Act. The 2nd section of the Pilot Act, 6 Geo. 4. c. 125, enacts, "That all vessels sailing as well up and down, or upon the rivers Thames and Medway, &c., between Orfordness and London Bridge, as also from London Bridge to the Downs, &c. (except as there- inafter provided), shall be piloted by pilots licensed by the Trinity House." And the 58th section im- poses penalties on masters acting as pilots after a licensed pilot has offered to take charge of the vessel. Section 62. provides, "That nothing in that act contained shall extend, or be construed to extend, to subject to any penalty the master or mate of any ship or vessel, being the owner or part-owner of such ship or vessel, and residing at Dover, Deal or the Isle of Thanet, for conducting or piloting such his own ship or vessel from any of the places aforesaid, up or down the rivers Thames or Medway, or into or out of any port or place within the juris- diction of the Cinque Ports": — Held, that this section exempts from penalties such masters only as navigate their vessels from Dover, Deal, or the Isle of Thanet; therefore, that the penalties imposed by section 58. were recoverable from a master pilot- ing his own yessel on a foreign voyage commencing in the port of London. Williams v. Newton, 15 Law J. Rep. (N.s.) Exch. 11 ; 14 Mee. & W. 747. A master of a ship acting himself as pilot after a licensed pilot has duly offered to take charge of the ship, is liable, under the 58th section of the 6 Geo. 4. c. 125, to double the amount of the pilot- age of the ship, but not to the penalty contained in the 70th section. Beilby v. Shepherd, 18 Law J. Rep. (n.s.) Exch. 73 ; 3 Exch. Rep. 40. The time and place in which a vessel should be brought up is entirely within the province of the pilot, and the master must be governed upon these points by the pilot's direction. Owners of a vessel running down another vessel at anchor in the British Channel dismissed, but without costs. The George, 2 Rob. 386. Manner of catting the anchor, preparatory to bringing up a vessel at her anchorage ground, ex- clusively within the province of a licensed pilot in charge. Averment of the owners of the damaged vesjsel, that the collision was occasioned by the anchor of the damaging vessel being improperly catted, and that the blame lay partly, if not entirely, with the crew, overruled ; and the owners of the vessel charged with the damage dismissed. No costs given. The Gipsey King, 2 Rob. 537. Steam-tugs employedinan ordinary serviceof tow- ing merchant vessels are bound to be subservient to the orders of the pilot on board the vessel in tow. The master of the tug must implicitly obey the orders of such pilot, excepting in the case of wilful misconduct or gross mismanagement OU; the part of the pilot. The master of a steam-tug employed in towing a vessel from Gravesend to the Surrey Docks, having brought the vessel in tow into a colli- sion by disobedience of the pilot's orders, the Court pronounced against the owner's claim for towage remuneration. The Christina, 3 Rob. 27. (H) Seamen's Wages. The 7 & 8 Vict. c. 112. s. 15. does not give any jurisdiction to a Justice of the Peace to adjudicate upon a claim for wages, by the administrator of a deceased seaman ; and such administrator is not deprived of his right of action by section 16. Hol- Ungworth v. Palmer, 18 Law J. Rep. (N.s.) Exch. 409 i 4 Exch. Rep. 267. An agreement in writing between the defendants, who resided in England, and who contracted ex- pressly on behalf of and as representing a named foreign principal resident abroad, and the plaintiff, stipulated that the plaintiff would faithfully and properly discharge the duty of fireman and stoker on board the steam vessel Tridente, about to leave 656 SHIP AND SHIPPING. London for Havannah, to be placed in the service of the foreign principal, subject to the orders and directions of the engineer ; in consideration of which he was to receive certain wages and provi- sions, and on the outward voyage to be served with rations on account of the said principal. It was further stipulated that the agreement was to be in force for one year from its date, and in case of the previous discharge of the plaintiff he was to be paid three months' wages in advance, besides a passage home, the said principal being at liberty to confirm and continue the engagement, or to discharge the plaintiff and find him a passage home, &c. : — Held, that the defendants had made themselves personally liable to the plaintiff for a breach of this agreement. Held, also that the plaintiff was a labourer or artificer within the meaning of the exemption con- tained in the schedule to the 55 Geo. 3. c. 184, and, therefore, that the agreement did not require a stamp. Wilson v. Zulueta, 19 Law J. Rep. (n.s.) Q.B. 49. Construction of the statute 7 & 8 Vict. c. 112. s. 16. Masters of vessels are only entitled to sue in the Court of Admiralty for their wages under the sta- tute when the owner has become insolvent in the strict legal sense of the term, viz., by taking or ap- plying for the benefit of the Insolvent Debtors Act. The Princess Royal, 2 Rob. 373. The privilege of masters to sue for their wages, under the 7 & 8 Vict., is confined to two cases. — First, where the wages are claimed to be due from a party who was owner of the ship at the time of the original contract. Second, where such owner is bankrupt or insol- vent at the time when the claim is preferred. Master of a vessel not debarred from suing under the act, upon the ground that he was a joint mort- gagee of the ship, and that he was cognizant of the sale of the vessel by the other mortgagee and did not dissent from such sale. The Repulse, 2 Rob. 398. Construction of the statute 7 & 8 Vict. e. 112. The right of the master to sue for his wages in the Court of Admiralty is not taken away by the circum- stance that the owner, subsequent to the declaration of his insolvency, had compounded with his credi- tors and been released from his debts by the Lord Ordinary of Scotland. The Tecumseh, 3 Rob. 109. "Where an agreement has been made with a steam- tug belonging to a steam- tug towing company to tow a vessel from Dover to Gravesend for 40i., and the steam-tug breaking down in the progress of the service, the towage was completed by other steam tugs belonging to the same company, the defence of the owners of the vessel in tow, that the contract was annulled by the non-fulfilment of the original agree- ment, not sustained. Semble — the acceptance of the services of the other steam-tugs by the master of the vessel in tow, a con- tinuance of the original contract. The Lady Flora Hastings, 3 Rob. 118. Mere error of judgment on the part of the master in the management of -the concerns of a vessel in a foreign port, unaccompanied by corrupt intention or wilful disobedience of orders, will not, per se, entail a forfeiture of his wages. Defence of the owners, that the wages were forfeited by reason of alleged losses sustained by them in consequence thereof, overruled. The Thomas Worthington, 3 Rob. 128. In a suit for wages, brought by the master under the statute 7 & 8 Vict., an item of 61. per month for supplying cabin stores in the agreement for wages, directed to be struck out of the alleged agreement, as being in the nature of a special contract. The Tecumseh, 3 Rob. 144. (I) Beoker. The plaintiiT, a ship-broker, procured for the defendant, a ship-owner, a charter-party, by which the defendant was to receive 41. 15s. per ton, for every ton of guano delivered by him at a certain port, if delivered before a certain day, and if not, il. 12s. 6d. only. In an action by the plaintiff, for work and labour, in procuring the charter-party, and for commission, — Held, that, to maintain this action, it was not necessary for the plaintiff to shew what amount of freight had been earned by the ship ; that some commission was, at all events, due to the broker, and that the amount of it was a ques- tion for the jury. C, who had introduced the plaintiff to the defen- dant, was called by the plaintiff as a witness, and stated, on the voir dire, that, by the custom of the trade, he was entitled to half of the plaintiff's com- mission for having introduced the plaintiff to the defendant, but that his demand was against the plaintiff, and not against the defendant; — Held, that it was right not to join C as a co-plaintiff, and that C was an admissible witness under the 6 & 7 Vict c. 85. Hill v. Kitching, 15 Law J. Rep. (n.s.) C.P. 251 ; 3 Com. B. Rep. 299. (K) SUPERCARSO. The following letter was addressed to a captain and supercargo by his employers: — "Your com- missions are 61. per cent, on the net proceeds of your homeward cargo, after deducting the usual charges as arranged by the African Association, viz., 41. per ton from the gross sales of the oil when taken from the quay, and 41. 15s. when warehoused :" — Held, upon the construction of this letter, (Parke, B. and Rolfe, B. dubitantibus,) that the commissions were payable only upon the proceeds which came to hand, after deducting bad debts upon the sales. Caine v. Horsfall, 17 Law J. Rep. (n.s.) Exch. 25 ; 1 Exch. Rep. 519. A, a supercargo, sailed to Calabar in charge of a ship, called the Magistrate, his commission being 51. per cent Some time after his departure, his principals despatched another ship called the Win- dermere, to Calabar, with instructions to A to find a cargo for her, and to consider her " in one turn " with the Magistrate, and offering him, in respect of this second ship, a commission of 2J per cent A wrote to his principals, rejecting the 2^ per cent commission; but notwithstanding this, he proceeded to load the Windermere, that course be- ing, in his view, the best for his principals : — Held, that, as he had acted on the instructions of his principals in loading the Windermere, he was bound by their offer as to commission, and could not recover more than 24 per cent in respect of the cargo of that ship. Moore v. Maxwell, 2 Car. & K. 554. SHIP AND SHIPPING. 657 (L) CAnniEES by Sea. To an action against the defendant for breach of a contract to carry ^oods of the plaintiif safely by ship from Gibraltar to London, calling at Cadiz, the act of God, the Queen's enemies, fire, and dangers of the seas, rivers, and navigation (save risk of boats) excepted, the defendant pleaded that the ship, in the course of the voyage, called at Cadiz, according to the terms under which the goods were shipped, and that while there, and within the jurisdiction of a court of the revenues in Spain, the said goods were, by the proper autho- rities having jurisdiction in that behalf, lawfully taken out of the ship against the will, and without the consent, neglect, or default of the defendant, on a charge of suspicion that they were contraband according to the laws of Spain j and were after- wards, by a decree of the said Court, duly made according to the law of Spain, declared to be and were confiscated, whereby the defendant was pre- vented from delivering the goods : — Held, that the defendant was liable, as he had failed to bring himself within any of the exceptions in his con- tract, and nothing was stated from which it ap- peared that either party knew or was bound to take notice of the revenue laws of Spain. Spence v. Chadwick, 16 Law J. Rep. (n.s.) Q.B. 313 ; 10 Q.B. Rep. 517. The defendants, being ship-owners and emigra- tion agents, advertised ships to sail on certain days, with emigrants to Adelaide, in South Australia, and upon application by the plaintiff for further particulars, sent a printed circular stating (inter alia) that the ships despatched by them would be despatched on the appointed days (wind and weather permitting), for which written guaranties would be given. The Asiatic was named as to sail from London the ISth of August, and from Plymouth the 25th of August. Half the passage-money was to be paid upon the berths being secured, and half upon the granting of the embarkation order. The plaintiff paid half the passage-money agreed upon for himself and family by the Asiatic, but no other contract was signed, or any guarantie asked for or given : — Held, that the defendants had undertaken that the Asiatic should sail on the appointed days, wind and weather permitting, and that vessel not having arrived at Plymouth on the 31st of August, and not having' been prevented by wind or weather, that the plaintiff was justified in taking a passage for himself and family on board another ship, and entitled to recover from the defendants the deposit money and the expenses at Plymouth. Cranston v. Marshall, 19 Law J. Rep. (N.s.) Exch. 340; 5 Exch. Rep. 395. (M) Reoistkt.- A ship built in a foreign port in India, in 1817, within the limits of the company's charter, by foreigners, and which sailed under foreign flags, until 1838, when it was then and thereafter owned by, and belonged to, British subjects, resident at Bombay, is entitled, under the proclamation of the Governor- General in Council, and the act of the Legislative Council of India, No. X. of 1841, (passed in pursuance of the powers granted by the statute 3 & 4 Vict. u. 56), to be registered at Digest, 1845—1850. Bombay, as a British ship, for the purposes of trade, within the limits of the company's charter. Crawford v. Spooner, 6 Moore, P. C. 1 . A company incorporated by charter for the pur- pose of building, purchasing, and employing vessels, is entitled to have them registered as British vessels, upon compliance with, the provisions of the 8 & 9 Vict. c. 89, applicable to the registry of vessels the property of corporations, although the individual members of the company may be foreigners. Regina V. Arnaud, 16 Law J. Rep. (n.s.) a.B. 60; 9 Q.B. Rep. 806. L A & Co. made an arrangement with D to sell him a ship on payment of 1 ,800?. A bill of sale of the ship was made out and executed by the vendors ; but no part of the money was paid, and the bill was not delivered to D. D took away the bill of sale without the knowledge or consent of the vendors, but returned it to them in a few days after, with a statement that the above arrangement was not to be carried out. It was subsequently discovered that D had, when the bill of sale was in his possession, procured the ship to be registered in his own name. A bill was filed against D, stating the above facts, and praying that the ship might be restored to the vendors. D put in a demurrer to the bill for want of equity. — Demurrer allowed. Follett v. Delani/, 17 Law J. Rep, (n.s.) Chanc. 254 ; 2 De Gex& S. 235. Plaintiffs, a firm in Liverpool, agreed with the English branch and agents there of a colonial firni to accept the agency of, and make, certain advances to, the latter, upon consideration of all consign- ments being made to the plaintiffs. , The latter accordingly made large advances, and were advised by the colonial firm of its intention to launch a ship and consign it and the cargo to them, to the credit of the consignors', account with the plaintiffs. Power of attorney to sell the ship on its arrival at Liverpool, executed by the sole registered owner (one of the partners of the colonial firm), specifica- tions and invoice of the cargo and freight signed by the firm, and bills of lading of the cargo to be delivered to the plaintiffs or their assigns, and signed by the then master of the ship, were dnly forwarded to the plaintiffs. The latter, upon the credit of the promised consignment, then made a further large advance to the English agents. The colonial firm subsequently became embarrassed, and, previously to the sailing of the ship, assigned it, with the cargo and freight, to a second colonial firm, and the latter duly registered the ship in their own names. The second colonial firm very shortly afterwards (having changed the former master) assigned the ship and cargo to a third colonial firm to secure a certain sum, arid the ship was duly registered in the name of one of its partners. The third colonial firm retained the "new master and consigned the ship and cargo to their own agents at Liverpool (who constituted a firm there con- sisting of all the members of the third colonial firm, except the then registered owner of the ship), accompanied by power of attorney to sell the ship, and by the usual invoices, specifications, and bills of lading of the cargo to be delivered by the new master to the order of their Liverpool agents. Pos- se.ssion of the ship and cargo on arrival at Liver- pool being refused to the plaintiffs, they filed a 4P 658 SHIP AND SHIPPING. bill for sale of the ship, declaration of their lien, and for an account against all the members of the three colonial firms (except one member, a partner both in the first colonial firm and the English branch), and the assignees in bankruptcy of the English agents of the first colonial firm, and the master of the ship. None of the defendants, except one, a member both of the third colonial firn) and that of its Liverpool agents, had been served with subpoena. The consignees of the third colonial firm sold the ship after the bill had been filed. The Court, at the hearing, refused to make a decree in respect of the plaintiff's claim to the ship in the absence of the registered owner and others claiming an interest in it; but, subsequently, upon the plaiu- tiSs waiving all interest in the ship if unsold, gave them a decree (without prejudice) for an inquiry as to the proceeds of the sale of it ; and, on further directions, sent the questions as to the property in the cargo under the bills of lading to the plaintiflfs and in the freight, to be tried at law. M'Calmoni V. Rankin, 19 Law J. Rep. (n.s.) Chanc. 215; 8 Hare, 1. During the rebellion in Sicily two foreigners were sent to England by the usurping government to purchase a vessel from the defendants. The vessel was registered in the name of the company, and a bill of sale was then executed to two persons alleged to be trustees for the foreigners. The plain- tiff, upon being restored to his government, filed a bill to restrain the company from parting with the vessel upon the ground that the purchase-money was taken from his royal treasury. The bill alleged that the company had entered into a scheme with the two foreigners for the purpose of evading the provisions of the Ship Registry Act. The company demurred, on the ground that by answering the bill they would expose themselves to pains and penalties under the Ship Registry Act, and to an indictment under the Foreign Enlistment Act. Demurrer overruled. Held, that a corporation cannot be indicted under the Foreign Enlistment Act. The King of the Two Sicilies v. Peninsular and Oriental Steam-pacJcet Co., 19 Law J. Rep. (n.s.) Chanc. 488. (N) Sale and Transfeb. By the 3 & 4 Will. 4. c. 55. s. 31, it is enacted, that the sale of a registered ship shall be by an instrument in writing containing a recital of the certificate of registry, " otherwise such transfer shall not be valid or effectual for any purpose whatsoever, either in law or equity ;" by section 34, that no instru- ment shall be valid to pass the property in a ship or for any other purpose, until it shall have been regis- tered by the proper officers ; and by section 35, as soon as it shall have been registered it shall be valid and effectual to pass the property against all persons whatsoever. Plaintifis were the mortgagees of a ship under a bill of sale in writing executed before, but not registered until after the bankruptcy of the mortgagor, and had not taken possession of the ship ; the defendants were the bankrupt's assignees, and claimed to hold the ship, on the ground, either that it had not passed from the bankrupt at the time of the bankruptcy, or that it was in the bankrupt's order and disposition : — Held, that under the above sections of the statute the operation of a bill of sale commences not from the time of execution, but from the time of registration only, and that all rights which have accrued by the act of the law or of the vendor before registration are as valid against the mortgagee or vendee as if the unregistered bill of sale had not existed ; that the ship in question therefore passed to the assignees as part of the pro- perty of the bankrupts, and not as property of the plaintifiPs in the bankrupt's order and disposition. Boyson v. Gibson, 16 Law J. Rep. (n.s.) C.P. 147 ; 4 Com. B. Rep. 122. A boat under fifteen tons' burthen may be trans- ferred without bill of sale under the 8 & 9 Vict, c. 89. s. 34, even though it has been registered under the 8 & 9 Vict. c. 88. s. 13; and no subsequent re- gistration is necessary. Benyon v. Cresswell, 18 Law J. Rep. (n.s.) Q.B. I ; 12 aB. Rep. 899. (O) Freight. It is the duty of a master, in case of damage to the ship, to do all that can be reasonably done to repair it, bring home the cargo, and earn the freight. Where, in case of damage to a ship, the master elects to repair it, the mere fact that the expenses of repair ultimately prove to be greater than the value of the ship, will not he sufficient to shew that he acted beyond the scope of his authority, .or to entitle the owner in an action on a policy on freight, to recover as for a total loss. The receipt of freight by the obligee of a bot- tomry bond is, in law, a receipt of it by the ship, owner, whose master has given that bond in dis- charge of expenses incurred in the necessary repairs of the ship. The owner of a ship insured ship and freight. On leaving Pernambuco in June 1839, the ship struck on a rock, and put back. After a survey, repairs were begun. They were continued for a long period, and the expense of them much ex- ceeded the value of the ship and freight. The master, not being able to procure money in any other manner, was compelled to borrow on a bot- tomry bond, charging ship, freight, and cargo. On the 30th of December 1839, the owner, in London, on being shewn a letter addressed to the agents of the lenders on bottomry, in which the great ex- penses of the repairs were stated, gave notice of abandonment to the underwriters on ship and on freight. The ship arrived, and the freight was duly paid to the holders of the bottomry bond, un- der an order of the Court of Admiralty. The ship- owner sued the underwriters on freight as for a total loss. The jury found, on a special verdict, that the plaintiflT had acted bond fide without laches, and as a prudent owner of the ship and freight, if unin- sured, would act : — Held, that in this case, which was one of constructive total loss, the master might have abandoned at Pernambuco, but that having there elected to repair, he must be treated for that purpose as the agent of the owner, whose acts bound the owner. Held, also, that as the special verdict did not find that the owner, if on the spot, would not have repaired the ship, the Court could not infer that he would not have done so. A partial loss of freight may be recovered on a SHIP AND SHIPPING ; (O) Fbeight. 659 declaration claiming a total loss. Benson v. Chap- man, 1 H.L. Cas. 696 ; 8 Com. B. Rep. 950 ; and 5 Com. B. Rep. 330. In all cases of insurance on a ship, in whicli the subject is not actually annihilated, the assured claiming as for a total loss must give up to the underwriters all the remains of the property reco- vered, together with all benefit or advantage inci- dent to it, or rather, such property vests in the underwriters. Freight, while the ship is in the course of earn- ing it, is a benefit or advantage incident to the ship, and, therefore, becomes the property of the under- writers, paying for a total loss. A vessel, in the course of a voyage, struck upon an iceberg on the 27th of July, and was considera- bly injured, but reached Liverpool, and while in the river there, grounded outside the docks on the 11th of August, was afterwards taken into dock, the cargo discharged, and was then surveyed, and, after the survey, namely, on the 1st of September, the owner abandoned to the underwriter on ship, and claimed as for a total loss : — Held, that the underwriter on ship was entitled, on settling as for a total loss, to have the benefit, in account, of the freight which had been received by the owner on the discharge of the cargo. Stewart v. Greenock Marine Insurance Co., 2 H.L. Cas. 159. A charter-party stipulated that the vessel should proceed from London to Bombay, and being there loaded should proceed to London, and discharge in any dock the freighters might appoint, and deliver the cargo, ** on being paid freight at and after the rate ofil. per ton," &c. A subsequent clause sti- pulated that " the freight should be paid on unload- ing and right delivery of the cargo, in cash, two months after the vessel's inward report at the Cus- tom House:" — Held, that by the terms of the charter-party freight was not payable until two months after the inward report ; and the ship-owner had no lien on the cargo for the freight after it was discharged pursuant to the charter-party. Quiere — Whether in a charter-party, partly print- ed and partly written, the written words are to re- ceive a different construction from those printed. Ahager v. St. Katherine's Dock Co., 15 Law J. Rep. (N.s.) Exch. 34; 14 Mee. & W. 794. A charter-party provided, that the ship should sail to any safe island or islands on the south-west coast of Africa, agreeably to instructions which were to be given to the captain in due time by the charterers or their agents, and there load, from the factors of the charterers, a full cargo of guano or other lawful produce, which the charterers bound themselves to provide ; and being so loaded should proceed therewith to a safe port in the United Kingdom and deliver the same on being paid freight at SI. 18s. per ton, the freight to be paid on un- loading and right delivery of the cargo, one-third in cash on arrival at port of destination, and the remainder by approved acceptances at three months, or cash equal thereto, &c. And it was further agreed, that, in case the charterers' agehts should be unable to furnish a cargo of guano at the ports or places therein provided, they should have power to send the vessel to any other safe port or ports, place or places, for the purpose of obtaining a cargo of guano in the manner aforesaid, or of other goods. &c., in which case they were to pay for such ser- vice, as hire for the said vessel, after the rate of 15s. 6d. per ton per month, such pay or hire to commence from the day of the vessel's clearing outwards at the Custom House, London, and to ter- minate upon the vessel's return to her port of deli- very as thereinbefore provided for, and the dis- charge of the cargo. If the fi^ighters' agents in- tended so to employ the vesseT, they were to give the master written notice of such their intention, on production whereof the freighters engaged to pay the owner, in each on account, three months' pay for the hire of the vessel, and the balance to be paid on the vessel's return as aforesaid. The charterers instructed their agent on the south- west coast of Africa that the ship should pro- ceed according to his instructions, and that, in case she could not find a cargo, she should pro- ceed where he deemed it likely to procure one. The vessel sailed pursuant to the charterers' direc- tions, to an island on the south-west coast of Africa, where the agent met her, and informed the captain that there was no guano to be had there, and that she must procure a cargo in Saldanha Bay (another place on the same coast), and must proceed to the Cape for a licence to load a cargo there. The ves- sel accordingly sailed for the Cape, but, being there required to enter into an engagement to sign and hand over bills of lading for the cargo, as a security for the charges of the licence, the captain refused to do so unless the agent would make the freight payable according to the time employed, instead of according to the weight of the cargo ; and the latter accordingly gave the captain notice that he en- gaged him upon time, according to the latter clause of the charter-party: — Held, that, under such cir- cumstances, this clause had come into operation, and that the time freight was recoverable. The vessel, having loaded a cargo of guano at Saldanha Bay, proceeded therewith to England, and, under the charterers' instructions, went to Southampton to discharge her cargo. The char- terers wrote to the captain there, stating that, with- out prejudice to the charter-party, or any dispute connected with the vessel, their wishes were that it should be landed and warehoused in the Southamp- ton docks in bulk, which was accordingly done : — Held, that upon such landing of the cargo the ba- lance of the freight became payable. Fenwick v. Boyd, IS Mee. & W. 632. The liability of a consignee or indorsee of a bill of lading to pay freight is a new contract, the con- sideration for which is the delivery of the goods to him at his request A declaration in an inferior court containing the common indebitatus count for freight, and which alleges the delivery of the goods at the request of the defendant, to have been within the jurisdiction of such court, sufficiently shews that the cause of action arose within the j urisdiction ; as the words " at the request of the defendant" are to be taken to apply to the delivery of the goods only, and not to the carriage of them, which may have been out of the jurisdiction. Kemp v. Clark, 17 Law J. Rep. (U.S.) Q.B. 305 ; 12 Q.B. Rep. 647. By the terms of a charter-party, " the ship P was to proceed to Port Phillip, and there load a full and complete cargo of wool, tallow, bark, or other legal 660 SHIP AND SHIPPING ; (O) Fkeight. merchandise, the hark not to exceed 180 tons, the tallow and hides not to exceed 80 tons, and being so loaded to proceed therewith to London and deli- ver the same on being paid freight as follows ; — for wool pressed, twelve-eighths of a penny per pound, unpressed, thirteen-eighths of a penny per pound, tallow SI. per ton, bark il. per ton, hides 21. per ton, one-third to he paid in cash on unloading, the remainder by bills at two months." The ship took on board a few goods at Port Phillip, and obtained leave without prejudice to the charter to go to Sydney, where she was loaded full, and returned to London with 61 tons of wool only, and a large quantity of dead weight. In assumpsit for not loading at Port Phillip ac- cording to the tenour of the charter, — Held, that the terms of the charter-party meant that the ship- owners should be paid freight for a full homeward cargo, consisting of 180 tons of bark, tallow, and hides, and the residue of wool j and that damages were to be calculated on that basis. Held, also, that under the words " other legal merchandise," the charterer was at liberty to ship any lawful articles he pleased (due regard being paid to the safety of the vessel), but was bound to pay the same amount of freight as the vessel would have earned if loaded within the terms of the charter. Held, also, that there was no ambiguity in the terms of the charter-party, and parol evidence was inadmissible to shew which party (by the custom at the port of lading) should pay for the cost of press- ing the wool, Cockburn v. Alexander, 18 Law J, Rep. (n.s.) C.P. 74 i 6 Com. B. Rep. 791. Assumpsit for freight due under a charter-party. Pleas, first, non assumpsit; second, the bankruptcy of the plaintiffs and the appointment of assignees. Replication, that the plaintiffs before their bank- ruptcy were indebted to Messrs. D & Co. in more than the amount sued for, and by an order in- dorsed on the charter-party requested the defen- dants to pay to Messrs. D & Co. all sums which should become due under the charter-party, and that the charter-party, with the order indorsed, was delivered to Messrs. D & Co., and that the de- fendants had notice thereof. The issue raised was whether the defendants bad notice of the order. The facts were, that the plaintiffs, who were ship, owners, having offered their vessel for hire to the defendants, the latter objected to take It on the ground of its being too large, whereupon the plain- tiffs offered to take half the ship as adventurers in partnership with the defendants. It was then arranged that a charter-party in the usual form should be executed by the plaintiffs and the defen- dants, and that an agreement as to the adventure should be signed by A, the plaintiffs' clerk, as their agent, and a memorandum of guarantie should be signed by the plaintiffs, the same to be one transaction. The agreement stated that the trading, cargo, &o. should be upon the joint account and risk of the defendants and A, and that after pay- ment or deduction of the freight, the profit or loss should be borne and received or paid by the parties in equal moieties. The plaintiffs by the memo- randum of guarantie guaranteed A from all losses and expenses happening in the course of such trading. The plaintiffs being indebted to Messrs. D & Co. in a large sum of money subsequently deposited the charter-party with them as a security, with an indorsement upon it, directed to the defen- dants, and requiring them to pay the amount of what was due to Messrs. D & Co. Notice of this was afterwards given to the defendants. The plain- tiffs subsequently became bankrupts, and assignees were appointed. The present action was brought by Messrs. O & Co. in the name of the plaintiffs, the bankrupts, to recover the freight due under the charter-party: — Held, first, that according to the true construction of this contract the defendants were bound to pay freight to the ship-owners, and that the parties were then to bear and receive equally the loss and profit of the adventure. Se- condly, that the transaction amounted to an abso- lute assignment to Messrs. D & Co. of the right to the freight, and that the plaintiffs were entitled to succeed on both issues. Boyd v. Mangles, 18 Law J. Rep. (n.s.) Exch. 273 ; 3 Exch. Rep. 387. By a charter-party, the defendants undertook to ship a full cargo of produce at N. or B. It was stipulated that the freight should be paid " at and after the rate of 5s. 6d, per barrel of flour, meal and naval stores, and lis. per quarter of 4801h. of Indian corn or other grain." It was proved that a quarter of wheat weighing 4801b. occupied ten cubic feet; and that oats weighed 2721b. and occu- pied sixteen cubic feet. The vessel came home with a short cargo. In an action on the charter- party for freight in respect of the unoccupied space, the defendant paid into court the amount that would have been payable if that space had been filled with oats, and the freight payable in respect of them was 1 Is. per quarter : — Held, that the words " other grain" must he taken to mean such grain as would weighabout 4S01b. per quarter, and could not, therefore, include oats; and that oats, like other produce not enumerated, should be paid for, not at lis. per quarter, but after the rate of 5s. 6d. per barrel of flour and of lis. per quarter of grain weighing' 4801b. Warren v. Peabody, 19 Law J. Rep. (n.s.) C.P. 43; 8 Com. B. Rep. 800. The captain of a ship wss instructed to apply for a cargo to A ; and, in the event of A not being on the spot, then to apply to B (both being agents of the charterers) for the same purpose. He applied to both accordingly, and was refused a cargo by both. An action was brought by the owners to re- cover the freight ; and, in order to do away with the effect of the proof as to B's refusal, a letter from B to the defendants was tendered in evidence, to shew that, prior to such refusal, B had renounced their agency: — Held, to be inadmissible. Held, further, that A having been on the spot, what passed between B and the captain was im- portant only in so far as it was confirmed and adopted by A. Hassell v. Watson, 2 Car. & K. 141. A monition extracted by a bond-holder calls upon I D P, the secretary of the East and West India Dock Company, to bring in certain deposits lodged in his hands by the consignees of the cargo on account of freight. I D P having prayed to he heard on his petition as to the construction of the statute 3 & 4 "Will. 4. c. 57. s. 47, upon the petition being subsequently abandoned, and the freight SHIP AND SHIPPING. 661 brought in, I D P dismissed, but wltliout costs, the question being primee impressionis. The Lord Auelcland, 2 Rob. 801. Claim of a ship-broker to the remnant of freight remaining in the registry in a cause of bottomry dismissed, with costs. Tlie Dowthorpe, 2 Rob. 365. (P) Average. No claim for general average arises when the master of a ship has been obliged to sell part of the cargo for the purpose of executing repairs made necessary by ordinary perils of the sea. The claim for general average arises when part of the cargo is sacrificed in order to preserve the rest from impend- ing peril. The declaration in an action brought by the shippers of goods against the ship-owners, stated that the ship, proceeding on her voyage, was damaged by tempestuous weather, and put back to the port of lading to repair; tliat the master, not being able to obtain money for the repairs, sold part of the cargo, and that the defendants, in con- sideration of the premises, promised the plaintiffs to pay them the value at the port of discharge of the part of the cargo so sold. The defendants pleaded pleas to the effect, that the vessel was compelled by weather to put back to repair ; that expenses were incurred in unloading and repairing; that they exceeded the value of the vessel ; that they were necessary for the preservation of the ship and the cargo and for the completion of the voyage, and were done for the common benefit of all concerned ; that the master having no funds, nor the means of raising any by bottomry or hypothecation, and no power of conveying the cargo to the port of dis- charge unless the repairs were completed, sold part of the cargo to defray such expenses ; and that by the custom of merchants, such loss was the subject of a general average contribution among all parties interested in the ship and cargo. On demurrer, — held, that the pleas were bad, and the declaration good. Halktt v. Wigram, 19 Law J. Rep. (n.s.) C.P. 281. (G) Demukkage. The assignee of a bill of lading, who claims and receives goods under it, is liable to pay not only the freight of the goods, but also for demurrage, according to the terms of the bill of lading. Slindt V. Roberts, 17 Law J. Rep. (n.s.) Q.B. 166; 5 Dowl. & L. P.C. 460. Objections to registrar's report. A deduction by the registrar and merchants of one-third for the full amount of the repairs and of the cost of new articles, in consideration of new articles being substituted for old, not sustained by the Court. In fixing the amount of demurrage to be paid for the detention of the vessel during the repairs, a deduction must be made from the gross freight of so much as would in ordinary cases be disbursed on account of the ship's expenses in the earning of the freight. Report sent back to be reconsidered. The Gazelle, Rob. 279. (R) Deviatioh. [See (B) Insurance.] (S) Deeelict. A simple contract creditor not permitted to have his asserted debt paid out of the proceeds of a ship which had been found derelict, and had been sold under the decree of the Court, the application being resisted by the mortgagees of the vessel, who claimed the proceeds in question in satisfaction of their mortgage. Proceeds directed to be paid out to the mort- gagees. ' The New Eagle, 2 Rob. 441. (T) Necessaeies. In an action against a ship-owner for goods sup- plied and money lent to the captain of the ship at a foreign port, no witnesses were called for the defen- dant, hut it appeared from the cross-examination of the plaintiffs' witness, that the expenses of such a vessel and voyage might be expected to be, less than the sum paid into court. The Judge directed the jury that it was for the plaintiff to establish that-the goods and money supplied were necessary ; — Held, not to be a misdirection. Mackintosh v. Miteheaon, 18 Law J. Rep. (n.s.) Exch. 385; 4 Exch. Rep. 175. In order to establish that the necessaries supplied to a foreign ship or vessel are necessaries within the meaning of the act, the vessel must be in a state of exigency at the time; and the articles supplied must consist of articles needful for the relief of such exigency. Articles supplied for the equipment of a vessel building in a foreign dock-yard not necessaries within the meaning of the statute; The Ocean, 2 Rob. 368. (U) Lien and Moetgage. A mortgagee of ships and cargoes sold some of the cargoes under a power of sale in the mortgage- deed, and others under an order of the Court, with the concurrence of the receiver appointed in another suit for the administration of the debtor's estate : — Held, that upon the latter sales he was not entitled to the rate of brokerage and commission which he had been in the habit of receiving from the ship-owner who was dead; but only to a reason- able allowance, to be ascertained by the Master, if the parties could not agree. Held, also, that he was not entitled to any bro- kerage on the sale of the cargoes which he had sold as mortgagee, without any order of the Court. Arnold V. Garner, 16 Law J. Rep. (n.s.) Chanc. 329; 2 Ph. 231. The master of a ship has no claim on the accru- ing freight, nor any lien on the certificate of registry either for his- wages or for money disbursed by him for the ship's use; nor have ship-brokers any lien on the certificate of registry for advances made by them to the owner for the ship's use. Ship-brokers advancing money to the owner of a ship for the ship's use, having at the same time notice, by indorsement on the certificate of registry, of a prior mortgage on the ship, are not entitled to be repaid their advances out of the freight in priority to the mortgagee, although the latter does not take possession of the ship until after she has entered the docks from her homeward voyage. G62 SHIP AND SHIPPING. The vendor of a ship with covenant for title re- tains such an interest in the certificate of registry as enables him to sustain a suit for its delivery against a party who unlawfully detains it; and there is nothing in the nature of such a certificate which excludes it from the Jurisdiction of the Court to decree its delivery, Gibson v. Ingo, 6 Hare, 112. (V) Costs. Application to the Court to supersede an attach- ment which had been directed to issue for non- payment of costs in a cause of possession, upon the ground that during a part of the proceedings in the original cause, the party applying had sued informd pauperis; secondly, that the writ of attachment was wrongly directed, being addressed to the marshal of the Queen's Bench prison. Application rejected. Semble — when an attachment is issued by the Court for non-payment of costs, the Court has no power to supersede that attachment, saving upon grounds only relating to the manner in which the writ is executed. The Plym, 2 Rob. 345. (X) Attachment. Where an attachment from the Court of Admi- ralty, backed by the Lord Ordinary's concurrence, had been executed upon a person resident in Scot- land, and the person so attached had been brought to England and committed to the Queen's Bench prison, the Court directed a supersedeas and the party to be released, upon the ground that the Lord Ordinary of Scotland had subsequently revoked his concurrence as illegal, and as granted pericuto peteniis et per incuriam. The Maihesis, 2 Rob, 286. Monition for an attachment refused, against a receiver of droits of Admiralty under the act 9 & 10 Vict, u, 99, for refusing to give up the possession of a vessel which he had seized as dere- lict and retained until his claim for expenses had been settled. The Tritonia, 2 Rob. 522. (Y) Collision and Damages, A steam-tug entered into a verbal agreement with the master of a vessel, having a licensed pilot on board to tow her to London ; in coming up the river they came across a brig near a tier of vessels ; the pilot hailed the tug to go to the westward of the brig, but the master of the tug disobeyed the order and went to the eastward, and thereby caused a collision between the vessels. The tug afterwards completed the towage, and brought the vessel to her destination : — Held, in such circumstances that the disobedience of the orders of the pilot was not justi- fiable, and that the towage was forfeited, Qmsre — whether, notwithstanding such miscon- duct, the tug could recover from the owners of the vessel under the contract, and leave the vessel towed to a cross-action for the damage. This question not having been properly raised or discussed in the Admiralty Court, the Judicial Committee sitting as a Court of appeal, refused to entertain it, Petley v, Catto, 6 Moore, P.C, 371, In an action against the registered owners of a brig, for negligence in the navigation of the vessel, whereby the plaintiffs' vessel was injured, the defendants having suffered judgment by default, on the inquisition it appeared that by the same stroke which injured the plaintiffs' vessel, the defendants' (which was not insured) was immediately sunk, and was entirely lost: — Held, upon the construction of the 53 Geo, 3, u. 159, that the defendants were not exempted from all liability by the total loss of the vessel. The act only restricts the liability of the ship- owner to the value of the ship and freight, at soTne time. And, quare, whether the decision in Wilson v, Dickson, that the value is to be calculated at the time of the collision, is correct. Held, also, that if the defendants had, by reason of the total loss of their vessel, been wholly exempt from liability, they should have pleaded that fact, Broumv. Wilkinson, 16 Law J, Rep, (n.s.) Exch. 34; 15 Mee. & W, 391, The declaration stated that before the happening of the damage complained of, to wit, on &c,, a certain barge of the defendant, and of which he was then in possession and then had the management, sunk in a navigable river in England, the same being a public highway ; thatitlay concealedunder water in such a manner that vessels passing over the place would be in danger of striking against it, of which the defendant had notice ; that it thereupon became and was the duty of the defendant while the barge continued so sunk to use due care to prevent the danger to vessels navigating that part, by giving notice by a buoy or otherwise to persons navigating; that the defendant omitted to give such notice, and that a vessel of the plaintiffs was damaged : — Held, first, that the declaration was insufficient for not shewing with sufiioient directness any obligation on the defendant to do that which the plaintiffs complained the defendant omitted to do. Secondly, that the word "thereupon" in the allegation "it thereupon became and was the duty," was not to be understood as shewing that the pro- position following the word was a consequence deducible from what preceded it, but only as shew- ing the time or occasion upon which the proposition was averred to have taken place. Thirdly, that the allegation in question was an averment of matter of law only, and that there were no sufficient allegations of facts from which such law could be inferred. Fourthly, that as the declaration did not shew either a continuing possession and controul of the defendant at the time of the collision, nor other special circumstances shewing that he was bound to prevent other vessels being injured, the declara- tion was insufficient in substance. Fifthly, that the mere fact of the defendant having the possession and controul of the barge at the time it sank, was not in itself sufficient to render him liable. Brown v, Mallett, 17 Law J, Rep, (n,s,) C,P, 227 ; 5 Com, B, Rep, 599, A Trinity House pilot navigating a vessel near the Nore, on the Essex side of the Thames, ran foul of and damaged another vessel, for which the owner brought an action against the pilot, and laid the venue in the city of London. Plea, not guilty, by statute ; — Held, that the act complained of was not done in pursuance of the statute 6 Geo, 4. o. 125, and that the action need not be brought in the county in which the collision occurred, Lawson v, Dumlin, 19 Law J, Rep. (n.s.) C.P, 139, SHIP AND SHIPPING; (Y) Collision and Damages. 663 In doubtful circumstances, where there is a pro- bability of collision, a vessel on the larboard tack, although close hauled, is bound to give way to a starboard tack, notwithstanding the latter may be sailing at the time with the wind free. The Ann and Mary, 2 Rob. 189. It is the duty of the vessel on the larboard tack to give way to a vessel on the starboard tack at once, without considering whether the other vessel be one or more points to leeward. Damage pro- nounced for. The Traveller, 2 Rob. 197. Masters of vessels navigating at night are bound to use all proper precautions for avoiding the chances of collision. A vessel sailing upon a dark and foggy night with her topmast studding sails set, condemned in the damage sued for. The Virgil, 2 Rob. 201. A vessel running free with a fair wind, and carry- ing her square sail, topmast studding sail, fore and aft mainsail, and gaff topsail set, the weather being dark and thick and the night foggy, dismissed from further observance of justice in the suit upon the ground of inevitable accident. The Ebenezer, 2 Rob. 206. The application of the Trinity House regulation with respect to two vessels meeting each other, the one upon the larboard and the other upon the star- board tack, depends upon the presumption that the two vessels are directly opposing each other, and is not intended to apply when t^e heads of the respec- tive vessels are lying in different directions. The London Packet, 2 Rob. 213. A vessel with the wind free not giving way to a vessel sailing by the wind, condemned in the damage. Practice of the Court in taking the opinion of the Trinity Masters in cases of damage by collision. The Speed, 2 Rob. 225. In cases of collision, where the evidence on both sides is conflicting and nicely balanced, the Court will be guided by the probabilities of the respective cases which are set up ; a priori, the presumption is, that the master of a vessel would do what was right and follow the regular and correct course of navigation. The Mary Stewart, 2 Rob. 244. Where a steamer coming down the river upon a dark night meets a sailing vessel heating up the river, and the master of the steamer is in doubt what course the sailing vessel is upon, it is the duty of the master of the steamer to ease her engines and to slacken his speed, until he ascertains the course of the sailing vessel. A defence — that the master of the steamer, under the circumstances, immediately put her helm to port, in compliance with the Trinity House regu- lations — not sustained. The James Watt, 2 Rob. 271. Commander of a queen's ship condemned in a cause of damage, the collision having been occa- sioned by his anchoring too near the damaged vessel; and having anchored with only one anchor down, the weather being squally and tempestuous at the time. The Volcano, 2 Rob. 337. A steam vessel proceeding at the rate of between eleven and twelve knots an hour, in a track where many vessels were passing up and down, condemned in the damage. Masters of merchant vessels not compelled to carry lights. The Iron Duke, 2 Rob. 377. Declaration of the pilot in charge of a vessel proceeded against in a cause of damage, that the collision was not his fault, hut was occasioned by the neglect of the crew of the damaging vessel, not pleadable in a cause by plea and proof. Declaration of a mariner belonging to the da- maging vessel, confirming the pilot's assertion, also inadmissible. Investigation into the alleged misconduct of the pilot before a Pilot Committee of the port of Liver- pool J decision of such committee, that the pilot was not to blame, not receivable as evidence in the cause. The Lord Seaton, 2 Rob. 391. Where a vessel at anchor is run down hy another vessel under weigh, the onus probandi lies with the vessel doing the damage, and she is bound to shew, that the accident was not occasiqned by any fault or negligence on her part. The exemption from liability under the Pilot Act not taken away from the owners of the damag- ing vessel by the constant employment of the same pilot to pilot their vessel up and down the river for a period of fifteen years. The Batavier, 2 Rob. 407. When a launch is about to take place in a river, reasonable noticeof the intended launch should be given; and such notice must be sufficiently specific, with respect to the time when the launch is to take place, as to prevent vessels navigating in the river from unknowingly incurring risk or loss. It is further necessary that a good look out should be kept, and gr^at care should be taken to prevent the launch from coming into collision with any other vessel. A vessel launched from a shipbuilder's yard in the river Tyne, proceeded against for running into a steamer proceeding down the river at the time. Defence set up that (jhe steamer might have avoided the collision by keeping more to the northward. Defence sustained by Trinity Masters, and suit dis- missed; with costs. The Blenheim, 2 Rob. 421. Owners of a damaged vessel and part of the cargo, who had obtained a decree of the Court in a cause of damage, entitled to have the pro- ceeds of the damaging vessel paid out of the registry to satisfy the amount of their damage, in preference to the owners of the remaining portion of the cargo, who had not brought their action until after the decree of the first suit had been pro- nounced. Prayer of the owners of the remaining portion of the cargo, that the proceeds might be applied pro ratd to satisfy the two actions, rejected. The Sara- cen, 2 Rob. 451. Avesselsailingupon a dark nightwithherstudding sails set, and not porting her helm in time, con- demned in the damages. The Switzerland, 2 Rob. 482. Damage pronounced for against a vessel with a licensed pilot in charge, compulsorily taken on board. Blame of the collision solely imputed to th crew by the pilot in charge, and distinctly denied by the crew. Court pronounced that the pilot was in some degree in fault, and that the evidence, under the circumstances, was not sufficient to bring the charge home to the crew. Owners of the damaging vessel dismissed from the responsibility of the damage. The Atlas, 2 Rob. 502. 664 SHIP AND SHIPPING; (Y) Collisioh and Damages. A vessel close hauled on the larboard tack, meet- ing another vessel with the wind free, at night, not justified in starboarding her helm where there is a probability of the two vessels coming into colli- sion. Both vessels pronounced in default, the other vessel not having kept a good look out, and not having ported her helm in time. The Seringapatam, 2 Rob. 506. Steam vessel proceeding at an improper speed upon a dark night condemned in the damage. The Gazelle, 2 Rob. 515. Where a vessel having been run down, sub.se- quently becomes unmanageable, and gets upon a sand bank and is lost, the presumption of law is that her eventual loss is attributable to the effects of the collision, and not to the mismanagement of the persons on board. The Melloma, 3 Rob. 7. Where in a cause of collision bail is given and accepted between the party charged with the damage and the party promoting the suit, the pro- moter of the suit, if he succeeds in his action, is not precluded from subsequently disputing before the registrar and merchants the real value of the ship- and freight. The Mellona, 3 Rob. 16. The owners of a foreign vessel which was run down by a British ship brought an action for damages in the Admiralty Court, and a cross-action was also entered against the foreigners by the Bri- tish owners. The foreign owners being resident abroad, and declining to give an appearance in the cross-action, the cross-action was discontinued, and the cause was heard upon the original action alone. The Trinity Masters being of opinion that both vessels were in fault, the Court decreed the damage to be equally divided between them. This sentence was appealed and afl^rmed by the Privy Council, and the cause was remitted. A motion was now made on behalf of the British owners that the registrar and merchants should be directed to ascertain the amount of the damage sus- tained by the British ship, and deduct a moiety of that damage from the compensation awarded to the foreign owners. The Court rejected the motion, but withheld the payment of the sum claimed by the foreign owner until he consented to a deduction of a moiety of the damage sustained by the British ship. The Seringapatam, 3 Rob. 38. A vessel lying at anchor in a track frequented by other ships, is bound at night to exhibit an efficient light. The owners of a vessel so lying at anchor, and run into by a vessel under sail, held to have been in fault in omitting to exhibit such light. The Victoria, 3 Rob. 49. In a collision in the river Mersey between a steam-tug and a ferry boat, held by the Trinity Masters that the proper station for the master or look-out man in such steamer is the bridge between the paddle boxes. The Wirrall, 3 Rob. 56. The commander of a steam vessel of war con- demned in a cause of damage. The excuse that the vessel which was run down was mistaken for a fishing vessel at anchor, and that the helm was star- boarded to avoid the fishing nets, not sustained. The steamer should have eased or reversed her engines, and have ascertained the fact, instead of proceeding on her course. The Birkenhead, 3 Rob. 75. The value of a vessel condemned in a cause of damage by collision is the existing value of the vessel at the time or immediately prior to the col- lision. Claim of the owners of a damaging vessel to have their liability reduced to the value of their ship after the collision, overruled. The Mary Caro- line, 3 Rob. 101. Defence of a vessel in a cause of damage, that from the proximity of the two vessels, and the fact of the damaging vessel missing stays in consequence of a sudden squall of wind, the collision was inevi- table, not sustained. Semble — If a vessel in close proximity to another vessel is put in stays and misses, it is the duty of the persons on board to square the mainyard and so let the vessel pay off. The Kingston-by-sea, 3 Rob, 152. Where a vessel is sunk in a collision, and com- pensation is awarded by the Court of Admiralty to the full value of the vessel as for a total loss, the plaintiff will not be entitled to recover anything in the nature of demurrage for loss of the employ- ment of his vessel or his own earnings in conse- quence of the collision. Tlie Columbus, 3 Rob, 158. Where steam vessels are navigating under the rules of the Admiralty with respect to the number and colour of the lights to be carried, it is essential that the master of each vessel should see that his lights are properly trimmed and burning. The green light of the plaintiffs vessel having gone out previous to the collision, the plea of the defendant, that the master of his vessel, upon the supposition that the vessel approaching was a sailing vessel, acted in conformity to the general rules of naviga- tion by porting her helm, sustained. The Rob Roy, 3 Rob. 190. Where a party who has received a damage by collision, claims to be indemnified for a consequen- tial loss, arising from the non-employment of his vessel, whilst under repair, he is bound to prove that he has sustained a direct and positive loss ; it will not be sufficient to aver that the vessel, if she had not been detained in dock, might have earned certain probable freight. Claim of a steam company for demurrage, at the rate of 201. per diem during the repairs, as being the amount at which the vessel might have been hired, not allowed by the registrar and merchants, and the objection to their report upon this ground overruled. The Clarence, 3 Rob. 283. Where there is a probability of a collision, a ves- sel on the larboard tack, and close hauled, is not justified in pertinaciously keeping her course, although the vessel she meets is on the starboard tack, and with the wind free. Where practicable, she is bound to take the necessary precautions for avoiding the collision, although the other vessel is actjng wrongfully in not giving way in time. A close hauled vessel on the larboard tack and a starboard tacked vessel with the wind free meeting each other, and neither vessel giving way in time, both vessels held to be equally at fault. The Com- merce, 3 Rob. 287. A vessel with a duly licensed pilot on board con- demned in a cause of collision, the fault being equally imputable to the crew on board. The Loch- libo, 3 Rob. 310. SLANDER. 665 SLANDER. (A) What Words are actionable. (B) Pleading. (C) Slander op Title. (A) What Words ARE ACTIONABLE. A party in a matter before the Court had kept a sum of money which, by his contract, he ought not to have kept : counsel in reference to this matter, used the language, " This gentleman has defrauded us," and was interrupted by the Court before he had finished his sentence: — Held, first, that the words were not actionable ; secondly, that they ■ were not irrelevant to the matter before the Court. Needham v. Dowling, IS Law J, Rep. (n.s.) C.P. 9, Semble — that the words " he is a bad character ; none of the medical men here will meet him," are actionable. Southee v. Denny, 17 Law J. Rep. (n.s.) Exch. 151) 1 Exch. Rep. 196. Where a defendant volunteered a statement to a third party, injurious to the credit of the plaintifi^in his trade and untrue : — Held, per Tindal, C.J. and Erie, J., that it was a question for the jury, whether the communication was malicious. Per Collman, J, and Cresswell, J. contra. Bennett v. Deacon, 15 Law J. Rep. (n.s.) C.P. 289 ; 2 Com. B. Rep. 628. Words spoken of a superintendent of police : "I saw a letter respecting an oificer of the Leeds Police Force, who was superior in rank to A B, and who had been guilty of conduct unfit for publication:" — Held, not actionable without special damage; the conduct imputed to the plaintifi' notbeingconnected on the face of the declaration with his ofiicial cha- racter. James v. Brook, 16 Law J. Rep. (n.s.) Ci.B. 17 ; 9 aB. Rep. 7. In an action for slander the first count stated that the plaintiflT was a clergyman of the United Church of England and Ireland as by law established, and vicar of W j that the defendant was also a clergy- man of the said united church ; that the defendant, intending to injure the plaintiff in his said charac- ter of a clergyman, falsely, &c. spoke the following words of and concerning the plaintiff in his said profession of a clergyman : " The very day I (the defendant) came into residence. Dr. P (the plaintiff) sent for me : I went out and dined with him, and the wine must have been drugged, for I took but two glasses and was quite stupified. While in this condition Dr. P (the plaintiff) put a bill into my hands and requested me to sign it, saying, C, just put your name to this : I wish to have it as a secu- rity for the payment oClSOl. per annum for reading for you at the new church. I (the defendant) an- swered. Will you give me a pen and I will sign it, but I thought I- had sufficiently satisfied you. Im- mediately I had signed it. Dr. P (the plaintiff) snached it up and walked to the fire in order to dry the signature, and, laughing, said. This will be quite safe; I (the plaintiff) will take care of this. The bill, I (the defendant) think, was drawn for 2,500?.; but having been stupified with the wine, I do not rightly remember;" and also the following words: "You cannot suppose that I (the defendant) can meet a man who so cheated me at my first coming :" -^Held good, as charging imputations on the plain- tiffin his professional character. Digest, 1845—1850. The second count charged that the defendant spoke of and concerning the plaintiff in his said profession of a clergyman the following words : " Dr. P (the plaintiff) placed before me a bill ; I (the defendant) signed. I do, not know for what amount it was, whether for 2,000?. or 3,000?.,Tor I was completely pigeoned by Dr. P (the plaintiff) ;" — Held, insufBoient to sustain an action. , ,_A general verdict having beein given on both 6ounts, a venire de novo was awarded. Pemberton v. Colls, 16 Law J. Rep. (n.s.) Q-B; lO'S ; 10 Q.B. Rep. 461. An action of slander cannot be mainta,ined by 3 lessee or renter of tolls, for words spoken of him in his character of contractor for tolls, after he has ceased to contract for renting the tolls, respecting which the words are spoken. Sernbie — the renting of tolls is hot a pfofessioil or trade. Bellamy, v. Bureli, 1 6 IVIee., & W. 590. / " Under the statute 5 & 6 Vict. c. 1 09, the vestry, upon precept froin the Justices, are to ihaM out and return a competent number of persons qualified and liable to serve the bfiice of constatle ; the, list is to be published, and notice given of when, and where objections will be' heard by ,^he Justices, who, at a special session, have power ,to strike out of tte list the, names of persons disqualified,, and to choose and swear in constables from the list ; and the ves- try may return a resolution to have paid constables, in, which case the Justices are to appoint,^aid con- stables. A vestry made out a list, and returned it with a resolution to have a paid oonptal^le, and the plaintiff being named in the list was about to be sw.or^ in ^s a paid constable by the Justices, when the, defen- dant, a parishioner, made a statement to the, Jus- tices, in the presence of a number of, persqns, affecting the plaintiff's character. In an action for slander, it being objected that the statement ought to have been made to the vestry, .and not to the Justices, whp could only hear objections as,, to qualification and liability to serve, — Held, that tpe plaintiffwas not entitled to recover if the statement was made bond fide in furtherance of the, ends, of justice. Kershaw v. Bailey, 17 Law J. Rep. (n.s,) Exch. 129 ; 1 Exch. Rep. 743. In an action for words which are primd facie privileged, evidence tending to make out an admis- sion by the defendant, subsequently to the speaking of the words of a dispute existing between him and the plaintiff, before the speaking of the words, about a'sum of money claimed to be due from the defendant to the plaintiff, is admissible to shew express malice. -And the evidence of the examination of the plaintiff himself before a commissioner in insolvency on occasion of an application by the defendant to the Court to have the debt so claimed by the plaintiff and inserted in his schedule struck out therefrom, and on which occasion the defendant declined to be examined, though called qipon, is proper to be left to the jury as evidence of such admission of a pre- vious dispute. Where a justification of the truth of the words had been pleaded, and the plaintiff, during the trial, offered to accept an apology and a verdict for nominal damages, if the defendant would withdraw the plea of justification, which the defendant refused to do, though he did not attempt to prove it, — Held, 4 a 666 SLANDER. that this conduct on the part of the defendant was also proper to he left to the jury, with reference to the question of malice as well as that of damages. Simpson v. Robinson, 18 Law J. Rep. (n.S.) ft.B. 73 ; 12 a.B. Rep. 511. The plaintiff, a domestic servant, was engaged hy A, on a character given by the defendant; a short time afterwards the defendant having reason to be- lieve that the character was undeserved, wrote to A a letter containing an allusion to the plaintiff and to her having been deceived. A accordingly called on the defendant, and made more inquiries about the plaintiff's character, in answer to which the defen- dant imputed dishonesty to the plaintiff: — Held, that the whole of the communications were privi- leged, and that no action could be maintained ; and that the defendant was hound, on discovering that the character was undeserved, to state that fact to A : and that he stood in the same position as if the state- ment had been made by him in answer to questions asked by A in the first instance. Gardener v. Slade, 18 Law J. Rep. (n.s.) Q.B. 334. A declaration stated as inducement that the plaintiff was a dissenting minister, and that before the griev- ances therein mentioned he had been in trade in part- nership with P ; that the partnership had been dis- solved, and that certain reports had been circulated of and concerning the plaintiff and the partnership accounts and money transactions ; that the defen- * dant, well knowing the premises, &c. said of and concerning the plaintiff and of and concerning him in his said ministry, and of and concerning the said partnership, &c., " Mr. H is a rogue, and I can prove him to be so by the books at S. Mr. H pre- tends to say he has been as good as a father to him, but you see he has been robbing him ; he has cheated P of 2,0002. I will so expose Mr. H that he will not be able to hold up his head in T pulpit or any other." The second count was for saying " Mr. H has cheated P his brother-in-law of upwards of 2,000Z. I wonder how any respectable person can countenance such a man by their presence. I have been advising some other persons to go to the W chapel, as they would there hear plain honest men." There were also counts for libel, and special damage was alleged, that divers persons discontinued their attendance at the plaintiff's chapel. It was proved that the plain- tiff received 301. per annum and house rent, but not how that sum was to be raised, or the parties by whom it was to be paid. It was also proved that the attendance of the chapel was diminished, hut why, or whether the seceders were contributors to the funds of the chapel, did not appear. The libels complained of were written by the defendant to one A, acting for the plaintiff in the course of a corre- spondence arising out of an invitation to the defen- dant by A, with the plaintiff's concurrence, to inves- tigate certain charges brought against the plaintiff. Held, first, that the words in the first and second counts were not actionable per se, and could not be deemed to have been spoken of the plaintiff qud minister in any sense that would subject the defen- dant to an action. Secondly, that there was no evidence of special damage resulting from these words so as to support an action on them. Thirdly, that the libels declared on were privileged commu- nications. Hopwood V. Thorn, 19 Law J. Rep. (n.s.) C.P. 94 ; 8 Com. B. Rep. 293. In an action for slander, the words were : " Yon are a thief; you robbed Mr. L of SOI." The words were spoken in the hearing of B and of several strangers. B knew that the words did not mean to impute a felony, but meant to impute that the plaintiff had improperly obtained SOI. from Mr. L to compromise an action for a distress : — Held that, under these circumstances, the question to be left to the jury was not what the defendant meant by the words he spoke, but what reasonable men, hearing the words, would understand by them. Semble, also, that if all the persons present when the words were spoken had known that the words did not impute felony, that would have been an answer to the action. Hankinson v. Bilby, 2 Car. & K. 440. The use of words imputing an indictable offence is actionable or not according to the sense in which they may fairly be understood by bystanders not acquainted with the matter to which they relate, or which may render them a privileged communica- tion, and the secret intent of the speaker in uttering them in the presence of such bystanders is immate- rial. Ibid. 16 Mee. & W. 442. In an action of slander, if the words used have been spoken in a sense different from their ordinary meaning, facts should be given in evidence to shew that they may have been used in a particular sense. After that has been done, a bystander may be asked "What did you understand by the expression used?" But without such a foundation being laid, the ques- tion is not allowable. Daines v. Hartley, 18 Law J. Rep. (n.s.) Exch. 81; 3 Exch. Rep. 200. (B) Pleading. The first count in a declaration for slander alleged, that the plaintiff was a butcher, and carried on that trade, and that the defendant, with intent to impute to the plaintiff the use of fraudulent jveights, and of cheating in her said trade, spoke of the plaintiff in her said trade, and of M G, being her son and ser- vant, and of the plaintiff having hy M G used frau- dulent weights in her said trade, these words: — " M G uses two balls to his mother's steelyard," (innuendo) " thereby meaning that the plaintiff, by M G as her agent andservant,usedfraudulentweights in her said trade, and cheated and defrauded in her said trade:" — Held, that the innuendo waswarran ted, and did not improperly extend the meaning of the words. The second count alleged, that in a certain other discourse by the defendant then had in the presence of other persons, of and concerning the plaintiff in her trade (stating the colloquium as in the first count, but not alleging any facts by independent averment,) the defendant spoke of the plaintiff in her trade (as in the first count) these words ; " you have used them for years," (innuendo) " meaning thattheplain- tiffhad used improper weights, and defrauded and cheated in her said trade." The second count went on to allege, that in the last-mentioned discourse, in answer to a question put by the plaintiff to the defen- dant, whether the defendant had told J G that the plaintiff's son had used two balls to the plain- tiff's steelyard, the defendant spoke these words : " To be sure I did : 1 will swear to it in any court," with an innuendo similar to that in the first count. After verdict for the plaintiff with general damages, SLANDER— SLAVE. 667 — Held, that the latter words of the second count, as explained by the innuendo, were actionable ; and as all the words laid in the second count were alleged to have been spoken in the same discourse, there was no ground for arresting the judgment. Grif- fiths y. Lewis, 15 Law J. Rep. (n.s.) G.B. 249; 8 Q.B. Rep. 841. The declaration in an action for slander, after averring that the plaintiff was a dealer in " winches," proceeded (with the ordinary innuendoes) to allege that the defendant said to the plaintiff, " I have been robbed of three dozen of winches — you have bought three of them at 2s. ; you well knew when you bought them that they could not have been honestly come by." Whereupon the plaintiff said to the defendant, " I have bought half a dozen winches from a new maker," and then produced certain winches to the defendant, " who further contriving and intending as aforesaid," falsely and maliciously replied, " Oh, no ; these are not my winches ; you know that well enough ; these (the said defendant pointing to some others) are mine. I am sorry to say anything against any tradesman, but I will bring the man who stole my winches, and let you see him, for he is in my custody," (innuendo that the plaintiff had been and was guilty of buying winches, well knowing the same to have been dishonestly come by, and to have been feloniously stolen): — Held, that the words "further contriving and intending" did not make the latter part of the declaration a fresh count, and that sufficient appeared on the face of the declara- tion to sustain the verdict which had been found for the plaintiff. Alfred v. Farloui, 15 Law J. Rep. (N.s.) as. 259 ; 8 Q.B. Rep. 854. Declaration for that whereas the defendant, con- triving and wickedly intending to injure the plain- tiff, to wit, on &c. in a certain discourse, in the presence of, &c. spoke and published of and con- cerning the plaintiff the false, malicious, and de- famatory words following [stating them], by means of which the plaintiff is greatly injured, &c.: — Held, bad, on special demurrer, for charging the plaintiff with having committed the grievances by way of recital only and not positively. Brown v. Thurlow, 16 Law J. Rep. (n.s.) Exch. 46; 16 Mee. & W. 36 i 4 Dowl. & L. P.C. 301. In actions on the case for words not actionable by themselves, but actionable in consequence of the special damage alleged to have been occasioned thereby, the plea of "not guilty" puts in issue the special damage stated in the declaration. The words "she is living by imposture," are not actionable unless special damage be proved to have resulted from the use of them. Wilby v. Elstm, 18 Law J. Rep. (n.s.) C.P. 320 ; 8 Com. B. Rep. 142. (C) Slandek op Title. In an action against the surveyor of highways, appointed under the 7 & 8 Vict. c. 84, for slander of title, the slander alleged was, " I shall not allow purchasers (meaning persons who then might be dis- posed to purchase at the said sale the said houses of the plaintiff so exposed for sale as aforesaid) to be finished until the roads are made good. I have no power to compel any one to make the roads, but I have power to stop the buildings until the roads are made." The Judge, at the trial, amended the de- claration by substituting "the houses" for the words in italic letters: — Held, that under the 3 & 4 Will. 4. u. 42. the Judge had power to make the amendment. In an action of this kind, where it is necessary for the plaintiff to prove malice, the Court will not infer malice from the defendant having put a wrong construction on a complicated act of parliament. Pater v. Baiter, 16 Law J. Rep. (n.s.) C.P. 124 j 3 Com. B. Rep. 831. The defendant who was the ground landlord and remainder-man of a lease of premises, of which the plaintiff was assignee, stated at an auction where the lease and assignment were put up for sale, that all the covenants of the lease had been broken, that he had served a notice in ejectment, and that the premises would cost 70/. to repair. Some of th"e covenants had been broken and others not. The effect of the defendant's statement was that the lease and assignment were sold for a lower price than they otherwise would have produced. In an action for slander of title, the Judge directed the jury that the only question was, whether the defendant had said anything untrue about the lease, and that if he had made misrepresentations the plaintiff was entitled to recover: — Held, that this was a misdirection, the proper question being whether that part of the defendant's statement which was false was also malicious, and productive of damage to the plaintiff. Brook v. Rawl, 19 Law J. Rep. (N.s.) Exch. 114; 4 Exch. Rep. 521. SLAVE. In debt on a contract for the purchase of appren- ticed labourers, under the 3 & 4 Will. 4. c. 73. formerly slaves, for instalments payable at certain periods, the defendant guaranteeing the undis- turbed possession of the labourers during the period of their respective service, provided that, in default of the payment of any instalment, the plaintiff should be entitled to reclaim their services during the remainder of their appren- ticeships, the defendant remaining liable for the value of their services at a certain rate; aver- ment of performance on the part of the plaintiff, &c. ; breach, of non-payment of two instalments. To a plea alleging that, during the term of ^rvice, the plaintiff removed, and retained the labourers, and that defendant had never since had the benefit, &c. : — Held, bad on demurrer, in not shewing that the plaintiff exercised his right to retain on default made by the defendant : held, also, that the Court would not, in the absence of any express statement, intend that the contract was illegal at law generally,. or for non-compliance with the regulations of the act. To pleas also averring the contract to have been rescinded by the parties, and that by an order of the colonial government made after the entering into the contract, all such apprentices were thereby discharged from service, — Held, that such act of the colonial government did not operate as a con- sent of British subjects to determine the contract, which being absolute as an immediate , sale and transfer, and the price due in pnssenti, although payable by instalments, the plaintiff was entitled 668 SLAVE— SPECIFIC PERFORMANCE. to the instalments, notwithstanding the deternai- natioD of the apprenticeships before they fell due. Held, also, that an omission to register the trans- fer, as required by the colonial regulation, (the omis- sion so to do rendering the transfer void, and the purchaser not entitled to claim the services,) did not disentitle the plaintiff to enforce the purchase- money ; and that, if the duty of registering lay on the vendor, it ought to have been shewn by the plea. Mittelholxer v. Fullarton, 6 G.B. Rep. 989. The principles of law which are applied to prize captures in time of war are applicable to questions of bounty for the capture of vessels engaged in the slave trade. The claim of one of H.M. slave cruizers to share in the bounties for the capture of a slave vessel overruled. The Felicidade, 3 Rob. 45. Trespass was maintained for the seizure of slaves from a Spanish island, the slave trade not being piratical by the law of nations, and it not appearing that Spain had passed any law for the abolition of the slave trade. — Held, also, that the ratification of the defendants' act by the Ministers of State was equivalent to a prior command, and rendered it an act of State, and for which the Crown was alone responsible. Buron v. Denman, 2 Exch. Rep. 167. SOMERSET HERALD. [See Aeeest.] SMALL DEBTS ACT. [See Debtor and Ceeditor — Infekior Court.] SODOMY. Prisoner was indicted under the statute 7 & 8 Geo. 4. u. 29. b. 8. (in first count) for feloniously accusing A B of a certain infamous crime, that is to say, of having made to the prisoner a certain solicitation whereby to move and induce the pri- soner to commit with him (A B) the crime of sodomy, with a view to gain and extort money from him. Second count charging the same offence somewhat differently: — Held, by seven of the Judges to five, that the evidence was not sufficient to prove the intent laid. Regina v. Middkditch, 1 Den. C.C. 92. The patientmay be convicted of sodomy, although the agent is under fourteen years of age. Regina V. Allen, 18 Law J. Rep. (n.s.) M.C. 72 ; 1 Den. C.C. 364; 2 Car. & K. 869. SOLDIER AND SAILOR. Period of service of boys in the navy extended by the 10 Vict. c. 30 ; 25 Law J. Stat. 95. Time of service in the army limited by the 10 8j 11 Vict. c. 37 ; 25 Law J. Stat. 145. Naval prisons established, and provisions for ap- prehending deserters made by the 10 & 11 Vict, c. 62 ; 25 Law J. Stat. 202. Time of service in the marine forces limited by the 10 & 11 Vict. c. 63 ; 25 Law J. Stat, 205. SOUTH SEA COMPANY, Provisions as to unclaimed stock and dividends made by the 9 Vict. c. 8 ; 24 Law J. Stat. 50. SOVEREIGN. [See Offenders.] SPECIAL CASE. [See Costs.] SPECIFIC PERFORMANCE. [See Company — Partners — Practice, in Equity, Demurrer — Vendor and Purchaser.] (A) When decreed. (B) "When refused. (C) Practice on Bill for. (A) When DECREED. By an agreement between A and B, A agreed to lease to B a piece of land for ninety-nine years, at the rent of 10/., and to convey the inheritance to B for the price of 180?., at any time within a certain period from the date of the agreement, on notice being given by B of his intention to purchase ; B agreed that, in case of such purchase, he would accept A's title without dispute. B gave notice of his intention to purchase : — Held, that B, on such notice being given, became bound to accept A's title, even though it should be bad ; and that A was entitled to a specific performance of the agreement so far as related to the purchase. Duke v. Barnett, 15 Law J. Rep. (n,s.) Chanc. 173 ; 2 Coll. C.C. 337. The defendants agent, by letter addressed and sent to the plaintiffs agent, stated that he was directed to offer a sum of 3,000Z. for certain pro- perty belonging to the plaintiff The plaintiff's agent, by his letter in answer thereto, stated that he accepted the offer for the property ; at the same time adding, " If you approve of the inclosed, sign the same, and on receipt of the deposit we will sign you a copy." That letter contained a memorandum in writing, which was not produced, and no evi- dence was adduced on either side to shew the nature or particulairs of it: — Held, on bill filed by the vendor against the purchasers for specific perform- ance, that there was a binding contract, and a refer- ence was directed to inquire into the title to the property. Gibbins v. North-Eastern Metropolitan Asylum District, 17 Law J. Rep. (n.s.) Chanc. 5 : 11 Beav. 1. An agreement was entered into with two vendors for the sale of two-sixths of certain leasehold pro- SPECIFIC PERFORMANCE. 669 perty, together with other the estates and interest of the vendors therein. It turned out that the vendors were only entitled to two twenty-one parts each of the estate : — Held, that the purchaser was entitled to specific performance of the contract, to the extent of the vendor's interest, with a proportionate abate- ment. Jones v. Evans, 17 Law J. Rep. (n.s.) Chanc. 469. A plot of land was put up in several lots for sale by public auction, and previously to the sale the vendors printed and circulated particulars and con- ditions, accompanied by a plan of the land, from which it appeared that to each lot wide and hand- some roads would be secured. The plaintiff, at the sale, became the purchaser of one of the lots. After the sale it was discovered that one of the projected new roads would pass across a leasehold piece of land, whereby the risk of forfeiture thereof would be incurred. The plaintiff having filed a bill seek- ing specific performance of the contract in all re- spects, — Held, that he was entitled to a specific performance of the contract in accordance with the plan delineating the road in question and intended to be made if it could be carried out, but as the making of the road would incur the risk of forfei- ture, the defendant could not be required by the plaintiff to make the road j — that a person not being a party to the contract entered into with the plain- tiff, but only having joined with the vendor in the ' sale of their respective lands, was improperly made a party to the suit, and must be dismissed, with costs ; — that the plaintiff was entitled to a specific performance of the contract, save as to the road, and as to that the plaintiff was entitled to a reference to the Master to ascertain the damages arising to the plaintiff thereout ; that the plaintiff was not entitled to any costs up to the hearing, but that if, in lieu of taking a decree to the extent already stated, the plaintiff preferred bringing his action at law for damages, the bill must be dismissed, without costs. As against a party, who had subsequently to the filing of the original bill by the plaintiff, purchased of the vendor the lot contracted to be purchased by the plaintiff, and also the leasehold piece of land across which the new road was projected, and who was made a defendant by supplemental bill, the bill was dismissed, with costs. Peacock v. Penson, 18 Law J. Kep. (n.s.) Chanc. 57; 11 Beav. 355. A, the owner of .lands in the line of a "railway, agreed in writing to sell a portion of such lands to the company, subject to the company making such roads, &c. as might be necessary to connect the portions of A's lands which would be severed by the line. A conveyed the land comprised in the agreement to the company, who entered and made their line. Disputes afterwards arose as to the suffi- ciency of the communications made by the com- pany. On bill by A against the company for specific performance, — Held, that the contract was one which would be enforced in equity, and that the jurisdic- tion of the Court was not ousted by the Lands Clauses Consolidation Act, none of the provisions of which respecting the mode of ascertaining com- pensation were applicable to the case of a purchase by agreement, but only to a compulsory taking of lands by the company ; and the Court referred it to the Master to inquire and state what roads were necessary and proper. Sanderson v. Cockermouih and Workington Rail. Co., 19 Law J. Rep. (n.s.) Chanc. 503 ; 2 Hall & Tw. 827. (B) When refused. Agreement for a lease for five years, from' the 1st of April 1840, the landlord undertaking to erect by that time a new warehouse on part of the ground to be demised, and to put the old warehouse in repair, the amount of rent to be determined with reference to the amount of the landlord's expenditure on the buildings. The new building was not erected, nor the old warehouse repaired on the 1st of April, but no objection was made by the intended lessees, who then occupied part of the premises under a former agreement, and shortly afterwards the whole ' pre- mises were destroyed by fire. In such circum- stances, — Held, upon a bill filed by the landlord, for specific performance of the agreement, and for' the defendants to re-build the premises, and to accept a lease, that it was a condition precedent that the premises should be put in repair before the lease was 'granted, and that, as the landlord had not performed his engagement within the time limited, the contract could not be enforced in equity, and the bill was dismissed. Counter v. Macphersonj ■ 5 Moore, P.C. 83. The appellant having claimed to be a partner with one Paynter in gas-works, which the latter had erected and was about to sell to a company then about to he formed, it was agreed between them, for the purpose of ending their disputes re- specting the ownership of the gas-works, that Paynter should be at liberty to sell the works at such price as he pleased, upon accounting to the appellant for the value of the works at a certain rate, and that Paynter should hold shares for the appellant in the company to the value of 2,000i for two years. The company having been formed, and having purchased the gas-works from Paynter, the appellant filed a bill against him, and obtained a decree for specific performance of their agreement. Before that decree was made, the company waS' dis- solved, and the gas-works were sold to the Ratcliff Gas-light and Coke Company. The appellant then filed a new bill against Paynter, the Ratcliff corh- pany, the directors of the dissolved company, and the assignees of Paynter, who had become bank- rupt, to establish a lien upon the gas-works for what should be found due to him under the former decree, as well as to carry out the former decree against all these parties : — Held, by the House of Lords, affirming a decree of the Vice Chancellor, that the sale of the gas-works by Paynter to the Ratcliff company was authorized by the appellant's agreements ; that he had no just claim against the company, or lien on the property, and that the sup- plemental bill was properly dismissed, with costs, as against all the defendants, except Paynter and his assignees. Pinkus v. Ratcliff Gas Co., 1 H.L. Cas. 309. This bill was filed for the purpose of enforcing a contract for a lease of mines, at a rent of one- fifteenth of the minerals obtained. The defendant had subsequently granted a lease to another party at the same rent. The bill charged, that, under an act of parliament, it was directed that the best rent should be obtained by the owner of the mines, and although one-fifteenth was a fair rent when the G/O SPECIFIC PERFORMANCE; (B) When refused. plaintiff's contract was entered into, that afterwards the mines having hecome more vahiahle, that amount was not then a fair rent, and the lease granted by the defendant was therefore contrary to the act: — Held, upon a demurrer for want of equity, that a party coming for performance of a contract could only have it as it actually existed, and that as the rent reserved in the plaintiff's contract was not the best that could be obtained, it was contrary to the act, and in effect fraudulent. The plaintiff, therefore, could not have his contract enforced, and the demurrer was allowed. Held, also, that it was an undeniable proposition, that when a party entered into a contract without having the power of performing it, and afterwards acquired the right to do so, he was then bound to perform it. Came v. Mitchell, 15 Law J. Rep. (n.s.) Cbanc. 287. The particulars of sale of a timber estate, which took place on the 4th of July, described the pro- perty as ** a wood containing upwards of sixty-live acres of oak timber trees, the average size of which approached to fifty feet ;" but the number of timber trees was not stated in the particulars. After various fruitless applications by the defendant (the purchaser) to obtain time for payment, on the 30th of September following, he, for the first time, re- fused to complete, on the ground of misrepresenta- tion as to the average size of the trees. The vendor then filed his bill for specific performance, and, if necessary, with compensation. By the defendant's witnesses the average size of the trees was estimated at twenty-two feet, and by the plaintiff's admission it did not exceed thirty-five feet : — Held, that as at the time of the sale the foliage rendered it impos- sible for the defendant to view the wood, the state- ment in the particulars must be held to be a definite representation of the average size of the trees ; and as the compensation for the difference could not be measured by reason of the number of trees not being specified in the particulars, the bill was dis- missed, but without costs. Lord Brooke v. Bmm- tlmaite, 15 Law J. Rep. (n.s.) Chanc. 332; 5 Hare, 298. A contract for the purchase of an estate was to be completed on the 29th of September. Notice was given on the 24th of November following, by the purchaser, of his abandonment of the contract. No effectual step to complete was taken by the vendor till some months after that time; and the purchase-money, being trust property, was, in the mean time, invested in the purchase of another estate. A bill, filed by the vendor against the pur- chaser, for specific performance, was dismissed, with costs, but without prejudice to the plaintiff's right to bring his action if he should be so advised. A mortgagee with power to sell the mortgaged estate, and to give an effectual receipt for the pur- chase-money, held, under existing circumstances, bound to procure the execution of the bankrupt mortgagor's assignees to the deed of conveyance. Benson v. Lamb, 1 5 Law J. Rep. (n. s. ) Chanc. 218; 9 Beav. 502. A father (tenant for life) and a son (tenant in tail) in 1831 joined in mortgaging the estate to secure payment of a debt of the son, under an agreement to suffer a recovery to enure as to the remainder after the life estate, in case the father should be obliged to pay any interest on the mort- gage debt, or the son should not pay off the debt by a certain day, and the father should then pay it off and release the son therefrom, to the use of the father in fee, the father covenanting to convey or devise a seventh part of the estate to the son ; and in case the son should pay off the mortgage by the time mentioned, then to the son and the heirs of his body, charged with 500Z. to such persons as the father should appoint. The son did not pay off the mortgage, nor did the father pay it off or release the son, but the father paid the interest until his death in 1811, and after his death his devisees paid off the mortgage: — Held, that neither party having performed the agreement, nor apparently acted on it in the father's lifetime, the Court would not after his death enforce its specific performance, especially as it was an agreement for a sale of the son's-re- versionary interest at an undervalue. Playford v. Playford, 4 Hare, 546. In a suit by a vendor for specific performance, ■ against a purchaser, if the contract stipulates that possession should be given at a specified day, it is competent for the purchaser to insist that both time and a vacant possession are of the essence of the contract ; and the Court will receive as evidence that such was the purchaser's object, statements made by his agent at the time of signing the con- tract. Where a purchaser has consented to enlarge the time for completion, and where a vacant possession is of the essence of a contract, it is competent for him to object to complete at the end of such enlarged time if the possession is not then vacant, and if he has done no act towards completion of the coutract after he had notice that vacant possession could not be given at the day. But where a purchaser had by his acts waived completion in the first instance, and had gone on for some time inducing the vendor to incur expenses to perfect his title, and suddenly upon the discovery that vacant possession could not he given according to stipulation, declined to complete, the Court, although it dismissed a bill against such purchaser for a' specific performance, dismissed it, with costs. Nolces V. Kilmorey {Lord), 1 De Gex & S. 444'. In October 1840 a written contract for the sale of the plaintiff's interest in a manor under a lease for lives was entered into with the defendant. A deposit was paid on the signing of the contract, and on the 30th of October following an abstract was delivered ; objections were taken to the title, and a correspondence between the parties took place, and continued until the 20th of August 1841, when the defendant gave a formal notice of rescinding the contract. Various communications on the sub- ject of the title afterwards took place between the parties, but always expressed to be without preju- dice to the notice of rescinding. In November 1841, the defendant required further evidence, and intimated that if it were not perfected within two months, he would fall back upon his original posi- tion under the rescinded contract. On the 17th of January 1842, immediately upon the expiration of the two months, the defendant gave notice that he insisted upon the notice of rescinding of the 20th of August 1841, and he declined any further communication. Nothing more passed between SPECIFIC PERFORMANCE; (B) When refused. 671 the parties until the 30th of August 1843, when the vendors filed their bill for specific performance : — Held, that the unexplained delay of the veudors from the 17th of January 1842 to the 30th of August 1843 had precluded them from the assist- ance of a court of equity in enforcing performance of the contract, and especially in a case where time was so material ; and the Court refused to direct a reference as to whether a good title had been shewn on the 17th of January 1842, and dismissed the bill with costs. Where, after notice of rescinding the contract, a correspondence on the title is continued under pro- test, this g^ves to the correspondence the character of a treaty for the renewal of the rescinded contract, and of the continuation of a subsisting contract. The circumstance, that the purchaser, after notice of rescinding, has allowed the deposit to remain in the hands of the vendor without taking any steps to enforce repayment, is no excuse for the vendor's laches in not enforcing the contract. QiuBre — Whether the Court could, by decree in the cause, order repayment by the plaintiff of the deposit Southcomb v. the Bishop of Exeter, 16 Law J. Rep. (n.s.) Chanc. 378; 6 Hare, 213. C having taken the benefit of the Insolvent Debtors Act, his assigeees, with the consent of C's creditors, entered into an agreement with M, that he should pay 35,000?. for the purchase of the estate of C, and that the assignees should cause the sale to take place by public auction, without any reserved bidding, except the proposed bidding of 35,0002., and that if M should, at such sale, bid the sum of 35,000i. or any higher sum, and there should be no bidding higher than his, the estate should be knocked down to him at such bidding of 35,000?. ; but M was not bound to make any higher bidding. Particulars and conditions of the sale- of the estate were duly printed and circulated, stating that the same was to be sold without reserve. M's agent attended the sale, and also W, the agent of F, and many other persons. The estate was knocked down to F at 50,000?., who, through his agent, paid a deposit of 5,000?., and signed the usual under- taking to complete his contract; the immediately preceding bidding of 49,800?. being made by M. F, at the time of the sale, knew that M would bid 35,000?. for C's estate ; but it did not appear that F was acquainted with the agreement between M and C's assignees : — Held, under the circum- stances, that a bill by the assignees of C, seeking specific performance of the contract, could not be sustained ; and the same was dismissed, with costs ; but F, by his answer, having repudiated the agency of W, who attended the sale, and bid on F's behalf, was ordered to pay the costs incident to the making of W a party to the suit. Where property is advertised to be sold " without reserve," it excludes all interference, direct or in- direct, by the vendor which can, by any possibility, affect the right of the highest bidder to be declared the purchaser, and if there is any evasion of that engagement by the vendor, a court of equity will not assist him to enforce the sale. Robinson v. ^a??, 16 Law J. Bep. (n.s.) Chane. 17; 10 Beav. 61; affirmed, 16 Law J. Rep. (n.s.) Chanc. 401; 2 Ph. 372. On the treaty for the under-lease of a house, the agent for the plaintiff tendered an unconditional agreement for the signature of the defendant. The latter signed his name and initials in pencil, and added also in pencil his approval of the agreement, subject to the condition that there was nothing unusual in the covenants in the original lease. Pending the settling of the draft of the under- lease, the defendant discovered the existence of a nuisance, which would prevent his occupation of the house, and he thereupon abandoned the treaty. The existence of the nuisance was unknown to the plaintiff: — Held, in a suit for the specific perform- ance of the defendant's agreement, that under the circumstances, the Court would try the case strictly between the parties, and that in the absence of actual evidence of the agent having direct or implied authority to accede to the pencil additions, he could not bind the plaintiff; and that until the latter had assented to the alterations, the agreement was only a proposal, and might be abandoned by the defen- dant : and the bill was dismissed, with costs. Lucas V. James, 18 Law J. Rep. (n.s.) Chanc. 329; 7 Hare, 410. Under two agreements for sale (one of which was to 1)0 completed on the 1st of June and the other on the 29th of September 1846) disputes arose upon the title and upon certain valuations incident to the purchase. The conveyances were engrossed on the 4th of January 1 847, and the vendor made two requisitions to the purchaser to complete, the first on the 11th of January and the second on the 25th of January 1847, and intimated that non-compliance with the requisitions would be treated by the vendor as a breach of the agreements. The purchaser did not comply ; but his solicitors reiterated claims to certain deductions and abatements. The disputes continued until after the 13th of February 1847, when the purchaser filed a bill for specific perform- ance : — Held, that this was not such a default by the plaintiff as would prevent him from having specific performance, but it appearing by the cor- respondence that the purchase was delayed up to and until after the filing of the bill, not by the claims of deduction, but by the purchaser's want of means to pay even as much of the purchase- money as, upon his own view, he had to pay, the Court dismissed the bill, but gave the defendant no costs, except on the terms of returning the deposit. Gee V. Pearse, 2 De Gex & S. 325. The landlord of a workshop, which he held under a lease, agreed in writing to underlet it at a yearly rent, with an option to the tenant to take an under- lease upon the same terms for twenty-one years, from the previous Lady-day. The tenant continued in possession under this agreement for four years, when he received notice to quit. He then applied to his landlord for a lease for twenty-one years, according to the agreement. Some months after- wards the landlord obtained possession of the pre- mises under a warrant of possession, from a district court. The tenant filed a bill against the landlord for specific performance and an injunction. It ap. peared at the hearing, that the tenant had not kept the premises in repair. The Court dismissed the bill, with costs, and expressed a doubt whether the plaintiff had not, by his delay alone, lost his option to renew. Nunn v. Truscott, 3 De Gex & S. 304. If property not intended to be sold be, by the 672 SPECIFIC PERFORMANCE— STAMP. ignorance or neglect of the vendor's agent, Included in a contract of sale with other property intended to be sold, a case may arise in which the Court will refuse to compel a specific performance of the whole contract; and, if the purchaser should decline taking so much as was intended to he sold, the Court would not rescind the contract, but would leave the purchaser to his remedy at law. This course, however, will not apply to sales under orders of the Court, where the Court must decide whether the sale is to be carried into eiFect or the property resold ; but in these cases it is expedient, as far as possible, to adopt the rules which regulate the practice as between ordinary vendors and purchasers. Thus, in a sale under the order of the Court, where it was clear l;hat a portion of the property was not meant to be included in the contract, the Court, in the absence of proof of misconduct in the purchaser or his agent, refused to compel a specific performance, excluding the portion in question. Alvanley v. Kinnaird, 2 Mac. & G. 1. ' (C) Practice on Bill foe. [See PaACTiCE, in Eouity, Demurrer.] A contracted to sell to B a mortgage of toDs for a term, held by A under a drainage act. An objec- tion was made by B to the title, on the ground that the will of F, a former owner of the mortgage, had been proved by G his executor, in the Prerogative Court of Canterbury, and that the will of G had been proved by his executor in the Consistory Court of Lincoln. In a suit for a specific perform- ance of the contract, — Held, that B could not compel A to cause the will of G to be proved in the Prero- gative Court of Canterbury. Williams v. Bland, IS Law J. Rep. (n.s.) 331 ; 2 Coll. C.C. 575. In a suit for the specific performance of a written agreement, the defendant will not be allowed to set up as a bar to the suit that the written agreement does not contain all the terms of the real agreement, unless the proof of the omission by mistake of some term in the written agreement be very clear. In a suit by the Droitwich Patent Salt Company, for the specific performance of an agreement by the British Alkali Company to take a lease or transfer of the works &c. of the former, it was objected, by the defendants, that such an agreement would be destructive of the fundamental objects of the plain- tiflfs' company, and the Court, at their request, sent this question to be tried at law. Clay v. Riifford, 19 Law J. Rep. (n.s.) Chanc. 295. A married woman having separate property and living apart from her husband, entered verbally into an agreement to take a leasehold house for a term. The agreement was reduced to writing, and signed by the lessor's agent, and handed to her. She re- tained it, but did not execute it, or any counterpart. In letters written by her and her solicitors, it was referred to as an agreement, and she entered into possession. In a suit by the lessor to enforce pay- ment of the rent according to the agreement as a charge upon her separate estate, the Court directed a reference as to the lessor's title. Waiver of production of lessor's title cannot be insisted on by him in a suit for a specific perform- ance of an agreement for a lease, unless it is ex- pressly alleged by the bill. Gaston v. Frankum, 2 De Gex & S. 561. After answer to a bill by a vendor for specific performance, a reference as to title was directed upon motion, notwithstanding the answer stated that the time for completing the contract had long since expired, and that the vendor had not complied with the requisitions on the abstract, and that the purchaser had given notice of rescinding the con-_ tract. Where the dispute is as to the application of con- ditions of sale, and the propriety of the conditions is undisputed, the question is one of title, and not of contract. Where time is not originally of the essence of the contract, a purchaser cannot rescind the contract without notice, or before the expiration of his notice, on the ground of delay on the part of the vendor in complying with his requisitions of title. Wood v. Macliu, 16 Law J. Rep. (n.s.) Chanc. 21. STAMP. [See Attorney and Solicitor — Bill op Ex- change — Pleading, at Law.] (A) Agreements. (B) Appointment. (C) Award. (D) Bills and Notes. (E) Bonds. (F) Conveyances. (G) Deeds. (H) Leases. (I) Letter or Attorney. (K) Memorandum. (L) Mortgages. (M) Policy of Assurance. (N) Receipts. Alteration of certain stamp duties by the 13 & 14 Vict. c. 97 ; 28 Law J. Stat. 276. (A) Agreements. [See (I) Letter of Attorney.] A contract made by several letters, written not by the contracting party himself, but by his agent, is within the proviso in the Stamp Act, the 55 Geo. 3. c. 184, schedule, part 1, 'Agreement,' and re- quires a stamp of \l. 15s. only. Grant v. Maddox, 15 Law J. Rep. (n.s.) Exch. 104 ; 15 Mee. & W. 739, n. A defendant in replevin, in support of his right as bailiff to distrain, gave in evidence the following document, signed by the party under whom he made cognizance: 'I, J. Ware, of, &c., having, on the 7th of October 1843, borrowed from Mr. J P (the defendant,) SOOl., did then pledge with him certain title-deeds of houses in T, held by me, in order to secure to him SOOl., with interest. I did then authorize the said J P to receive the rents of the said houses during my right and interest therein ; and I hereby confirm and allow to be good and valid all acts, distresses, &o., and particularly a distress taken upon W P (the plaintiff), tenant of one of the said houses by the said J P, and here- after to be made and taken by him in the care, management, and recovering of the rents of the said houses. And I ratify and confirm all acts, distresses, STAMP; (A) AoEEEMENr. 673 &c. made or to be made, &c. by the said J P, to the end that the rents of the said houses may be secured and taken by the said J P during all my estate or interest:" — Held, that this document did not re- quire a stamp, either as an agreement accompanied with a deposit of title-deeds for making a mortgage, or as an authority to distrain, or as an agreement to distrain. Pyle v. Partridge, 15 Law J. Rep. (n.s.) Exch. 129 i 15 Mee. & W. 20. By an instrument in writing, not under seal, reciting that T D had purchased a piece of ground, with four messuages built thereon, in one of whi6h the plaintiff resided, it was agreed that the plaintiff should continue to reside therein during the residue of T D's interest therein, provided theplaintiffshould so long live, at the annual rent of Is., and in the event of his dying during the continuance of the term his widow should reside therein on the same terms ; and T D further agreed to assign all his interest in the premises so purchased to the plaintiff, on pay- ment, within seven years, of 140i., together with all expenses ; — Held, that the instrument required an agreement stamp as well as a lease stamp. Love- lock v. Frankland, 16 Law J. Rep. (n.s.) Q.B. 182; 8 Q.B. Rep. 371, 379. In an action by the payee against the maker of a promissory note for 485i., in which the defendant had pleaded that he did not make the note, it was proposed, in addition to proof of defendant's hand- writing of the signature of the note, to put in an unstamped agreement between the same parties, of the same date as the note, in which it was recited that the one had bought of the other the lease of a public house for 485/., and had given a note for that sum as a security for the purchase-money, and by which it was agreed that the vendor should hold the lease of the house till the purchase money was paid : — Held that, as the agreement was one that ought to have borne a stamp, it was not re- ceivable in evidence, even for the purpose of proving the admission contained in the recital. Keane v. Janes, 2 Car. & K. 725. The following document was held to be within the exemption in the Stamp Act, 55 Geo. 3. c. 184. sched. part 1. 'Agreement,' relating to goods, wares, or merchandise, and not to require a stamp : — " Gentlemen, — In consideration of your consign- ing to my friends, Messrs. H G, of C, sixteen casks of sherry wine, and engaging to pay me 1 per cent, on the amount of the proceeds, I hereby agree to guarantee to you the proper sale of the said wines and the payment of the proceeds in due time." (Signed) &o. Sadler v. Johnson, 16 Law J. Rep. (N s.) Exch. 178; 16 Mee. & W. 775. A contract for the sale of railway scrip is not a contract for the sale of goods, &o. within the meaning of the exemption in the Stamp Act, sched. tit. ' Agreement.' Knight v. Barber, 16 Law J. Rep, (N.s.) Exch-. 18 ; 16 Mee. & W. 66. " Memorandum of one hundred and seven pounds .had by me of S, being an advance on books sent in for immediate sale by auction:" — Held, to be an agreement relating to the sale of goods, and admis- sible without a stamp. Southgate v. Bohn, 16 Law J. Rep. (N.S.) Exch. 50; 16 Mee. & W. 34. The defendant, by agreement in writing, gave up certain premises, with the goodwill, &o., to the. plaintiff for Tl. 10s., and agreed not to open a shop Digest, 1845—1850. in the' same line of bu.siness within a mile, under a penalty of 20/.: — Held, first, that the agree- ment did not require a stamp. Secondly, that it was not void as being in restraint of trade. Pem- herton v. Vaughan, 16 Law J. Rep. (n.s.) Q.B. 161; 10 Q.B. Rep. 87. A letter of allotment, which is not a mere accept- ance of the terms stated in the letter of application, does not require an agreement stamp. VoHans v. Fletcher, 16 Law J. Rep. (N.s.) Exch. 173; 1 Exch. Rep. 20. An agreement, made at a time when the 55 Geo. 3. c. 184, schedule, part 1, ' Agreement,' was in force, and under which it required a stamp of \l., was, subsequently to the 7 Vict. c. 21. coming into ope- ration, stamped, under a penalty, with the stamp of 2s. 6d., as required by the 2nd section and schedule of the latter act: — Held, that the agreement was admissible in evidence. Dealcin v. Penniall, 17 Law J. Rep. (N.s.) Exch. 217; 2 Exch. Rep. 320. If at the time of making an agreement the sub- ject-matter of it does not appear to be of the value of 20/., a stamp does not become necessary merely because the value as subsequently ascertained a little exceeds that amount. Liddiard v. Gale, 19 Law J. Rep. (n s.) Exch. 160; 4 Exch. Rep. 816. An agreement of reference of all matters in dif- ference in a cause does not require a stamp when it does not appear that the matter of the agreement is of the value of 20/. Lloyd v. Mansel, 19 Law J. Rep. (n.s.) aB. 192 ; 1 L. M. & P. 822. The following document was held not to require an agreement stamp : — " I do hereby request S B, bailiff to the Earl of D, my landlord, who, on the 4th of November 1848, having distrained my goods on the premises which now I hold situate at, &c. for 100/. as rent due to the said S B from the said premises, and I request him to forbear the sale thereof until the 2nd of February 1849, to enable me to discharge the said rent; and I do hereby request, agree and consent that the said goods so distrained shall remain at my proper cost in his possession upon the said premises until the 2nd of February 1849 ; and I undertake to give up the same goods and not to replevy the same, and that this distress shall remain in full force during that time ; and I do hereby un- dertake to give up peaceably possession of the pre- mises and effects distrained on the 2nd of February 1849, and pay all costs and charges attending this distress. As witness my hand, this 4th of No- vember 1848. — Noah Fishwiok." Fishwickv. Milnes, 19 Law J. Rep. (n.s.) Exch. 153; 4 Exch. Rep. 825. In an action for wages for the salary of an actor three letters were put in from the defendant to the plaintiff. The first was dated the 17th of November 1848, " If you are disposed to take a weekly salary of 21. and a clear half annual benefit, I think I could receive you at Christmas, provided the terms suit you (and a month's notice on either side in case of separation). Let me have your reply." The second, dated the 14th of April 1849, stated that the defendant was obliged to offer lower terms for the summer season, and offered 11. 10s. per week, and gave notice that if this offer was not accepted, the plaintiff's services would not be re- quired after the 26th of May. No answer from the 4R G74 STAMP. plain tiff was put in evidence. The third letter, dated the 21st of April, ran as follows: — "I have received your letter, and on reconsideration will give you the same terms, 21. per week for the summer season": — Held, on motion to enter a nonsuit according to leave reserved, that these let- ters were properly admitted without a stamp, as amounting only to a proposal, and not constituting an agreement in writing." Hudspeth v. Yarnold, 19 Law J. Rep. (n.s.) C.P. 321. (B) Appoihtment. The appointment in writing of a person to be treasurer to a board of guardians at a yearly salary,' requires a stamp. Regina v. JVeleJi, 2 Car. & K. 296. (C) Awahd. The defendants, who were coach-proprietors, were ill the habit of horsing a coach for certain stages, and of having a monthly account made out, con- taining the names of the proprietors, the amount of the receipts and disbursements, the number of miles worked by each, and the proportions of the earnings to which each was entitled. The materials for the account were obtained partly from tbe way- bills, and partly furnished by the defendants to the clerk of one of them. The practice was for the clerk to send a copy of his account to each of the proprietors, shewing the amount which each pro- prietor had to receive or pay. By the terms of the account, each proprietor was to receive the differ- ence, as the case might be, from one or more of the other proprietors: — Held, that this account was not an award, and was admissible in evidence without a stamp. Goodyear V. Simpson, 15 Law J. Rep. (n.s.) Exch. 191 ; 15 Mee. & W. 16. (D) Bills and Notes. An order signed by A, addressed to his bankers, directing them to pay a sum of money to B, and which was forthwith placed in B's hands, who with A immediately went to the banking house and de- livered it to the bankers, requires a bill stamp under the 55 Geo. 3. c. 184. Though the intention of A and B was that the order should be immediately delivered to the bankers, yet the fact that it was according to the agreement delivered by A to B, brought it within the Stamp Act. Parsons v. Middleton, 6 Hare, 261. (E) Bonds. Bond for 2,000^., conditioned for payment to the trustees of a banking company of all and every such sum and sums not exceeding in the whole l.OOOZ., which, from time to time, should be and remain due and owing from the obligor to the com- pany, on the balance of his account current with the company, together with such interest and com- mission as should be due: — Held, not a bond "given as a security for the repayment of money lent, ad- vanced, or paid, or which may become due on an account current, &c. ; where the total amount of the money secured or to be ultimately recoverable thereupon is uncertain, and without limit," within the meaning of the 55 Geo. 3. c. 184. schedule, part 1. tit. 'Bond;' and that an ad valorem stamp of 61 was sufficient. Frith v. Rotherham, 15 Law J. Rep. (N.s.) Exch. 133; 15 Mee. & "W. 39. A bastardy bond, in the penal sum of 100?., con- ditioned to indemnify parish officers from all costs, charges, and expenses, by reason of the birth and maintenance of a bastard child, until such child should obtain a settlement out of the parish, is suffi- ciently stamped with a stamp of li. ISs. Bownes v. Marsh, 16 Law J. Rep. (n.s.) Q.B. 36 j 10 Q.B. Rep. 787. A bond madein 1812 conditionedfor the replacing stock of the value of 792?. and for paying the amount of the dividends in the mean time, was stamped with a 31. ad valorem bond stamp : — Held, that the stamp was sufficient under the 48 Geo. 3. c. 149, although there was of even date with the bond an insufficiently stamped agreement, (accom- panied with a deposit of title-deeds,) for making a mortgage of the estate comprised in the title-deeds as a security for the replacement of the stock and payment of the sums in lieu of dividends. Btair v. Ormond, 19 Law J. Rep. (n.s.) Q.B. 228. (F) Conveyances. Any written instrument, operating as the record of a transfer of property, is a conveyance within the meaning of the Stamp Act. Such an instrument, if it be " a memorandum, letter, or agreement, relating to the sale of goods, wares and merchandise," is exempted from all stamp duty, but if it operate as a transfer of any- thing else, it must be stamped as a conveyance. The word "fixtures" means the right of sever- ance of chattels attached to the soil, but not part of the freehold. A transfer of " fixtures" is, therefore, at least the transfer of the right of severance; and whethera memorandum of the sale of fixtures trans- fers any interest in the chattels themselves, or not, it is a conveyance within the words of the Stamp Act, which include the "transfer of any right;" and as fixtures are not goods, wares and merchandise, it is not within the exemption. Therefore, a memoran- dum using words in the past tense, " Memorandum that A B has sold the goods and fixtures in a shop to C D," signedby both parties, was held to require an ad valorem stamp as a conveyance. Horsfall v. Key or Hey, 17 Law J. Rep. (n.s.) Exch. 266; 2 Exch. Rep. ^78. H being seised in fee of certain land, agreed with the defendant, a builder, to execute to him a lease of the land and of a house which it was agreed the defendant should build thereon for ninety-nine years, at a rent of 97. 5s. The defendant was to lay out 600?. in building the house. The house having been built, O contracted to buy for 850?. all the defendant's interest in the said house and land. The defendant, in order to effect this contract, pro- cured an indenture to be made between himself, H, and 0, whereby H leased the house and land in question to O for ninety-nine years, at the rent of 9?. 55., payable to H. The purchase-money was not stated in the lease, which was the principal and only deed whereby the house and land were con- veyed : — Held, that the lease to O was a con-rey- ance upon the sale of land within the schedule of the 55 Geo. 3. c. 184; that duty was payable there- on as upon a conveyance ; and that the defendant and O were liable to penalties for not truly insert- STAMP. 675 ing the conBideration in the lease. Attorney Gene- ral V. Brown, 18 Law J. Rep. (n.s.) Exch. 336 ; 3 Exch. Rep. 662. (G) Deeds. A being entitled to thirty shares in an incorpo- rated company, B to twenty," and C to ten, joined in conveying the same, by the same deed, to D. The several interests did not appear in the deed, and tlie ad valorem stamp was calculated upon the whole shares collectively :— Held, that the deed was admissible in evidence. Wills v. Bridge, 18 Law J. Rep. (n.s.) Exch. 384; 4 Exch. Rep. 193. The indenture mentioned in the first count of the declaration was of four parts, between and executed by the vendors, a trustee, the plaintiff, and the de- fendant. It recited the title of the vendors to cer- tain copyholds, an agreement for sale to the defen- dant, that he had taken possession and built a house thereon, an agreement by the plaintiff with the defendant to lend him some money by way of mortgage, and that for the purpose of carrying the agreements for mortgage and purchase simul- taneously into eiFect, a surrender was to be made of the copyholds by the vendors, to a trustee, to secure the money advanced by the plaintiff. The vendors then covenanted with the plaintiff, his heirs, &c., and separately with the defendant, hia heirs, &e., that they had a good title, &c., for quiet enjoyment, &c. j and the defendant also thereby covenanted to pay to the plaintiff the sum ad- vanced, with interest. The indenture mentioned in the second count was between and executed by the plaintiff and the defendant ; it recited the former deed, default in payment of the sum thereby se- cured, a further loan by the plaintiff; and the defendant thereby covenanted to pay the whole sum, with interest, and that the copyholds should remain further charged with the entire sum ; — Held, that the indenture in the first count was single in its nature and object, though treating of several matters ; that it was not within the statute of 12 Anne, c. 9. s. 24, and, therefore, liable only to the single stamp duty of 35s. Held, that the indenture in the second count was a deed constituting a further charge, and liable only to the ad valorem stamp duty of 30s. under the 55 Geo. 3. c. 184. Rushbrool; v. Hood, 17 Law J. Rep. (N.s.) C.P. 58; 5 Com. B. Rep. 131. (H) Leases. [See (A) Agreements — (F) Conveyances.] It was stated in an agreement, which amounted to a lease, that A agrees to let certain premises to B for two years, at the rent of 50i a year ; that B shall have the right of purchasing the premises at any time during the term, it being understood that A" is possessed of the same premises for his own life, and the life of M, and the survivor of them : — Held, that a 30s. stamp was sufficient. Held also, that by the agreement A was bound to make out a title to the premises for the lives of A and M, and the survivor of them. IVorthington V. Warrington, 17 Law J. Rep. (N.s.) C.P. 117; 5 Com. B. Rep. 635. To debt for rent due on a lease, the defendant pleaded, set-off for money had and received. The plaintiff had granted to the defendant a prior lease at a certain rent, and at a premium of 40/., and being indebted to the defendant for work done to that amount, it was agreed on a settlement of accounts that the work done should be treated as payment of the premium ; hut the premium was not expressed in the lease. The defendant sought to set off the premium thus paid, on the ground that he was entitled by the 48 Geo. 3. c. 149. s. 24, to recover it by reason of its not haying been expressed in the prior lease : — Held, first, that the effect of the 55 Geo. 3. t. 184. was to put leases on the same footing as conveyances, under the 48 Geo. 3. c. 149, and to make it necessary to state the premium or consideration in the lease • secondly, that the transaction amounted to money paid by the defendant to the plaintiff, and that it might be recovered back in an action for money had and received by virtue of the 48 Geo. 3. u. 149. s. 24, and therefore might be set off. Gingell v. PurUns, 19 Law J. Rep. (U.S.) Exch. 129; 4 Exch. Rep. 720. (I) Letters of Attorney. A, the drawer of certain bills, wrote a letter to B in the following terms: — *' I do hereby authorize you to indorse, or cause to be indorsed, my name to three several bills of exchange now in your pos- session (describing them), which said indorse- ments I do hereby undertake shall be binding upon me, and I do further undertake to pay you the amount of the several bills as they respectively become due, should they not be duly honoured at maturity :" — ^Held, that this was not an agreement, but a letter of attorney, and should he stainped as such under the statute 55 Geo. 3. c. 184. sched. part 1. Walker v. Remmett, 15 Law J. Rep. (n.3.) C.P. 174; 2 Com. B. Rep. 850. (K) Memorandum. [See (A) Agreements — (N) Receipts.] In an action for money had and received, the defendant put in evidence the following document, written by the plaintiff, on the back of an unstamped receipt : " Balanced up to this day, as per cash- book 19th of November 1845":— Held, that this document was admissible in evidence without being stamped. Such a document is goaiL primd facie evidence to shew that, up to the day, of its date, there was no debt existing between the parties. Finney v. Tootel, 17 Law J. Rep. (n.s.) C.P. 158; 5 Com. B. Rep. 504. In an action against the acceptor of an accom- modation bill, the following memorandum, with reference to the hill declared on, was held to be admissible in evidence without a stamp, — " I hereby acknowledge that you have, for my accommodation, accepted a hill of even date herewith, for 25/., pay- able, &c. ; and I agree to provide for the same when due." Notley v. Webb, 5 Com. B. Rep. 834. Under a plea of payment to an action for goods sold and delivered, a document in the following form is not admissible in evidence without a stamp. — " Memorandum, that any demand we may have against Mr. George Whiting, for ironwork. Sic. is this day discharged, in consideration of services G76 STAMP. rendered by him to us. N.B. Particulars of our account shall be delivered with stamp receipt." Livingston v. Whiting, 19 Law J. Rep. (n.s.) Q B. 528 ; 15 a.B. Rep. 722. (L) MOBTOAGES. A 251. stamp is not necessary for a mortgage deed to secure an indefinite sum, where a subse- quent proviso limits the principal sum to be secured. Doe d. Smith v. Warner, 1 Car. & K. 1014. By a mortgage deed of 1773, J had mortgaged certain premises in fee to M for 600/., with the usual proviso for redemption on payment, &c., but without any power of sale. Further charges to the amount of 400/. were afterwards created in favour of M and R his devisee, who called for the money. A mortgage deed of 1837, reciting the above facts, stated that the plaintiff had agreed to pay l,000i. to R, and had advanced 1,723/. to the defendant, the heir-at-law of J ; thatR, in consideration of the 1,000/. paid to him by the plaintiff, had conveyed the premises to the plaintiff in fee, subject to a pro- viso for redemption on payment of the entire sum of 2,723/. The deed contained a covenant by the defendant to pay the sum of 2,723/., but on different days from those specified in the mortgage of 1773, and also a power of sale. It bore a 6/. stamp, the proper ad valoreiii duty on a mortgage for 1,723/. : — Held, that the deed of 1837 contained more than a transfer of the old mortgage and the advance of a further sum ; and that the covenant to pay the 1,723/. at other times than those stated in the deed of 1773, together with the power of sale, rendered a deed stamp necessary. Humberstone v. Jones, 16 Law J. Rep. (n.s.) Exch. 293; 16 Mee. & W. 763. By deed between E B (mortgagee) of the first part, M G (devisee for life under the will of the mortga- gor)ofthe second part, and J G(deviseein remainder in fee) of the third part, reciting an original mort- gage for 1,000 years, to secure 150/. and interest, in consideration of 350/. (being 165/., the amount due for principal and interest due on the original mortgage, and 185/. further advance) paid by the lessor of the plaintiff, all the parties assigned the premises comprised in the original mortgage to her for the residue of the term of 1,000 years, subject to a proviso for redemption on payment of the whole sum of 350/. at a different day from that named in the original mortgage, and M G and J G entered into a fresh covenant to pay the whole 350/., at the time mentioned in the proviso: — Held, that this deed required to be stamped with an ad valorem stamp, as upon a new mortgage for 185/., and also upon a deed stamp, as the covenant by the devisees, for payment of the old as well as the new advance created a fresh security. Doe d. Crawley v. Guite- ridge, 17 Law J. Rep. (N.s.) Q.B. 99 ; 11 Q.B.Rep. 409. A mortgage given as an additional security for a sum secured by bond which is stamped with the proper duty, is only liable to the ordinary deed stamp. Watson v. Macquire, 5 Com. B. Rep. 836. An assignment of a policy of assurance as security for a debt, with a proviso for redemption, is a mort- gage within the 53 Geo. 3. c. 184, sched. part 1, and therefore liable to an^nrf valorem stamp. Cald- well v. Dawson, 5 Exch. Rep. 1. (M) Policy of Assurance. An instrument for assuring the owners of cattle from loss arising from their death is a policy of assurance, and subject to the stamp duty imposed by the 10 Ann. c. 26. s, 71 ; and parties improperly omitting to stamp it are liable to the penalty of 5/. imposed by that act, and not to that of 500/, im- posed by the 35 Geo. 3. c. 63. s. 17, and the 55 Geo. 3. c. 184. The 35 Geo. 3. c. 63'. imposes no duty upon any but marine insurances, and the effect of the 55 Geo. 3. c. 184. s. 8. is to preserve all the powers, direc- tions, and penalties of the former act, and make them applicable to the new duties. Attorney Gene- ral v. Cleolmry, 18 Law J. Rep. (n.s.) Exch. 395 ; 4 Exch. Rep. 65. (N) Receipts. The plaintiff, having applied for shares in a joint- stock company, received a letter of allotment, and thereupon paid a deposit into the banking house of the company, and received from them the following document: — " The London and Westminster Water Company. —London, Feb. 8, 1841. " Received 100/., to be placed to the account of W C, T D, J P M'D, J W, and J P C. "For Messrs. Jones, Loyd, & Co., 100/. " A. Palmer." " This receipt not transferable. The party to whom these shares are allotted is requested to attend immediately at the offices of the company. No. 7, ■ St. Martin's Lane, Trafalgar Square, with this re- ceipt, to sign the parliamentary contract, when the receipt will be exchanged for the shares. — Monday, the 8th of February, is the last day for such at- tendance": — Held, first, that the document did not require a stamp, being a banker's accountable re- ceipt, within the meaning of the exemption in the 55 Geo. 3. c. 184, Schedule, part 1, tit. "Receipt." Secondly, that the plaintiff was bound to produce the letter of allotment, as it shewed the terms of the contract on which the money had been paid. Clarice v. Chaplin, 16 Law J. Rep. (n.s.) Exch. 246 ; 1 Exch. Rep. 26. In an action for goods sold, the defendant, in order to prove that the goods in question were sold to D, and not to himself, put in evidence an unstamped paper, containing a bill of parcels, from plaintiff to D, at the foot of which were the words " Settled, W M," (plaintiff). It also appeared that the whole of the paper had been written at one time, and that no money in fact passed; — Held, that the two parts being distinct, so much of the paper as consisted of the bill of parcels was admissible in evidence for the above-mentioned purpose, without a receipt stamp. Millen v. Dent, 16 Law J. Rep. (n.s.) Q.B. 374; 10 aB. Rep. 846. In an action against the drawer of a hill of ex- change for 9/. 5s., accepted by one Marks, the defendant pleaded payment by the acceptor, and gave in evidence the following document : — " My- self «. Marks. Mr. Marks has this day left with me 10/. on account of the debt, interest and costs in this action. E. L. Levy, the plaintiff in person." STAMP— STATUTE. 677 — Held, that this document did not require a receipt stamp. Levy v. Alexander, 19 Law J. Rep. (n.s.) Exch. 113; 4 Exch. Rep. 485. A receipt not having a proper stamp cannot be used as evidence of a matter collateral to the pay- ment of the money. Thus in a case where it was sought to prove an agreement for purchase by means of a receipt for the purchase-money, such receipt not being pro- perly stamped, — Held, that the evidence could not be admitted. Evam v. Prothero, 2 Mac. & G. 319. STATUTE. [See Coal Acts — Contract, Validity of — Mu- - NiciPAL Corporation — Penalties — Rate, Church-rate.] An_act for shortening the language of acts of parliament, 13 Vict. c. 21; 28 Law J. Stat. 31. [See Bmsfield v. Wilson, 16 Law J. Rep. (n.s.) Exch. 44 ; 16 Mee. & W. 185, ante, p. 137.] The intention of the legislature must be ascer- tained from the words of a statute and not from any general inferences to be drawn from the nature of the objects dealt with by the statute. Fordyce v. Bridges, 1 H.L. Cas. 1. Where an act is limited in its operations to a particular place, and is expressed to be for the interest of a particular class of individuals, and the partie**interested are empowered in general terms to do certain acts, the Court will not con- strue this as a power to interfere with the rights of strangers to the act, unless the intention of the act to aflFect such rights can be collected from the ex- press words or by necessary implication. The question whether an act be public or private is to be resolved not by any formal considerations, ex. gr. whether there be a clause declaring it shall be deemed a public act, but by the substance and nature of the case. Dawson v. Paver, 16 Law J. Rep. (N.s.)Chanc. 274; 5 Hare, 415. A local act authorized a company to enter upon lands within a certain manor, and to dig and search for any spring of water, and to convey the water from such springs into the town of South Shields, for the use of the inhabitants of the town and the shipping in the harbour. It provided that the com- pany should not take the water from any spring, streams, or ponds, so as to deprive the occupiers of the lands of water for their own necessary uses, and for the cattle depasturing therein. The company had power to lay down pipes, &c., and the inhabitants, with the consent of the company, might obtain the water by pipes, &o. to communicate with the com- pany's pipes, at certain charges, according to the bore of the pipes : — Held, that the owners or occu- piers of lands within the manor were not prevented by the act from sinking wells in such lands, though the effect might be to draw off the water froni the company's springs. Held, also, that the defence, that the defendant, within twenty years of the discovery of the spring by the plaintiffs, sunk a well, and used the water in a manner and for purposes not prohibited by the act, was admissible under not guilty, and a plea denying the plaintiffs' right. Smlh Shields Water- works Co^ V. Cookson, 15 Law J. Rep. (n.s.) Exch. 815. Trespass. Plea, not guilty (by statute). The bouses of the plaintiff and the defendant adjoined each other, being separated by an old wall, and the trespass consisted in the defendant having made an addition to each end of the wall by building upon it. The wall in question was situate in the county of Surrey, out of the city of London and the liber- ties, but within the operation of the Building Act, the 14 Geo. 3. c. 78. It was not a party wall, or a party fence wall, but stood upon the plaintiff's land, and belonged exclusively to him, but the de- fendant, in building upon it, bond fide believed it to be a party wall, and intended to comply with the provisions of the 14 Geo. 3. c. 78. The venue was laid in Surrey. The 14 Geo. 3. c. 78. s. 100. enacts, " That every action for anything done in pursuance of the act, where the cause of action arises without the city of London, or the liberties, shall be laid and tried in Middlesex, that the defendants may plead the general issue, and give the special matter in evidence ; and if the action be laid in any other county or place than as aforesaid, the jury shall find for the defendant." The 5 & 6 Vict. c. 97. s. 3. repeals so much of any act of a local or personal nature, &c., as entitles parties to plead the general issue, and give the special matter in evidence : — Held, first, that the 14 Geo. 3. c. 78. being of a local and personal nature, the statutable plea of not guilty was taken away by the 5 & 6 Vict. c. 97, and that the defence, that the venue was improperly laid, was not available under the ordinary plea of not guilty, but ought to have been specially pleaded ; secondly, that the 14 Geo. 3. c. 78. was, as regarded the 84th and 86th sections, a public act; and, semble, that as to defences arising upon those sections, the statut- able plea of not guilty was not taken away by the 5 & 6 Vict. u. 97 ; and thirdly, that the new Build- ing Act, the 7 & 8 Vict. c. 84, was of a local and personal nature. Qutere — Whether, under the circumstances, the defendant was entitled to the protection of the statute, the 14 Geo. 3. c. 78, the wall built upon by him not being a party wall, or a party fence wall. Richards V. Easto or Easton, 15 Law J. Rep. (n.s.) Exch. 163; 15 Mee. & W. 244; 3 Dowl. & L. P.C. 515., A surveyor appointed under the Metropolitan Paving Act, the 57 Geo. 3. u. xxix, has no right, under the 75th section of the act, to remove a ladder placed against a house for the purpose of white- washing, for that section applies only to the erection of hoards or scaffoldings, or to the placing of posts, bars, rails, or boards, by which an inclosure is made. A licence granted by the surveyor under that section, to erect a hoard or scaffolding, &c., on the footway of No. 14, Porter Street, was held not to authorize the licensee to erect one in another street or court, although it formed one of the sides of the house in Porter Street. Davey v. Warne, 15 Law J. Rep. (n.s. ) Exch. 253 ; 14 Mee. & W. 199. The 82nd section of a local act of parliament, for paving and improving the town of S, empowered commissioners to pave certain streets, and enacted that the charges thereof should be paid to them by the owners of the land adjoining, in equal shares, and that it should be lawful for suchcohimissioners to recover such charges by action. The 83rd sec- 678 STATUTE. tion, beginning witli " provided always," enacted, that before the commissioners should pave the streets as aforesaid, they should give notice to the owner of land, &c., adjoining the street, requiring him to pave the same; and if the owner should neglect to pave for six months, it should be lawful for the commissioners to pave the same and to recover the expenses from such owner, in such manner as in the said act was mentioned. A declaration in debt by the plaintiffs, as commissioners, to recover from the defendant his share of the expenses of paving a certain street in S, stated that the defendant was owner of land within the said street ; that the com- missioners paved the same ; that his share of the expenses amounted to 217/., and alleged as a breach that he had not paid the same : — Held, on demurrer, that the giving a notice to the defendant to pave the streets was a condition precedent to the plain- tiff's right of action ; and therefore, that the decla- ration was bad, for not containing such an aver- ment. Mayor, SjC. of Salford v. Ackers, 16 Law J. Rep. (N.s.) Exch. 6 ; 16 Mee. & W. 85. By the act, 57 Geo. 3. c. xxix, for better paving, improving, and regulating the streets of the metro- polis, and removing and preventing nuisances and obstructions therein, all rates made after the passing of that act for paving or repairing the streets in any parochial or other district by virtue of any local act, or of the said act, are (by section 24.) to be laid on all persons who shall inhabit, hold, occupy, be in possession of or enjoy any messuages, tenements, lapds, grounds, &c,-, situate or being within any of the streets within the said parochial or other dis- trict. By section 76, power was given to number the houses, &c. within the streets. By the act, the H Geo. 3. c. 15, for the better paving part of the High Street, Whitechapel, and for removing obstructions and annoyances therein, commissioners appointed under the act were empowered, for defraying the charges attending the execution of the powers of the act, to rate all and every person and persons who do or shall inhabit, hold, occupy, possess, or enjoy any house, shop, &c., ** within the said street," To the north side of High Street, Whitechapel, is Kent and Essex Yard, around and within, and opening into which are several dwelling-houses and other buildings, all of which lie and are situated at the back of other houses and premises which front the High Street The only entrance into the yard is through carriage gates, and along a covered gate- way. The yard is a private place, and the paving commissioners have no jurisdiction over it, and do not pave or cleanse it. The houses on either side of the yard abut on other streets and not on High Street, and neither the houses in the yard nor the gateway are numbered : — Held, that the inhabitants of Kent and Essex Yard were liable to be rated in respect of the paving, &c. of High Street, White- " chapel, the yard being within that street for such purpose. Baddeky v. Gingell, 17 Law J. Rep. (n.s.) Exch. 63; 1 Exch. Rep. 319. A question being raised whether certain trustees appointed under an act of parliament for inclosing a piece of land were to execute conveyances in their own names, or as a corporate body, the Court held, that although the act did not expressly constitute them a corporation, yet as the trusts to be executed were to continue for an unlimited time, the trustees must, by the very constitution of the body and the powers given them, be taken to be a corporation. £,r parte Newport Marsh Trustees, 18 Law J. Rep. (n.s.) Chanc. 49 ; 16 Sim. 846. By a local act, the 6 Geo. 4. c. xxxviii., certain Paving and Lighting Commissioners are empowered to make rates and assessments, and to determine what sum shall be assessed in respect of each square yard of pavement or ground belonging to any cathedral or other churches, chapels, places of wor- ship, &o. ; " and the rate to be assessed upon any cathedral shall be paid by the dean and chapter thereof, and the rates and assessments to be assessed upon any other church, or any chapel, place of worship, &c. shall be paid by the churchwardens, chapel wardens, trustees, &c. respectively." In an action brought by the treasurer of such Commis- sioners against the churchwardens of a parish for the amount of an assessment made under the above act upon the parish church and churchyard, — Held, that the churchwardens were personally liable to the payment of the assessment, and that the fact that tliey had no parochial funds in their hands was no answer to the action. Semble — that the churchwardens might compel a church-rate to be made to reimburse themselves the amount of such assessment. Uopldnson v. Puncher, 18 Law J. Rep. (n.s.) Exch. 6 ; 3. Exch. Rep. 95. The 8 & 9 Vict c. 21. gives power to the Justices of the county of Lancaster to make rates on the division of Manchester for the purposeifof the act, and provides by section 21. that all existing powers and provisions relating to county rates shall be taken to apply to rates made under the act. The County Rates Act, 55 Geo. 3. c. 51, provides a limitation of three months as the period within ■which actions must be brought for anything done in pursuance of the act. The 5 & 6 Vict. c. 97. s. 5. provides, that actions for anything done in pursuance of local or personal acts shall be brought within two years : — Held, that the limitation in the 55 Geo. 3. is incorporated in the 8 & 9 Vict, and that even if the latter act is to be considered as a local one, it must be taken to have repealed the 5 & 6 Vict c. 97. as far as regards the period of limitation ; and, therefore, that an action brought for seizing the plaintiff's goods for a rate under the 8 & 9 Vict. c. 21, was brought too late after the expiration of three months from the seizure. Boden i. Smith, 18 Law J. Rep. (N.s.) C. P. 121. Where a statute requires a majority consisting of a certain proportion of the votes of persons present at a meeting to render valid an act, there must be the specified proportion of those present actually voting for the act, and those who refuse to take any part in the proceedings cannot be considered as absent. The Watching and Lighting Act, the 3 & 4 WilL 4. c. 90, by section 7. provides that if it shall be determined by a majority consisting of two- thirds of the votes of the rate-payers present at a meeting held for the purpose, that the provisions of the act should be adopted, that such provisions should be thenceforth adopted. At a meeting duly convened thirty-seven rate-payers qualified to vote were prebtnt. On the question being put, twenty STATUTE— STOCK. C79 voted for adopting the act, and the other seventeen did not vote at all or propose any amendment or adjournment: — Held, that the requisite majority had not voted in favour of the proposition. In re Rate-payers of Eijnsham Parish, 18 Law J. Rep. (n.s.) Q.B. 210 ; 12 as. Rep. 398, u. By a local act, passed in 1795, commissioners were to ascertain the average price of a bushel of wheat during twenty-one years next before the com- mencement of the act, for the purpose of fixing certain corn-rents to be paid to the rector of a parish in lieu of tithes on the 5th of January and the 5th of July in every year, the first payment to be made on such of those days as the commissioners should direct, and a power was thereby given to the rector or the owners of lands liable to the corn-rents to apply to the Quarter Sessions holden in the week after Easter next after the expiration of twenty-one years, to be computed from the making the award (having given notice of their intention in the pre- ceding January) to have arbitrators appointed to re-ascertain the average price of a bushel of wheat for twenty-one years then last past, who were to report to the Quarter Sessions to be held in the week after the feast of St. Thomas, and the said Sessions were empowered to order the corn-rents to be altered accordingly ; and it was enacted that the several rents should from the half-yearly day of payment next after such order continue payable until the same should at the end of twenty-one years next ensuing be again varied by such appli- cation, and in such manner as thereipbefore men- tioned, and so from time to time at the end of every twenty-one years for ever. The award was made in August 1803. In January 1825 notice was given by the rector of his intention to apply at the Easter Sessions, 1825, for the appointment of three arbi- trators under the act, and they were accordingly ap- pointed at the said Easter Sessions, and reported to the Midsummer Sessions in that year, at which an order altering the amount of the corn-rents was made ; and the altered rents were paid thencefor- ward. In January 1 847 notice was given by certain owners of an intention to apply to the next Easter Sessions for the appointment of three arbitrators to re-ascertain the average price of wheat, and an application was accordingly made to that Sessions, which was refused on the giroundofits being too late: — Held, first, that the application for a re-ascer- tainment could only be made at the expiration of twenty-one years from the last appointment of arbitrators ; and, secondly, that the application to the Easter Sessions, 184'7, was too late. Regina v. the Justices of Lindsey, 18 Law J. Rep. (n.s.) Q.B. 163; 13 Q.B. Rep. 484. The (local and personal) statute, 1 & 2 Vict, c, ci. s. 4, imposes a penalty for delivering any quantity of coals exceeding 560 lb. weight to a purchaser in London or within twenty-five miles of the General Post Office, by means of any "lighter, vessel, barge, or other craft," unless a ticket containing certain particulars be delivered with them; — Held, that the delivery of coals to a purchaser direct out of the vendor's coal brig on to the purchaser's wharf within the district without the intervention of any lighter, barge, or other craft, was not a delivery from a "vessel" within the limited meaning of that word in this section, and therefore did not require to be accompanied by a ticket. Blanford v. Mor- rison, 19 Law J. Rep. (n.s.) Q.B. 533; 15 Q.B. Rep. 724. A declaration in case stated, that by their act of parliament the L & B railway company were not to interfere with a certain church or with a yatd attached thereto, without the consent of the Bishop of C and payment by the company to the defen- dants of a sum to be agreed upon between the defendants and the company, in ascertaining which regard should be had to the cost of a site for a new church, and to the value of the said yard. Thait on payment by the company to the defendants of the sum so to be agreed, the said church and yard should vest in the company, and thd sum so paid should be employed by the defendants in purchasing a new site and paying the plaintiff for tlie value of the said yard. It then averred that the sum agreed upon was 7,732i. 17s.; and that it was paid by the company to the defendants, and thereupon the church and yard vested in the company, whereupon the Bishop of . C gave his consent; that the said sum was sufficient to purchase a new site, and also to pay the plaiutiiFthe value of the said yard, 2,000Z., of which the defendants had notice, and were re- quested to pay. Breach, non-payment of the value. The defendants before action oflTered the plaintiff a sum which they had determined to be the value of the yard, which was consecrated grotind, and as such its value to the plaintiff was^ess than it would be to the company when applied to secular rises. The Judge directed the jury, that the act did not make the determination of the defendants conclusive on the plaintiff, and that in estimating their dam- ages they were at liberty to value the ground as applicable to secular uses : — Held, no misdirectioh. Held, also, in arrest of judgment,' that the decla- ration well disclosed the duty of the defendants under the act, and stated a good breach. Hilcoat V. Archbishop of Canterbury, 19 Law J. Rep. (n'.s.) C.P. 376. STATUTE OF LIMITATIONS. [See Limitations, Statute of.] STATUTE OF USES. [See Deed.] STOCK. [See Administration of Estate.] [Sloman v. Bank of England, 5 Law J. Dig. 746 ; 14 Sim. 475.] A contract to pay the difFerences which might become due between the parties on the settling day on the sale of some consols is void under 7 Geo. 2. c. 8. Sawyer v. Langford, 2 Car. & K. 697. A transferor of stock, who has duly signed the transfer, cannot afterwards object that the transfer is a nullity, because the transferee did not under- write his acceptance thereof. The provision in the statute 11 Geo. 4. & 1 Will. 4. c. 13. ». 18, as to such underwriting of the transfer by the transferee, 680 STOCK— STOPPAGE IN TRANSITU. is directory only. Foster v. Bank of England, IS Law J. Rep. (n.s.) Q.B. 212; 8 aB. Rep. 689. Prior to 184-6 an assurance company declared half-yearly dividends of 21. \0s. per cent, on their stock; but, in that year, declared a half-yearly dividend of 12i. \0s. per cent: — Held, that a tenant for life of the stock, was entitled to the whole of the dividend. Price v. Andersim, 15 Sim. 473. To an action on the case by the proprietor of stock against the Bank of England, for breach of duty in refusing to pay the plaintiff the dividend in respect of such stock, due on the 5lh of April 1841, the defendants pleaded that, before the divi- dend became due, the plaintilf gave a power of attorney to W to receive and give receipts for the dividends ; that the defendants delivered to W, in payment of the dividend, a certain draft or order of the defendants, addressed to their cashier, called a dividend warrant, whereby the cashier was directed to pay the dividend, and that W, on the receipt thereof, gave a receipt to defendants for such divi- dend ; that, according to the usage and custom of bankers and merchants in London for fifty years, all such dividend warrants are transferable and assignable by delivery only, and without indorse- ment, and that the bond fide holder of such divi- dend warrants is, according to the said usage and custom, entitled to receive payment of the sum mentioned therein from the defendants, on demand; that afterwards W according to the said usage and custom, delivered the said warrant to L & Co., bankers in London, for certain valuable consider- ations moving from L & Co. to W, by means whereof L & Co. became entitled to receive from the defendants the money mentioned in the war- rant; that after the delivery and transfer by W to L & Co., and while they were the lawful holders, and before the plaintiff required payment, L & Co. demanded of the defendants payment of the money in the said warrant expressed, and then required the defendants to hold the same for the use and benefit of L & Co., wherefore the defendants refused to pay the dividend to the plaintiff. To this the plaintiff replied (after admitting the letter of attorney, &c.) de ivjurid absque residuo causes ; — Held, that the plaintiff was entitled to judgment non obstante vere- dicto, as it did not appear either by the plea or the statutes which recognize dividend warrants, that payment by dividend warrants was the only or an usual mode of paying dividends. Held, also, that the plea did not shew that the de- fendants had incurred any liability to pay L & Co., as the usage and practice of trade alleged in the plea could not alter the general law, by which such an instrument as a dividend warrant does not confer any right on an assignee, the plaintiff not being shewn to be Cognisant of, and to have assented to, such usage and practice. And qutsre, whether it would have made any difference, if it had been pleaded as an immemorial custom in London. Semble, also, that the plea was defective in not stating that L & Co. were bond fide holders. Partridge v. Bank of England, 1 5 Law J. Rep. (n.s.) Q.B. 395 ; 9 Q.B. Rep. 396. In proceedings under the 56 Geo. 3. c. 60. for the re-transfer of unclaimed stock, where the right is litigated, the proper course is to proceed by petition served upon the Attorney General and the Commissioners for the Reduction of the National Debt, leaving it to the Court to direct inquiries, as between the co-defendants, or to order a bill to be filed to ascertain the rights of the parties. It is irregular to bring the Attorney General and the Commissioners before the Court by bill in the first instance. Hunt v. Peacock, 17 Law J. Rep. (n.s.) Chanc. 163 ; 6 Hare, 361. STOP ORDER. By decree, a sum in court was directed to be paid to the plaintiff, a person not a party to the suit, claiming a portion of it as against the plaintiff, ap- plied for a stop order, and having shewn a primd facie case the Court ordered the fund to be retained, on the terms of his filing a bill within ten days to establish his right. Feistel v. King's College, Cam- bridge, 1 ] Beav. 254. Form of stop order where husband and wife join in an assignment of the wife's reversionary chose in action. Moreau v. Policy, 1 De Gex & S. 143. Stop order on box containing securities. Wil- liams V. Symonds, 9 Beav. 523. Order in the nature of a stop order granted on the application of the assignee of the interest of the sole next-of-kin of a lunatic. In re Moore, 1 Mac. & G. 103 ; 1 Hall & Tw. 214. STOPPAGE IN TRANSITU. [See Bankruptcy, Proof of Debt.] Goods contracted to be sold and delivered " free on board," to be paid for by cash or bills, at the option of the purchasers, were delivered on board, and receipts taken from the mate by the lighter- man, employed by the sellers, who handed the same over to them. The sellers apprised the pur- chasers of the delivery, who elected to pay for the goods by a bill, which the sellers having drawn, was duly accepted by the purchasers. The sellers retained the mate's receipts for the goods, but the master signed the bill of lading in the purchasers' names, who, while the bill they accepted was run- ning, became insolvent. In such circumstances, held by the Judicial Committee of the Privy Council (reversing the verdict and judgment of the Supreme Court at Bombay), that trover would not lie for the goods, for that on their delivery on board the vessel, they were no longer in transitu, so as to be stopped by the sellers ; and that the retention of the receipts by the sellers was immaterial, as after their election to be paid by a hill, the receipts of the mate were not essential to the transaction be- tween the seller and purchaser. Cowas-jee v. Thompson, 5 Moore, P.O. 165. A & Co., foreign factors, by direction of B & Co., merchants at Liverpool, shipped coffee at Rio, on board the V, a vessel belonging to the bankrupts, and bound for Cork, and a market. The coffee was obtained partly with funds provided by the bank- rupts, but chiefly on the credit of A & Co. An invoice was made out by A & Co., stating that the goods were shipped by order, and on account, and at the risk, of the bankrupts. The captain of the vessel signed bills of lading, stating that the coffee STOPPAGE IN TRANSITU. n was shipped by A & Co., and was to be delivered freiglit fsee to their assigns. A & Co. drew drafts on the bankrupts for the balance of the price of the coffee, and transmitted by post to the bankrupts a copy of the invoice and the bill of lading, indorsed in blank. After the shipment the bankrupts (before any act of bankruptcy), at Liverpool, at the request of B, a partner in the firm of A & Co., signed and de- livered a. letter addressed to a third party, in the following terms, " according to arrangement with B, we request that you will hold to his order the bills of lading that have to come forward for the cargoes per F, which vessel will be laden on our account by A & Co., until the drafts drawn, and to be drawn against said cargoes are paid." After an act of bankruptcy the bill of lading arrived by post, and was delivered in pursuance of the above letter to B. B, after the fiat, pledged it for a large sum of money with & Co., who were innocent and bond fide indorsees of the bill of lading. Subse- quently to this pledge, the V arrived, and the assignees took possession of the cargo. C & Co, brought trover against the assignees : — Held (under a plea of not possessed), that A & Co. were to be considered, though partially paid, as vendors to the bankrupts, and that, from the form of the bill of lading, primd facie the goods were shipped to be carried for them, in which case the right to stop in transitu, and the power of rescinding the contract, would continue until the bill of lading indorsed was received by the vendees, — until which time it would be also competent for the vendees, though volun- tarily and in contemplation of bankruptcy, to make the agreement actually made with B. Held also, if the shipment had that effect, that it was a question for the jury, whether the agreement between the bankrupts and B was such as to au- thorize him to transfer the bills of lading for the purpose of raising money. But held, that notwithstanding the form of the bill of lading, it was a question for the jury whe- ther the coffee was not put on board to be carried for and on account of the vendees, in which case the shipment on board the vendees' own ship would be a final delivery, and any subsequent alteration of the contract, would be void as against the as- signees, if a fraudulent preference. The judge having summed up in such a manner as was likely to lead the jury to believe that a pre- ference in contemplation of bankruptcy was invalid, unless there was a threat or pressure with imme- diate power of making it available by legal steps, — Held, a misdirection, and that all the circum- stances should be left to the jury to enable them to say whether the preference was voluntary on the part of the bankrupts. Lastly, it was held that the plaintiffs, though innocent indorsees for value, could make no title against the assignees under the Factors Acts, as those acts are confined to persons intrusted as agents by the true owners; and that the facts shewed that B was not intrusted at all by the assignees, if they were the true owners, and also that B claimed to hold in his own right and not as an agent. Fan Casteel v. BooJter, 18 Law J. Rep. (h.s.) Exch. 9; 2 Exch. Rep. 691. B, residing at Birmingham, ordered goods for the Valparaiso market of tHe defendants, who had Digest, 1845—1850. a house at Manchester. The defendants duly for- warded them to L, H & Co., shipping agents at Liverpool employed by B to receive and forward his goods ; they forwarded also some pattern cards, and in their letter to L, H & Co. said, " We have forwarded by Pickford's the pattern cards of four cases sent by them this evening, marked, &C., for shipment to Valparaiso ; you will see the same put on board, with the goods and property, di- rected OS B may direct the same to be shipped." They sent the invoice of the goods to B. The goods were loaded by L, H & Co. on board a vessel for Val- paraiso, but were afterwards re-landed by an order of an agent of B, and sent back to the defendants to be differently packed. Before the day of pay- ment for the goods, or the re-packing, B became bankrupt. The defendants having kept the goods, tire assignees brought trover; — Held, that the pos- session of the goods as well as the property vested in B when B's agent exercised the ownership of relanding the goods, and sending them to be re- packed i that the transitus would have ended there had it not been already determined by the original delivery to L, H & Co. ; and that the defendant's knowledge that the goods were to be sent to Val- paraiso, and of which they informed L, H & Co., made no difference. — Held, also, that the vendors, though in the lawful possession of the goods, had no right to retain them as against the assignees. The terms of the contract between B and the de- fendants were not completely agreed' upon, the mode of payment being unexpressed, but the par- ties intended to bind themselves by the contract, leaving the payment to be determined by what was reasonable ; — Held, that the contract in this form would have been sufficiently binding and com- plete I but that in this case there was sufiicient to infer that the mode of payment had been settled by agreement. Falpy v. Gibson, 16 Law J. Rep. (n;s.) C.P. 241 i 4 Com. B. Rep. 837. I, a merchant in America, shipped certain cargoes of goods to the account of C & T merchants in t)his country, against whom a fiat in bankruptcy issued on the 8th of May. Immediately on the arrival of the cargoes on the 5th, 7th, and 9th of May, the defendants during the continuance of the transitus, gave notice to the master and consignees of a claim to stop the goods in transitu on behalf of I. The defendants were not the agents of 1, nor had they received any authority from I to make the stop- page. On the 11th of May the plaintiff, the official assignee of C & T, demanded from the masters and consignees the cargoes which were then on board the vessels in port, and Undelivered, but delivery of them was refused. On the same day the masters handed over the cargoes to the defendants, who, on the 12th of May, refused to deliver them to the plaintiffs, the assignees of C & T, on demand. On the 13th H having received from I a power of at- torney, executed on the 28th of April, to stop the goods in transitu, on the same day adopted and confirmed the previous stoppage of the defendants, and I before the commencement of the action adopted and ratified the acts of the defendants and H; — Held, first, that there could beno valid stop- page in transitu after the demand of the goods by the plaintiff on the 11th of May; secondly, that the ratification by I, after the transitus was ended, was 4S 682 SUBPCENA— TENANT FOR LIFE. too late, and had not the effect of altering retro- spectively the property in the goods, which at that time, notwithstanding the act of the defendants, had become vested in the plaintiffs. Bird v. Brown, 19 Law J. Eep. (n.s.) Exch. 154; i Exch. Kep. 786. SUBPCENA. It is no objection to granting an attachment against a party for disobeying a Crown Office sub- poena, requiring him to appear before Justices, to testify, &c. concerning the place of the last legal settlement of A B, &c., that it is not stated in the subpcena or shewn by the affidavits that one of the Justices was of the quorum. Regina v. Vielcery, 17 Law J. Rep. (s.s.) M.C. 129 ; 12 Q.B. Rep. 478. In an action on the case against a witness for not attending at a trial to give evidence in obedience to a subpoena, the plaintiff must prove that he has sustained damage by the defendant's absence. Where there are several issues for trial, the fact that the plaintiff had no good cause of action does not shew that he has not sustained damage by the absence of a witness, for such damage may have accrued in respect of the' costs of issues on which the evidence of the witness was material. A declaration in case alleged that the plaintiff had impleaded T F in a certain plea of trespass ; that certain issues joined in that suit were to be tried ; that the defendant was served with a copy of a subpoena to testify, &c., and then averred thatthe plaintiff had a good cause of action in that suit ; that the testimony of the defendant, in obedience to such writ of subpoena, was necessary and material to the trial of the issues, and that the defendant neglected to appear and give evidence, by reason of which neglect the plaintiff was obliged to with- draw the record, and was compelled to pay cer- tain costs, and lost the benefit of certain costs, &c. The defendant pleaded, eighthly, that the plaintiff had not a good cause of action. There were other pleas, traversing all the material averments in the declaration, on all of which issues were joined. The plaintiff obtained a verdict on all the issues, except that on the eighth plea, which was found for the defendant : — Held, that the plaintiff was entitled to judgment non obstante veredicto, and that there was no necessity for a repleader. Cowling or Cou- ling V. Coxe, 18 Law J. Rep. (n.s.) C.P. 100; 6 Com. B. Rep. 703. SUITORS' FUND. [See Annuity.] SUNDAY. The sale of beer, &c. prohibited on Sundays during certain hours by the 11 & 12 Vict. c. 49 ; 26 Law J. Stat. 158. SURGEON AND APOTHECARY. The right of an apothecary to charge for atten- dances is matter of contract, either express or im- plied from the usage of the place. Smith v. Cham- bers, 2 Ph. 221. In debt by an apothecary for charges incurred in London, to which the defendant pleaded nunquam indebitatus, the plaintiff produced at the trial a cer- tificate of qualification entitling him to practise in the country, and he had not paid the extra fee of 4t 4*. to the Apothecaries Company, which was necessary by the 19th section of the 55 Geo. 3. c. 194. to entitle him to practise in London : — Held, that he was not prevented from recovering in the action by the 21st section of the statute, which enacts, that no apothecary shall recover unless he proves at the trial that he has obtained a certificate. Young V. Geiger, 18 Law J. Rep. (n.s.) C.P. 40 ; 6 Com. B. Rep. 541. Debt for goods sold and delivered, work done, and materials provided, and on an account stated. The particulars of demand consisted of items for " medi- cines and attendances." At the trial, the plaintiffs' assistant proved that they were surgeons, and that he had visited and dispensed medicines to the defendant, and that on one occasion he had bled the defendant : — Held, ihsA primi facie the charges were charges in a medical case ; and that the plaintiffs were therefore bound to prove that they were certi- ficated as apothecaries, or that they had been in practice previous to the 1st of August 1815. Proud v. Mayall, 3 Dowl. & L. P.C. 531. TAXES. Forms of proceedings under assessed taxes and income tax acts provided by the 9 & 10 Vict. c. 56 ; 24 Law J. Stat. 125. The property and income tax continued for three years by the 11 Vict. c. 8 ; 26 Law J. Stat 21. The acts authorizing composition for assessed taxes continued and amended by the 13 & 14 Vict, c. 96 ; 28 Law J. Stat. 269. TENANT FOR LIFE. [See PowEE — Stock,] [Phillips V. Barlow, 5 Law J. Dig. 751; 14 Sim. 263.] A testator devised real estate to trustees to pay debts, and to convey the real estate, subject to such debts, to his son upon marriage, in strict settlement. The trustees accordingly conveyed the estate to the testator's son forlife, with remainder in strict settle- ment : — Held, that the son could convey the legal estate under the 11 Geo. 4. & 1 Will. 4. c.47. s. 12. Where the estate of infants is concerned, the Master should be directed to settle the conveyances absolutely, and not in case the parties differ. Cheese V. Cheese, 15 Law J. Rep. (n.s.) Chanc. 28. As between tenant for life and remainder-man, the thinnings of fir-trees under twenty years of age belong to the tenant for life. Pidgeley v. Rawlins, 2Coll.C.C. 275. TENANT FOR LIFE— TENANT IN COMMON. 683 The tenant for life, under the will of a testator (not a trader,) of freehold and copyhold estates ordered to be sold, in a creditors' suit, for the pay- ment of his debts, may convey and surrender to purchasers under the 1 Will. 4. c. 47, and the 3 & 4 Will. 4. c. 104. Branch v. Browne, 17 Law J. Rep. (N.s.) Chanc. 435 j 2 De Gex & S. 299. Tenant for life held, upon the terms of the will, entitled to the actual income made of the testator's property invested in mortgages and shares from the time of the death until the conversion. Sparling v. Parker, 9 Beav. 524. Residuary devise and bequest upon trust to pay the dividends, interest, &c. of real and personal estate to the separate use of the testator's daughter or daughters for life, and after her or their decease to pay, transfer, and equally divide the whole of his real and personal estate among the issue of his daughter or daughters, and for want of such issue to pay certain legacies, and to sell the residue of the real and personal estate not consisting of money: — Held, to entitle the tenant for life to the enjoyment of the personalty in specie. Hunt v. Scott, 1 De Gex & S. 219. A testator gave all his real and personal estate and effects upon trust to pay the rents and profits, dividends and interest to a tenant for life, with trusts over in remainder, and declared that notwithstand- ing the gift of his freehold and leasehold estates, the trustees might sell them, except his dwelling- house, at such time as they should think fit. The testator's estate consisted partly of leasehold pro- perty and long annuities : — Held, that the tenant for life was entitled to the enjoyment of the income of both these descriptions of property in specie. Burton v. Mount, 2 De Gex & S. 383. A testator, after certain specific bequests, gave all other his estate and effects to trustees, upon trust, after his decease, to call in all monies that might be due to him upon bonds, notes, or other securities, and thereout and out of any other part of his persona] estate to pay his debts, &o., and invest the residue in government stocks, and receive the dividends, interest, and annual proceeds thereof from time to time as the same should become due and payable, together with the dividends, interest, and annual proceeds of such other government stocks as he might be possessed of at the time of his decease, and to pay thereout an annuity of 201., and to pay the whole remaining dividends, &c. of the said stocks and funds as the same should be received, to his wife for life, with remainders over. The testator, at the time of his death, was possessed of 2201. long annuities, which were not required for the pay- ment of debts : — Held, that the tenant for life was entitled to the enjoyment of the long annuities in specie. Milne v. Parker, 17 Law J. Rep. (n.s.) Chanc. 194. Tenant for life of bank stock held entitled to a bonus to be made out of the interest and profits on the capital stock of the bank. Preston v. Melville, 16 Sim. 163. Interest at il. per cent, allowed to tenant for life of trust fund for arrears. Willcocks v. Butcher, 16 Sim. 366. Estates were limited 'by settlement to the use of trustees for a term, upon trust, in the first place by cutting, &c. and converting into money certain timber, or by demising, mortgaging, or selling the settled estates, or by any other rea- sonable means, to raise certain charges ; and sub- ject to the term, the estates were limited to the use of several successive tenants for life, without impeachment of waste, with divers remainders over in tail. The trustees proposed to raise the charges by mortgage of the estates, without resorting to the timber : — Held, on demurrer to a bill filed by a remainder-man to restrain the trustees from so doing, that the course about to be adopted by them was right) that, as between the tenant for life and the remainder-men, the former was to keep down the interest, and the corpus of the estate to bear the charges; and that the tenant for life, being unim- peachable for waste, was entitled, as part of the profits of the estate, to the timber which he had' a right (p cut. Marker v. Kekewick, 19 Law J. Rep. (n.s.) Chanc. 492. TENANT IN COMMON. [See Tkespass,] Mere occupation by one of ^several tenants in common of an estate if unaccompanied by exclusion, does not make him liable for rent to his tenants. M'Mahon v. Burchell, 2 Ph. 127. _ Two persons being tenants in common, one entered into possession in 1827, with the consent of the other, upon an understanding that he should pay an occupation rent when called upon to do so. The tenant in possession died in 1839. The sur- vivor claimed to be allowed six years' rent: — Held, by the Vice Chancellor, that the claim must be allowed, and that the statute 4 Anne, t. 16, was not repealed by the 3 & 4 Will. 4. c. 27. Henderson v. Eason, 15 Law J. Rep. (n.s.) Chanc. 457 j 15 Sim. 303. See 2 Ph. 308. One tenant in common can maintain trespass against the other for an actual expulsion from a messuage of which they are tenants in common. The defendant let a messuage, &o. to the plaintiffs and one Hart as tenants from year to year, who occupied and paid rent to the defendant. After some time Hart surrendered his interest in the messuage, &c. to the defendant, who thereupon became co-tenant in common with the plaintiffs. Defendant entered, and expelled therefrom the ser- vant of the plaintiffs. In trespass for breaking and entering the messuage, &c., and expelling the plain- tiffs: — Held, that proof by the defendant of his co- tenancy in common with the plaintiffwas no defence to the action. Quare — Can the defence of a tenancy in common with the plaintiffbe proved under "not possessed," or must it be specially pleaded ? Murray v. Hall, 18 Law J. Rep. (n.s.) C.P. 161 ; 7 Com. B. Rep. 441. Defendant (an officer of the Palace Court) seized under afi.fa. issued against S the partnership goods of S & M. Defendant sold the goods to different persons who took them away, and he paid the pro- ceeds to the execution creditor. M afterwards be- came bankrupt, and his assignees brought trover against the defendant ; — Held, that the mere sale of a chattel by one tenant in common is not such a 684 TENANT IN TAIL— THELLUSON ACT. conversion as enables his co-tenant to maintain trover. Tliere may be such a disposal of the subject of the co-tenancy by one tenant as would amount to a conversion. Under " not guilty" in trover the defendant may shew there was not a wrongful conversion. Mayhew V. Herrick, 18 Law J. Rep. (n.s.) C.P. 179 ; 7 Com. B. Rep. 229. TENANT IN TAIL. A testator having contracted to grant a building lease, died before he had executed the lease, and by his will gave his property to four successive tenants for life, and to each of dieir first and other sons in tail male in succession. All the tenants for life were alive, but the fourth was the only one who had a son, who was an infant. The Court directed the infant tenant in tail in remainder to join in ex- ecuting the lease which the testator had contracted to grant, under the 17th section of the 1 Will. 4. c. 60. Cullum V. Upton, 19 Law J. Rep. (n.s.) Chanc. 276. TENDER. The question as to whether a tender was made conditionally or not is for the jury. Marsden v. Goode, 2 Car. & K. 133. The custom of the Caen stone trade being to pay freight half in cash and half by a bill at two months, the agent of the owners of Caen stone which was brought by a vessel to an English port, verbally offered the captain of the vessel which brought it half the amount of the freight in cash, and also offered to give the captain per proc. the acceptance of the principal for the other half, if the captain would draw a bill. This the captain refused : — ■ Held, a sufficient tender of the freight, as it was the duty of the captain to draw the bill. Luard v. Butcher, 2 Car. & K. 29. To a declaration containing counts for use and occupation, and other indebitatus counts, each count claiming a certain sum exceeding TL, the defendant pleaded a tender of 11., " parcel of the monies in the declaration mentioned :" — Held, that the plea did not necessarily admit that something was due on each count. Robinson v. Ward, 15 Law J. Rep. (N.s.) Q.B. 271 ; 8 aS. Rep. 920. To a declaration in debt, consisting of two counts, demanding the sum of 26^. in each count, the defen- dant pleaded as to 51., parcel, &c., tender of 5/. before action brought. Replication, that, at the time of the tender, and before making the demand and refusal thereinafter mentioned, there was owing from the defendant to the plaintiff a larger sum than 51., to wit, the sum of 13/., being an indivisible sum due on an entire contract, and that the plaintiff then demanded that larger sum, which the defen- dants refused to pay : — Held, that the replication was good in substance and in form, inasmuch as the tender of part of an entire debt is a bad tender, and the existence of a set-off should come by way of re- joinder. Dixon V. Clarke, 16 Law J. Rep. (N.s.) C.P. 237 ; i Dowl. & L. P.C. 155; 6 Com. B. Rep. .365. The plaintiff being tenant to the defendant at the yearly rent of 522,, sent a person to him with the follow- ing letter : — " I have sent by the bearer 26i 5s. 7^d. to settle one year's rent." The defendant refused to take it, saying that more was due. No question was left to the jury: — Held, that the tender was sufficient. Bowen v. Owen, 17 Law J. Rep. (n.s.) Q.B. 5; 11 as. Rep. 130. In an action of debt, with a count for the deten- tion of a horse, the defendant pleaded to the count in detinue a lien of 10s. for trying the horse in har- ness. The plaintiff replied a tender. At the time the horse was demanded of the defendant he claimed the sum of \l. 7s. for keep, &c., including the sum of 10s. for the trial, whereupon the defendant said the charge was exorbitant, and tendered the sum of 19s. 6d.: — Held, that the plea of tender was not proved. Proof of money received upon a condition does not support a count for money had and received. Hardingham v. Allen, 17 Law J. Rep. (n.s.) C.P. 198 ; 4 Com. B. Rep. 793. THELLUSSON ACT. [See Devise — Power.] lElborne v. Goode, 5 Law J. Rep. 753 ; 14 Sim. 165.] A testator devised his estates to trustees in trust for the plaintiff, then a minor, for life, with re- mainder to his first and other sons in taij. He afterwards directed that if any person beneficially entitled to the possession or receipt of the rents and profits of the estate should be under twenty-one years, his trustees should apply a competent part thereof for the maintenance and advancement of such minor, and invest the residue in the purchase of freehold estates to be settled to such uses and trusts as would best correspond writh the uses and trusts of the devised estates : — Held, that this clause was void for remoteness, and the tenant for life upon his attaining twenty-one was entitled, to the accu- mulations, and to the estates purchased therewith. Browne v. Houghton, 15 Law J. Rep. (n.s.) Chanc. 391 ; 14 Sim. 369. A testator devised real estates to trustees for 2,000 years, and subject thereto, he settled the estates upon his son for life, with divers remainders over in tail. He declared that the trusts of the term were to raise by sale or mortgage money sufficient to make up the deficiency of his personal estate to pay debts other than debts due on mortgage and legacies, and to apply the rents in payment of the interest on mortgages and the annuities given by his will, and also to set apart 500/. a-year for the discharge of the Incumbrances on his estate. This sum the trustees were yearly to invest, and accu- mulate in stock, and, when sufficient, the trustees were authorized to apply the same in payment of any mortgage, without waiting until the time for accumulation had expired. The surplus rents were to be paid to the parties entitled to the estate, under the limitations ; when the trusts were satisfied the term of 2,000 years was to cease. The leasehold estates were bequeathed to the trustees of the term upon trusts nearest corresponding with those de- clared of the real estate : — Held, that the trusts of the term were valid, and that the accumulations THELLUSSON ACT. 685 directed were within tlie exception of the 89 & 40 Geo. 3. c. 98. s. 2, and that the trusts did not exceed the period allowed hy law. Bateman v. Hotchldn, 16 Law J. Rep. (n.s.) Chanc. 514; 10 Beav. 426. Testator devised his real estate upon trust to accumulate till A's youngest child attained twenty- one. Before that event and after twenty-one years from the testator's death had expired, his heir-at-law died : — Held, that the forbidden accumulations went to the personal representatives of the heir. Seuiell V. Denny, 10 Beav. 315. A testator directed the income of a fund to he paid to A, B, C, &o. for their lives, and on the death of the survivor the fund to be sold, and the proceeds thereof, and also the proceeds which should have accumulated in respect thereof, to be divided among certain persons: — Held, that though there were accumulations which had arisen after the expiration of twenty-one years from the testator's death, the case was not within the 39 & 40 Geo. 3. c. 98. Corporation of Bridgnorth v. Collins, 15 Sim. 538. Kents of Irish estates were directed to be accu- mulated and become part of the personal estate : — Held, that although the Thellusson Act did not apply to Irish estates, it applied to the rents as in- vested from time to time, and that although the rents, which ought to be considered as corpus, might be invested for more than twenty-one years from the testator's death, yet that the income thereof could not. Ellis v. Maxwell, 12 Beav. 104. Testator, after providing for an annuity to his daughter, gave his residuary personal estate to be equally divided between his grandson and grand- daughter (by name) as tenants in common ; but in case of the death of the grand-daughter under twenty-one and iinmarried in the lifetime of the grandson, or of the death of the grandson in the life- time of the grand-daughter under twenty-one, the whole to go to the survivor ; and after directing payment during their minorities for maintenance, he directed the clear surplus of the residuary estate to be accumulated by his executors and added to the principal of the grand-children's shares, and di- rected that the shares and accumulations should not be received until after theJeath of the annuitant. By articles on the marriage of the grand-daughter, under age, it was agreed that when she became en- titled to the absolute and immediate possession of any part of the residuary estate, the same and all accu- mulations should be settled upon certain trusts for her separate use and her husband and children, with a proviso referring to and dependent on the trust for accumulation in the will. On a bill filed by the grand-daughter in her mother's lifetime for transfer of the fund : — Held, that the direction to accumulate in the will was precarious and ineffec- tual, and was not rendered otherwise by the settle- ment, and that the grand-daughter'smoiety became capital at her marriage, and that the subsequent accumulations belonged to her for her separate use. SwaffieU V. Orton, ] De Gex & S. 326. By a deed of settlement made in 1817, a sum of stock was vested in trustees, with directions to ac- cumulate the dividends during the joint lives of A B and his wife, and, upon the decease of A B, to pay the dividends to his wife, if she should survive her husband, for life, and upon her death, the sum of stock, with the accumulations, was to go to her daughter upon attaining twenty-one ; — Held, that the direction to accumulate was good for so much of the joint lives of A B and his wife as expired during the life of the settlor. Ex parte Lady Ross- lyn's Trust, 18 Law J. Bep. (n.s.) Chanc. 98 ; 16 Sim. 391. A testator devised real estate to trustees, upon trust for A for lifej and directed them, after the death of A, to accumulate the rents for twenty-one years from the death of A, and, at the end of that period, to divide the accumulations in the manner mentioned in the will. The will did not contain any residuary devise or bequest. The testator died in 1824, and twenty-one years from his death ex- pired in 1845. A died in 1837, and twenty-one years from the death of A would expire in 1858. — Held, that the heir-at-law was entitled to the in- terest of the fund accumulated between 1837 and 1845, and the rents of the property until 1858. Nettletonv. Stephenson, 18 Law J. Bep. (n.s.) Chanc. 191. Testator devised freehold estates upon trust to accumulate the rents during the life of his niece, and on her decease to stand seised of the estates to the use of her first and other sons in tail. The tes- tator died in 1827 leaving his niece surviving : — Held, that the trust for accumulation became void at the end of twenty-one years after the testator's death, and that the heir took the rents during the remainder of the niece's life. A trust for accumulation, in order to provide for the younger sister of testator's niece and of E S, each of whom took an interest under the will, — Held, not to be a provision for raising portions within the proviso in section 2. of the Thellusson Act. Halford v. Stains, 16 Sim. 488. A testator, by his will, dated in 1806, devised an estate to trustees upon trust to settle the same to the use of such trustees for 2,000 years, and subject thereto to his children in manner therein men- tioned ; and the testator declared the trusts of the term to be, to pay to any child who, under the limit- ations therein declared, should for the time being be entitled to the possession or rents of his estate, and who, having attained twenty-one, should be under twenty-five years of age, an annual sum of 5001. until he should attain twenty-five or die under that age, and in the next place in trust to receive the surplus as well during the minority of every person so for the time being entitled, as during such time as any such person should be under twenty- five years, and to accumulate the same, and at the end of every or any such period of accumulation to apply the funds so accumulated towards payment of his debts and legacies : — Held, that the trust for accumulation exceeded theboundary of legal limits, and was void. Scarlsbrick v. Skelmersdale, 19 Law J. Rep. (n.s.) Chanc. 126. A testator devised real estatps to trustees, for the term of ninety-nine years, upon trust, to raise 2,000i. a year for so much of the life of J B as should fall within twenty-one years from the time of his death, and during such other time as there should be in existence a younger child of J B, and to invest and accumulate the said annuity, and to stand possessed of the fund for the benefit Of the younger children of J B. The testator then devised the estates, so subject, to J B in strict settlement. 686 THREATENING LETTERS— TITHES. J B survived the testator :— Held, that the gifts for the younger children of J B were portions within the meaning of the 2nd section of the Thellusson Act. Beech v. Earl St. Vincent, 19 Law J. Rep. (n.s.) Chanc. ISO. not yet arrived, can only be taken advantage of on demurrer, and cannot be taken after a plea of not guilty. Regina v. Penwick, 2 Car. & K. 915. THREATENING LETTERS. The law as to threatening letters and accusing of crimes with intent to extort money extended by the 10 & 11 Vict. 0. 66 ; 25 Law J. Stat. 215. Indictment for sending a threatening letter under the statute 4 Geo. 4. o. 54. s. 3. The first count charged G with sending it to R and threatening to burn E.'s houses. It was proved that R had only a reversionary interest in the said houses. Qucere — whether G could be convicted on that count. The second count charged G with sending to R and threatening to burn the said houses, laying them as the property of B the tenant. It was proved that G dropped the letter in a public road near R's house, that A found it and gave it to H, who opened it, read it, and gave it to E, who shewed it both to B and R : — Held, that this was a sending within the statute. Regina v. Grimwade, 1 Den. C.C. 30. The prisoner wrote to the prosecutors a letter in the following terms : — " Gentlemen, you say that BON will accede to the terms proposed, and send part of the money to any place that may be named," &c. " I must have sufficient means at my disposal or all will be lost. I am fully assured that 20,000i. will not cover the horrid catastrophe, which is not only to stop your bank for a time but perhaps for ever, as the books would be destroyed. The match, the most dreadful last resource, has been contem- plated by the cracksman or captain of this most horrid gang, which I fervently pray to be relieved from." The letter then, after pointing out a certain pipe behind which the money was to be deposited, proceeded — " If, therefore, you will send a man you can confide in, and lodge under that pipe 250 sove- reigns unseen by mortal eye, I swear by Almighty God most solemnly that the evil to which I have alluded shall be averted," &c. " Let the money be lodged to-morrow, Saturday morning, by half-past eleven, but not one moment sooner, and all shall be well with you ; but if I am at all deceived in any possible way, allmustfall upon yourselves": — Held, that this was a letter demanding money with menaces within the 7 & 8 Geo. 4. c. 29. s. 8. Regina v. Smith, 19 Law J. Rep. (n.s.) M.C. 80 i 1 Den. C.C. 510; 2 Car. & K. 882. Indictment charged the prisoner with sending a threatening letter to A, the threat therein averred being to burn the house of B: — Held, bad. Regina v. Jones, 1 Den. C.C. 218 ; 2 Car. & K. 398. TIME. [Computation of. See Statutes.] In legal matters " a month" means a lunar month; but in commercial matters "a month" always means a calendar month. Hart v. Middkton, 2 Car. & K. 9. The objection, that an offence is laid in an indict- ment to have been committed on a day which has TITHES. [See Error, When it lies.] (A) Modus, Exemption, akd Composition. (B) Commutation Acts. (a) Award. (ft) Boundary. (c) Rent-charge. (1) Apportionment of. (2) Remedies to recover. (3) Liability of Lessee of Tithes. (d) Feigned Issue. (C) Disappropriation of Tithes. (D) Actions, Suits, and Proceedings. (E) Pleading. Acts for the commutation of tithes amended by the 9 & 10 Vict. c. 73 ; 24 Law J. Stat. 183. ' The Tithe Commutation Acts explained by the 10 & 11 Vict. c. 105 ; 25 Law J. Stat. 280. (A) Modus, Exemption, and Composition. The defendant and his ancestors, lords of the manor of F, wliich was part of the parish of F, had for sixty years before the commencement of the 2 & 3 Will, 4. e. 100. held the manor lands dis- charged of tithes by an annual payment to the rector of the parish of F of 40A, in lieu of tithes within the manor ; and, in consideration of this payment, the lord, his heirs and assigns, received the tithes in kind from the occupiers within the said manor :— Held, in an action of debt by the rector against the defendant, for treble value, under the statute 2 & 3 Edw. 6. c. 13, for not setting out tithes, that this was not a " modus, exemption or discharge," within the 2 & 3 Will. 4. e. 100, as a modus and a liability to pay tithe in kind for the same land could not co-exist; but that the right claimed by the defendant was a prescriptive title to a parcel of the tithes, and a payment of 40i. a pre- scriptive rent for them. Quare — Whether this was a good prescription. Knight V. Waterford, 15 Law J. Rep. (n.s.) Exch. 288 ; 15 Mee. & W. 419. ' To a bill by the rector for an account of tithes against the owner and occupiers of land in the parish, they set up a modus of 13t 6s. 8rf., payable half-yearly ; and they shewed receipts for that pay- ment under various descriptions, as " rent for the rectory," and " prescribed rent due to the rector," from the year 1637, with some interruptions ; and also receipts for --. payment of 8s. 94^., which was supposed to be a payment in respect of tenths due from the rector to the Crown. Held, by the House of Lords, affirming a decree for an account, that the case made by the appellants would not warrant the Court in directing an issue to try the existence of the alleged modus, the evidence against it being free from doubt. A landowner cannot, like a rector, insist on an issue as a right ; but in doubtful cases it is granted. Cairns v. Raine, 12 CI. & F. 833. TITHES ; (B) Commutation Acts. 687 Upon tha construction of the 2 & 3 Will. 4. c. 100, in a ease where the exemption was claimed, not in respect of all tithes, but of particular articles only, some of modern introduction, the Court were equally divided; Tindal, C.J. and Cresswell, J. holding that a lay owner cannot establish the ex- emption for one of the periods mentioned in the statute without shewing the legal origin of such exemption, — CoUman, J. and Erie, J. that he can. Salkeld v. Johnston, 2 Com. B. Rep. 749. The simple non-payment of tithes, in respect of lands bearing titheable matters, for the period prescribed by the 2 & 3 Will. 4. c. 100. s. 1, pro- vided the enjoyment has been as of right, con- stitutes a total exemption from tithes under that statute. Where upon certain lands tithes have been paid of some titheable matters, but not of others, there is no exemption for those matters for which tithes have not been paid. Salkeld v. Johnston, 18 Law J. Rep. (N.s.) Exch. 89 ; 2 Exch. Rep. 256. The enjoyment of land without payment of tithes for the period prescribed by the 2 & 3 Will. 4. c. 100, creates a valid and indefeasible exemption of such land from payment of tithes ; and it is not neces- sary to prove a legal origin for such exemption. The act applies also to the case of a claim of par- tial exemption on the ground of non-payment of tithes in respect only of some titheable matters; although the same lands have paid tithes of other matters. Under the same act, a modus liable to the objec- tion of rankness, hut which has been acted upon for the period prescribed by the act, will constitute a good exemption — semble. Salkeld v. Johnston, 18 Law J. Rep. (N.s.) Chanc. 493; 1 Mac. & G. 242 ; 1 Hall & Tw. 329. What agreement will be a valid composition for tithes within the meaning of the 2 & 3 Will. 4. c. 100. Construction of section 3. as to proceedings and writs being sufficient to take the case out of the statute. Thorpe v. Plowden, 15 Law J. Rep. (n.s.) Exch. 137; 14 Mee. & W. 520. Feigned issue to try whether the plaintiif's lands were exempted from tithes by reason of a composi- tion or annual payment. The lands in question, in the parish of H, and the advowson of the church of H, were in 1653 conveyed to S E, S D, and M, in trust for S E, with a covenant for quiet enjoy- ment by S E against the parson of H and others claiming any common. Subsequently, in 1653, S E filed a bill in Chancery against P, the patron of H, and one of the parties to the above indenture, and R, the then parson and rector of H, in which, after reciting that P and R had agreed that S E should hold the said lands discharged from any claim to be made for tithes or common, and that R should accept of &01. yearly, in full lieu and satis- faction of all tithes, and that P and R did agree to consent to a decree to be obtained against P and R by S E, for establishing the said agreement, prayed relief, &c. P and R, by their answer, confessed the agreement, the latter confessing also that he was ready to accept the said sum of 80/. in full lieu and satisfaction of all tithes and common, and pray- ing that there might be a decree to establish the said agreement. The plaintiff, who claimed under S E, was the owner of the advowson of H and of the largest part of the lands in H. The defendant became the incumbent in ,1840. The annual sum of 802. had been paid to the incumbents of H for sixty years before the appointment of R, and for three years since his incumbency. A terrier, dated 1822, and signed by the then incumbent, the church- wardens, and the landowner, stated as one of the rights of the incumbent " the tithes of the whole parish with Easter offerings, for which the rector receives a composition of 80i. per annum, free from parochial and other rates and assessments." Held, first, that as for sixty years 80i. had been paid for tithes, no weight was due to the language of the terrier, whereby it appeared that by reason of the exemption from rates more than 80i. had been in fact paid by the parishioners. Secondly, that the 80t having been expressly paid and received as a modus or composition for the tithe only, the modus was valid, although the rector's abandon- ment of his claim of common had formed part of the consideration for making the payment. Thirdly, that the bill and answer contained no proof that the agreement between the lord of the manor and the incumbent as to tithes was in writing; that the bill, even if it had stated such an agreement, would not be evidence against the lord of the manor and those claiming under him, nor would the answer be evidence for the defendant. Lastly, that to take the payment of a modus for sixty years out of the operation of the 1st section of the 2 8c 3 Will. 4. c. 100, by means of a " consent or agreement in writing," such consent or agreement must be for the payment of that very modus during all or some part of the sixty years, and that by a person who could otherwise have objected to the payment; and therefore that the modus was good. Toynbee or Toymbee v. Brown, 18 Law J. Rep. (n.s.) Exch. 99; 3 Exch. Rep. 117. (B) Commutation Acts. (a) Award. The 2nd section of the 7 Will. 4. & 1 Vict, c. 69, and the 34th section of the 2 & 3 Vict, c. 62. may both be in operation separately and independently ; the former applying to cases where an old and existing boundary is to be ascertained, the latter to cases where a new boundary is to be set out. And therefore, where an Assistant Tithe Commissioner made an award, purporting to be made under the former act, and also in his affidavit stated that he had proceeded under that act, and had not any intention of setting out a new boundary, — Held, that the award was good under that act, although the boundary line defined by him was part of the boundary line of a county, and the provisions of the latter act were not pursued. Held, secondly, that where an award of a Tithe Commissioner is brought up by certiorari under the 7 Will. 4. & 1 Vict. c. 69. s. 3, the Court will enter into objections raised on the face of the award. Held, thirdly, that it was a fatal objection to the award that it did not appear, on the face of it, that the tithes were to be commuted. Held, fourthly, that it was a fatal objection that it did not appear on the face of the award that the request to the Tithe Commissioners on the subject of the boun- daries, was signed at a parochial meeting, according to the statute 6 & 7 Will. 4. 0. 71. Regina v. Tithe 688 TITHES ; (B) Commutation Acts. CommissioiierSf in re Dent Boundaries, Newby case, 15 Law J. Rep. (n.s.) Q.B. 105; 8 Q-B. Rep. 43. A dispute as to the title to tithes between rival claimants (the rector and the vicar) is not " a dif- ference whereby the mating of the award is hin- dered" under the 6 & 7 Will. 4. c. 71. s. 45, and which the commissioners are bound to decide before making their award. An award of a rent-charge in lien of certain tithes to which it states that the rector is entitled does not conclusively vest the title to those tithes in the rector, and the vicar may notwithstanding try his right to the substituted rent-charge. Regina V. the Tithe Commissioners, 19 Law J. Rep. (n.s.) Q.B. 505 J 15 as. Rep. 620. A suit in Chancery praying an account of tithes due to a vicar is a suit " touching the right to tithes" within section 45. of the 6 & 7 Will. 4. c. 71: and, where during the pendency of such a suit, the As- sistant Tithe Commissioner was proceeding to make his award as to the tithes of the same vicarage, under section 50, the Court granted a prohibition to stay his award until after the decision of the suit. Semble — that under section 45. the Assistant Commissioner may himself decide the suit. In re Crosby-upon-Eden Tithe Commutation, 18 Law J. Rep. (N.s.) Q.B. 258. (ft) Boundary. In one of two adjoining parishes in different counties, the commutation of tithes had been made by voluntary agreement, and in the other by a com- pulsory award of the Tithe Commissioners. At the time of the commutations, and previously, a dispute had existed as to the boundary line between the two parishes, the same line being also the boun- dary line between the two counties. The Tithe Commissioners, against the consent of one of the parishes, proceeded to make an award to settle the boundary : — Held, that under the Tithe Acts, the 6 & 7 Will. 4. 0. 71. s. 24, and the 2 & 3 Vict. c. 62. s. 34, they had no power to do so, and this Court restrained them by writ of prohibition. Whether the writ of prohibition was the pro- per remedy — quare. In re Tithe Commissioners (Vstradgunlais Commutation), 13 Law J. Rep. (n.s.) Q-B. 287 ; 8 Q.B. Rep. 32. The award of an assistant Tithe Commissioner, appointed under the 7 Will. 4. & I Vict. u. 69, to inquire into and set out the boundary of the township of Stainmore, for the purpose of com- muting the tithes of the said township, stated that he had given, and caused to be given, all the notices prescribed by that act and the 2 & 3 Vict, c. 62, and then defined the limits of the said boun- dary in the present tense throughout. The boundary so set out, it appeared from the affidavit of the Commissioner and others, was the ancient boundary of the township, and had been inquired into and set out as such under the provisions of the 7 Will. 4. & 1 Viet. u. 69. and not under the 2 & 3 Vict. c. 62. But it appeared also, from the same afiidavit«, that within such boundary was included a tract of land occupied by twenty-one difierentpersons.and claimed to belong to another township, called Brough, and which had been rated and assessed to the poor and highwayrates of the township of Brough forupwards of ninety years; that the Commissioner had consulted the rate-books of the township of Stainmore only, in order to ascertain whether two-thirds in number and value of the landowners in the township of Stainmore had signed the notice required by 7 Will. 4. & 1 Vict. c. 69, and that two-thirds of the landowners of Stainmore, not including the said tract of land, had signed such notice. Held, that the Commissioner having set out the ancient boun- dary, under the 7 Will. 4. & 1 Vict. c. 69, the notice was insufficient, and therefore the award could not be sustained. Regina v. Hobson, 19 Law J. Rep. (N.s.) Q.B. 262. An award by the Tithe Commissioners, under the 1 Vict. c. 69, and the 2 & 3 Vict. c. 62, as to the boundary of a parish, is not conclusive as to what was the boundary prior to the time when the award was made. Regina v. Inhabitants of Madeley, 19 Law J. Rep. (n.s.) M.C. 187; 15 Q.B. Rep. 43. (d)- Rent-charge. (1) Apportionment of. In the parish of A, in Kent, there were marsh and other ancient pasture lands, arable lands and wood lands ; there was a modus of Is. per acre, payable to the vicar for all tithes except those of corn and grain, the woodland being exempt from tithe by custom. The Tithe Commissioner awarded a rent-charge to the rector and vicar, in- respect of the tithe and moduses, and the award was confirmed under the 6 & 7 Will. 4. c. 71. s. 52. The valuer, appointed under section 53, in his apportionment, charged certain of the ancient pasture lands, not only with the amount payable in respect of the modus, but with a further payment of Is. per acre to the rector, in part of the rent-charge awarded to him in lieu of the tithes of corn and grain, on the ground that there was a probability of such pasture lands being, at a future period, converted into tillage ; and it appeared that, in point of fact, lands within the same district had within living memory been ploughed. Objections having been made before the Commissioners to this apportionment, both on principle and on the facts, they heard the evidence, and decided that they would confirm the apportionment, if they were not forbidden by a superior court. On motion for a prohibition", — Held, first, that it did not lie, the Commissioners having acted within their jurisdiction. Secondly, that the apportionment was correct in principle. Inre Appledore Tithe Commutation, 17 Law J. Rep. (n.s.) Q.B. 59 ; 8 aB. Rep. 139. (2) Remedies to recover. By the Tithe Commutation Act, 6 & 7 Will. 4. c. 71. s. 82, if the half-yearly payment of tt rent-charge on land continue in arrear for the space of forty days after it has become due, and there be no sufficient distress upon the premises, a Judge is empowered, upon an affidavit of the facts, to order a writ to issue to the sheriff requiring him to summon a jury to assess the arrears of rent- charge remaining unpaid, &c. Held, by Pollock, C.B., Alderson, B., and Piatt, B. (Parlce, B. dissentiente) that such Judge's order may be made ex parte, In re Hammersmith Rent- charge, 19 Law J. Rep. (n.s.) Exch. 66 : 4 Exch. Rep. 87. TITHES; (B) COMM0TATION Acts. 089 A Judge's order having issued ex parte, under the 6 & 7 Will. 4. 0. 71. s. 82, to summon a jury to assess the arrears of rent-charge, after inquisition taken, a rule was obtained to set aside the order and all subsequent proceedings; but, after argument, the Court discharged the rule, without giving any directions as to the costs of shewing cause. Held, per Pollock, C.B., Alderson, B. and Piatt, B. {Parke, B. dissentiente), that the costs upon the rule were properly taxed as costs of the inquisition, for which the writ of habere facias possessionem might issue under that section. In.re Hammersmith Rent Charge, 19 Law J. Rep. (n.s.) Exch. 357 ; 4 Exch. Rep. 101. The person entitled to the rent-charge in lieu of tithes, who distrains under the Tithe Act, 6 & 7 Will. 4. c. 71. s. 81, is not entitled to an indemnity in lieu of double costs under the 5 & 6 Vict. c. 97. s. 2, if such person^vows under the 11 Geo. 2. o. 19. s. 22, and the plaintiff discontinues his action of replevin. Newnham v. Bever, 19 Law J. Rep. (n.s.) C.P. 129 ; 8 Com. B. Rep. 560. (3) Liability of Lessee of Tithes. To an action, of covenant by a vicar on a demise of tithes by indenture from the 11th of October 1844, for a year, with a covenant by the defendant for payment of the rent — breach, non-payment of a balance, the defendant justified under the Tithe Commutation Act, the 6 & 7 Will. 4. o. 71, alleging that a commutation of the tithes had been made, that an award in respect thereof had been confirmed by the Tithe Commissioners, that an apportionment of the rent-charge had been confirmed by them on the 13th of September 1845, by force whereof, &o. the rent-charge was to commence from the 1st of October 1844, which was previously to the com- mencement of the term in the indenture mentioned, by means whereof the lands were discharged frohi tithes, and the defendant was deprived of all right and title to the same, and of all means of receiving them. The 88th section of the act empowers a lessee of tithes to surrender and make void his lease: — Held, that the plea afforded no answer to the action, and that the defendant, who had not surrendered his lease, was liable on his covenant to pay the rent. Taslter v. Bullman, 18 Law J. Rep. (n.s.) Exch. laSi 3 Exch. Rep. 351. (d) Feigned Issue. Where a dispute had arisen before an assistant Tithe Commissioner between the landowners and vicar of a parish, the former claiming an exemp- tion from the payment of all tithes in kind (except certain appropriate tithes admitted by them to be payable to the bishop as rector), and the latter claiming all the tithes, except the said appropriate tithes, to be payable to him in right of his vicarage, — and the bishop made no claim adverse to the vicar, and the Commissioner decided that the lands were subject to the payment of all tithes in kind (except, &o.) to the vicar for the time being; — Held, that the landowners were entitled to raise, by feigned issue, under the 6 & 7 Will. 4. c. 71. s. 46, the question whether the tithes in question were payable or not to the vicar as claimed by him before the Commissioner, and that the right of the bishop Digest, 1845—1850. to the tithes in question could not be raised under that issue. University College, Oxford, v. Garton, 16 Law J. Rep. (N.s.)'aB. 381; 10 Q.B. Rep. 760. If the incumbent of a benefice against whom an award of the Assistant Tithe Commissioner is made dies within the three months allowed by the 6 & 7 Will. 4. c. 71. s. 46, having had notice in writing of such award, without having brought an action to dispute it, his successor cannot do so after the three months have expired. The landowners of parish A claimed a modus, the existence of which was denied by the rector. Meetings were held before the Assistant Tithe Commissioner, who made his award in favour of the modus on the 30th of March 1846. On the 17th of April 1846 the award was notified in writing to the rector, who died on the 18th of May following, without having commenced an action to dispute it. No successor was appointed to the rectory till the 23rd of July 1848, when the plaintiff was insti- tuted: — Held, that, the period of three months from the time of the service of the notice of the award having expired, the plaintiff was not entitled to commence an action under the 6 8i 7 Will. 4. u. 71. s. 46. Held, secondly, that the Court was bound to interfere summarily on motion, and set aside the writ of summons and other proceedings in an action which had been so commenced. Homfray v. Seroope, 18 Law J. Rep. (n.s.) a.B. 138; 13 aB. Rep. 509. Where a feigned issu§ was raised under the Tithe Commutation Act, whether a certain modus was payable in respegtof all lands in a township, and the evidence shewed that it was payable only in respect of certain old inclosures there, and the Judge at Nisi Prius indorsed the finding of the jury to that eflfect on the record, under the 3 & 4 Will. 4, u. 42. s. 24, the Court set aside the finding. The provisions of the 3 & 4 Will. 4. c. 42. s. 24. do not apply to issues' tried under the' Tithe Com- mutation Act, as the .Court can give no judgment on the verdict found' in such cases. Brown v. Hutchinson, 18 Law J. Rep. (n.s.) Q.B. 92 ; 13 Q.B. Rep. 185. ■ * On a motion to set aside the writ issued in an action brought in pursuance of the 46th section of the 7 & 8 Will. 4. c. 71,— Held, that the plaintiff in such action 'must have an interest in the annual payment to be made or withholden exceeding 20t Per Maule, J. — Such interest must be a sole interest; and the verdict«in an action under this statute binds only the plaintiff and the defendant. ■ Mathewsy. Leapingwell, 16 Law J. Rep. (n.s.) C.P. 114; 3 Com. B. Rep. 912. By the 5 & 6 Vict. o. 54. ». 7. it is enacted thjit where any agreement shall have been made before the passing of the Tithe Commutation Act (6 & 7 Will. 4. c. 71.) for giving land or money, or both, instead of tithes, glebe, Szc. which is not of legal validity, and such lands or money, or both, shall appear to the Commissioners to be a fair equivalent for such tithes, glebe, &c., they shall be empowered to confirm and rendervalid such agreement; and in case the same shall not appear to be a fair equivalent, the Commissioners shall nevertheless be empowered to confirm such agreement, and also to award such rent-charge as with the said land or money, or both, will be a fair equivalent for the said tithes, 4T 690 TITHES ; (B) Commutation Acts. &c. : — Held, that in the cases to which this section applies, the Commissioners have not a discretion, but are bound to confirm according to its provisions. A mandamus to the Tithe Commissioners stated that, by an agreement in writing made in 1697, between the lord of the manor of H, the impro- priator of the parish, and-certain landowners of the parish, it was agreed that the common fields in the parish should be inclosed, and that the allottees should hold the lands freed and discharged from all commons, tithes, &c. to be claimed by the impro- priator or vicar, and that Is. should be paid yearly to the impropriator for every acre of old inclosures by the persons therein named; that a plot called "The Pieacher's Plot" was allotted to the vicar, to be held by him and his successors in lieu of all tithes payable out of the new inclosures, and in lieu of his right of common therein, and that other plots were allotted to him for glebe ; that the then vicar accepted and took possession of the said several plots; that the present vicar still held them; that by another agreement made in 1707, between the vicar and the landowners, a composition of l^d. per acre on all the lands in the parish, in lieu of all small tithes throughout the parish, was to be paid to him, and that such composition was paid and received until 1812; that tithe of lamb and wool was a rectorial tithe included in the Is. paid under the first agreement for the old inclosures, and that no tithes in kind had ever been paid in respect of such lands. The writ then commanded the Com- missioners to confirm the said agreements ; to decide certain suits and differences pending ; to de- cide whether the new inclosed lands were discharged from payment of all great tithes and tithes of lamb and wool, and from payment of all tithes to the vicar by tlie modus of l^d. per acre or otherwise, and to decide whether the old inclosed lands were discharged from payment of all great tithes and tithe of lamb and wool by the modus of Is. per acre, and from payment of all tithes to the vicar by the said modus of l\d. per acre. The return alleged that the vicar was inducted in 1796, and had never been in possession of all the lands stated to be allotted to him, and that he had received the Hd. per acre under the agreement of 1707, in ignorance of its origin, until 1811, when he gave notice to determine it, and insisted on pay- ment of the small tithes in kind, and offered to give up the lauds which he held in lieu of them ; that in 1812 he filed a bill in Chancery against certain occupiers of land for subtraction of tithes, in which suit a question was raised whether the lands were discharged from payment of all tithes to the vicar by the agreements of 1697 and 1707 ; that in 1817 a decree was made for an account, and that under it all the defendants except one D, the tenant of the impropriator, paid the arrears of tithes to the vicar; that the impropriator claimed the tithes of lamb and wool in 1819, and filed a bill against the vicar atd a landowner, praying to be declared entitled to such tithes, and for an account; that the vicar put in his answer, and the question there was whether the impropriator was entitled to the tithes of lamb and wool as against the vicar, and the bill, together with a supplemental bill filed in 1821, was dis- missed, and an appeal by D against the decree was also dismissed, after which D paid the arrears ; that neither of the agreements had been acted on since 1812. Held, that these agreements were not such as the Commissioners were bound to canfirm, as the enactment only applies to such agreements as are being acted on, or only questioned in pending suits, and not to agreements which have been long since abandoned. Held, also, that the writ being had in respect of one of the matters-commanded was bad in foto, and that a peremptory mandamus could not be awarded. Reginav. Tithe Commissioners^ 19 Law J. Rep. (n.s.) a.B. 177. (C) DiSAPPBOPKIATION OF TiTHES. The 3 & 4 Will. 4. c. 37. s. 124. empowers the Lord Lieutenant and Privy Council in Ireland to " disappropriate, disunite, and divest any rectory, vicarage, tithes, or portions of tithes, and glebes, or part or parts thereof, from and •out of any arch- bishopric, bishopric, deanery, or archdeaconry, dig- nity, prebend, or canonry, and to unite every such rectory, vicarage, tithes, or portions of tithes to the vicarages and perpetual or other curacies of such parishes respectively, so that each such rectory, vicarage, tithes, or portion of tithes, and glebes, or part or parts thereof, shall with its respective vicar- age, perpetual or other curacy, form a distinct parish or benefice:" — Held, that the Lord Lieu- tenant and Privy Council have authority to disap- propriate any part or portion of the tithes of a rectory; that the word "rectory" in the statute must be applied in its widest legal sense, and there- fore includes the glebe ; and that an order of dis- appropriation of " rectory," made by the Lord Lieutenant and Privy Council, cannot be restricted to the tithe rent-charge, unless on the face of the order of disappropriation such restriction is mani- fested. In an order of the Lord Lieutenant and Coun- cil, made under this act, there was a statement of the revenues of three rectories belonging to a cathedral treasurership. The order then went on to say, " There is a further income belonging to the- said treasurership, arising from demised lands, amounting to the yearly sum of 80/. 6s. IJd." The glebe lands which were not in express terms men- tioned in the order, did amount to nearly the sum thus stated. A small piece of land called the trea- surer's garden made up the rest. After this state- ment of the revenues, the order went on to disap- propriate " the rectories, together with the rectorial tithes thereunto belonging," in pursuance of the power given by the act, but said nothing about the glebe : — Held, that the glebe lands were, under this order, disappropriated from the treasurership. Wilson v. Loveland, 12 CI. & F. 677. (D) Actions, Suits, and Phoceedings. The statute 3 & 4Will. 4. c. 27. s. 2. enacts, that no land (which includes tithes) shall he recovered but within twenty years after the right of action has accrued to the claimant, or the person through whom he claims : — Held, that the section is con- fined to cases where there are two parties, each claiming an adverse estate in the tithes ; so that a person who had not received tithes for twenty years TITHES— TRESPASS. 691 could not recover possession of them from another, who for twenty years had received them from the terre-tenant ; but that the statute did not bar the tithe-owner from recovering tithes as chattels from the occupier, although none had been set out for upwards of twenty years. Dean and Chapter of Ely V. Cash, 15 Law J. Rep. (n.s.) Exch. 341; 15 Mee. & W. 617. A declaration stated that the defendants were the Tithe Commissioners ; that one T P A was owner of land in a certain parish subject to tithes ; that during his lifetime an award was made of the sum to be paid as rent-charge instead of tithes of the said parish, and confirmed by the defendants ; that an apportionment of the said rent-charge was after- wards made, and the expenses thereof paid without dispute or difference ; yet the defendants under colour of their office, maliciously, &o. intending to compel the plaintiff as the alleged owner of the said landswithout just cause to pay a sum of 39/. 10*. Id. as the expenses of the said apportionment, falsely and maliciously, and without reasonable and pro- bable cause, did sign a certificate as under the authority of the Tithe Commutation Act, which stated that 39/. 10s. Id. was the share of the ex- penses of the apportionment to be paid by the plaintiff, touching which a dispute had arisen be- tween the plaintiff and Earl F ; and that the above sum ought to be paid by the plaintiff to Earl F ; whereas no such difference existed, and no such sum was owing, as the defendants well knew, and also well knew that the whole share of the expenses of the said apportionment had been long, ago paid without dispute or difference; that the defendants afterwards wilfully delivered the said false certi- ficate to one J P on behalf of the said Earl F that it might be produced before two Justices, that they might by warrant cause the amount to be levied by distress on the plaintiff's goods ; that the certificate was produced before the Justices, who issued a warrant, under which the plaintiff's goods were dis- trained upon for the suni of 39/. lOi. Id. The defendants pleaded, first, that the grievances were committed' after the passing of the Tithe Com- mutation Act, the 6 & 7 Will. 4. c. 71, and the Notices of Action Act, the 5 & 6 Vict. c. 97, and were committed under the authority of the Tithe Commutation Act ; and that a month's notice of action had not been given to the defendants; se- condly, that the grievances were done under the authority of the said act of parliament, and that they were committed in the county of Middlesex, and not in the county of Devon. Demurrer thereto. — The Court overruled the demurrer, and the plain- tiff replied, traversing that the grievances were com- mitted under the authority of the act of parliament. Jcland V. Buller, 18 Law J. Rep. (n.s.) Exch. 51 ; 1 Exch. Rep. 837. Since the 5 & 6 Will. 4. c. 74, if any tithe, obla- tion, or composition not excepted in the 7 & 8 Will. 3. c. 6, or exceeding 10/. yearly value, due from any one person, is in arrear, it must be proceeded for before two Justices ; and if the title of the claim- ant or liability of the party sought to be charged is undisputed, two years' arrears may be there reco- vered ; whereas if such title or liability is denied vivd voce before the Justices, or at any time in writ- ing, the claimant may proceed by suit in equity, and recover six years' arrears. Robinson v. Purday 16Mee. &W. 11. (E) Pleading. In an action of debt on the 2 & 3 Edw. 6. c. 13. s. 1. for treble value of tithes carried away before setting out the same, the defendant should not plead several pleas of nil debet by statute as to several parts of the lands on which the titheable matters were produced, but should plead one plea of nil debet by statute to the whole. The defendant will be obliged to give a particular of all grounds of exemption, modus, &c., intended to be insisted on at the trial. Graburn v. Brown, 16 Mee. & W. 831. TOWN. [See Health.] Provisions in acts for paving, draining, cleans- ing, lighting, and improving towns consolidated by the 10 & 11 Vict. c. 34; 25 Law J. Stat. 116. TRANSPORTATION. Superintendent of convicts abolished by the 9 & 10 Vict. c. 26; 24 Law J. Stat. 73. TRESPASS. (A) When MAINTAINABLE. (B) Pleadings. (C) Evidence. (D) Damages. [See Attorney — FisHitaY — Inferior Court — Pleading, New Assignment— Tenant in Common.] ' (A) When maintainable. By the 81st section of the Irish Insolvent Act, the3&4Vict. c. 107, no person entitled to the benefit of the act by an adjudication of the Court is to be imprisoned by reason of a judgment which is en- - tered upagainsthim, according to the act, but upon arrest or detainer in prison upon any such judgment so entered up, a Judge of any court from which any process has issued in respect thereof, may, under certain circumstances, release such prisoner from custody. And section 82. enacts, that no writ of ca. sa. shall issue on any judgment obtained against such prisoner, except upon the judgment entered up against such prisoner, according to the act, and by special order of the Court. A party who had inserted in his schedule a judg- ment obtained against him in one of the courts at Westminster, was discharged from custody in Ire- land under the above act. He was afterwards arrested in England, and a ca. sa. issued by the plaintiff in the original suit, but was discharged on application to a Judge : — Held, that the insolvent could not maintain trespass against the plaintiff for the imprisonment, but that ifhe had wilfully abused the process of the Court, the insolvent had a remedy against him by action on the case. Ewart v. Jones, 692 TRESPASS. 15 Law J. Rep. (n.s.) Exch. 18; 14 Mee. & W. 774 ; 3 Dowl. & L. P.C. 252. Trespass will not lie against a plaintiiF or his attorney for suing out execution, and arresting thereon a defendant who has obtained an order for protection from process under the 5 & 6 Viet. c. 1 16. Yearsley v. Ileane, 3 Dowl. & L. P.C. 265. Trespass lies by one tenant in common against his co-tenant, (or the licensee of the latter,) for digging up and carrying away the soil of the close of which they are tenants in common j for such an act is an ouster. In such an action a plea that the close is not the close of the plaintiff, is not supported hy proof-that he is tenant in common of it with others who authorized the trespasses. Wilkinstm v. Haygarth, 16 Law J. Rep. (n.s.) Q.B. 103. The plaintitfs were seised in fee of a close, but other persons had the right to the exclusive posses- sion of the surface of it during a portion of the year : — Held, that the plaintiffs, as owners of the subsoil, might maintain trespass against persons ■who had dug holes through the surface into the subsoil during that portion of the year : — but that for an injury, committed during such portion of the year, which affected the surface only, the plaintiffs could not maintain trespass. The word " close " in a declaration in trespass includes the subsoil as well as the surface. Cox v. Glue, 17 Law J. Rep. (n.s.) C.P. 162 ; 4 Com. B. Rep. 533. Justices are empowered hy the 27th section of the 9 Geo. 4. e. 31. to convict of an assault upon complaint, and the offender, upon conviction thereof before them, is to pay such sum, not exceed- ing 51., as shall appear to them to be meet, which sum is to be paid to some one of the overseers of the poor, or to some other officer of the poor of the parish, &c. in which the offence shall have been committed, to be by such overseer or officer paid over to the general use of the rate of the county in which such parish, &c. shall be situate. A convic- tion, under this section, ordered the party con- victed to pay the fine to the treasurer of the county: — Held, that the conviction was bad, and the magistrates liable to an action of trespass at the suit of the party imprisoned under it. Chaddock v. Wilbraham, 17 Law J. Rep. (n.s.) M.C. 79 ; 5 Com. B. Rep. 615. Where the interest of A, a tenant, ceases before the expiration of the term of letting by the death of his landlord the tenant for life, A will not be presumed, to have continued in possession after such death-; and in the absence of any subsequent entry or other act done by him, he has not a suffi- cient possession of the land, either actual or con- structive, to entitle him to maintain trespass. Brown v. Notley, 18 Law J. Rep. (n.8.) Exch. 39; 3 Exch. Rep. 219. Trespass will lie' against the governor of a pri- son for causing a prisoner to be removed by force or threats of force from one division of the prison to another, in which he ought not by law to be con- fined, although he acts in obedience to a rule issued by the Secretary of State, if such rule be not in accordance with the statutes as to the classification of prisoners. The Secretary of State is also liable to an action if he improperly directs the gaoler so to remove all persons of a certain class, and the gaoler does re- move a person coming within that class. Semble — that under the 5 & 6 Vict. c. 22. pri- soners in the Queen's Bench Prison who had not filed their schedules pursuant to an order of the Insolvent Court, were rightly placed in Class 1. But assuming tliat the removal of such prisoners to Class 1. was illegal, the 11 & 12 Vict. c. 7. s. 3. is a defence to any action brought for such removal, as it is an act done with regard to the classification of prisoners. A plea of justification under that statute was not pleaded to the further maintenance of the action : — Held, nevertheless, that the plea was good after verdict, Cobbett v. Grey, 19 Law J. Rep. (u.s.) Exch. 137 ; 4 Exch. Rep. 729. The plaintiff, by the permission of the defendant, had placed a brass plate, with his name upon it, on the outer door; and the declaration, after alleging the breaking and entry into the apartments, alleged that during the time aforesaid, to wit, &c. the defen- dant removed and took a certain brass plate from the outer door of the dwelling-house, and kept it so removed, &c. The defendant pleaded {inter alia), that the plaintiff was not possessed of the brass plate. There was no evidence, and no point made at the trial, as to whether or not the plate was affixed to the door: — Held, that it must now be assumed that it was not affixed, and that trespass would, therefore, lie for the removal of it. Qucere — Whether it would have lain if it had been proved to be affixed. Held, also, that the removal of it was sufficiently charged in the declaration, as against the defendant who had pleaded to it, as a distinct trespass, and not as aggravation only. Lane v. Dixon, 16 Law J. Rep. (n.s.) C.P. 129 ; 3 Com. B. Rep. 776. (B) Pleadings. The judgment in Harvey v. Brydges, 5 Law J. Dig. 765, affirmed 1 Exch. Rep. 261. [ White V. Hill, 5 Law J. Dig. 765 ; 6 Q.B. Rep. 487.] " Plea of not possessed. See Lien. Trespass qu. cl. fr. Plea, that the close was the close and freehold of P, and that the defendant as her servant and by her command committed the trespasses, &c. Replication, traversing the com- mand of P. P was a minor and ward in Chancery: — Held, that the plea was supported by proof that the defendant was the general agent of P and re- ceiver of her rents, appointed by the Court of Chan- cery; and that he did the acts complained of in the execution of his authority as such general agent Ewer V.Jones, 16 Law J. Rep. (n.s.) Q.B. 42; 9 as. Rep. 623. In an action of trespass for breaking and enter- ing the plaintiff's apartment, it appeared that the plaintiff had taken furnished lodgings in the defen- dant's house for a term, and that the only entrance to them was through the defendant's street-door and lobby; and the evidence to shew the breaking and entering by the defendant was, that before the term had expired the defendant had prevented the plaintiff from entering the house, telling him he should no longer have the apartments : — Held, that this was sufficient evidence for the jury to infer a TRESPASS. 693 breaking^ and entering of the apartments by the defendant. Lane >r. Dixon, 16 Law J. Bep. (n.s.) C.P. 129; 3 Com. B. Rep. 776. The declaration alleged that the defendant, with force and arms, &c., and with a strong hand, and against the form of the statute, broke and entered the dwelling-house of the plaintiff, and broke open doors, windows, &c., and in a forcible manner and with a strong hand disseised and expelled the plain- tiff. The defendant pleaded as to the breaking and entering, &c. that the dwelling-house, &c. was his soil and freehold : — Held, that the defendant might confine his justification to the breaking and entering, and that the plea was good ; the circumstance of entering manu forti being matter of aggravation, which the defendants were not necessarily called on to justify in a civil action. Damson v. Wilson, 17 Law J. Rep. (n.s.) Q.B. 196; U Q.B. Rep. 890. To an action of trespass against the defendant, the keeper of the Queen's Prison, for assaulting and compelling the plaintiff to go to the Arches Court, the defendant pleaded that he was com- manded by a writ of habeas corpus to take the plaintiff thither, and that the plaintiff refused to go, wherefore the defendant, &c. The plaintiff replied, that the writ was issued at the instance of the plain- tiff and no other person, as the defendant well knew, and that the defendant had had notice not to execute it. Rejoinder, that the defendant did not know that the writ was issued at the instance of the plain- tiff and of no other person : — Held, that this issue was not supported by evidence that the plaintiff's agent informed one of the defendants, a deputy keeper of the prison and clerk of the papers, and servant of the defendant, that the writ was the plaintiff's writ, and that he was not to he taken before the Court of Arches, the writ not containing any mention of the plaintiff's name. Herring v. Hudson, 1 8 Law J. Rep. (n.s.) Exch. 28 j 3 Exoh. Rep. 107. To an action of trespass for an assault, the defen- dant pleaded, that he was possessed of a gig and horse which were upon a public highway ; that .the plaintiff seized the horse and attempted to dispossess the defendant of the horse and gig, and was driving them away and dispossessing him of them, where- fore the defendant did defend his possession' and resisted the plaintiff's endeavour, and in doing so committed the trespass in question : — Held, that this, plea was not supported by proof that the plain- tiff, whose horse had been struck by the defendant, seized the defendant's horse, intending to hold it until his master should come up, and for the pur- pose of inquiring the defendant's name. Gaylard v. Morris, 18 Law J. Rep. (n.s.) Exch. 297 ; 3 Exch. Rep. 695. Where a party, on being summoned to appear before two Justices for an assault, appeared, and pleaded " not guilty ;" and the prosecutor then withdrew his complaint, and the defendant was accordingly discharged, — Held, that this was a hearing and dismissal, which entitled the defendant to a certificate that the charge had been dismissed as not proved, under the 9 Geo. 4. c. 31. s. 27; and that a plea, stating those facts, and that the certifi- cate had been granted, set forth a good defence, under the 28th section, to an action of trespass for the same assault. Tunnicliffe v. Tedi, 17 Law J. Rep. (N.s.) M.C. 67; 5 Com. B. Rep. 553. To a declaration in trespass for false imprison- ment, the defendant pleaded that W T recovered a judgment against the plaintiff in an inferior court of record ; that the plaintiff was summoned before the Judge for non-payment of the amount recovered, when an order was made for payment by the plain- tiff by instalments ; that the plaintiff made default in payment of the first instalment, which was duly demanded of him, which being proved before the Judge of the said court, he, according to the form of the statute (8 & 9 Vict. c. 127.) and at the request of the defendant, then being attorney for the said W T and acting upon his retainer, duly ordered (by warrant under his hand and seal directed to the oflScer of the said court) the plaintiff to he taken and conveyed by him to the debtors' prison for London for forty days (the warrant was set out at length ) ; that the defendant, as such attorney, de- livered the warrant to the said officer, who took the plaintiff, to wit, on &c. ; which are the same sup- posed trespasses complained of in the declaration, &c. Replication, that the said Judge did not order that the plaintiff should he committed modo etformA. The defendant, at the trial, produced a warrant corresponding with the terms of the plea. It neither appeared on the face of the plea nor warrant that the plaintiff was summoned to shew cause why he should not be committed : — Held, that the plea must be taken to mean that the Judge issued a valid order, which fact was traversed by the repli- cation ; that the order produced was invalid for not shewing a summons previous to the commit- ment, and therefore the plaintiff was entitled to a verdict on the issue taken on the second plea. Where an attorney justifies an act of trespass by a special plea setting out an order from a Court of competent jurisdiction, such order, if 'traversed, must be produced, and if such order be not valid, the plea of justification fails. Kinning v. Buchanan, ISLawJ. Rep. (n.s.) C.P. 332; SCoift. B. Rep. 271. In trespass quare clausum fregit, under a traverse of the allegation in the declaration that the close was the close of the plaintiff, the defendant may shew title in himself or some other person, under whose authority he claims to have acted — Per Wilde, C.J , Coltman, J., Maule, J., Erie, J. and Williams, J. Dissentiente Coleridge, J. and Wight' man, J. Jones v. Chapman, 18 Law J. Rep. (n.s.) Exch. 456. In trespass quare clausum fregit, to. a plea of liberum tenementum, the plaintiff replied that the defendant had leased to J S for a term which was subsisting at the time of the commission of the trespass by the defendant : — Held, on demurrer to the replication, that it was sufficient without tracing title from J S to the plaintiff, as it shewed that the defendant had not the immediate right of posses- sion, and was consistent with the possession of the plaintiff stated in the declaration. Ryan v. Clarice, 18 Law J. Rep. (n.s.) Q.B. 267. (C) Evidence.^ In an action of trespass against three who had all jointly, and by one attorney, pleaded not guilty 694 TRESPASS -TRIAL. "by statute," the Judge at Nisi Prius would not, on the application of the plaintiff's counsel, just before the jury were sworn, allow a nolle prosequi to be entered as to one of the defendants, in order that he might be called as a witness for the plaintiiE Neither would the Judge, immediately after the jury were sworn, allow one of the defendants to be ac- quitted on the application of the plaintiff's counsel, it being stated by the defendant's counsel that he appeared for all the defendants, and objected to such acquittal. If, in an action of trespass against several defen- dants, there be at the end of the plaintiff's case no evidence against one of the defendants, it is in the discretion of the Judge whether such defendant shall be then acquitted ; and if from the nature of the evidence given for the plaintiff, it is probable that evidence which will be given for the other defen- dants will fix this defendant with liability, the Judge will not allow his acquittal at the end of the plain- tiff's case. In trespass for taking goods, the defence under the statute 1 1 Geo. 2. c. 19. s. 3, that the goods had been seized after having been fraudulently removed to prevent a distress for rent, cannot be gone into unless specially pleaded; but where, in trespass against a landlord and his broker for taking goods,' there was no evidence against the landlord, and this defence was opened but could not be gone into, as not guilty "by statute" was the only plea, the Judge would not certify, under the statute 8 & 9 Will. 3. >;. 11. s. 1, that there was reasonable cause for making the landlord a defendant, in order to deprive him of costs. Spencer v. Harrison, 2 Car. & K. 429. Where a sheriff's officer to whom a writ of fl. fa. was directed, offered to stay the execution on re- ceiving a sum of money, and his partner and assist- ants afterwards executed the writ illegally by break- ing open an outer door in his absence, and he sub- sequently withdrew the execution on the payment of the amount of the levy and a bonus to himself: — Held, that there was sufficient evidence to justify a jury in finding him guilty as a co-trespasser, on the ground that he had authorized the unlawful act. The amount of damages in such a case is a matter for the discretion of the jury, but they are entitled to award the amount paid under the execution as » portion of the damages. A plea justifying a trespass under a fi.fa. must shew that the outer door was open, and if that alle- gation be not proved the justification fails. Qucsre — To what extent a levy under a.fi.fa. can be justified, when properly pleaded, in a case where the possession of the goods has been illegally ob- tained. Buhe nf Brunswick v. Slowman, 18 Law J. Rep. (n.s.) C.P. 299; 8 Com. B. Rep. 317. In an action of trespass for breaking and enter- ing, digging in, &c. the plaintiff^s close, it appeared that the close at the time of the trespass was in the occupation of L, the plaintiff's lessee. The plain- tiff tendered evidence to shew that she resumed possession of the close for a time after the trespasses were committed, and before action, which was re- jected by the Judge : — Held, that the evidence was inadmissible; and that trespass for the continuance is not maintainable by a person who comes into possession after the commission of the trespass. Pilgrim v. Southampton and Dorchester Rail. Co., 18 Law J. Rep. (n.s.) C.P, 330 ; 8 Com. B. Rep. 25. In an action of trespass against two defendants, the plaintiff, to prove the acts complained of, put in evidence a return by one defendant to a writ of habeas cor'pus, in which he stated that in obedience to certain orders issued by the other defendant, he had committed those acts. No evidence was offered that the plaintiff came within these orders ; but the counsel for the defendants relied upon the evidence so adduced by the plaintiff as proof of pleas of jus- tification pleaded by both defendants : — -Held, that the return was evidence for both defendants, but that in the absence of any other evidence the jury should have found a verdict against both on the issue of not guilty. Proof of an attachment out of Chancery for non- payment of costs will support an averment in a plea,, that the plaintiff was committed by reason of a con- tempt of the Court of Chancery. A Judge of Nisi Prius may grant a certificate under the 4 Anne, c. 15. s. 5, that the defendant had reasonable ground for pleading certain pleas, upon an ea^ parte application, even after taxation has com- menced. Cohbetty. Grey, 19 Law J. Rep. (n.s.) Exoh. 137 ; 4 Exch. Rep. 729. (D) Damages. In actions for tort, the Court will not interfere with the damages found by the jury, unless they appear to be grossly disproportioned to the injury sustained. Where, therefore, a landlord caused considerable injury to the crops of his tenant, by selling, felling and removing timber, without apply- ing for leave to enter, and the jury assessed the damages at 300Z., the Court refused to interfere, although the net value of the entire crops did not exceed 2(101. Williams v. Currie, 1 Com. B. Rep. 841. Where a joint trespass has been committed, damages are not to be assessed according to the act of the least or the most guilty of the defendants, but according to the injury the plaintiff has sustained from the joint act of the trespassers ; and in such a case the motives of the defendant are not material unless they tend to aggravate or mitigate the injury sustained by the plaintiff. Clark v. Newsam, 16 Law J. Rep. (n.s.) Exch. 296 ; 1 Exch. Rep. 131. The defendant drove against the plaintiff's chaise, and the collision threw the person sifting in it on to the front part of the chaise, which caused the horse to kick and break the chaise. The declaration stated, that the defendant drove his chaise against the plaintiff's chaise, and thereby greatly crushed and broke to pieces the chaise of the plaintiff: — Held, that the trespass was a continuing trespass ; that the plaintiff had properly alleged, and was entitled to recover all the damages occasioned by the col- lision. Gilbertson v. Richardson, 17 Law J. Rep. (n.s.) C.P. 112; 4 Com. B. Rep. 502. TRIAL. [See Practice, at Law, Trial.] TROVER. 695 TROVER. [See Stoppage in Transitu — Pleading, New Assignment — Tenant in Common.] (A) When maintainable. (B) Conversion. (C) Pleading and Evidence. (D) Damages. (A) When maintainable. The plaintiff, being the owner of a piano, lent it to A, whose landlord seized it under a distress for rent. The landlord remained in possession of the piano for a fortnight, when a sheriff's officer seized it under an execution against A, and removed it to the premises of the defendant, an auctioneer, who afterwards sold it: — Held, that the plaintiff might maintain an action of trover against the defendant, and that trover would not lie, at the suit of the land- lord, against the defendant ; but that his remedy- was against the sheriff's officer for pound breach. Semble — If the conversion had amounted to pound breach, the defendant would have been liable to the landlord in an action of pound breach, and also to the plaintiff in trover for the conversion. Turner v. Ford, 15 Law J. Rep. (n.s.) Exoh. 215 ; 15 Mee. 8e W. 212. In an action of trover, where the plaintiff had heen endeavouring to baffle his creditors by a merely ostensible transfer of the goods to another, and where they were seized upon premises in which the plaintifTs tenancy had expired :- — Held, first, that there was a sufficient possession as against a wrong- doer, without regard to the question of ownership ; and, secondly, that the measure of damages was the value of the plaintiff's real and bond fide interest in the goods, and not the full value. Cameron v. Wpnch, 2 Car. & K. 261. Under an agreement between the plaintiff anS the defendants, that one C D should be employed by the " said parties hereto" for a certain time, and the plaintiff should be erhplojred for a certain time also; and **that the said parties hereto^' should be allowed to have the use of certain property for a certain period, and at the expiration of the agree- ment the property should he given up to the plaintiff: — Held, that the words the "said parties hereto" meant the defendants only, and, therefore, that the plaintiff was not a partner with the defen- dants in the goods. The goods having heen, during the term, applied by the defendants to a purpose in contravention of the agreement, and not having heen re-delivered by them at the end of the term :— Held, that the bail- ment had been determined, and that the plaintiff might maintain trover. Bryant v. Wardell, 2 %xch. Rep. 479. Goods contracted to he sold and delivered " free on board," to be paid for by cash or hills, at the option of the purchasers, were delivered on board, and receipts taken from the mate by the lighterman, employed by the sellers, who handed the same over to them. The sellers apprised the purchasers of the delivery, who elected to pay for the goods by a bill, which the sellers having drawn, was duly accepted by the purchasers. The sellers retained the mate's receipts for the goods, but the master signed the bill of lading, in the purchasers' names, who, whilei the hill they accepted was running, be- came insolvent. In such circumstances, held by the Judicial Committee of the Privy Council (re- versing the verdict and judgment of the Supreme Court at Bombay), that trover would not lie for the goods, for that on their delivery on board the vessel, they were no longer in transitu, so as to be stopped by the sellers ; and that the retention of the receipts by the sellers was immaterial, as, after their election to be paid by a bill, the receipts of the mate were not essential to the transaction between the seller and purchaser. Cowas-jee v. Thompson, 3 Moore, In. App. 422. Brewers in Dublin had supplied porter in casks to a customer on the terms that the empty casks were to be returned to Dublin at the customer's expense, within six months from the date of the invoice, or paid for at the invoice price at the option of the shippers : — Held, that under this contract as soon as the casks were empty, the customer was in the situ- ation with respect to them of a mere bailee during pleasure, and that the brewers had such an itnme- diate right of possession of the empty casks as would entitle them to maintain trover against any person who converted them to his own use. Manders v. Williams, 18 Law J. Rep. (n.s.) Exch. 437 ; 4 Exch. Rep. 339. K Se Co., merchants at New Orleans, purchased, with their own money, corn, as agents for the plain- tiff in England, for the price of which they drew hills of exchange upon the plaintiff, which he ac- cepted. The corn .was shipped under bills of lading, making it deliverable to K. & Co. or their order, ktxi invoices and a letter of advice were forwarded to the plaintiff, stating that the corn was shipped on his, account. The bills of exchange drawn upon the plaintiff were purchased for their full amount, by the defendants, of K & Co. who indorsed and de- livered to them the bills of lading as a security for the due payment of the bills of exchange, with a power of sale in case of non-payment. On. the day when the bills of exchange fell due, the plain- tiff offered payment to the holder of thetn', but the bills being accidentally mislaid, th'e money was not then received, but he was desired to pay the follow- ing morning, which he was Unable' to do, and the bill's had never in fact been paid'. The defendihts having sold the corn under the power, the plaintiff brought trover. ' ' Held, that hS could not recover, as by the indorse- ment of the bills of lading to the defendants, a special property passed to them in the corn, subject to which the plaintiff had a general property by the invoice and letter of advice ; and that the offer of payment by the plaintiff did not , discharge the, plaintiff from his duty to pay the bills before his right to the possession of the corn attached. Jen-, kyns V. Brown, 19 Law J. Rep. (n.s.) G.B. 286. Goods which have been stolen may be recovered in trover from the purchaser of them in market overt, upon a conversion by' him s^ibseqaent to the conviction of the felon, without any order for resti- tution having been made ; for the effect of the 7 & 8 Geo. 4. c. 29. s. 57. is to revest the property in stolen goods in the original owner hpon conviction of the felon. Scattergood v. Sylvester, 19 Law J. Rep. (n.s.) Q.B. 447 ; 15 Q.B. Rep.- 506. 698 TROVER. Trover held to lie against the owner of a ship, for the sale of the cargo by the master, not inconsistent with the authority given to him by the owner. Ewhank v. Nutting, 7 Com. B. Rep. 797. Deer in a park (though an ancient and legal park) may be so tame and reclaimed as to pass to executors as personal property. Moroan v. Earl of Abergavenny, 8 Com^ B. Rep. 768. If the owner of the freehold seize an animal which has been doing damage to his freehold, but has ceased to do so, where it is not necessary to detain the animal to prevent further damage, and the owner of the freehold detains the animal and feeds it for several days, and then sells it for its full value, the owner of the animal is entitled in trover to recover its full value, without any deduction for its keep, as the owner of the freehold seized the animal in his own wrong. Warmer v. Biggs, 2 Car. &K. 31. (B) CONVEBSION. [Thorogoodv. Robinson, 5Law J, Dig.768; 6 G.B. Rep. 769.] Where the defendants meddled with and took an inventory of the plaintiff's goods, and gave him notice they had distrained them : — Held, that there was sufficient evidence to go to the jury of a con- version of the goods to the defendants" own use. Where it appears to the Court that one of several defendants has been joined in the action merely to exclude his evidence, it will direct a verdict to be entered for him at the close of the plaintiff's case. Neilau v. Banny, 2 Car. & K. 710. A bill of sale and assignment of goods, described as being in certain warehouses belonging to A, was given by him for the loan of a sum expressed to liave been paid on the day of the date thereof. Upon an action of trover brought against the assignee of A, who had seized the goods, it ap- peared in evidence that a portion only of the goods was in the warehouse specified at the date of the sale, and that no part of the loan was paid on that day, the same being discharged by instalments a few days afterwards ; whereupon the Judges of the Supreme Court held, that there had been no valid transfer, and, consequently, no conversion, and gave an interlocutory judgment and verdict in accordance with such view : — Held, by the Judicial Committee, on appeal from such judgment and verdict, and from an order refusing a new trial, that the judgment and verdict were not justified by the evidence, and must be reversed, and a new trial granted. Seal v. O'Dowda, 6 Moore, P.C. 324. Where the holder of a dishonoured bill, which had been paid by the indorser, told him to call for it some other day, it being at his attorney's, and he did so { but the bill was not given to him : — Held, not evidence of a conversion. Towne v. Lewis, 7 Com. B. Rep. 608. A contractor having engaged with a railway com- pany to construct a portion of their line, employed a sub-contractor to fence the line, who for that pur- pose placed timber near it. This timber having been sold to the plaintiff, was afterwards taken away by certain workmen employed on the railway. A claim to the timber having been made on behalf of the plaintiff on a director of the company, the claimant was recommended by him to attend a meeting of the company, which he did, and was informed' by the same director that there was a prospect of an amicable arrangement, and that in all probability his claim would he met: — Held, in trover against the company, that there was not sufficient evidence to make the company liable. Glover v. North- IVestern Rail, Co., 19 Law J. Rep. (N.s.) Exch. 172 i 5 Exch. Rep. 66. (C) Pleading and Evidence. To an action of trover for a bedstead, the defen- dant pleaded, that the plaintiff impleaded one W in an action of trover, and obtained judgment for da- mages sustained on the occasion of the conversion by him of the bedstead in question ; that W afterwards, and before the commencement of the present action, paid and satisfied those damages, which were re- covered as the full value of the bedstead ; that the conversion by W, for which the action was brought against him, and the said damages recovered, was a conversion not later in point of time than the con- version complained of in the present action, and that W, just before the conversion complained of in the present action, sold and delivered the bedstead to the plaintiff, and that the receiving under such sale and delivery was the conversion complained of. Upon special demurrer, held, that the plea did not amount to not possessed ; that it gave implied ' colour, and then avoided the primd facie title it admitted) that the Court would not assume that there had been a change in the possession, and that it had become revested in the plaintiff since the original conversion ; that the obtaining of judgment and satisfaction for its full value in an action for the conversion of a chattel vests in the defendant in that action the title to the chattel retrospectively; and that the plea was good. Cooper v. Shepherd 15 Law J. Rep. (n.s.) C.P. 237j 4 Dowl. & L. P.C. 218. Trover for two clocks. Plea, that the plaintiff and the defendant were jointly owners of the clocks: — Held, on special demniTer, that the plea was bad. Biggins V. Thomas, 15 Law J. Rep. (n.s.) G.B. 261 ; 8 as. 908. In trover, evidence that the goods were delivered to the defendant by the plaintiff's wife, with his authority, is available under " not possessed." Ringham v. Clements, 17 Law J. Rep. (n.s.) Q.B. 289; 12 Q.B. Rep. 260. In trover a written demand of the goods signed by the plaintiff, and attested by a subscribing wit- ness, was served on the defendant : — Held, that, at the trial, a duplicate original of this could not be given in evidence as a demand by the plaintiff, with- out calling the subscribing witness, but the Judge allowed it to be read as a paper delivered to the de- fendant, (though not as sent by the plaintiff), in order to allow the plaintiff (if he could) to shew anything that the defendant had said or done in consequence of it. Briant v. Dormer, 2 Car. & K. 692. (D) Damages. Special damage may be recovered in trover, if laid in the declaration. Bodley v. Reynolds, 15 Law J. Rep. (N.s.) Q.B. 219 ; 8 a.B. Rep. 779. TRUCK ACT— TRUST AND TRUSTEE. 697 TRUCK ACT. Upon the trne construction of the 5th and 19th sections of the 1 & 2 Will. 4. c. 37, (the Truck Act), that statute is applicable only to those persons who contract as labourers, viz., such as contract to use their personal services, and to receive payment for such services in wages. Therefore where a person contracted, as a sub- contractor, to make a cutting on a projected line of railway, at a certain sum per cubic yard,- and em- ployed others with whom he himself worked in making the cutting:— Held, that he was not a " workman or labourer " within the meaning of the 19th section ; and that in an action for such work and labour the defendants were not deprived by section 5. of their right of set-off for goods sold and delivered. Qucere — Whether a labourer who is employed to make a cutting on a projected line- of railway, and who in the performance of such work removes a quantity of clay which is used in the manufacture of bricks, is a person " employed in or about the working or getting of clay " within the meaning of the 19th section of the above act. Biky v. Warden, 18 Law J. Rep. (n.s.) Exch. 120; 2 Exch. Rep. 59. TRUST AND TRUSTEE. [Sec Will, Revocation.] (A) Teust. (a) Consiitufion. (b) Construction. (B) Trustee. (a) Appointment, (6) Removal and Change. (c) Liability and Disability, {d) Powers, Rights^and Duties. (e) Investment by. if) Conveyance by. (g) Breach of Trust. (C) Cestui auE Trust. (D) Trustee and Mortgagee Acts. (a) Construction. (jb) Practice wilder. (A) Trust. (a) Constitution. A, being resident abroad, wrote to his bankers, requesting them to invest iJOOOl. in the funds, in the joint names of himself and wife, in trust for his son ; an answer was returned, that, as the Bank of England would not recognize trusts, the bankers had invested the money simply in the names of A and his wife. A allowed the stock to remain with- out any trust being declared, and received the divi- dends till his death : — Held, that no trust was con- stituted for the son, but that the stock remained under A's dominion, and, on his death, became part of his assets. Smith v. Warde, 15 Law J. Rep. (n.s.) Chanc. 105 j 15 Sim. 56. A father having by his will appointed a guardian to his children, with a recommendation that in the event of their mother's death they should be placed Digest, 1845— 1850. under the care of two female relations : — Held, that the Court was bound to give eiFect to the recom- mendation so far as was consistent with preserving the general powers and rights of the testamentary guardian. Words of recommendation or desire in a will will not raise any trust if such construction would conflict with other more definite and positive provi- sions. Knott V. Cettee, 2 Ph. 192. A testator directed, that, as his estates would re- quire more management than his trustees could bestow upon it, his wish and desire was that the plaintiff should be appointed the manager and re- ceiver of the estates: — Held, that this direction was not imperative, and the trustees were not bound to employ the plaintiff as manager and re- ceiver. Finden v. Stephens, 16 Law J. Rep. (n.s.) Chanc. 63 j 2 Ph. 142. The testator, by his will, directed that his wife should receive all the rents and profits of his real and personal estate, and pay and apply the same to and for the use of his said wife and the children of their marriage, agreeable and according to her own discretion during her life. On a bill by one of the children against the widow, praying that a proper proportion of the income might be secured for the plaintiff's benefit, — Held, that the plaintiff had an interest, but that she was only entitled at the hear- ing to an account of the income of the testator's estate and of the application of such income, in order to enable the Court to judge whether the discretion had been fairly exercised. Where an interest iii income is given to a person subject to the discretion of another, the Court will not deprive the trustee of the exercise of that dis- cretion so long as it is fairly exercised. Costobadie V. Costobadie, 16 Law J. Rep. (n.s.) Chanc. 259 ; 6 Hare, 410. _A testator, by his will, gave all his estate to his wife A for her life; and, after her death, as to 2,000/., part thereof, he gave the same to be dis- posed of by her will, in such manner as she should think proper; but recommended her to dispose of one half to her relations, and the other half to each of his relations as she should think proper: — Held, that the word "recommend" did not create a binding trust, and that A had the power of dis- posing of the fund in any way that she pleased. Johnson v. Rowlands, 17 Law J. Rep. (n.s.) Chanc. 438 ; 2 De Gex & S.,356. A brother deposited various sums of money in a savings bank in the name of his sister and himself as a trustee. He kept the depositor's book in his own possession, and drew out small sums as he re- quired them, and made other deposits; he never in his lifetime communicated the circumstances to any one, and died without having made any declara- tion of trust respecting the money deposited. Upon a claim by the sister, — Held, that no trust was created, the probable intention for opening the account being to evade the provisions of the Savings Bank Act, limiting the amount to be deposited in one name. Field v. Lonsdale, 19 Law J. Rep. (n s ) Chanc. 560; 13 Beav. 78. Testator devised freeholds and leaseholds to four persons, intending them to hold them in trust for an alien, and shortly afterwards informed three of them of his intent, and those three at his request 4 U 698 TRUST AND TRUSTEE ; (B) Trusme. wrote letters to him acknowledging the intended trust. After his death, a suit was instituted hy two of the devisees against the other two, the alien, the testator's next-of-kin and the Attorney General as representing the Crown, to have the rights of the parties declared. The Court refused to make any declaration, except that the lands were not suhject to any trust. Burney v. Macdonald, 15 Sim. 6. A son acted as his mother's solicitor and with her consent lent 2,500^ belonging to her, with other money, upon a bond conditioned for payment to himself absolutely of the amount thereby secured, without any declaration of trust except a memo- randum whereby the son acknowledged that he held 2,500/., and undertook to pay the interest thereof to the mother during her life. The son died in his mother's lifetime, and his executors claimed the principal sum, subject to a life interest in the mother as a gift from her to the son : — Held, that the -relation of solicitor and client subsisting between the son and mother excluded the ordinary presump- tion in favour of the transaction being a gift, and threw the burthen of proof upon the executors ; and the evidence being insufficient to establish their case, the Court declared the son's executors to be merely trustees for the mother. Garrett v. IVUlnn- son, 2 De Gex & S. 244. When a father purchases property with his own money and takes a conveyance in the name of his son, the law presumes it to be an advancement for the son and not a trust for the father. Those who allege that it is a trust are bound to prove it, and the evidence for that purpose consists mainly, if not exclusively, of contemporaneous circumstances. A testator had transferred property into the names of his sons : — Held, that they were advancements, but there being doubts as to his solvency at the time, inquiries were directed on the point. Christy V. Courtenay, 13 Beav, 96. (6) Construction. A, by a settlement, declared that trustees should be possessed of 4,000/., as to a moiety for M and her children ; and, as to the other moiety, for N and her children ; and that if both M andN should die without leaving issue living at the time or re- spective times of their decease, then that the trus- tees should divide the trust monies among the per- sonal representatives of A in a legal course of administration. M and N both died without having been married. A did not leave a widow: — Held, that the persons intended to be benefited were the next-of-kin of A living at his death. Wilson v. Pilkington, 16 Law J. Rep. (u.s.) Chanc. 169. Testator gave all his leasehold estates, and all other his estate and effects upon trust for the benefit of his wife and daughters and the children of the latter. In declaring the trusts he used the word "rents" as well as dividends and annual produce; and empowered his trustees to sell his leasehold estates and to invest the proceeds on mortgage of freehold or other leasehold estates, and to lease any part of his estates : — Held, in a suit to carry out the trusts of the will, that the leaseholds were not to be sold. Bowden v. Bowden, 17 Sim. 65. (B) Trustee. (a) Appointment, [See Pkactice, in EauiTT, Lunatic] [ JVarburton v. Sandys, 5 Law J. Dig. 773 ; 14 Sim. 622.] A testator appointed A, B, and C executors and trustees of his will, providing that if either of them or any succeeding trustee should die, or neglect, or refuse to act, &c., it should be lawful for the sur- vivor of them the said A, B, and C, and such new trustee or trustees to be nominated in their stead, to appoint a new trustee or new trustees instead of the said A, B, and C or either of them, or any future trustee so dying or refusing, &c. as aforesaid. A having disclaimed the trust, and B having died, it was held that C could alone appoint new trustees under the power. Cafe v. Bent, 5 Hare, 24, , , Testator empowered hiV> wife (who was a cestui que trust under his will) during her life, and after her death the then surviving or continuing trustee of his will, to appoint new trustees as often as his first or future trustees should die, &c. One of the trustees named in the will died before the testator: — Held, that the widow had no power to appoint a new trustee in his room. Winter v. Rudge, 15 Sim. 596. Where a testator devised estates to trustees, their heirs and assigns, on certain trusts, and the surviv- ing trustee devised them upon the same trusts on which he held the same, — Held, that the cestuis que trust were entitled to have new trustees ap- pointed of the original will. Ochleston v. Heap, 1 De Gex & S. 640. The Master directed to appoint a new trustee, though some of the cestuis que trust were infants, and another out of the jurisdiction. Hunter v. Gibsmi, 16 Sim. 158. A and B were named as trustees in a marriage settlement, but both of them died without having executed it, and without having had any of the trust property vested in them. The settlement con- tained the usual power for the appointment of new trustees. In a suit for the appointment of new trustees, — Held, that it was not competent to the Court to direct that the new trustees should have the power of naming their successors in the same manner as if they had been the original trustees. Oglander v. Oglander, 17 Law J. Rep. (n.s.) Chanc. 439 I 2 De Gex & S. 381. A settlement contained a proviso that in case either of the' trustees should die or become un- willing to act in the trusts, it should be lawful for the acting trustees or trustee for the time being, or j the executors or administrators of any surviving 1 trustee, to nominate any fit person to supply the place or places of the trustee or trustees respec- tively so dying or becoming unwilling to act On ' the death of one trustee the survivor executed a deed, reciting that he was desirous of retiring from - the trust, and that he had appointed another person / to be a trustee in his place, and conveying the trust property to such new trustee: — Held, that the surviving trustee had power to nominate a sole trustee to act in his place, and that the appoint- ment by recital was good. Held, also, that a joint and several receipt for purchase-money given by three persons, only one TRUST AND TRUSTEE ; (B) Trustee. 690 of whom had power to give a receipt, was a valid receipt by such one who had power. Miller v. Priddm, 18 Law J. Rep. (n.s.) Chano. 226. In a suit for the appointment of new trustees, occasioned by the refusal of the surviving trustee to exercise a power of appointment, a reference was made to the Master to approve of proper persons. Exceptions to his report on the ground that he had not regarded the right of nomination given to the surviving trustee by the instrument creating the power, hut not raising any objections to the fitness of the persons nominated by the Master, were over- ruled. Middleton v. Reay, 18 Law J. Rep. (n.s.) Chanc. 153; 7 Hare, 106. A deed conveyed property to two trustees upon trust to sell, and contained the usual power of ap- pointing new trustees, reserving to each of two parties to the deed, his executors, administrators, and assigns, the power of appointing from time to time one of such new trustees. One of the donees died without exercising this power. By his will he appointed three executors, but one of them re- nounced probate :— Held, that an appointment of a new trustee by the two acting executors was a valid appointment. Granville {Earl of), v. M'N'eile, 18 Law J. Rep. (M.S.) Chanc. 164'; 7 Hare, 156. A power in a settlement to appoint new trustees having become inoperative by the death of both, it was asked, in a suit for the appointment of new trustees,' that the power might he extended to au- thorize the executors or administrators of the sur- viving trustee to appoint new trustees; — Held, that the ordinary reference to the Master could alone be made. Holder v. Durbin, 18 Law J. Rep. (n.s.) Chanc. 479; 11 Be'av. 594. It is not contrary to the practice of the Court to appoint three trustees in the place of two nomi- nated in a will containing no power to appoint new trustees. Birch v. Cropper, 2 De Gex & S. 255. By an indenture of settlement three trustees were appointed. The settlement contained a power for the cestuis que trust in case the trustees therein named, or either of them, should die, or be desirous of being discharged from the trusts, to appoint any other person or persons to be a trustee or trustees in the place of any such trustee or trustees so dying or being desirous to be discharged. One trustee died, and the other two were desirous of being dis- charged, upon which two new trustees only were substituted. The two continuing trustees refused to transfer the fund to the new trustees; upon the ground that the appointment was not properly exe- cuted, and paid the trust fund into court under the Trustee Act : — Held, upon petition for payment of the money out of court, that it was competent for the cestui que trust to appoint two trustees only, and that the old trustees were not justified in paying the money into court, and they were ordered to pay the costs thereby occasioned, and their costs of the V petition. In re Fagg's Trust, 19. Law J. Rep. \ (N.s.) Chanc. 175. A testator appointed A, B, and C to be trustees 1 of his will, and declared that, if the trustees there- 1 by appointed or any of them should happen to die, I it should be lawful for the surviving trustees or trustee to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying ; and that, on such appointment, the trust premises should be con- veyed, so that the same should be vested in the sur- viving trustees and such new trustees, or in such new trustees solely, on the same trusts. A died iu the lifetime of the testator: — Held, that it was the intention of the testator that there should be three trustees of his will, and that a new trustee might be appointed in the place of A. Lonsdale (Earl of) v. Beckett, 19 Law J. Rep. (n.s.) Chanc. 342. Under a power enabling a surviving or con- tinuing trustee to appoint a new trustee in the place of a trustee dying, going to reside abroad, becom- ing incapable of acting, &c., the surviving trustee^ although himself residing abroad, may appoint another trustee in the place of the one deceased. Although taking up his permanent residence abroad in such a case does not ipso facto deprive a trustee of his office, yet it is such a disqualification as entitles the cestuis que trust to have a new trus- tee appointed in his place. ; It is the duty of trustees having power to ap- point new trustees, to make such appointment impartially as between their cestuis que trust and not without communication with them. O'Beilly v. Alderson, 8 Hare, 101, (6) Removal and Change — ^[See (a) Appointment.'] Trustee removed for inconsistency of duties. Where fraud is alleged against a trustee but fails, and he is removed on grounds not of misconduct, he is entitled to all the costs of the suit. Passings ham V. Sherborn, 9 Beav. 424. Cestuis que trust proposed to pay oiT a mortgage on the trust property, by raising the necessary funds at less expense and at a lower rate of interest than would be required by another mode of raising the monies proposed' by the solicitor of the trustees. The cestuis que trust, without the concurrence of the trustees, carried out their proposal, and pending these transactions, one of the trustees of the settle- ment retired, and in his room a near relative of their solicitor was appointed a trustee, but without any communication on the subject with the cestuis que trust. The trustees afterwards gave notice of their intention to sell the property under a power of sale and exchange, and to defray out of the pro- ceeds their costs, charges, and expenses of nego- tiating the treaty for the loan which they had proposed to effect. The sale was prevented by in- junction, and a bill filed by. the cestuis que trust against the trustees and their solicitor: — Held, at the hearing, that the contemplated sale, if carried out, would have been a breach of trust ; that, under the circumstances, the trustees ought to be re- moved and new trustees appointed, but that no costs of suit in respect of such removal or appoint- ment ought to be given, because another suit might be necessary in respect of the transfer and further charge effected by the plaintiffs j and that the bill ought to be dismissed as against the solicitor, with- out costs. Marshall v. Sladden, 19 Law J. Rep. (n.s.) Chanc. 57 ; 7 Hare, 428. A power to appoint a new trustee on an existing one becoming incapable to act does not apply to a trustee going to reside abroad. Withington v. Withington, 16 Sim. 104. Part of a trust fund had })een wasted without any prospect of the guilty party being able to replace 700 TRUST AND TRUSTEE ; (B) Trustee. it. The Court refused to appoint new trustees of the remaining portion of the trust fund only; but for the protection of such new trustees, directed an inquiry whether any part of the fund had been lost, and under what circumstances, and whether any and what steps ought to be talcen for the recovery thereof. Bennett v. Burgis, 15 Law J. Rep. (n.s.} Chanc. 231; 5 Hare, 295. (c) Liability and Disability, A trustee depositing a trust fund with his bankers with directions to invest it in consols, is answerable for the omission of the bankers to invest, where he made no inquiries for five months, when the bankers failed. Challen v. Shippam, 4 Hare, 555. Where a bill charges a trustee with having fraudulently let trust property at an undervalue, to obtain personal benefit to himself, but the allegation of fraud is altogether disproved, the Court will not inquire whether a higher rent might not have been obtained, so as to charge the trustee for neglect or omission. Where a trustee has let trust property at a proper rent, but it afterwards appears probable that either from the outlay of the tenant, or the rise of agricultural produce, a higher rent may be obtained, the trustee will not necessarily be charged with the difference between such higher rent and that which is actually received, although he does not imme- diately raise the rent. Ferraby v. Hobson, 16 Law J. Rep. (k.s.) Chanc. 499; 2 Ph. 255. By a marriage settlement, it was covenanted that 5,000i. consols, part of the wife's property, should be transferred to the trustees upon trusts for the husband, wife and children. At that time there was 4,946i. standing in the wife's name. The trustees took no steps to enforce a transfer, and it was sold out and misapplied by the husband : — Held, that the trustees were personally responsible, and were not relieved under the indemnity clause. Fenwic/c v. Grcenwell, 10 Beav. 412. A, on her marriage, assigned a debt due to her from B to trustees on trust, when requested by her to call in and invest it and hold it in trust for A, her husband and children. B, with full notice, but without such request, paid part of the money to the husband by order of the trustees, and the rest to the trustees, for the purpose of being ad- vanced to the husband in breach of trust. The money was lost : — Held, that B, as well as the trustees, was responsible for the breach of trust. Andrews y. Bousfield, 10 Beav. 511. A, an intended wife, conveyed property to trus- tees for herself until marriage, and then for her separate use, without power of anticipation, and subject to certain interests to her husband and children, to herself. Before the marriage the trustees committed a breach of trust, against which A, by her solicitor, gave an indemnity. The marriage took effect two years after the settlement, and the husband died without children : — Held, that the indemnity was subsisting, and that the trustees were released from their liability. Ghost V. Waller, 9 Beav. 497. Stock standing in the names of trustees was mortgaged to secure 1,200/. and interest, and notice of the mortgage was given to the trustees both by tlie mortgagor and mortgagee. Upon his marriage the mortgagee assigned the 1,200/. to H and H, and it was declared that the receipt or receipts of them, or the survivor of them, should be a suiScient discharge ; and one of them, being the solicitor of the mortgagee, was allowed to retain all the deeds in both transactions. The trustees, at the request of the mortgagors, sold a portion of the 3,0002.,and paid off the l,200h and interest, which was received hy the mortgagor's solicitor, and trustee of the settlement, without the authority of his co-trustee. He gave up the deeds relating to the mortgage, and signed a receipt "for self and co-trustee," but he never invested the money upon the trusts of the settlement ; but he survived his co-trustee, and died insolvent. Upon a hill filed by the new trustees of tlie mortgagee's marriage settlement against the trustees of the 3,000t — Held, that the receipt of one trustee was no discharge ; that the being in- trusted with the deeds for safe custody did not authorize one trustee to receive the trust money; and that the trustees of the 3,000t must repay the l,200i, with interest and costs. Hall v. Franclc, 18 Law J. Rep. (m.s.) Chanc. 362; II Beav. 519. A power was given to trustees to invest money on some good and approved freehold or leasehold securities. The trustees invested 2,600/. on the security of four houses and three acres of building ground near Birmingham, which bad been valued at 3,500/. and estimated to produce 175/. a-year. Tlie actual rent at the time of the mortgage was 105/. The property was afterwards sold by the trustees, and a loss incurred of S.'iO/. The conduct of the trustees was honest and fair and not tainted by fraud or improper motive : — Held, that they were not liable to make good the loss. Jones v. Lewis, 18 Law J. Rep. (n.s.) Chanc. 430. A trustee received rents and paid them into a bank, where they were left for many years. A suit was instituted and a receiver appointed. The bank failed, and it was held that the cestuis que trust, who were infants, must not be prejudiced by the neglect of the trustee, who was liable to refund the money lost. Drever v. Mawdesley, IS Law J. Rep. (n.s.) Chanc. 273. A person who assumes the character of a trustee incurs the liability of a trustee. Rackham v. Siddall, 16 Sim. 297. A trustee having a power of sale, with a trust for interim investment in the funds or on real security, concurred in a sale, and permitted the tenant for life to receive the purchase-money, which was not invested according to the trust: — Held, that the cestui que trust had not the option of requiring the trustee to replace the purchase-money, with interest, or to buy such a sum of stock as the proceeds would have purchased if invested at the time. An allegation in the trustee's answer, that part of the purchase-money had been laid out by the tenant for life in the purchase of an estate of which the plaintiff was in possession, held to be no ground for directing by the decree an inquiry as to the fact, the matter being properly the subject of a cross- suit. Reesy. Williams, 1 De Gex & S. 314. The relation of father and daughter does not of itself render the validity of an arrangement between persons thus related respecting a reversionary in- terest of the daughter, so doubtful as to justify a trustee in refusing to transfer a fund in pursuance TRUST AND TRUSTEE ; (B) Teustee. 701 of the arrangement, without the indemnity of the Court. A trustee so refusing and who did not shew that he had endeavoured to ascertain the real nature of the transaction, was decreed to pay costs. Firmin v. Pulham, 2 De Gex & S. 99. An annuitant, selling under a power of salcj is a trustee, as regards the sale, for the- grantor; and the agent for sale of such annuitant is, equally with his principal, aflfected with all the disahilities attaching to a trustee purchasing for himself. In re Bloye's trust, 19 iaw J. Rep; (n.s.) Chanc. 89 j 2 Hall & Tw. 140; 1 Mac. & G. 488. A party assuming to act as heir and devisee of a trustee, and committing an act which, if done hy the trustee, would have been a breach of trust, cannot relieve himself of liability by asserting that he was not acting as trustee. Rachkam v. Siddall, 1 Mao. & G, 607; 2 Hall & Tw. 244. (d) Powers, Rights and Duties, ' [^Davis V. Combermere, 5 Law J. Dig. 776 ; 14 Sim. 402.] A testatrix devised freehold and copyhold estates to a trustee, upon trust to sell and divide the pro- ceeds among her brothers and sisters living at her decease equally, or in other proportions, at the dis- cretion of the trustee. She afterwards executed an unattested codicil, by which she directed that the income of the trust property sliould be applied for the benefit of such of her brothers and sisters as were not otherwise provided for, and particularly towards the support of one of her brothers P, who was of weak mind r and in case the trustee should not live to execute all the trusts, they were to be performed by such person as he should appoint. He executed a deed of appointment, naming other trustees, and giving directions as to the time for selling the trust estates, and the application of the proceeds; and directed P to be supported out of the income, and the proceeds from one estate to be divided equally among P's brothers and sisters, who should be living at his death, and the proceeds of another estate to be divided at his death among such of his brothers and sisters as should most require it: — Held, that the appointment by the trustee, and the directions contained in it, were not altogether invalid ; but the Court directed, that after providing for the comfortable support of P, the proceeds from both estates should be divided equally among all the testatrix's brothers and sisters who were living at the death of the testatrixj ex- cept P. Hitch V. Leworthy, 15 Law J. Rep. (n.s.) Chanc. 235. Gift of a residue, after payment of debts, &c. to trustees upon trust to invest in the funds, or on real security, or at their discretion to keep the same in their then state of investment, with a declaration that the receipts of the trustees for the purchase- money of any trust property, sold by them under the will, should be good discharges : — Held, that the trustees were authorized to sell real estate com- prised in the residuary devise, although all the debts, &c. had been paid. Afflecli v. James, 17 Sim. 121. A powerof sale and exchange was given to trustees with the consent of the tenant for life. Judgments were entered up against the tenant for life. Whether the trustees could seU without the concurrence of I the judgment creditors — quare. Leigh {Lord) v. Ashhurton {Lord), 11 Beav. 470. The plaintiff advanced to the defendant a sum of money upon the security of certain shares in a trading company, the defendant agreeing to indem- nify the plaintiff against all calls or other payments which thereafter might he required in respect of the shares. The shares were regillarly transferred into the plaintiff's name, and such transfer was duly registered in the transfer register of the com- pany. The mortgage debt was afterwards paid off, and theplaintiff, at the requisition of the defendant, applied to the directors of the company to re-trans- fer the shares into the name of the defendant, and took all the necessary steps on his part to obtain such re-transfer. The directors refused to permit a re-transfer to be made. During the pendency of the negotiations, a creditor of the company recovered judgment against the public officer of the company, and proceeded to make the judgment available against the plaintiff as a registered shareholder. Upon a bill by the plaintiff against the defendant, for an indemnity, &c. it was held that the defendant, after payment of the mortgage debt and the requi- sition to the plaintiff to procure a re-transfer, was equitable owner of the shares, and that the plaintiff was a trustee for the defendant of such shares, and, as such, entitled to an indemnity from his cestui que trust against the claims made in respect of the trust property. Sed quare, if the defendant had not required a a re-transfer of the shares, but had submitted to the plaintiff's rights of foreclosure. . ■ A trustee is. not bound to wait till- he has been compelled to make actual payments, or suffered express loss in respect of the trust property, but is entitled to come for relief as soon asbe is under any existing liability.- Phene v. Gillon, 15 Law J. Rep. (n.s.) Chanc. 65; 5 Hare, 1. Under a trust for sale of real estate in a settle- ment by which a trustee was directed to apply the proceeds in paying off certain incumbrances upon the settled estate, as well as. upon other family estates^ the Court held that the trustee might raise such sums as might be necessary by mortgage of the estates. Orford {Earl of) v. Albemarle {Earl of), 17 Law J. Rep. (n.s.) Chanc. 396. A debtor assigned his house and business, in trust for the payment of his debts, retaining to himself the management of the business under the superintendence of the trustees, who, on his failing to perform his covenants in the trust deed, were thereby empowered, after having given him three months' notice, to sell the house and business. Such notice was given, but waived by consent of the creditors and trustees, assembled at a general meeting : — Held, that a sale afterwards made by the trustees, without further notice, was unauthor- ized and unlawful. Tommey v. White, 3 H.L. Cas. 49. (c) Investment by, [/ra re Lord William Pawlett, 5 Law J. Dig. 777 ; 1 Ph. 570.] Trust funds wer^ invested in the purchase of trans- ferable shares in a banking company in the name of one of the trustees, who wag also a holder of shares in his own right in the same company, 702 TRUST AND TRUSTEE ; (B) Thustee. and afterwards made various sales and purchases of shares therein. There was no distinguishing marli by whicli the shares could be traced, the same being in the nature of capital expressed by quantity. The trustee agreed to assign some of the shares standing in his name to the banking company, as security for repayment of advances which had been made to him, but no transfer was made. He after- wards became bankrupt, without having shares sufficient to satisfy the trusts and his agreement to assign : — Held, 1st, that the banking company had no lien on any of the shares which had been held in trust. 2nd. That although the shares held in trust might have been changed by sale and re-purchase, the trustee must still be considered as holding, for the purposes of the trust, the same number of shares out of a larger number that were standing in his name at the time of his bankruptcy. 3rd. That as no shares were transferred in pursu- ance of the agreement, no question as to whether the bank directors were purchasers with or without notice could arise ; and of the two equities, for the cestui! qui trust and for the bank, the former must he preferred. Murray v. Pinkett, 12 CI. & F. 764. A, by his will, devised estates to B, his executor and trustee, to be sold, the proceeds to be divided amongst his younger children at twenty-one, and in the mean time to be invested in the parliamentary stocks or public funds of Great Britain, or on real security. B deemed it most beneficial to lay out the sale-monies on real security, and pending the interval which took place in finding and approving of a proper real security, directed his bankers to invest the same in Exchequer bills, which was accordingly done. The Exchequer bills so pur- chased remained for upwards of a year in the pos- session and under the controul of the bankers, un- distinguishable from any property they happened to possess. During the treaty for and before the completion of the mortgage, the bankers failed, having, previously to that event, disposed of the Exchequer bills, and appropriated the proceeds to their own use; — Held, that, under the circum- stances, the purchase of the Exchequer bills was proper, but that B ought not to have left them in the controul of the bankers, and to have distin- guished them from their property, and that he was hound to make good the loss occasioned by his neglect. Mathew v. Brlse, 15 Law J. Rep. (n.s.) Chanc. 39. Trustees of a marriage settlement, being empow- ered to invest the trust-funds in freeholds or copy- holds of inheritance with the consent of the hus- band and wife, authorized the husband to purchase an estate of copyhold for lives, as an investment, and they afterwards sold out part of the funds to pay for the estate, and the husband received the proceeds. The purchase was made without the , wife's consent: — Held, that as between the husband and the trustees, he must be considered as having purchased the estate for them. Trench v. Harrison, 17 Sim. 111. (f) Conveyance hy. By a marriage settlement certain policies of assurance efl'ected by the husband upon his life were assigned to trustees, upon trust to pay the proceeds to the wife for life and then to divide the capital between the children of the marriage. The settlement also contained a covenant on the part of the husband to pay the premiums, and hand over the receipts to the trustees. There was also a power for the husband and wife jointly to appoint new trustees, with a proviso that on such appoint- ment the old trustees should convey to the new trustees. The husband and wife having jointly executed the power of appointing new trustees, the old trustees refused to execute a conveyance of the trust property, upon which a bill was filed to compel them to do so: — Held, that there was nothing vested in the trustees, consequently there was nothing for them to do, and nothing for the Court to direct them to do : and the bill was dismissed, with costs. Dodson v. Powell, 18 Law J, Rep. (n.s.) Chanc. 237. A testatrix, being seised of an equitable estate in fee, devised it to her executors in trust to sell, and out of the proceeds of such sale and her personal estate, to pay her debts, &c., and the legacies given by her in a certain paper signed by her and marked A. The testatrix died without heirs, and the paper A could not be found. The trustee of the legal estate insisted upon his rightj to hold the estate for his own benefit upon payment of the debts. On a bill by the executors, — Held, that the trustee of the legal estate was bound to convey to the executors, the devisees, without reference to the purposes for which the conveyance was required. Onslow v. Wallis, 19 Law J. Rep. (n.S;) Chanc. 27; 1 Hall & Tw. 513 ; 1 Mac. & G. 506 ; 16 Sim. 483. On a bill for specific performance of an agree- ment entered into by the testator to grant a lease to the plaintifi' of certain premises for twenty-one years, which lease was to contain a covenant for the renewal of the lease for two further successive terms of twenty-one years each, — Held, that a devisee in trust, who had no beneficial interest, could not be compelled to enter into any covenant for renewal of the lease, nor to enter into any other than the usual trustee's covenant, that he had done no act to incumber. JVorley v. Frampton, 16 Law J. Rep. (n.s.) Chanc. 102; 5 Hare, 560. (g) Breach of Trust. Bankers, under the circumstances of the case, decreed to refund monies which had been drawn by a trustee from » trust account, standing in their books, and placed to the credit of the trustee's private account at the bank, upon the balance of which latter account the bankers were creditors. PlaintiflT decreed to pay, out of a fund recovered from persons who had acquired it by a b teach of trust, the extra costs occasioned by making a party defendant, instead of a co-plaintiff, to a bill of revivor. Plaintiff decreed to pay the costs of a certificated bankrupt, who had been made a defendant to the suit. Paiinell v. Harley, 2 Coll. C.C. 241. Where stock stood invested in trust for the mother for life, remainder to her son and daughter and their children, and the daughter knew of an appli- cation by the son for a loan from the trustees of part of the trust-monies, and that the trustees were willing to lend, with the consent of the mother, and TRUST AND TRUSTEE. 703 the loan was in fact made i the daughter ohjeoted to the loan in her communications with her mother, but did not otherwise oppose it, and had no com- -munication with the trustees on the subject: — Held, that there was no such acquiescence by the daughter as would prevent her charging the trustees with the breach of trust in a suit instituted seven years afterwards. Held, also, that she was not affected by the knowledge that her mother had untruly stated to the son that she (the daughter) had consented to the loan, such statement not having been communi- cated to the trustees. An investment of 2, 1832. (the produce of stock which trustees were empowered to lend on real security), in a mortgage of house property in a town occupied for commercial purposes, and valued at 2,8002., held not justified. Held, also, that the trustees must replace the stock, and could not satisfy the trust by replacing the money. Phillipson v. Gatty, 7 Hare, 516. On a bill iiled by an incumbrancer of the interest of a deceased tenant for life in a fund against a party sought to be made accountable in respect of a breach of trust affecting the whole fund, to which suit the cestuis que trust in remainder were also parties, — a decree directing the restitution of the whole fund was varied, on appeal, by limiting the relief to the restitution of so much only of the interest of the fund as had accrued in the lifetime of the tenant for life. A trustee having sold certain trust property, and allowed the proceeds to be received by one of the cestuis que 'trust, inquiry directed as to the ap- plication of such proceeds; in order to ascertain the specific remedy which the trustee might have against such cestui que trust, RacTtham v. Siddall, 1 Mac. & G. 607! 2 Hall & Tw. 241. Trustees for sale having sold the trust property, left the conveyance executed by them' with their receipt indorsed, in the hands of a solicitor, who received and misapplied the money. They were held liable for a breach of trust. Ghost v. Waller, 9 Beav. 497. A, tenant for life, with power of leasing, agreed to grant a lease of a house, subject, together with other property, to a mortgage which was vested in a trustee, and in which A's wife and unborn children were interested. To enable A to grant a valid lease, the trustee of the mortgage and A's wife joined in releasing the house from the mortgage : — • Heldj that it was a breach of trust on the part of the trustee to release the house from the mortgage! but that the trustee and A might have joined in granting a valid lease, without discha)• purchaser to complete his pur- chase. Therefore, where A had contracted to sell lands to B, and B afterwards contracted to sell them to C, and agreed, amongst other things, to furnish C with a full and sufficient abstract of title ; and before any conveyance by A to B, A died, — Held, that B, having before A's death delivered to C an abstract, bringing the title down to the contract by A to sell to him, had performed his agreement. Blackburn v. Smith, 2 Car. & K. 561. The owner of land situated on an acclivity con- veyed by a deed of 1816 a portion of the lower land, with liberty to enter on upper lands, and fetch water from a spring, and to cut open, cleanse, and cover in such gutters and drains as might be necessary for the purpose of conducting the spring to the lower land, and also with liberty to pass and repass for ingress and egress, on the upper land around or ad- joining the conveyed land, and to put any ladders against the cottages then intended to be built upon the conveyed land. By another deed of 1820, other part of the lower land was conveyed, with liberty to take water from specified springs in the higher land, and to make such reservoirs in a particular field, part thereof, as might be necessary for taking up water for family use and other necessary purposes, and with liberty to pass for ingress and egress in the upper land surrounding or adjoining the conveyed land. By other deeds of 1824, other parts of the lower land were released, with all watercourses, par- ticularly as the same ran to an inn on the conveyed land, from the upper land. By other deeds of 1825, further portions of the lower land were released, with liberty to fetch water for family and domestic uses at a well on the higher land. By other deeds of 1 834 other part of the lower land was released, with liberty to the releasee to make a covered goit or watercourse across the bottom part of a field, part of the upper land, and to open and repair it when necessary. Several years afterwards, the upper land was sold according to a particular describing it as fit for building, and subject to conditions of sale, pro- viding that if any mistake were made in the descrip- tion of the premises, or if any other error should appear in tlie particulars, it should not annul the sale ; but that compensation should be given or taken. The existence of the easements was not stated in the particulars or conditions : — Held, first, that the fact of the purchaser living in the neighbourhood, being acquainted with the property, and passing constantly 710 VENDOR AND PURCHASER ; (B) Title. Bome of the wells on the lower land, did not affect him with notice of the easements. Secondly, that the existence of the easements granted by the deeds of 1816, 1820 and 1831 alone constituted a material defect of title. Thirdly, that the easements granted by the deeds of 1824 and 1825 would alone render the title so doubtful, that a purchaser could not be compelled to accept it. Fourthly, that the purchaser could not be com- pelled to take the title with compensation. Shackle- ton V. Sutcliffe, 1 De Gex & S. 609. It is not sufficient for a party who relies on a waiver of title, to allege upon his pleading the facts constituting the waiver ; he must shew how he means to use the facts, by alleging that the title has been waived thereby. Semble that where the purchaser after trans- mission to him of the original lease prepares a draft assignment, and makes various objections as to repairs and other matters, but does not require production of the landlord's title, he will be considered to have waived its production. Semble — that a decree for specific performance should not declare that the agreement ought to be performed, if a good title can be made. Clive v. Beaumont, 1 De Gex & S. 397. The proposals on which the agreement for a lease was based stated that the lease was to he granted under a power; that one of the covenants by the lessor would be, not to let any of the neighbouring land for the making or burning of bricks; and that the lease for carrying the above proposals into effect, was to be in the form of one to be inspected at the otBce of B. The defendant agreed to accept a lease on the terms of the proposals, and to execute a counterpart of such lease agreeably with the form referred to. By the form referred to, the covenant against brick-making was confined to the lessor's life : — Held, that it was a good objection to the title, that the plaintiff could not bind the land by the covenant beyond his own life. Practice of the Court in cases where an exception to the Master's report in favour of the title is allowed, and the vendor desires to go back on the ground that he has been stopped by the Master, and can make out a further case : whether it is of course to allow him to do so, or whether the Court will generally require a special application to be made. Dawes v. Belts, 17 Law J. Rep. (n.s.) Chanc. 315. P being lessee of a house underlet to S, with a cosenant to indemnify her against the rent reserved by the original lease. S bequeathed the house to P in trust for L, and made P her executor, who in that character executed a deed, purporting to be an assignment to L of the house for the residue of the term granted to S. Afterwards P bequeathed the house to his executors on certain trusts, who demised it to L for the residue of the term granted to S : — Held, that L could not make a good title to the house, as the legal estate had merged by the bequest of S to P, and the demise by P's executors was a breach of trust. Lawy. Urlwin, 16 Sim. 377. The plaintiff sold by auction, shares in certain mines worked on the cost-book principle, and which were described in the particulars of sale as " im- portant mining shares, paying large dividends. Lot. 1 . One-half share in the T mine," &c. The plaintiff filed his bill for specific performance, and a reference to the Master was ordered upon motion to inquire whether a good title could be made. Upon exceptions to the Master's report, that a good title was shewn, it was held (reversing the decision of the Court below, 17 Law J. Rep. (n.s.) Chanc. 79; 6 Hare, 41), that the vendor was not bound to shew the title of himself and his co-adventurers to the mine itself; but it was held, that the production of an entry in the cost-book was not sufficient evidence as to the ownership of the shares. Where the Master has made a report in favour of the title, and exceptions to the report are allowed, the Court will, at the request of the vendor, send it back to the Master to enable him to make out a good title, without requiring a special application to be made for that purpose ; and that, whether the reference was ordered atthe hearing or upon motion. Curling v. Flight, 17 Law J. Rep. (n.s.) Chanc. 359. In an action by a purchaser against a vendor of leasehold premises, for breach of contract in failing to make out a good title, it appeared that the pre- mises were demised by A, B and C to J S, who assigned to the defendant. The lease contained a covenant by the lessee to insure the premises in the joint names of the lessors, with a proviso for re- entry on breach of covenant by. the lessee. The premises were insured in the joint names of A,- B, C, and the defendant : — Held, that this was not a good performance of the covenant to insure ; and that the defendant being bound to shew a good lease, the lia- bility to have the lease avoided by the landlord was a valid objection to the title. Penniall v. Harborne, 17 Law J. Rep. (n.s.) Q,B. 94; 11 Q.B. Rep. 368. The plaintiff entered into an agreement for the purchase of the lease of a public house. He paid 50/. deposit, and agreed to pay the remainder of the purchase-money on a certain day ; the defendant agreed to assign to him the lease, good-will, &e. on the same day, and it was stipulated that the defen- dant should not be called upon to prove his title. The declaration assigned for breach that the defen- dant would not make a title, and would not assign, &c. The defendant was assignee of an under-lease of the public-house, which was subject to the provi- sions of an original lease. The original lease in- cluded other premises, and contained different cove- nants &om those contained in the defendant's lease : — Held, that under these circumstances, the defen- dant could not perform the agreement, and that the plaintiff was entitled to recover. Blahe v. Phinn, 16 Law J. Rep. (n.s.) C.P. 159; 3 Com. B. Rep. 976. The plaintiff contracted to purchase land, under a condition stating that the sale was made by the first mortgagees under a power of sale, and that the purchaser should not require the concurrence of any other persons in his conveyance. The power of sale referred to was to be exercised by the mortgagees on default of payment, and on giving to the mortgagor or leaving at his usual place of abode a three months' notice to pay off principal and interest. It appeared by the abstract delivered that no such notice had been given; but the mortgagor had, prior to the sale, consented to the sale being made without any notice, which he expressly waived. Previous to this waiver the mortgagor had conveyed the equity of redemption to several incumbrancers, who subsequently to the time VENDOR AND PURCHASER. ?11 for completing the purchase ratified the sale to the plaintiff: — Held, that the plaintiff was entitled to re- scind the contract, and recover back his deposit, as the title deduced was not that for which h e had contracted ; the waiver by the mortgagor not being under the cir- cumstances, and as against the subsequent incum- brancers, equivalent to a notice as required by the power of sale. Forster v. Hoggart, 19 Law J. Rep. (k.s.) Q.B. 340; 15 Q.B. Rep. 155. (C) Wareanty. There is no implied warranty of title from the mere contract of sale itself, and a vendor is not liable for a bad title unless there be fraud on his part, or an express warranty, or what is equivalent thereto by declarations or conduct. Such warranty may be raised by the usage of trade, or by the nature of the trade carried on bj the seller. Where articles are bought in a shop professedly carried on for the sale of goods, the shopkeeper must be considered as warranting that any purchaser will have a good title to keep the goods purchased. A harp having been pledged to the defendant, a pawnbroker, by a party who had no title to it, the defendant being ignorant of that fact, sent it for sale to an auctioneer after the expiration of the time for redemption. The auctioneer, describing the sale as consisting of unredeemed pledges and other effects, sold the harp to the plaintiff, who having been com- pelled to restore it . to the true owner, brought an action against the defendant on an alleged breach of title to sell, and for money had and received : — Held, that as the auctioneer had no authority to sell the harp, except as a forfeited pledge, the defendant was to be considered as selling that right only which he himself had, and as undertaking merely that the article was a forfeited pledge, and that he was not cognizant of any defect of title. Semble that the plaintiff could have recovered back the purchase-money on the count for money had and received, as upon a consideration that had failed, if there had been a mutual understanding that the bargain should be rescinded provided the seller should prove not to have a good title. Morley v. Attenborough, 18 Law J. Rep. (n.s.) Exch. 148; 3 Exch. Rep. 500. The defendant, a farmer, purchased of a butcher the carcase of a pig which was exposed for sale in the public shambles, and left it there. Subsequently, the plaintiff offered for the carcase, and was told by the butcher that he had already sold it to the defen- dant The plaintiff afterwards met the defendant in the town, and for a trifling consideration the defendant transferred his bargain to the plaintiff. The carcase turned out to be measly and unfit for human food. There was no evidence that the defendant knew when he bought or sold the pig that it was diseased, but there was reasonable evidence that he knew it was intended for human food. In an action on the case to recover the price of the pig as damages for the breach of an implied war- ranty, Held, that the defendant not having dealt in the way of a common trader, and there being no evidence of a warranty or of fraud on his part, was not liable; and the plaintiff was nonsuited. Burriby V. Bottitt, 17 Law J. Rep. (n.s.) Exch. 190; 16 Mee. & W. 644. (D) Lien op Vkndqr. The plaintiff, -v^ho was entitled to an equitable life interest in leasehold property, under the will of a testator, assigned the saine to the defendant, in consideration of a weekly sum to be secured by the covenant of the purchaser ; and by the same deed the purchaser covenanted for himself, his, heirs, executors, and administrators, to pay the weekly sum, to insure and repair the premises, and to ob- serve the covenants in the lease, and to indemnify the plaintiff in respect thereof: — Held, that the plaintiff had a lien upon the premises for the annuity ; and the arrears of the annuity and the costs of the plaintiff suing in farrhd pauperis were directed to.be paid out of the rents of the premises. Matthews v. Bowler, 16 Law J. Rep. (n.s.) Chanc. 239 ; 6 Hare, 110. • y. ^ The plaintiffs conveyed an estate, but'retaiiled the conveyance as security for unpaid purchase-money. The purchaser mortgaged the. estate, but the mort- gagee neglected to ask for the first conveyance : — Held, that the plaintiffs had a lien upon the estate prior to that of the mortgagee. Worthington y. Morgan, 18 Law J. Rep. (n.s.) Chanc 233; 16 Sim. 547. (E) PCKOHASER. (o) Rights and Protection of. A trustee having a power of sale for payment of debts, with a direction to divide the residue between certain persons in esse at the time, put up the estate for sale twenty-five years after the testator's death, and upon being asked by the purchaser, whether there were or were not any debts unpaid, declined answering the question: — Held, that the purchaser was not bound to presume the debts to have been paid, and that he would have a good title, without seeing to the application of the purchase-money. Forbes v; Peacock, 15 Law J.Rep. (n.s.) Chanc. 371 ; 1 Ph. 717. The heir-at-law of a testator brought an action at law to try the validity of the will, and failed. An application by him for a new trial was also unsuc- cessful, but he still threatened to dispute the will. In the mean time the devisees in trust under the will entered into a contract for sale, and filed a bill to compel specific performance by the purchaser:— Held, (reversing the decision of ■ the Court below,) that under the circumstances, the purchaser ought not to be required to complete the purchase until the will had been 'established: and the cause stood over for the devisees to take proceedings for that purpose. Grove v. Bastard, 17 Law J. Rep. (n.s.) Chanc. 351. Purchaser not entitled to compensation where the misdescription consisted in stating that the premises sold were in the joint occupation of A and B as lessees, the fact being that they had been demised to C, and by C assigned to A, who was, together with B, in the occupation of them at the time of sale. The purchaser could not in this case be compelled to accept an indemnity. Sidgway v. Gray, 1 Mac. &G.109; 1 Hall&Tw. 195. A purchaser of lands under the description of " partly freehold and partly leasehold," is entitled to have the boundary dividing the freehold from the leasehold defined by reference to the instruments of 712 VENDOR AND PURCHASER ; (E) Pubchasbb. title, or shewn to be capable of being so defined; but the circumstance that the property is described in the agreement as partly freehold and partly lease- hold, the boundaries distinguishing the one from the other not being therein, and having not theretofore been clearly defined, is not an objection to a decree for specific performance. The uncertainty in the boundary or extent of pro- perty which arises, not from an instrument being incapable of legal construction, but from its not having theretofore received any such legal construc- tion, is not a ground for refusing specific performance of a contract to sell such property. If the boundary of property contracted to be pur- chased can be certainly defined, whether the extent be more or less, the purchaser will be bound by the contract, but whether he will be so bound if the boundary depends on a plan or instrument which is 80 vague as not to admit of legal construction, qutsre. A contract by a lessee under an ecclesiastical cor- poration, whilst he was in treaty with the corporation for the renewal of his lease, to sell the leasehold pre- mises, does not necessarily throw upon him the obligation of procuring the renewal of the lease at his own expense, for the benefit of the purchaser; whether if the vendor, after the contract, procure such renewed lease, the purchaser is not entitled to take it without bearing the expense of the renewal, qusre. Although a good title was not shewn by the ven- dor until during the pendency of the reference, the Court held that the purchaser must nevertheless bear the costs of the suit, it being manifest that, if the particular evidence which completed the title had been produced before the bil] was filed, yet the suit would not have been avoided. Monro v. Taylor, 8 Hare, 51. Upon a petition asking for leave to re-sell one of two lots, in consequence of a purchaser's unwilling- ness to complete his purchase, it was ascertained that one of the lots, a reversionary interest, had fallen into possession, and that the money had been paid into court, which made the purchase desirable : — Held, as the purchaser had not been discharged, that he was still entitled to complete the purchase ; but the Court imposed terms, and limited the time for payment into court of the balance beyond what had been received for the reversionary interest. Robertson v. Skelton, 19 Law J. Rep. (n.s.) Chanc. 661; 13 Beav. 91. (6) Liabilities and Duties, The defendant granted to the plaintiff an annuity, re-purchaseable upon giving six months' notice. Y only was employed in the transaction by both par- ties. In May 1830 notice was given to the plaintiff that the annuity would be re-purchased in Novem- ber. In August the defendant placed in Y's hands a sum of money, part of which was to be applied in re-purchasing the annuity. In October the plaintiff, upon the application of Y, executed a re-assignment of the annuity, but did not receive the money nor sign any receipt for it Y retained the money in his hands, and continued the payments of the annuity to the plaintiff, and shewed the deed of re-assignment to the defendant, as a proof that the money had been duly paid. Y afterwards died insolvent: Held, that the loss must fall upon the defendant. and that the plaintiff was entitled to receive the money for the re-purchase of the annuity, and to the arrears. Vandeleur v. Blagrave, 17 Law J. Rep. (n.s.) Chanc. 45. In July 1816 two houses were purchased under a decree of this Court, and, pending a reference to the Master upon the title, the back walls fell down, and damaged the adjoining premises. Upon an applica- tion to this Court by the vendor (which was dis- missed, with costs, against the purchaser, who repu- diated the application, on the ground that he had no interest), a reference was made to the Master, who certified that various sums, amounting to 51/. 10s., should be expended to remove the rubbish and rein- state the adjoining premises, and repair the houses to render them habitable. By another order the work was directed to be done, and the expenses, and also a fee of 2i is. to the district surveyor, and U. Is. to the solicitor of the owner of the adjoining pre- mises, together with the costs of that and a former application, were directed to be paid by the receiver, without prejudice to any question by whom or out of what fund they should ultimately be borne. On the 8th of March 1849 the Master certified that a good title was made ; and, upon a petition, the ven- dor asked that the purchaser might pay his purchase- money, with interest from th^^me when the pur- chase ought to have been completed, and that he might pay the sums expended in repairs, fees and costs, amounting together to 172/. 6s. lOrf., and be let into possession, and that he might pay the coats of a prior motion and of this petition : — Held, that the estate belonged to the purchaser from the date of the order confirming the Master's report nisi; that possession belonged to the vendor till the pay- ment of the purchase-money, subject to his account- ing for the rents received; that the vendor ought to be paid all expenses subsequently incurred ; that losses happening pending the contract fell on the purchaser; that any immediate obligation requiring an expenditure of money fell upon the purchaser, who was liable for the monies expended for repairs aftd fees; that the estate, and not the purchaser, was liable for the costs of the trustee, in whom the legal estate was vested ; that the purchaser must pay bis purchase-money into court, with interest ; that the purchaser was entitled to further inquiry respecting the expenditure; that, if satisfied with the inquiry made,thesums paid for repairs, &c. must be deducted out of the rents, without costs on either side, — but if a further reference was required, the costs were reserved. Held, also, that the vendor was not entitled to interest from the time mentioned in the conditions of sale; but only from the confirmation of the Master's report of a good title. Robertson v. Skelton, 19 Law J. Rep.- with two of them, and "been in company with" the third on a recent . day ! — Held, sufficient. Howard V. .B»Mo, 5;Dowl. & L. P.O. 396. (c) Impeaching, Assynipsit will not lie .by the party against whom a;/!. /n..,ha3^ issued.on a subsisting judgment)' lo recover the sum , levied under,4t, on' the :ground that such judgment was signed on, a warrant of attorney, which was, obtained by fraud or duressi- Be Medincf y. Grove, 15 Law J. Rep. (n.s.) Q.B. 287. . [d) Reviving, An agreement to waive a scire facias to revive a judgment upon a warrant of attorney, entered into after judgment has been signed upon the warrant, is valid, although not executed with the formalities rendered necessary for the execution of warrants of attorney by the 9 & 10 Vict. c. 110. 9. 9. Where one of several plaintiffs dies, and execution is issued in the names of the survivors, the absence of a suggestion on the record is not an irregularity which will entitle a defendant to be discharged out of custody. Cooper v. Norton, 16 Law J. Rep. (n.s.) aB. 364. (D) Filing. Defendant being indebted to pIaintifFin500i.,and ill other sums to different creditors, arranged to pay his creditors a composition of 10s. in the pound on their debts (except plaintiff), who was to remain his creditor for the full amount, and to take the risk of being subsequently paid. In order to protect de- fendant from other creditors, a docket was struck by plaintiff, but no fiat issued upon it; after this the composition deed, and also a deed of release, were executed by all the creditors (except plaintiff), and the amount of the composition fully paid by defen- dant before the year 1838. On the 29th of Septem- ber in that year, plaintiff having sued defendant for his debt of 5001. defendant gave a cognovit for that sum, upon which judgment was signed on the 17th of October following, but the cognovit was not filed until October 1846. Afi.fa. issued on the above judgment, under which defendant's goods were taken in execution in December 1845, and on the 28th of February 1846, a fiat in bankruptcy issued against the defendant, under which assignees were appointed. It appeared that some of the creditors under this fiat were creditors when the former docket was struck, but in respect of different debts, they having executed the deed of release. On an application by the assignees to set aside the judgment and execution as void, under section 8. of the 6 Geo. 4. c. 16,^ Held, that the giving of the cognovit, under these circuriistanceSy was not within that section. Held, also, that judgment having been signed on the cognovit within twenty-one days, it was not necessary to file itj as cognovits stand on the same footing as warrants of attorney in this respect, under the 3 Geo. 4. c. 39. =.3. The sheriff having deducted auctioneer's fees from the levy when there had been no auction, it was held that the plaintiff could not be called upon to refiind this money, i JBushellv, Board, 16 Law J. Repj(N;S.) a.B. 57 ; 4 Dowh & L. P.C. 359i (E) Setting ASIDE. W executed at Brussels, in June 1 843, a warrant of attorney to confess judgment; and judgment was entered on it In January 1846, a rule nisi was obtained to set the warrant and judgment aside. There was nothing to shew that W authorized the application, except that the affidavit in support of the rule was made by a party who styled himself clerk to L, "attorney forthe above-named defendant:" — Held, that it ought to have appeared more ex- pressly that the application was made on behalf of Ws amd the Court discharged the rule, but without costs. Hume v. Lord IVelleslet/, 8 Q,.B. Rep. 521. WASTE. [See Babon and Feme— Injunction, Special.] The right of a remainder-man to bring an action or suit within twenty-one years after his title accrues in possession applies to a claim for equitable waste as well as to a claim of the land itself. In 1797, family estates were settled upon a tenant for life, without impeachment of waste, with remainder in tail male, and in 1809, the tenant for life pulled down the mansion-house, cut the ornamental timber and other trees, destroyed the garden, and converted the estate into a farm. The plaintiff, who was his only son, attained twenty-one in 1819, when he joined with his father in suffering a recovery of the estates, but did not at that time make any claim for compensation in respect of the waste which had been committed. The tenant for life died in 1838, upon which the plaintiff filed his bill against the trustees and devisees of his father's will, claiming WASTE— WATER AND WATERCOURSE. 719! compensation for these acts of waste. The defen- dants contended that the tenant for life was justified in converting the fetnily mansion into a farm, as it was an advantage to the estate; and that the plain- tiff was too late in coming to the Court for com- pensation:- — Held, that the acts complained of amounted to equitable waste, and that the plaintiff was fully justified in waiting till the death of the tenant for life before he filed his bill for compensa- tion, and that the estate of the late tenant for life was liable to account for all the profit received from those acts. Leeds (Duke of) v. Amherst (Earl of J, 16 Law J. Rep. (n.s.) Chane. 5; 2 Ph. 117; affirm- ing s.c. 15 Law J. Rep. (u.s.) Chanc. 351; li Sim. 357. A tenant for years is not guilty of waste in cutting down willow trees for sale, which spring up again from the stools, unless they serve to protect the house, or to support the bank of a stream. Pliillipps V. Smith, ISLaw J. Rep. (n.s.) Exch. 201; 14Mee. & W. 589. Case for waste. The declaration stated that the defendant held a dwelling-house as tenant thereof to the plaintiffs, under a demise made by the plaintiffs to him ; by reason of which tenancy it; became the duty of the defendant to manage the tenements in a proper manner, and not to permit waste ; yet the defendant did not manage the tenements in a proper manner, but, on the contrary, permitted the dwelling- house to become waste and ruinous : — ^Held, first, that the declaration was bad on general demurrer, as it was consistent with its allegations ibat the defen^ dant was tenant at will to the plaintiffs, and there- fore not liable for permissive waste ; secondly, that the statement of the tenancy was not an ambiguous, but an insufficient statement. Qucere — Whether a tenant from year to year is liable for permissive waste. Harnett v. Maitlandj 16 Law J. Rep. (n.s.) Exch. 134; 16 Mee. & W. 2S7; 4 Dowl. & L. P.C. 545. WASTE lANf). Though it is the presumption of law that a-strip of waste land lying between an old inclosure and a highway belongs to the owner of the old inclosure, yet that presumption may be rebutted by shewing that there is other land also adjoining the strip, to which it may have formerly belonged. Doe d. Har- rison V. Hampson, 17 Law J. Rep. (n.s.) C.P. 225 ; 4 Com. B. Rep. 267. WATER AND WATERCOURSE. The defendant was the owner of a close contain- ing a well, the water from which had flowed im- memorially into an old pond, situate in one of three closes belonging to the plaintiff. The defen- dant's predecessor in the land having, about the year 1812, chnnged the course of the water, whereby it ceased to flow into the old pond as before, the plaintiff made three new ponds, one in each of his three closes, and having conducted the water into them, ceased to use. the old pond, which became filled with rubbish and overgrown with grass. In the year 1843 the defendant diverted the water from the three new ponds; whereiipon the plaintiff brought the present action. The declaration stated, that, 'at' the time of the grievance, three closes of land, situ- ate, &c. and certain, to wit, three ponds filled with water, one pond thereof being in and upon 6ach of the said closes respectively, were in the possession and occupation of the plaintiff's tenant, and it then stated the diversion complained of; — Held, that the pladntiff, who had failed to prove a right to the over- flow of water into the three new ponds; was entitled under this declaration to^give evidence of the imme- morial right to the overflow of water into the old pond. Hale v. Oldroyd, 15 Law J. Rep. (W.s.) Exch. 4; 14 Mee. & W. 789. The! defendant diverted a stream as it passed through his premises, but restored it undiminished in quantity to its former channel before it reached the premises of the plaintiff. The defendaBtalso employed the stream, while on his premises^ in a way which rendered the water unfit for ordinary use, but he alleged that the water, by the time it reached the plaintiff's lands, was freiedto the utmost possible extent from any noxious ingredients with which it had become impregnated, and it did not appear that' any actual idariiage'i was sustained by the plaintiff.- Under these circumstances, the Lord Chancellor di^' solved an injunction restrainingthe defendant'from diverting and using the -water. Elmshirst v. Spencef, 2 Mac. & G. 45.. ' ■ i '■ ■'• '" The owner of land entitled by reason thereof to the advantage of water flowing through it in' a natu- ral-watercourse who has erected mills upon that land and on the banks of the watercourse; and has used such water for working such mill's, has; by reason of the possession of such mills; a- right -to the enjoyment of the water of such watercourse for the purpose of working them, although they have been erected for a period less than twenty years from the time of an action brought for an infringement of 'such right. The water of such watercourse having been ■ used by a mill-owner, whose mills were situated above the' plaintiffs', for manufacturing purposes, and returned' again to the stream, except about 5' per cent, of that usfedi which had been lost' by evaporation, — Held, that this was a sufficient amount of injury to entitle the plaintiffs to a, verdict upon the issue of Not guilty. . Where an action had been brought by a person entitled as above mentioned, against the defendants for polluting the water, and the facts were that the defendants had polluted the water by pouring in soapsuds, &c., but that such pollution had done no damage to the plaintiff, because the stream was al- ready so polluted by similar acts of mill-owners above^he defendants' mills, that the wro'rigful act of the defendants made no sort of practical difference, Held, nevertheless, that upon the issue of Not guilty, the plaintiffs were entitled ,to have that issue found for them. No action lies for an injury occasioned by the diversion of an artificial watercourse, where from the nature of the case it is obvious that the enjoyment of it depends upon temporary circumstances, and is not of a permanent character, and where the inter- ruption is by a party who stands in the situation of the grantor. And where the owners of a colliery had suffered the water pumped out of their colliery to flow along 720 WATER AND WATERCOURSE— WAY. an artificial channel, — Held, that, in the absence of any ^rant or prescriptive title, no action lay by the owner of land through which the water had been so accustomed to flow, against an owner of land above and through whose land the sough likewise passed, for diverting such water; for the owners of a colliery thus getting rid of a nuisance to their works by dis- charging the water into such sough could not be considered as giving it to one more than to others of the proprietors of the land through which such sough had been constructed, but that each might take and use what passed through his land, and the proprietor of the land below had no tight to any part of that water until it had reached his own land, nor had he any right to compel the owners above to permit the water to flow through their land for his benefit. fVood v. Waud, 18 Law J. Rep. (n.s.) Exch. 305; 3 Exch. Rep. 748. WATERWORKS. Provisions usually contained in acts authorizing the making of waterworks consolidated by the 10 Vict. c. 17; 25 Law J. Stat. 58. WAY. ^Dimcan v. Louch, 5 Law J. Dig. 806; 6 Q.B. Rep. 904.] Trespass for breaking and entering a close called the Hencroft. Plea, that C being owner in fee of the said close granted to W H, by indenture, a way over the said close for the occupiers of a certain dye-house, and that the defendant being in the occupation of the dye-house committed the said tres- passes. The plaintiff craved oyer of the indenture, and set it out in his replication. By the indenture C granted, bargained, &c. to W H all those newly erected buildings standing and being partly on the said close called the Hencroft, and partly on B C, together with all and singular outhouses, edifices, buildings, roads, wa^^j.&c. and appurtenances with the said premises usually held, occupied, or enjoyed; the said C reserving to himself exclusively the said Hencroft, with the rights, privileges, and appur- tenances within and to the same belonging : — Held, on special demurrer, that the plea was bad in omit- ting to aver that the way had been usually held, occupied, or enjoyed with the Hencroft. Also, that no right of way was granted by C over the Hencroft. Tatlon V. Hammersley, 18 Law J. Rep. (n.s.) Exch. 162; 3 Exch. Rep. 279. A declaration in case by a reversioner for the ob- struction of a right of way, by locking a gate, whereby the reversion was injured, was heW after verdict for the plaintiff, on motion in arrest of judgment, suffi- cient, as such an obstruction might occasion injury to the reversion ; and it was to be assumed that evidence to that effect had been given. Kidgell v. Moor, 19 Lhw J. Rep. (n.s.) C.P. 177; 1 L. iW. & P. 131. A, being a termor of land, built two houses on it. The whole was then released to him in/ee, " with all ways, easements, advantages and appurtenances thereunto belonging, or therewith usually used, leased, held, occupied or enjoyed." By his will, he devised one house, and the appurtenances thereunto belonging, to B, and the other to C, in similar terms. During A's ownership of both, the entrance from the high road to the principal door of the house afterwards devised to B, was by a carriage drive or sweep, entering from a high road, passing imme- diately in front of the house afterwards devised to C, to B's door, and then returning roimd an oval garden in front of C's house, but at a greater distance from it, to the same point of entrance. B's house had a coachhouse opening only into the high road, and a back entrance into the same. After A's death, C made a fence across so much of the carriage drive as passed immediately in front of his house and across the oval garden, leaving the further way to B's front door by the same carriage drive open. B brought trespass, claiming the way as appurtenant to his liOLise and garden : — Held, first, that the way, as used in A's time, during the unity of ownership in him, immediately in front of C's house, did not pass to B with the house devised to him, under the word "appurtenances" in A's will; and, secondly, comme semble, that it did not pass as a way of necessity, whether taken in the strict sense, or as a way without which the most convenient and reasonable mode of enjoying every part of B's premises could not be had. Semble — Nothing of absolute necessity to a build- ing, e.g. a gutter in alieno solo, to carry off water, &c., is extinguished by unity of ownership. Pheysey v. Vicary, 16 Mee, & W. 484. In an action of trespass the defendants justified under a right of way supposed to have been conveyed to them by J S. The deed was set out on oyer by the plaintiff, and the description of the parcels conveyed contained the following words: — " Together with all ways, &c., particularly the right and privilege to and for the owners and occupiers of, &c. (the premises conveyed) and all persons having occasion to resort thereto, of passing and repassing for all purposes in, over, along, and through a certain road," &c. (de- scribing the locus in quo). The defendants in their plea, after stating the conveyance to J S in the terms of the deed, and deducing their title from J S under a conveyance to them of the same "lands, tenements, hereditaments, premises, and appurtenances,''' as those conveyed to him by the above-mentioned deed, alleged that they being owners and occupiers of the premises, and having occasion for their own purposes to use the right and privilege granted by the convey- ance to J S, did on foot, &c. pass and repass /or the purposes of them, the defendants, along the said road, &c. (the locus in quo). Held, first, that the right granted by the convey- ance to J S was not restricted to a user of the road for purposes connected with the enjoyment of the land conveyed to him by the same deed. Secondly, that the conveyance to the defendants of the land conveyed to J S and its appurtenances, could not give the defendants, as owners and occupiers of that land, a right of road over other land for purposes unconnected with the enjoyment of the land of which they were owners and occupiers, and therefore did not pass to them the rights which J S had over the locus in quo. A vendor cannot create lights not connected with the enjoyment of the land and annex them to it; nor can the owner of land render it subject to a new species of burthen, so as to bind it in the hands of an WEIGHTS AND MEASURES— WILL ; (A) Consiteuction of Wills. 721 assignee. Ackroyd v. Smith, 19 Law J. Rep. (n.s.) C.P.315. The nature of the act done by the grantee of a right of way, or of the adverse act acquiesced in by him, and the intention in him, which either the one or the other indicated, is that which is material for the consideration of a jury. Regina v. Cliorley, 12 Q.B. Rep. 515. WEIGHTS AND MEASURES. Vessels whether of earthenware or other material which are ordinarilj' used as measures are liable to seizure if they do not correspond with the imperial measures, pursuant to the 5 & 6 Will. 4. c. 63. s. 21. Washington v. Young, 19 Law J. Rep. (n.s.) Exch. 348; 5 Exch. Rep. 403. WHARFINGER. A declaration in case for damage done to the plaintilF's vessel, stated that the defendant possessed a wharf on the Thames, near which there was a wood-work, placed there by the defendant, and being at the bottom of the river, and over which the after- mentioned ship at certain states of the tide would float, but not at other states of tide; that the plain- tiff was possessed of a ship then being by sufferance of the defendant at and alongside the wharf for reward to the defendant in that behalf; that the defendant had the management and controul of the wharf, and the mooring and stationing of ships at and near it whilst they were at the wharf for the purpose of using it. Breach, that the defendant unskilfully, &c. placed, moored and stationed the plaintiff's ship in the river, near the wharf and over the wood-work, and detained it there for a long and improper time, and until the ship, on the fall of the tide, struck against the wood-work, and thereby was greatly injured. Plea, that the defendant had not the management and controul of the wharf, and the mooring and stationing of ships, &c. modo etformi. After a verdict for the plaintiff, a riile nisi for arrestingthe judgment was refused. Curling y. Wood^ 17 Law J. Rep. (n.s.) Exch. 301; 16 Mee. & W. 628. WILL. [For Construction of Devises of Real Estate, see Devise. For Construction of Bequests of Per- sonalty, see Legacy. See also Settlement — Thellusson Act.] (A) Construction op Wills. (o) General Points. (i) Misdescription and Ambiguity— Evidence to explain. (B) Validity. (a) In general. (6) Signature by the Testator. (c) Attestation. (C) Publication and Re-publication. (D) Revocation AND, Cancellation. (E) Codicil. Digest, 1845—1850. (F) Pkoeate and Administkation. (o) In general. (i) Jurisdiction in Matters of. (G) PhobateDuiy. (H) Election undeb. (A) Constbuction or Wills. (a) General Points. IScott V.Moore, 5 Law J. Dig. 813; 14 Sim. 35. Milroy v. Milroy, 5 Law J. Dig. 813; 14 Sim. 48. Kidd V. North, 5 Law J. Dig. 810; 14 Sim. 463. Morrallv. /SuWon, 5 Law J. Dig. 813; 1 Ph. 533.] Effect given to an instrument, in the nature of a testamentary disposition, made by a Hindoo, domi- ciled in the north-west provinces of Bengal. By this instrument, the testator gave his widow a life estate in all his property, and after her decease he gave a moiety thereof to his brother B, and his sons C and D. B and C died in the lifetime of the tenant for life. C and D were divided brothers. C's widow claimed his share : — Held, by the Judicial Commit- tee, first, that C and D took vested interests in the moiety, as tenants in common, the actual enjoyment of the expectant interest being postponed till the termination of the life estate. Secondly, that in such circumstances, it was not necessary that C's should be reduced into possession, during his lifetime, to enable his widow to succeed to it. Semhle — That the instrument itself -would have operated as a division of the property given, so as to prevent D, who survived, succeeding . to his de- ceased brother's shaiei, as an undivided brother. Persad v. Beeby, 4 Moore, In. App. 137. The word "estate," when used in a will, iagenus geneialissimuaii and will, of its own proper force, without any prooi aliunde of an intention to aid the construction, carry realty as well as personalty, and is not to be confined and restrained to personalty only, unless there is a clear intent expressed in other parts of the will, to be gathered either from the whole will or from the way in which the word is u^ed. in thfi particular part of the will where the ■ contested use of it arises. Testator, by his will, devised to J (his heir-at-law) part of his estate in fee, and also a life estate in another portion of his estate, named P; and also gave to F (his wife) a life estate in part ofPduringher viduity, with remainder to his other son, N, in tail, remainder to his (the testator's) daughters for life ; and after giving certain specific chattels to F, the will proceeded as follows : " I give all the remainder of my estate that is now in my possession, or may hereafter be mine, excepting what I have particularly given away, unto my wife, F. And it is my will, that, whatever my estate may consist of, after debts and legacies are paid, that it be kept together under the direction of my wife, F." N died without issue, and F, the widow, also died, unmarried and intestate. The heirs-at-law of J sold the estate P to the appel- lants, subject to the life-estate of the daughters. In a suit by the appellants against the daughters of the testator, the co-heiresses of F, for a partition, — Held, by the Judicial Committee, affirming the decree of the Court in Bermuda, that jthe remainder in fee, 4Z 722 WILL; (A) CoNSTRtrCTioN OP Wilis. in the estate P, passed to F, under the residuary clause, there being notliing in the context of the will to confine the natural and legal meaning of the word " estate" to personalty only. Observations upon the mistake in the report of Barnes v. Patch, 8 Ves. 601. Mayor, Sfc, of Ha- milton (Bermuda) v. Hodsdon, 6 Moore, P.O. 76. A testator resident in Jamaica, and seised of plan- tations and slaves in the island, by his will, dated June 1834, after giving certain bequests, proceeded as follows : — Also, I give, devise, and bequeath, share and share alike, unto R and her children, all my right, title, and claim to compensation, such as may be awarded to me, as my portion of the compenaa- tion-fund, for the emancipation of such slaves as may belong to me and be living on the 1st of August 1834." This will was not attested so as to pass real estate, but was properly executed to pass personalty. By the law of Jamaica, slaves could only be directly devised as real estate. The Act for the Abolition of Slavery (3 & 4 Will. 4. c. 73, passed on the 28th of August, 1833) provided that, on the 1st of August 1 834 slavery should cease in the British dominions, and gave to the owners of the slaves a right to their services as apprentices, and to compensation for the loss of their services as slaves. The testator died before this period of manumission arrived. The Court in Jamaica decreed, that the compensation- money partook of the nature of real estate, to the same extent as the slaves, and did not pass under the will. Upon appeal, held, reversing such decree, that (treating the slaves as real estate) the legislature became purchasers, under the 3 & 4 Will. 4. c. 73. from the date of the act, giving a limited interest in the slaves for a term of years to the vendor, and that the money to be received under the compulsory sale of the slaves was converted into personal estate, and passed to H and her children, as specific legatees, under the will. Although the testator's will was inoperative as to the real estate, the executors took possession of the real estate, and filed a bill of interpleader against E and her children and the heiress-at-law of the testator, for the administration of the compensation fund: — Held, that the suit was improperly brought, as the question could have been determined by the CommissionejTB of Compensation, and the executors refused their costs out of the fund. Where costs had been improperly paid out of the compensation-fund, the reversal of the decree was made without prejudice to the right of the legatees taking proceedings for the recovery of the fund. The Rules, made in pursuance of the act, and, when allowed by His Majesty in Council, declared to have the same force and effect as the act, must, when made, be construed with reference to the pro- visions of the act itself. The second and fifth rules of the Commissioners of Compensation to be con- strued and applied upon this principle. Richards v. Attorney General of Jamaica, 6 Moore, P.O. 381. A testator made his will duly executed so as to pass real estate, whereby he gave considerable in- terests in his real estate to his daughter, and, subject thereto, gave his property to her children, and in default of issue to his collateral relations ; and the will contained a proviso, that if the testator's aaid daughter, or her husband, or any person or persons on her, or his, or their behalf, should dispute the will or his competency to make it, or should refuse to con- firm the will, as far as he or she lawfully could, when required by the executors to do so, the disposition in favour of the testator's said daughter should be revoked: — Held, that this proviso was good and valid in law. Cooke v. Turner, 17 Law J. Rep. (k.s.) Exch. 106 ; 15 Mee. & W. 727. A testator, after devising and bequeathing all his real and personal estate to trustees, on trust, from time to time to receive the rents and profits, and therewith to pay various legacies and annuities, directed that they should invest the surplus rents and profits at interest, and suffer the same to accu- mulate ; and he declared that they should stand seised of his said trust estate and the accumulations, upon trust, that when and as soon as any son of either of his nephews A and B should have attained the age of twenty-five years, a valuation of his said trust estate should be made, and that the same should then be divided into as many equal lots as there should be sons of his said nephews then living, and thenceforth separate accounts should be kept of the respective portions; and that each of his said nephews' sons, when and as they should respectively arrive at the age of twenty-five years, should choose one of such portions as the share to be allotted to him and his children, and that thenceforth the said portion or share should be held by the trustees upon trust for the person so selecting the same for his life, and after his decease upon trust, as to one equal moiety, for his eldest son, and his heirs, executors, &c.; and as to the other moiety for the rest of his children, and their heirs, executors, &c. in equal proportions, and if but one child, both moieties for such child absolutely; but if any or either of his said nephews' sons should die under their respective ages of twenty- five years, or having attained that age should after- wards die without leaving issue, the share or shares intended for the person or persons so dying should go to the others and other of the said nephews' sons; and if all but one should die without leaving issue, the trustees should stand seised and possessed of the whole trust estate, in trust for such one surviving nephew's son for his life, and for his children and child as aforesaid ; but if all the testator's said nephews' sons should depart this life without leaving issue, then upon trust for such person as should at that time be the testator's heir. At the time of the testator's death, A and B had several sons living, and B had another son born afterwards : Held, upon the construction of the will, that the trusts for accumulation and division of the property comprised all the sons of the nephews, who should be living when the first of them should attain twenty- five; and as the son who should first attain that age might not be born until after the testator's death, the gifts were too remote, and therefore void : and the testator's real estates upon his death became vested in his heir. Held, secondly, that under a bequest of real and personal estates, upon trust to receive the rents and profits, and to pay legacies and annuities, and invest the surplus rents, &c. for other purposes, the per- sonal estate is the primary fund liable to the pay- ments, there being no direction to discharge it, or to sell the real estate, so as to constitute a mixed fund. WILL ; (A) CONSTKUOTION OF WiLiS. 723 Boughton V. Boughton, Bmghion v. James, 1 H.L. Cas. M6. A bequest in the words following : " And at the death of my sister M, I give and bequeath all the property I die possessed of in remainder to my own dearest niece B, subject to the annuity of 1501. as before named to my sister P, but if my niece B should be married at the time of my sister M's death," [which event occurred] " I, in that event, bequeath my property at the decease of my sister M to my sister P for her life," &c Held, that the bequest to the niece B was not in general restraint of marriage, but until marriage, and consequently that B was not entitled to a de bonis non grant as a resi- duary legatee of property left unadminiatered. Gorf- frey v. Hughes, 1 Robert. 593. A testator gave to his executors beneficially, in equal proportions, all his property which he might not dispose of, subject to his debts and any bequests which he might afterwards make. He afterwards made a codicil in these words, " In a codicil to my will I gave to the corporation of Gloucester 140,000i. In this I wish my executors would give 60,000t more to them, for the same purpose as I have before named. I would also give my friends" (several were named, with large legacies), " and I confirm all other bequests, and give the rest of my property to the executors for their own interest." No other codicil was produced. Held (affirming a decree of the Court of Chancery on a bill filed by the corporation of Gloucester claiming the two legacies), that the purpose of both the legacies must be held to be the same, and that both failed for uncertainty of the purpose. The Mayor, Sfc. of Gloucester V. Osborn, I H.L. Cas. 272. In adjudicating on cases involving the meaning of the words " issue" or " children," the whole context of the will must be taken into consideration ; and the Court will, where the context is doubtful, adopt such a construction as will best effect the intention of the testator, and tend to the general benefit of the family which is the object of the bequest. In the case, however, of a gift to "all and every the respective issues of the testator's daughters, either sons or daughters," followed by the frequent use in a subse- quent part of the will of the word " issue," it was held, that the word " issues" ought not to be ex- tended or enlarged so as to comprise the issue of a deceased child of one of the testatrix's daughters. Farrant v. Nichols, 15 Law J. Rep. (n.s.) Chanc. 259; 9 Beav. 327. Testator gave all his property to his mother for life, and directed that, at her decease, it should be divided amongst his three sisters, or their children, in such proportion as she should appoint The mother and one sister died in the testator's lifetime. The deceased sister left no issue, but one of those who survived had children : — Held, that " or" must be read "and," and that, under the circumstances, the property was given to the three sisters and their children in equal shares. Penny v. Turner, 15 Sim. 368. Testatrix, by her will, gave all her real and per- sonal estate to trustees, upon trust for her sister for life, and from and after her decease, upon trust, to sell all her real estate, and to pay the money arising therefrom, to such persona as she should by any codicil direct; but in case she should not by any codicil bequeath the same monies, she directed that the same should be paid by her said trustees unto and amongst her next-of-kin, in a due course of ad- ministration as the law directed in respect of the intestate's personal estates. By a codicil she re- voked the bequest after the life estate, and directed that the " said residue" should be paid to her next- of-kin on the part of her mother only, and not to any of her next-of-kin on the part of her late father. — Held, that the next-of-kin ex parte materni of the testatrix were entitled to the residue of the proceeds of the real estate ; and thait the residue of the per- sonal estate, subject to the life interests therein given, was undisposed of by the will and codicil. Say V. Creed, 16 Law J. Rep. (n.s.) Chanc. 361; 5 Hare, 580. If the words of a gift are of themselves plain, distinct, and capable of a legal effect, effect must be given to them, notwithstanding any improbability which may arise from other parts of the will. If they are ambiguous in expression or effect, they are not to be rejected for uncertainty, but an indication must, if possible, be collected from the rest of the will of what is meant by the ambiguous words. Wilson V. Eden, 11 Beav. 289. A testator devised his residuary estate in trust for certain tenants for life, with remainder to D F for life, with remainder in trust for the sons of D F as ten.tnts in common, in tail male, with cross remain- ders, and remainders over. And he directed his residuary personal estate to be laid out in the pur- chase of land, to be settled to the same uses. 'By a testamentary paper, of tha same date as the will, and headed, "Memorandum, alias directions to my executors," he directed, as to his residuary personal estate, that his executors should apply for an estate of an uncle of the testator as an investment "for the use and behoof of D. F.," and if not attainable, to inquire if any part of a certain other estate was to be disposed of. Neither of the specified pro- perties could be obtained on fair terms as an invest- ment : — Held, that D F did not take any further interest under the codicil than under the will, and that the testator thereby either meant to express merely a recommendation as to the mode of laying out the residuary personalty, or expressed no inten- tion upon which the Court could act. Fitch v. Friend, 2 De Gex & S. 405. A testatrix, by her will, made a residuary be- quest to her son; whom she appointed executor. A codicil, after a number of specific legacies, contained the following clause : — " I also direct that all my goods and chattels, real and personal, of whatever description that may be, to me belonging, saving and excepting everything hereinbefore mentioned, go to my executor, to be assets in his hands, towards the execution of the codicil to my last will; and of the ' scruples,' if any, I direct him to bestow the whole in charity." A bill, by one of the next-of-kin against the executor, the Attorney General, and the other next-of-kin, was dismissed, on the ground that the next-of-kin, as next-of-kin, had no claim. Henniher V. Henniker, 17 Law J. Rep. (n.s.) Chanc. 120. A person, on his marriage, entered into a covenant to settle all the real and personal estates which he might have at his death upon his wife for her life. No further trusts were declared. By his will he di- rected the trustees therein named to stand possessed 724 WILL; (A) Construction OP Wills. of all his real and personal estates for the purposes of the settlement. By a codicil be directed his trustees to take the whole of his real and personal estate into their consideration ; and his will was to divide to every child its due share and proportion; also taking into consideration any advances made to the children. And he gave to one of his sons the option of purchasing his dwelling-house. By a second codicil he directed his trustees to convey another house to his daughters, they paying a proper consideration for it :^Held, that there was not an intestacy as to the interest of the testator after his wife's deceeise, hut that all his residuary real and personal estates were disposed of by his will. Hodg- kirison v. Barrow, 17 Law J. Rep. (n..s.) Chanc. 131. A testator devised and bequeathed the residue of his estate to trustees, upon trust, to apply the income for the maintenance and education of his niece until she attained twenty-one or married, and then to settle the whole or any part for the benefit of the niece and her, children; and in default of children of the niece, then in trust for her mother absolutely ; and in trust, as to such parts as should not be settled, for the niece absolutely. After the death of the niece unmarried, the mother obtained a conveyance from the trustees to herself absolutely. Upon a bill being filed by the heir-at-law of the niece, it was held, that the trustees were not autho- rized, after the death of the niece, to exercise the power of settling, so as to give the property to the mother; but that the heir-at-law of the niece was entitled to it. Lancashire v. Lancashire, 17 Law J. Kep. (n.s.) Chanc. 270; 1 De Gex & S. 288. Certain real estates were settled, on an event which happened, to the use of the survivor of the intended husband and wife in fee. The wife survived. The husband, by his will, devised all his real estates to his wife for life, and after her death to executors upon trust to sell, and subject to certain bequests, &c., gave one fourth of the proceeds to such persons as his wife should appoint, and the remainder equally amongst his executors. All the executors died in the lifetime of the wife, and previously to the date of her will. The wife by her will (made since the passing of the Wills Act), acting upon the supposition that her husband had intended to include in his will the settled estates, which came to her by survivorship, devised them to the uses concerning the same de- clared by him in his will: — Held, that the settled estates were not well devised by the testatrix to the uses of her husband's will, but that they fell into and formed part of her residuary estate. Culsha v. Cheese, 18 Law J. Eep. (n.s.) Chanc. 269; 7 Hare, 236. A testator directed his trustees to erect a mansion- house and suitable ofiices fit for the residence of the owner of his estates (which were worth about J 5,000/. per annum), on some convenient spot; Held, that under this direction the trustees were empowered to lay out a garden and pleasure grounds around the mansion, in addition to the house and offices, in such manner as the Master should direct. Lomhe V. Stoughton, 18 Law J. Rep. (n.s.) Chanc. 400; 17 Sim. 84. E L, by his will, directed his executors to pay out of specific parts of his personal estate all his funeral expenses and just debts, except a mortgage debt thereinafter otherwise provided for. He then de- vised to his daughter H for life, with remainder to her first and other sons in tail, his estate called K; to his daughter F his estate called P for life, with remainder to her first and other sons in tail; and to his daughter L S for life, with remainder to her first and other sons in tail, his estate called T, and some other small estates. In a subsequent part of his will he recited that his estate called T was subject to a mortgage for 6,000/., a great part of which he was intending forthwith to pay off, and he directed that, should there remain any balance at his death, it should be raised by a sale of timber on the T estate and other lands devised to L S. The testator also gave several annuities ; the gift to the first annuitant being of 10/. a year for life, or 51. and his tenement at the lodge rent free; and he charged them on the estate called N. The testator did not pay off any part of the mortgage of 6,000/., and died leaving his three daughters his sole next-of-kin and co-heiresses- at-law: — Held, in the absence of any disposition, or any apparent intention to exonerate the personal estate, that it ought to be applied to pay off the mortgage on the estate called T, and if insufficient, that the descended estate must be applied, and that any balance must be raised out of the timber. Held also, that the annuities were charged on the estate called N, in exoneration of the personal estate. Lomax v. Lomax, 19 Law J. Rep. (n.s.) Chanc. 137; 12 Beav. 285. A testator, after directing his debts, &c. to be paid, bequeathed to his wife his monies, plate, &c. (enumerating several particular descriptions of per- sonal property), and all the residue of his personal estate after payment of his debts, &c., and he directed his wife to give to his executors a bond for securing to them the payment of half the value of the said wines, plate, &c., enumerating several of the above- mentioned descriptions of personal property, but not mentioning the residue of his personal estate. The value was to be ascertained within three months from his death, and the plate was to be valued at a fixed price. The money payable on the bond was for the benefit of his nephews and nieces : — Held, that the bond was to be given for half the value of the property only which was specifically enumerated, and not for half the value of the general residuary estate. Martin v. Welstead, 18 Law J. Rep. (n.s.) Chanc. 1. The testator, by his will, gave the interest of monies invested by him in certain loan societies (naming them) to his wife for life, with remainder over ; he then gave all monies belonging to him " in the Friendly Society, called the Lodge of Friends Society and all other societies " to his wife abso- lutely; — Held, reversing the decision below, that the words "all other societies" must mean, societies ejusdem generis with that immediately preceding, namely, friendly societies, and that the widow took a life interest only in the monies invested in the loan societies Where the words of a will admit of two interpre- tations, the Court will prefer that construction which will make the whole will consistent. Marks v. Solomons, 19 Law J. Rep. (N.s.) Chanc 555; 2 Hall & Tw. 323. If a testator leaves a legacy absolutely as regards his estate, but restricts the mode of the legatee's WILL ; (A) CONSTKUCTION OF Wilis. 725 -enjoyment of it, to secure certain objects for the benefit of the legatee, upon failure of such objects the absolute gift prevails; but if there be no such absolute gifts as between the legatee and the estate, and particular modes of enjoyment are prescribed, and those modes of enjoyment fail, the legacy forms part of the testator's estate, as not having in such event been given away from it. In the case of a will containing such a disposition, the intention of the testator is to be collected from the whole will, and not from words which standing alone would constitute an absolute gift. When the terms of a gift are ambiguous, leaving it doubtful whether or not an absolute interest is given, the subsequent disposition of the subject- matter of the gift in every possible event which can arise, forms an important consideration in putting a construction on those ambiguous terms : such a dis- position being apparently inconsistent with the inten- tion of giving an absolute interest in the first in- stance. Lassevce v. Tierney, 1 Mac. & G. 55\ ; 2 HaU&Tw. 115. (6) Misdescription and Amhiguity — Evidence to . explain. [See Devise, What passes by the Devise.] A testator devised his estates on trust for " the second son of Edward Weld, of Lulworth, for life, with remainders to his sons successively in tail male, with like remainders to the third and other sons (except the eldest) of the said Edward Weld, and their sons ; with remainders to the first and other sons of each brother (except the eldest brother) of the said Edward Weld successively in tail male ; with like remainders to the second and other sons (except the eldest) of Lady Stourton, " one of the sisters of the said Edward Weld." There was not, at the date of the will or death of the testator, any such person as Edward Weld of Lulworth, but it appeared from evidence as to the state of the Weld family that Joseph Weld was the then possessor of Lulworth, that he had an eldest brother living, that Lady Stourton was one of his sisters, and that he had an eldest son, named Edward Joseph, commonly called Edward, and a second son named Thomas, both unmarried : — Held, that the descriptions of the unnamed devisee, taken with the whole context of the will, and with the evidence of the state of the Weld family, clearly designated the second son of Joseph Weld, and that he was entitled us tenant for life in possession to the devised estates. Lord Camoys v. Blundell, 1 H.L. Cas. 778. It is the ordinary rule of a court of equity, in cases where an heir disputes the will, to grant an issue to try that question ; but where he does not dispute it, but acts under it, merely denying that certain portions of the land pass under the descrip- tion used in it, a court of equity has full jurisdiction to determine the question thus raised, without grant- ing an issue, or may grant such issue at its discre- tion. In such a case, parol evidence of what was considered, in the lifetime of the testator, to be the extent of the lands constituting the estate, is re- ceivable. A testator, who described himself as of " Aahford Hall, in the county of Salop," devised " all ray estate in Shropshire, called Ashford Hall," to trus- tees, for sale. Held, that this description was not confined to the mansion-house so called, and the lands imme- diately adjoining, but extended to such other lands in Shropshire as he possessed at the time of making his will. Held, also, that the court of equity, in a suit to enforce the trusts of the will, might receive parol evidence to shew what the testator had been accus- tomed to consider the Ashford Hall estate. Ricketts V. Turquand, 1 H.L. Cas. 472. A testatrix, by her will, bequeathed several lega- cies, to different individuals, of SI. per cent, consols, standing in her name in the books of the Bank of England, but at the date of her will, as well as at her death, she possessed no such stock, nor stock of any kind whatever; evidence, however, was adduced to prove, that, about three years previously to the date of her will, the testatrix was possessed of SI. per cent, consols, sufficient in amount to satisfy the lega- cies bequeathed by the will, and that she then sold them, and placed the amount arising from the sale thereof in the hands of a friend of her family, who agreed to pay, and did pay her until her death, by half-yearly payments and as interest, the amount she had been accustomed to receive for dividends on the stock previously to the sale thereof. The proceeds of the stock remained in the hands of the friend of the testatrix's family until her death: — Held, that the Jestatrix was labouring under a mistake as to her property at the date of her will; that parol evidence was admissible to shew how the mistake arose ; and that the legatees of the 3/. per cent, consols were entitled to be satisfied their respective legacies out of the testatrix's general estate. Lindgrenv. Lindgren, n Law J. Rep. (k.s.) Chanc. 428; 9 Beav. 358. An error in the name and sex of a legatee will be rectified by a designation in a will, and by the con- text, when it can apply to no other person ; and parol evidence will be admitted to raise and remove latent ambiguities. A testator gave an estate upon trust for Elizabeth Abbott, a natural daughter of Elizabeth Abbott, of the parish of G, single woman, and who formerly lived in my service, for life, and after her decease for all and every the child and children of the said E. Abbott, as tenants in common. In default of such issue, with remainder over. It appeared that there was no such person as Elizabeth Abbott, a natural daughter of Elizabeth Abbott, single woman, but there was John Abbott, a natural son of Elizabeth Abbott. The testator's relations insisted that the bequest had failed for ambiguity, and they filed this bill, claiming a division of the proceeds of the estate; Held, that the gift did not fail, and that the chil- dren of John Abbott, who was dead, were entitled. Ryall V. Hannam, 16 Law J. Rep. (n.s.) Chanc. 491 ; 10 Beav. 536. A testatrix made the following bequest : — " to the three children of B 500Z. each." At the date of the will and at her death there were nine children of B. Evidence was tendered to the effect that at the time when B had three children the testatrix had made a will containing the same bequest; that when B had six children she had made another will, containing the same bequest ; that when B had nine children she had made another will, containing the same bequest (the will in question being the fourth will), and that she, at all four times, knew the number of B's chil- 726 WILL ; (B) Validity. dren : Held, that on the assumption that this evi- dence was admissible (but without deciding that point), each of the nine children was entitled to a legacy of 500/. Baniell v. Daniell, 18 Law J. Rep. (N.s.) Chanc. 157; 3 De Gex & S. 337. A testator bequeathed to his sister P " an annuity of 211. a year, which I purchased of J G." At the date of his will, and the time of his death, the testator had no annuity of 21/. a year, but he had an annuity of 46/.^ ye^j which he purchased of J G for 300/., and he had insured the life of J G for that amount, at a yearly premium of 25/., and he had entered this annuity in his books as " 300/. lent to J 6 at 7'. per cent. 21/. ; 25/. premium on policy of assurance for 300/." — Held, that under the form of the bequest F was entitled to the entire annuity of 46/. Where the thing intended to be given is suffi- ciently indicated, an additional erroneous description of the value of the subject-matter will not vitiate the gift. Purchase v. Shallis, 19 Law J. Rep. (n.s.) Chanc. 518; 2 Hall & Tw. 354. (B) Validity. (o) In general. Where a testamentary disposition is propounded under circumstances of suspicion; as where the party propounding it was the drawer, and was benefited by it, and it was executed at a time when the testator was of doubtful capacity, without any evidence of instructions previously given, or knowledge of its contents, the party propounding it must prove that the testator knew and approved of the contents of the instrument. A codicil, which varied the bequests contained in the will of the testator, to the benefit of the drawer, and which was executed at a time when the testator was supposed to be dying, in the absence of proof of the knowledge, by the testator, of its contents, pro- nounced against. Proof of the actual reading over of the instrument to the testator, before execution, is not necessary. Mitchell V. Thomas, 6 Moore, P.O. 137. The principles expounded in the cases of Paske v. Ollatt (2 Ph. 323), and Barri/ v. Butlin (2 Moore, P.C. 480), that the burthen of proof lies upon the party propounding a will, and that the Court is not bound to pronounce in favour of a will, unless it is judicially satisfied that it is the last will of a free and capable testator, considered and affirmed. The execution of a will, by a competent testator, being duly proved, the presumption is, that the testator was cognizant of its contents, and that the instrument expresses his will, unless there be other circumstances to lead to a different conclusion, or to render it too doubtful for the Court to act upon that presumption. Exaggeration of the conduct of a party benefited by a will, towards the testatrix, though it induce her to revoke the will, and the bequest made in his favour, and to execute another will, to his exclusion, is not such a fraud as to destroy free agency, and render the will invalid. Neither does such conduct amount to undue in- fluence or importunity. Browning v. Budd, 6 Moore, P.C. 430. " s , , Exposition of the doctrine of monomania and partial insanity, as applied to wills. If the mind is unsound on one subject, provided that unsoundness is, at all times, existing upon that subject, it is erroneous to suppose such a mind is really sound on other subjects; it is only sound in appearance, for if the subject of the delusion be pre- sented to it, the unsoundness would be manifested by such a person believing in the suggestions of fancy, as if they were realities ; any act, therefore, done by such a person, however apparently rational that act may appear to be, is void, as it is the act of a morbid or unsound mind. Delusion is the belief of things as realities, which exist only in the imagination of the patient. The frame of mind which indicates his incapacity to struggle against such an erroneous belief constitutes an unsound frame of mind. To constitute a lucid interval, the party must freely and voluntarily, and without any design at the time of pretending sanity and freedom from delu- sion, confess his delusion. Where delusions are proved to have existed, both before and after the factum, the presumption is, that they existed at the time of the factum, and in such case, proof of a lucid interval at the time of the factum, is thrown upon the party propounding a will. It is immaterial that the delusions do not appear ou the face of the will. A will written in 1834, by a widow, without children, a person originally eccentric, and, in after- life, developing unsound delusions, conferring great benefit on a stranger, the will not betraying, on the face of it, marks of the insanity, in the circumstances, pronounced- against. Waring v. Waring, 6 Moore, P.C. 341. Moral insanity or the perversion of the moral feelings not accompanied with insane delusion, which is the legal test of insanity, held to be insuflficient lo invalidate a will. Prere v. Peacocke, 1 Robert. 44.2. P, the owner of a freehold house in England, executed in India the following document: "I hereby appoint E my attorney for me, in my name, and to my use, to demand and receive the possession or rent of my house, &c., and to retain all proceeds of the said property for her own use until I return to England; and, in the event of my death, I do hereby assign and deliver to E the sole claim to the above-mentioned property, to be held by her during her hfe," &c.: — Held, that this was a valid will. Doe d. Cross v. Cross, 15 Law J. Rep. (u.s.) Q.B. 217; 8 Q,B. Rep. 714. A married woman made a will, disposing of a fund which she had a power so to dispose of, and of an- other fund as to which she had no such power, and appointed her husband executor, who proved the will generally : — Held, valid, as being made e» assensu viri. Ei parte Fane, 16 Sim. 406. A husband, having been a witness to his wife's will, and after her death having given his written consent to that will, is not afterwards at liberty to withdraw his consent. Maas v. Sheffield, 1 Robert. 364. A letter written by a seaman in the merchant service in the Margate Roads unattested, containing dispositive words, held, under section 11. of the Wills Act, to be his will. Justifying security is not required when a party cited has not i prior claim to a grant. In the goods of Milligan, deceased, 2 Robert. 108. WILL ; (B) VALIDlTr. 727 (b) Signature by the Testator. The words " signed at the foot or end thereof," in the 9th section of the Statute of Wills, 1 Vict. i;. 26, are to be construed strictly. Therefore, where a holograph will, written on a sheet of foolscap paper, the dispositive part of which ended on the third side, leaving, at the foot or end of the third side^ a space sufficient to have received the signature of the decea.8ed, and also that of the two attesting witnesses, if not accompanied by a formal attestation clause, was signed, with an attes- tation clause, in the middle of the fourth side, no part of the will being immeHiately above it : Held, not to have been signed " at the foot or end," ac- cording to the requisites of the statute, and the will declared invalid. Smee v. Bryer, 6 Moore, P;C). 404; 1 Robert-. 616. The signature of a testatrix held to be at the end of her will as required by the statute, though a'dause, written previously to the execution, ran partly oppo- site to and partly beneath the signatures of the tes- tatrix and the attesting witnesses. In the goods of Powell, deceased, 1 Robert 421. A will written, executed and attested on two sides of a sheet of paper, biit containing on the third side a clause, written before execution opposite to a be- quest of a legacy, qualifying that bequest, held not to have been signed " at the foot or end," in respect of the addition on the third side. In the goods of Jones, deceased, 1 Robert. 4^4. A will, with the following testimonium clause, entirely in the handwriting of the testatrix, — " In witness hereof I have hereunto set my hand and seal. Jane Randolph Gunning, this iwenty-fifth day of September, eighteen hundred and forty-five," but no other subsequent signature by her, — Held, to have been signed in conformity with the statute. In the goods ^ Gunning, deceased, 1 Robert. 459. A will dated in 1844, in which there was a space in blank between the dispositive part and th^ attes- tation clause, and the residue not disposed of, and the attesting witnesses were unable to depose to any thing beyond having seen the testator's Signature at the time of the execution, — Held, not to be signed "at the foot or end." jyres v. Ayres, 1 Robert. 466. A will, containing a disposition of the entire property, and an appointment of executors on the first page, with two inches in the last line in blank, and under that line a blank of one inch two-tenths, the second page wholly in blank, the third page com- mencing a testimonium clause, with a revocation of former wills, and the signature of the testatrix written one inch eight-tenths below that clause, — Held, to be signed " at the foot or end." The Wills Act does not require a will to be written continuously. In the goods qf Carder, deceased, 1 Robert 669. A will, written on one side of a sheet of paper with ii blank on the last line of one inch seven- tenths, and a space under the last line of one inch two-tenths, and the signature of the testatrix on the second page opposite to the third line of the attesta- tion clause, written as near the top of the second page as possible (for which clause there was not space on the first page), rejected, as not signed " at the foot or end." In the goods of Howell, deceased. 1 Robert 671. A win prepared with blanks left for legacies was found after a testator's death in an open envelope, which had been twice sealed, with the legacies in- serted by the testator, some in black, some in red ink, with sundry alterations and interlineations con- nected with the legacies, of which the attesting wit- nesses could give no information : — Held, not to be necessary that a testator and witnesses should exe- cute legacies so inserted. Probate granted of such parts of the will as were in black ink, those in red rejected on facts leading to the presumption of their being inserted after the execution of the will. Birch v. Birch, 1 Robert 675. A will, written on one side of a sheet of paper, with a blank on the last line of one inch six-tenths, and a space under the last line of five-tenths of an inch, and the signature of the testator on the second page, at eight-tenths of an inch from the top, rejected, as not signed "at the foot or end." In the goods of Ensell, deceased, 1 Robert. 702. A will, with a testimonium clause, after which a space of four-tenths of an inch, then an attestation clause, with a space under it of six-tenths of an inch, and then the signature of the testator, — Held, to be duly signed. In the goods of Harris, deceased^ 1 Robert 703. " A will, with the dispositive part concluding on the second page, leaving a blank space of seven-tenths of an inch, and the third page commencing with an attestation clause, after which was a blank of five- tenths of an inch, then the signatures of the attesting witnesses, after which another blank of seven- tenths of an inch, then the signature of the testator : — Held, to be signed " at the foot or end." In the goods of Brown, deceased, 1 Robert. 710. Positive affirmative evidence, by the subscribing witnesses, of the facts of a testator acknowledging his signature in their joint presence, and of their subscribing in conformity with the requisites of the law, is not absolutely essential to the validity of testamentary papers. When the inaccuracy and imperfect recollection of witnesses are established, the Court may upon the circumstances of the case presume due execution. Leech v. Bates, 1 Robert. 714. ■ _ A will, with a testimonium clause ending in the middle of a line of which the remainder was left blank, and with an attestation clause following under that line, at an equal distance with the rest of the writing, and extending over the width of the page, beneath the last line of which attestation clause, at a distance of two inches eight-tenths, the signature of the testatrix stood : — Held, to be signed " at the foot or end." The residue of the property was not disposed of. In the gdods of Beadle, deceased, 1 Robert 749. A will, written on a sheet of letter paper and con- taining on the first page a disposition of the entire pro- perty, anappointment of executors and a testimonium clause extending almost to the very verge of the bottom of that page, with the second page in blank, and at the top of the third page the signature of the testatrix, ibllowed by an imperfect attestation clause and the names of two witnesses, — Held, to be signed at the " end." In the goods of Baiily, deceased, 1 Robert 751. A will, completely filling two sides of a sheet of paper, with a space of four inches blank on the 728 WILL ; (B) Vahdity. third page, after which was placed the signature of the testatrix : Held, as the testatrix was blind, to have been sufficiently signed by her. In the goods of HelUngs, deceased, 1 Robert 753. A will, having the signature of the testatrix im- mediately after the attestation clause, and a disposi- tive clause written partly below that signature: — Held, to be entitled to probate without that clause, as it was somewhat doubtful when that clause was written, and as, with it included as part of the will, the will would not be " signed at the foot or end." In the goods of Standley, deceased, 1 Robert 755. A will having, after an unfinished testimonium clause, a blank space of one inch eight-tenths, then on the left of that page an attestation clause extend- ing half the width of the page, and opposite to the fourth line of the attestation clause the signature of the testator, which stood at the distance of very nearly three inches below the last line of the testi- monium clause : — Held, not to be " signed at the foot or end." In the goods of Hearn, deceased, 2 Robert. 112. A codicil having, after the last dispositive words, a blank space of one inch, then an attestation clause occupying the entire width of that page, and imme- diately after that clause the signature of the testator : Held, not to be " signed at the foot or end." In the goods of Hill, deceased, 2 Robert 114. A will, having after the testimonium clause writ- ten continuously with the dispositive part of the will, ii space in the last line of the testimonium clause sufficient for the signature of the testatrix, and under that line a space of nearly half an inch, and then an attestation clause followed immediately by the signature of the testatrix ; — Held, to be " signed at the foot or end." In the goods of Whittle, deceased, 2 Robert 122. A will containing on the first page the appoint- ment of an executor, a disposition of the entire pro- perty, a testimonium clause with a part of an attestation clause immediately following, but not sufiScient space for the whole of that clause, the second page blank, and on the third page the re- mainder of the attestation clause with the signatures of the testatrix and witnesses immediately following : Held, to be " signed at the foot or end," as the attestation clause was, under the circmstances of the case, to be considered as a part of the wiU. An affidavit of one attesting witness to the due execution of a will is sufficient, unless more than one witness make an affidavit as to alterations in a will ; in that case both or all must also join in deposing to a due execution, if an affidavit to that circumstance be required. In the goods of Batten, deceased, 2 Robert 124. An allegation propounding a will, occupying with the testimonium and attestation clauses two pages, save three-tenths of an inch, and having at the head of the third page a blank space of two inches two- tenths, after which stood the signature of the testator, close to the left side of that page, and opposite to the second line of the testimonium clause, as set forth in the case, rejected on the ground that the will was not "signed at the foot or end." Holbeck v. Holbeck, 2 Robert. 126. A will, made in virtue of a power of appointment, and having after the testimonium clause a blank space of two inches eighttenths, and then the signa- ture of the testatrix, — Held, not to be " signed at the foot or end." In the goods of Beadon, deceased, 2 Robert. 139. A will, the dispositive part of which ended on the second page, having a blank space, under the last line, of one inch three-tenths, and at the head of the third page the words " signed by me in the presence of the undersigned," immediately after which fol- lowed the signature of the testator, and then an attestation clause, with the signatures of the wit- nesses : Held, not to be " signed at the foot or end." In the goods of Shadwell, deceased, 2 Robert. 140. On a question whether a testatrix signed her name before or after the witnesses subscribed, one of the attesting witnesses deposed throughout her examina- tion to the impression on her mind that the testatrix signed after them ; the other, in the first instance, likewise deposed to the same effect, but after having inspected the paper she deposed that the testatrix signed before them : Held, under the circumstances of the great experience the testatrix had had in executing wills — of her having sent to a solicitor for instructions in regard to the paper in question— and of the paper on the face of it appearing to be duly signed and attested, that the presumption was that the instrument was executed in conformity with the requisites of the statute. Brenchley v. Still, 2 Robert 162. A wiU, having after the testimonium clause an attestation clause, extending half the width of the sheet, with the testator's signature to the right of that clause, but one inch four-tenths beneath it, and a space of two inches eight-tenths blank between the testimonium clause and his signature t — Held, to be " signed at the foot or end." In the goods ofDawney, deceased, 2 Robert 178. A will, having a blank space of six-tenths of an inch between the testimonium and attestation clauses, the latter extending not half the width of the page, with the testatrix's signature half an inch beneath, and to the right of the attestation clause, and at a distance of two inches six-tenths below the last line of the will : Held, to be " signed at the foot or end." In the goods of Welch, deceased, 2 Robert. 179. A first codicil, with the remainder of the testimo- nium clause terminating on the second page of the sheet, under which termination was a blank space of seven-tenths of an inch, then a full attestation clause extending half the width of that page, and opposite to the lower part of the attestation clause, at a dis- tance of three inches and two-tenths from the termi- nation of the testimonium clause, the testatrix signed : — Held, to be entitled to probate, together with the will and second codicil, respecting which there was no question. A third codicil, with the testimonium clause ter- minating on the second page, under which clause was a blank space of three inches three-tenths, and with the testatrix's signature, at a distance of six inches seven-tenths from the top of the third page, opposite to the lower part of the attestation clause, commencing nearly half way down the third page, rejected, as not " signed at the foot or end thereof." In the goods of Woods, deceased, 2 Robert. 180. A will, having a blank space of one inch three- tenths between the testimonium and attestation clauses, the latter clause extending half the width of the page, with the signature of the testator opposite WILL ; (B) Validity. 729 to the last line but one of the attestation clause, and at a distance beneath the last line of the testimonium Clause, of three inches eight-tenths : — Held, to be "signed at the foot or end." In the goods of Prentice, deceased, 2 Robert. 182. Generally, if the signature of a testator be on the same page as that on which the will concludes, and placed after the conclusion, that will be a sufficient compliance with the statute. A will, having a blank space of one inch three- tenths between the testimonium and attestation clauses, the latter extending more than half the width of the page, and beneath that clause, at a dis- tance of one inch eight-tenths, but to the right, the mark of the testatrix placed at a distance of five inches seven-tenths below the last line of the testi- monium clause: — Held, to be " signed at the foot or end." In the goods of White, deceased, 2 Robert. 194. A will, having a blank space of one inch six-tenths between the testimonium and attestation clauses, the latter extending rather more than half the width of the page, with the testator's signature opposite to the centre of it, and at a distance of two inches four- tenths from the last line of the testimonium clause, — Held, to be " signed at the foot or end." In the goods of Holland, deceased, 2 Robert. 196. A will, commenced in 1840, with many alterations and blanks appearing, and the residue not disposed of, and having after the appointment of an executor a blank space of four inches seven-tenths, after which followed "this my last will and testament is now signed by me Sarah Susannah Howell, on this 10th day of July 1844," immediately beneath which were the signatures of the testatrix and attesting witnesses, with an imperfect attestation clause, — Held, that the rule in White's case did not apply, as the Judge considered the testatrix did not intend her will to be concluded: probate refused. In the goods of Howell, deceased, 2 Robert. 197. When there is space sufficient for the signature of a testator on the same page as that on which the will concludes, and his signature is not there placed, a will is not duly signed. A will, having in the last line of the second page a blank space of four inches three-tenths, and under that line a blank space of nearly three-tenths of an inch, with the signature of the testator at a distance of two inches three-tenths from the top of the third page, Held, not to be " signed at the foot or end." In the goods of Rime, deceased, 2 Robert. 199. (c) Attestation. The 7th section of the Indian Will Act, No. 25, of 1838, enacts " that no will shall be valid unless it shall be in writing, and executed in manner herein- after mentioned (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction, and such signature shall be made or acknowledged by the testator, in the presence of two or more wit- nesses, present at the saiae time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." A testator signed his will, in the presence of a witness, who subscribed it in his presence; and some time afterwards, upon the arrival of another witness, the testator, in the joint presence ot the former wit- DiGEST, 1845—1850. ness, and the other subscribing witness, acknowledged his subscription at the foot of the will. The second witness then subscribed the will, and the first witness, in his and the testator's presence, acknowledged his subscription, but did not re-subscribe. Held by the Judicial Committee (affirming the sentence of the Supreme Courtat Calcutta), that the requirements of the act had not been suificiently complied with ; it being necessary that both wit- nesses should be jointly present at the same act of the testator, and jointly subscribe it in his presence. Whether the rules of the ecclesiastical courts in Doctors Commons relating to the doctrine of pre- emption of appeal, apply to an ecclesiastical cause in the Supreme Court at Calcutta, so as to deprive a party of the charter right to appeal within six months from the decree, &c quare. Casement v. Fulton, 5 Moore, P.C. 130; 3 Moore In. App. 395. Interlineations and obliterations made, as the attesting witnesses deposed, after the first but prior to a second execution by the testatrix when she acknowledged her signature in their presence, and they attested such second execution by placing their names in the margin opposite to the alterations, pro- nounced against, as there was no memorandum in any part of the will, or notice in the attestation clause referring to the alterations. Probate decreed as the will originally stood. In the goods of Martin, deceased, 1 Robert. 712. The attesting witnesses, instead of signing their names near to that of the testator on the first side of a sheet of paper where the will ended, and where there was ample space for their signatures, signed under an indorsement on the fourth page; such attes- tation held to be good, as the Wills Act does not specify where they are to sign. In the goads of Cham- ney, deceased, 1 Robert. 757. An attesting witness to a will having on the re- execution thereof traced over his previous signature with a dry pen held not to have subscribed, but only to. have acknowledged his signature, which is not sufficient under the statute. The statute requires an act to be done by the witnesses which shall be apparent on the face of the paper. Playne v. Scriven, 1 Robert. 772. A will signed by the attesting witnesses in the same room where the testatrix lay in bed with the curtains closed, and her back to the attesting wit- nesses, who deposed to her utter inability to have turned herself so as to have drawn aside the curtains, — Held, not to have been signed by the witnesses in the presence of the testatrix. Tribe v. Tribe, 1 Robert. 775. The initials of attesting witnesses to a testamentary paper are a sufficient subscription under the Wills Act; they are not required to sign their names. In the goods of Christian, deceased, 2 Robert. 110. , A will, being subscribed by two of the attesting witnesses, capable of writing, with marks,: — Held, to be sufficiently subscribed by them. Administration with the will annexed was granted to the residuary legatee for life, as though the will contained sundry directions to executors, their names were specified only under the testator's signature. In the goods of Amiss, deceased, 2 Robert. 116. The Court presumed in favour of the due exe- cution of a will, where one of the attesting witnesses was dead, but his signature was proved ; the second 5 A 730 WILL. denied his signature, but was disbelieved by the jviry on the trial of an issue ; and the third proved his attestation, but had no memory as to the signature or publication by the testator. Hitch v. Wells, 1 Beav. %i. A will purported to have been made in 1828, and to have been signed and sealed by the testator, in the presence of A B, C D (a marksman), and E F. A B and E F were both dead, and the handwriting of E F was proved. A witness of the same name as C D was produced, but, through age and infirmity, did not recollect the fact of his having attested the will : — Held, that there was sufficient evidence for a jury to presume the due execution of the will. Doe d. Davies v. Davies, 16 Law J. Rep. (n.s.) Q,B. 97; 9 Q.B. Rep. 648. (C) Publication and Republication. [See Porler v. Smith, 16 Sim. 251.] A testator having power to appoint by will " to be by him signed and published," in the presence of two or more witnesses, made a will in execution of the power, which was attested by three witnesses, in the following form : " We, the undersigned, attest to have seen the above testator sign the above wilT' ; — Held, that this attestation was sufScient evidence of publication. Bartholomew v. Harris, 16 Law J. Rep. (N.s.)Chanc. 106; 1.5 Sim. 78. One entire part of a will in duplicate in the pos- session of a testator being undestroyed, but the other part in the possession of his solicitor having been destroyed by the testator on the execution of a sub- sequent will made in 1838, in terms revoking the prior will, — Held to be revived by a codicil, made subsequently to the second will, though referring to the first will merely by date, and that such reference sufficiently shews the intention to revive as required by section 22 of the Wills Act, and that parol evi- dence is not admissible to establish a mistake in the date. Payne v. Trappes, 1 Robert. 583. A testator by a will before the 7 Will. 4. & 1 Vict. c. 26. came into operation, bequeathed a share of his residuary estate to one of his sons. The son died after the Wills Act came into force, leaving issue. After his death the testator made a codicil confirming the will : — Held, that the gift to the son was within section 33 of the 7 Will. 4. & 1 Vict. c. 26, 80 as to prevent its lapse. Under section 34 of the same act the effect of the republication by the codicil was the same as if the testator at the date of the codicil had made a will in the words of the former will. Winter v. Winter, 16 Law J. Rep. (n.s.) Chanc. Ill; 5 Hare, 306. A codicil executed in 1839 to a will of 1818, held to be a republication of that will, and to have the effect of bringing a bequest in the win to a deceased daughter under the operation of the section 33 of the Wills Act, as no intention to the contrary ap- peared on the face of either instrument. Skinner v. Ogle, 1 Robert. 363. A testator in 1843 executed his will, in which was contained a clause revoking all former wills. He after- wards duly made and executed a codicil confirming his will, save as altered by the codicil, and subse- quently he re-executed the will, on the supposition that the attestation clause of the will was defective, and for that reason only, but did not re-execute the codicil, or in any way refer to it. It was held, that the re-execution of a will extends to and republishes, notwithstanding the clause of revocation, a codicil, unless an intention to the contrary appear. Wade V. Naxer, 1 Robert. 627. A testatrix, by her will, gave the residue of her real estate to trustees, in trust for her nephew for life, and, afterwards, for his children. . She subse- quently purchased certain leasehold property, which was conveyed to a trustee to such uses as she should appoint; and by a codicil she appointed the lease- holds in trust for her said nephew and his children. After this the testatrix purchased the reversion in fee of the leaseholds, which was conveyed to another trustee to such uses as she should appoint. The testatrix then made a second codicil to her will, whereby, in pursuance of all powers in her vested, she revoked a specific devise in her will, but ex- pressed no intention of affecting the property pur- chased subsequently to her will: — Held, that the second codicil did not act so as to republish the will. That the leasehold and reversion in fee did not pass under the gift of the residue, but descended to the heir-at-law. Jotoett v. Board, 18 Law J. Rep., (n.s.) Chanc. 53; 16 Sim. 352. (D) Revocation and Cancellation. [See Legacy, Revoked.] The testator, by his will, gave, amongst other things, as follows: — " I give unto M E, now living servant with me, an annuity of 201. for her life;" and he charged all the annuities given by his will upon his real estates, and then devised his real estates to his grandson, an infant, in fee. At the death of the testator, in 1808, the clause in the will giving the annuity was found struck through with a pencil line, without any further intimation of the intention of the testator. The annuity was paid by the trustee under the will, out of the rents of the devised estates till 1827, but no further payment had since been made. In 1 829, the grandson came of age, and entered into the possession of the de- vised estates. In 1844 the annuitant filed her bill against the grandson, to recover the arrears, and the defence set up was, that the bequest was revoked. At the hearing, an issue was directed at law to try " whether the clause giving the annuity in question formed part of the will of the testiitor ;" and on the trial of the issue, the Judge directed the jury that the act was equivocal, and that they must find, from the nature of the alteration, and other collateral circumstances, whether the act was final or delibera- tive only. The jury having found for the plaintiff, the defendant moved for a new trial, on the ground that the Judge ought to have ruled that the pencil erasure was primd facie a revocation, and that evidence must be given to rebut that presumption of law. The Court held, that the Judge had rightly directed the jury, and refused the motion; and de- creed for the plaintiff, but with only six years' arrears from the filing of the bill. Francis v. Grover, 15 Law J. Rep. (n.s.) Chanc. 99 ; 5 Hare, 39. S executed a will in 1776, and in 1778 he exe- cuted a copy of the will and a codicil in duplicate on the same day. The main object of the codicil was to provide for the lessor of the plaintiff, who was his youngest son, born in 1777. In 1808 S died WILL. 731 leaving four sons him surviving. After hie death the will of 1776, with the duplicate codicil annexed, was found iuhis portfolio; and the will executed in 1778, with the duplicate codicil annexed, in a box in the same room. The will and codicil in the portfolio con- tained erasures which diverted the limitation of cer- tain estates from the younger sons to the eldest son. The altered will and codicil were proved by the executrix, and acted upon until the death of all the sons of S, except the lessor of the plaintiff, who, when his turn to inherit according to the unaltered will arrived, brought ejectment against the. defen- dant, the successor of the eldest son of S. The Judge asked the jury, whether the two wills with the duplicate codicil annexed to each, formed the last will of S. Whether the erasures in the will and codicil in the portfolio were intended to be final or deliberative only. And he directed the jury that if their opinion on these two questions was in the affirmative, then the cancellation of one part was the cancellation of the other part, and the passage uncancelled was the last will of S. Held, that the questions left to the jury and the direction, in point of law, were correct. Doe d. Strickland v. Strickland,. 19 Law J. Rep. (n.s.) C.P. 89; 8Com. B. Rep. 724. A being under engagement of marriage to B, made in 1S3.S a will bequeathing, after a life interest to his mother, the whole of his property to B, telUng her, " that he had made it as a provision for her in the event of anything happening to him." A and B married in November 1833, and had issue sur- viving at his death. Declarations, subsequent to the birth of issue, of adherence to the will were pleaded: — Held, th^ Court rejecting the allegation, that the will was absolutely revoked, by reason of a tacit condition annexed to the will at its execution. Mat- son V. Magrath, 1 Robert. 680. A testator having left several wills, by the last executed in 1844 revoked all former wills " except my will bearing date the 13th of December 1831, which relates exclusively to the reversion in fee of the Tong Castle Estate." No will was found fully answering that description; the will of December 13th, 1831, revoked in 1835, did not relate "exclu- sively" to the reversion in fee of that estate; the only will which did relate "exclusively" to the re- version in fee of that estate bore date May 22nd, 1839: Held, upon construction and the state of the testator's family, that the will of 1831 was not re- vived, and that the will of 1839 was intended. Pro- bate decreed of the will of 1844 alone, as the will of 1839, relating to real estate only, was not pro- pounded. Thomson V. Hempenstall, 1^ Robert. 783. J. Kidd, by his will, gave 20?. to his son, and 51. a piece to such female servants as should be in his service at his decease. By a codicil to his will he gave his servant Biddy 2,0001. He afterwards, by an incomplete testamentary paper, made before .January 1, 1838, which was admitted to probate, and which was a copy of his will, with some altera- tions, gave to his son 19/. 19s., and to his servant Biddy, if she should be in his service at his decease, 5001. No other servant than Biddy was in his ser- vice at his decease: — Held, that, so far as the last testamentary paper extended, it revoked the will and codicils; and that Biddy took only the 500/. which was given to her by the last testamentary paper. Kidd V. North, 16 Law J. Rep. (n.s.) Chanc. 116; 2 Ph. 91. Testator gave the residue of his personal estate to his niece, and appointed her executrix. By a codicil he appointed A and B his residuary legatees and exe- cutors; — Held, that though power to prove the will and codicil was reserved to the niece, the gift of the residue to her was wholly revoked. Evans v. Evans, 17 Sim. 107. A testator gave his residuary estate in certain portions between his two grand-daughters and his four grandsons. He afterwards drew a line through the material parts of the bequest, and by a marginal note stated that one grandson being dead and, the other three being provided for, he intended to be- queath 1,000/. to each of his grandsons, and, the residue between his two grand-daughters: — Held, that the first bequest was cancelled, and that the grand-daughters were entitled to the whole fund, subject to the three, legacies of 1,000/. In re Ravens- croft, 18 Law J. Rep. (n.s.) Chanc. 601. (E) Codicil. [See (C) Publication and Republication.] A codicil (C) duly executed in 1847, and com- mencing " By this codicil to my will,'! held not to include, under the term will, unattested additions written subsequently to the operation of the Wills Act, as they were not, prior to the ex:ecuin his house, and prepared by his attorney, and was at variance with her previous testamentary dispositions, which were in favour of her distant relatives. The Prerogative Court being satisfied of the testamentary capacity of the testatrix upon the balance of evi- dence negativing the alleged fraud, admitted the will and codicils to proof. On appeal, the sentence, so-far as it related to: the will and first codicil, was affirmed by the Judicial Committee of the Privy Council ; but a further allegation, pleading facts, noviter adnotitiam perventa, being brought in, the second codicil was pronounced against, and the sentence of the Prero- gative Court to that extent reversed. Jones v. Godrich, 5 Moore, P.C. 16. An allegation, propounding a paper containing a specific bequest, and an appointment of executors written below the testatrix's signature, and interposed between the signatures of the attesting witnesses, rejected. Topham v. Topham, 2 Robert. 189. A party, propounding a paper as testamentary, containing on the face of it various memoranda of the property attested by witnesses, is not bound to examine more than those witnesses who attest that portion of the paper which is testamentary. A paragraph in a paper in the folloiving words, — " the above-named bonds were restored by A, and are placed in the hands of B in trust for the use of C, after my decease," held to be testamentary, notwith- standing a delivery of the bonds had taken place, and in the donor's last illness. Tapley >. Kent, 1 Robert. 400. Administration with a will annexed, dated Oc- tober 1837, which was unattested and unsigned by the testatrix, whose name »in no part appeared, granted on proof of handwriting and safe custody, and on a proxy of consent. In the goods of Cesser, deceased, 1 Robert. 63.3. A part of a testimonium clause, in which mention was made of executors, stood under the signature of a testator. That part was held not to contain an ap- pointment of executors, but to be descriptive only of the attesting witnesses, and administration with the will annexed, together with the words under the testator's signature, was granted to a legatee. In the goods of Co/ ton, deceased, 1 Robert. 658. A will, having an additional bequest to a legatee inserted, by which the sense of the paragraph, as that bequest stood, was interrupted, held to be en- titled to probate, with such additional bequest, as the attesting witnesses knew not whether the same was or was not written previously to the execution. It is not the duty of a Court of Probate to raise obstacles, and make the WiUs Act more difficult of compHauce than it is. In the goods of Swindin, deceased, 2 Robert. 19^, When a doubt may exist whether debts, under peculiar circumstances, constitute, bona notabilia, the Court will decide in favour of their being bona nota- bilia. Nicholl V. Thomas, 2 Robert. 157. A will proved by the attorney of an executor is the same thing as if actually proved by himself. In the goods of Bayard, deceased, 1 Robert. 770. A chain of representation is not broken by a sur- viving executor, who afterwards died leaving execu- tors, having taken a grant of administration with the will annexed de bonis non by his attomies alone, and not having himself proved the will. Such adminis- tration refused to one of the residuary legatees sub- stituted. In the goods of Bayard, deceased, 1 Robert. 768. Payment to personal representatives under a Genevese probate refused. Lasseur v. Tyrconnel, 10 Beav. 28. Libellous passages, unconnected with the testa- mentary dispositions in a will, on a stranger allowed to be omitted in the probate copy. In the goods of Wartnaby, deceased, 1 Robert. 423. An executor, in an act on petition, objected to a co-executor, appointed in the same will, being joined with him in the grant of probate, on the ground of incapacity. The act on petition was opposed and directed to be reformed. On the affidavits adduced in support of the pleadings of each party, the Court held the Incapacity was not established, and over- ruled the petition. Evans -v. Tyler, 2 Robert. 128. An executor having taken probate of a will, dated the 24th of August, 1849, was cited at the instance of legatees under a forfiier will to bring in the probate, and shew cause why the same should not be revoked. Probate was brought in, and his proctor was autho- rized to propound, &c. On motion, the Court dis- missed the executor, who was a witness to the will, from the suit, in order to his being examined as a witness, without requiring him to renounce his office. Bryan v. White, 2 Robert. 137. (6) Jurisdiction in Matters of. The Court of Chancery has no jurisdiction to determine on the validity of a will of personal estate; and in all cases in which parties apply to that Court for its construction of a will, or payment of legacies under a will, the Court proceeds only on the foun- dation of a will proved in a court of competent jurisdiction. The Court, however, will interfere for the protection of property pendente lite for probate and letters of administration, and it exercises with great caution and sparingly some jurisdiction in cer- tain cases of fraud practised in obtaining probate, and in the spoliation of wills. The absence of a remedy for a supposed wrong in another place, is not by itself any reason for this WILL. 733 Court assuming jurisdiction on the subject. The will of a sovereign of the realm (althoHgh he has not therein appointed an executor, and grant of probate or administration thereof has been refused by the ecclesiastical courts) forms no exception to the rule of the Court. Semble — The only and proper course to be pur- sued by the claimant of a legacy under the will of a deceased sovereign is by petition of right to the grace and favour of the reigning sovereign. Ryvea V. Wellington {Duke of), 15 Law J. Rep. (n.s.) Chanc. 461 ; 9 Beav. 579. A testator by his will and codicils gave R A large bequests, which he revoked by a final codicil, pro- viding only a small weekly allowance for him during his life. The will and all the codicils having been admitted to probate, after litigation as to the last codicil in the ecclesiastical court, R A filed a bill in Chancery alleging that the testator had executed the last codicil under undue influence of the resi- duary legatee, and false representations made at her instance respecting R A's character; and that he had not been permitted in the ecclesiastical court to take any objections to that codicil, except such as affected the validity of the whole instrument; the bill therefore prayed that the executors or residuary legatee might be declared trustees or trustee for Jl A to the amount of the revoked bequests. Held, on demurrer, that the Court of Chancery had no jurisdiction in the matter; dissentientibus Lard Cottenham (Chancellor) and Lord Langdale (M.R.)r and that the proper course would have been an ap- peal to the Judicial Committer of the Privy Council against the sentence of the ecclesiiistical court. Jlkn v. M'Pherson, 1 H.L. Cas. 191. (G) PnoBATE Duty. On the death of A, who had mortgaged an estate in fee, to secure money lent him by the trustees of his settlement, his daughter became entitled to the eqtiity of redemption as his heir, and to the mort- gage-money under his marriage settlement. The trustees conveyed the estate to her subject to the equity of redemption, and did not release her father's covenant for repayment of the money. She after- wards granted an annuity to M, and as a security conveyed the estate, and assigned the money to a trustee. By her will she devised the estate, but did not dispose of her personal estate : — Held, that the money was subject to probate and legacy duty. Swdbey V. Swabey, 15 Sim. 502. Personal estate was bequeathed to several persons successively for life, with remainder as one of them, who was a married woman, should appoint, and in default of appointment, " unto and for the benefit of her executors or administrators." The lady having died without malting any appointment, — Held, that" the trust fund formed part of her estate ; and that her husband having survived her, and become en- titled to it, it was liable to probate duty and legacy duty, as forming part of his estate, as well as to pro- bate duty, as forming part of the estate of the wife. Attorney General v. Malldn, 16 Law J. Rep. (k.s.) Chanc. 99 ; 2 Ph. 64. The profits arising from duties received under a grant o^a light-house, to be maintained in a specified place, savour of the realty, and are not liable to pro- bate or legacy duty. Attorney General v. Jones, 19 Law J. Rep. (u.s.) Chanc. 266 ; 1 Mac. & G. 574; 1 Hall & Tw. 493. (H) Election under. A testator, by his will, devised and bequeathed all his real and personal estate to trustees, upon trust to pay his debts, &c. ; and, subject thereto, out of the rents, issues, and profits thereof, to raise an annuity of lOOt, and to pay the same to his wife during her widowhood; and,. subject thereto, the trustees were to stand pos- sessed of the trust premises in trust for the testator's daughter for life, with remainders over; and he em- powered his trustees, during the continuanee of the trusts, to continue and carry on all or any of the farms or other concerns in which he might be engaged at the time of his death ; and also to demise, sell, or mortgage the same. The testator died seised of fi:ee- hold and copyhold estates, which he farmed at the time of his death : — Held, that the widow must elect between her dower and free bench, and the benefits given to her by the will. Lowes v. Lowes, 15 Law J. Rep. (N.s.) Chanc. 369 ; 5 Hare, 501. A testator devised his estates to trustees, and di- rected them to pay his wife an annuity of 1,800?. clear of all taxes and deductions whatsoever. He also directed his trustees to invest 18,0002. in the funds, and pay the interest to his daughter for life, for her separate use, and afterwards to her children, and directed that as his daughter would be entitled to a sum of 12,0002. and; upwards imder his marriage settlement, the said sum of 1 8,0002. was to be abated and reduced to such an amount as she should receive under such settlement, — it not being his intention that she should be entitled to Jier portion under the settlement as well as to the 18,0002. The daughter married, and no settlement was made upon her marriage. The questions raised were, whether the daughter could elect to take either under the settlement or the will — whether she was entitled to interest upon the legacy immediately from the death of the testator, and whether the widow was entitled to her annuity of 1,8002. clear of income tax; — Held, that the interest of the daughter being a^ chose in action in remainder, which was incapable of being given up in prasenti, an election by the daughter could not be decreed against the dissent of the hus- band, in a suit where the husband and wife were co- defendants. Held, also, that interest upon the legacy was not payable for the first year after the testator's death ; and that the widow's annuity would not be clear of income tax. Wall v. Wall, 16 Law J. Rep. (n.s.) Chanc. 305; 15 Sim. 513. A B, an heir, elected to take against the will, and required the executors to complete a contract entered into by the testator for the purchase of a freehold estate, and it was conveyed to him. He nevertheless received great benefits under the will : — Held, that the parties disappointed by the election had no lien on the estate for the amount received ; but that they were entitled to prove against the estate of A B for the whole amount received by him under the will. Greenwood v. Penny, 1 2 Beav. 403. A testator being entitled to an undivided moiety in two freehold houses U and N (the other undivided moieties belonging to M B, his niece and heiress-at- 731 WILL— WITNESS , (A) Competency. law, subject to the interest of her father, as tenant by the curtesy) and also to a leasehold house, devised to S P "all my freehold house U," and bequeathed to M B " all my moiety of and in a leasehold in house at," &c., and directed that the rents should accumulate during the minority of M B, and be paid to her at her full age. The testator died in 1812. The father of M B received the rents of the leasehold house until the expiration of the lease in 1819, and on M B coming o£ age in 1831, he accounted with her for these rents, and paid over to her a balance of i9l. in respect thereof. In 1832 M B made a mortgage in fee of her moiety of U, and the entirety of B, and on her marriage in 1833 settled the same to the use of herself and her intended husband and the issue of the marriage. Afterwards S P, the trustees of the settle- ment, and the father of M B, joined in granting a lease for years of the freehold house U. In 1847 S P filed his bill : — Held, upon appeal, that the tes- tator, by his devise of " all my freehold house," in- tended to pass the entirety, and that M B was bound to elect whether she would take under the will or as heiress-at-law ; but that the receipt of the rents of the leasehold house by her father, and her acceptance of the balance of 49i., did not, under the circumstances, amount to a declaration of election, and that M B electing at the hearing to take against the will, must account to the plaintiff for the rents of the leasehold house. Padbury v. Clarke, 19 Law J. Eep. (n.s.) Cbanc. 533; 2 Mac. & G. 298; 2 Hall & Tw. 341. A testator made a specific devise of real estate, and then devised all the residue of his real and personal estate to trustees, upon trust, to pay R G, his wife, an annuity of 2QI., and then upon the trusts therein mentioned. He then empowered his trustees to lease any lands which they might hold on the trusts of his will. The testator was at his death entitled to free- hold estates, which had been conveyed to uses to bar dower in his favour, and some copyhold estates : Held, that the widow was put to her election between the annuity and her free bench out of the copyhold estates. Orayson v. Deakin, 18 Law J. Eep. (n.s.) Chanc. 114; 3 De Gex & S. 298. WITNESS. [See Evidence — Practice, in Esuity.] (A) Competency. (a) Generally. (6) When competent by Statute. (c) Objection to, when to be made. (B) Attesting Witness. (C) Commission and Ohdeb to examine. (D) Examination. {a) In general. (4) Contradicting. (c) Refusal to answer. (E) Attachment against. (A) Competency. (o) Generally, A suit having become defective by the insolvency of a sole plaintiff who had obtained a protecting order under the 7 & 8 Vict. c. 96, his assignees adopted the suit and filed a supplemental bill. An answer was put in, not disputing the insolvency, replication was filed, and issue joined. The as- signees then moved for leave to examine the insol- vent plaintiflTin the original suit as a witness in the cause. The motion was refused. Fisher v. Fisher, 16 Law J. Rep. (n.s.) Chanc. 320; 2 Ph. 236; 6 Hare, 628. In a suit for contribution in respect of loss sus- tained in a joint mercantile adventure, by one partner against other partners and the executors of a deceased alleged partner, it is competent for the plaintiff' to examine as a witness, on his behalf, one of the partners, a defendant, who had been settled with and released by the plaintiff, and had also dis- claimed all demand against the plaintiff and the other defendants. 'Hills v. Nash, 16 Law J. Rep. (n.s.) Chanc. 238; 10 Beav, 308. A plaintiff filed a bill, on behalf of himself and all other the shareholders of a company, except the defendants, against the defendants, alleging certain improper dealings by them with the funds of the company, and praying relief: — Held, that it was not competent for the plaintiff to examine a share- holder, not a defendant, in support of the case made by the bill. Fyler v. Newcomb, 19 Law J. Rep. (n.s.) Chanc. 278. Two co-defendants were examined on behalf of defendants, whose interests were not identical with their own: — Held, that their testimony was admis- sible in evidence. Daniell v. Daniell, 3 De Gex & S. 337. To render a person incompetent in the Scotch court to be a witness, he must have a direct and immediate interest in the result of the suit in which he is called to give evidence, or he must he able to give the verdict in that suit in evidence in his own favour in another proceeding. An interest in the result of a suit, which is to render a person incompetent to be a witness, must be an interest of a substantial nature, and it must be the direct and necessary result of the suit. The law was the same in England and Scotland upon this point previous to the passing of the 6& 7 Vict. u. 85. Willox v. Farrell, 1 H.L. Cas. 93. Two persons against whom a cause was carried on in pcenam not having appeared to a citation, held to be a party in that cause, and that their evidence could not be received till they were dismissed from the cause. The 6 & 7 Vict. c. 85. probably applies to the ecclesiastical courts. Sanders v. Wigston, 1 Robert. 460. One of two defendants in an action of tort, suf- fered judgment by default, and it was sought to call him at the trial to give evidence for his co-defeti- dant : — Held, that the proposed witness was inad- missible J and that being a party to the record, interested in the event of the suit, he was not within the privilege of the 6 & 7 Vict. c. 85. Thorpe v. Barber, 17 Law J. Rep. (n.s.) C.P. 113; 5 Com. B. Rep. 675. A and B were indicted for stealing, C for receiving. B pleaded guilty, and was tendered as a witness against A and C. He was objected to by tho counsel for the prisoner as inadmissible : — Held, an admissible witness at common law. Regina v. IJinks, 1 Den. C.C. 84. WITNESS ; (A) COMPKTESCY. 735 (4) When ccmpetent by Statute. Under the 6 & 7 Vict. c. 85, one defendant in a suit in equity is a competent witness on behalf of another defendant in the same cause, and it is not a just exception to his evidence that the title of the plaintiff to sustain the suit against both defendants depends on the same issue ; that fact can only be considered as affecting or tending to affect the credit of the witness. Wood v. Rowcl^e, 6 Hare, 183. In a suit instituted against one of the guardians of a parish to establish certain defalcations in the accounts, it was determined that vivd voce examina^ tions should take place before the Master. The Master objected to examine E S as a witness, he having been one of the guardians at the commence- ment of the suit, although he had since ceased to be such guardian, on the ground that as he had con- curred in directing the proceedings, he might be made liable to the costs of the suit if it should turn out to have been improper: — Held, that E S had no further interest in the suit than any other rate- payer, and was enabled as such to become a witness under the 3 & 4 Vict. c. 26. Paseall v. Scott, 16 Law J. Rep. (n.s.) Chanc. 327; 15 Sim. 559j afBrmed, 2 Ph. 390 ; 17 Law J. Rep. (n.s.) Chanci 53. A and B, defendants in a suit, had exactly the same case. A examined B as a witness on behalf of A : — Held, at the hearing of the cause, that, not- withstanding the 6 & 7 Vict. c. 85, the evidence- of B was not admissible. Monday v. Guyer, 16 Law J. Rep. (n.s.) Chanc. 246 ; 1 De Gex & S. 182. A having brought trover against B for two pro- missory notes, B pleaded that they were the pro- perty of M, from whom they had been fraudulently obtained, (of which A had notice,) and justified the detention as agent of M. M had not indemnified the plaintiff, and had not been consulted about the action : — Held, that M was admissible as a witness, both by virtue of the 3 & 4 Will. 4. c. 42. and the 6 & 7 Vict. c. 85. Hearne v. Turner, 15 Law J. Rep. (N.s.) C.P. 105 ; 2 Com. B. Rep. 535. A witness who stated that he had agreed to pay half the defendant's costs, and that he defended the action jointly with him, is a competent witness for the defendant, since the 6 & 7 Vict. c. 85, not being a person "in whose immediate and individual be- half" the action is defended either wholly. or in part; and, semble, he would be competent, iDefore the passing of that act, by virtue of the 3 & 4 Will. 4. c. 42. s. 26. Sage v. Robinson, 18 Law J. Rep. (n.s.) Exch. 31 ; 3 Exch. Rep. 142. A person under whom title is made in one of several avowries in replevin is inadmissible as a witness in support of the other avowries, under the 6 & 7 Vict. c. 85. IVallcer V. Giles, 18 Law J. Rep. (n.s.) C.P. 323; 6 Com. B. Rep. 662. On the trial of an ejectment between devisees claiming under different wills of the same testator, a person to whom a legacy (charged upon the land the subject of the action) had been given by the will under which the defendant claims is a compe- tent witness for the defendant under the 6 & 7 Vict, c. 85, as he is not a person in whose immediate and individual behalf the action is defended. Doe d. Bengo or Wingrove v. Nicholls, 18 Law J. Rep. (n.s.) Q.B. 81; 13 Q.B. Rep. 126. The plaintiff's next friend on the record is a competent witness, and not within the exception in section 1. of the 6 & 7 Vict.' c. 83; Melhuisli v. Collier, 19 Law J. Rep. (n.s.) Q.B. 493. (c) Objection to, when to be made. An order for leave to examine a co-defendant as a witness may be'obtained ex parte as well after as before decree ; and the question, whether the pro- posed witness is or is not interested, can only be raised upon objections to the reception of the evi- dence. Steed V. Oliver, 16 Law J. Rep. (N.s.) Chanc. 336; 5 Hare, 492." (B) Attestino Witness. Where an attesting witness to a deed has become blind, — Held, not suflicient to prove his hand- writing, but that Ije must be examined. Rees v. Williams, 1 De Gcx & S. 3141 (C) Commission and Oedeb to examine. The Court granted, on the application of the de- fendant, and without imposing any terms upon him, a commission to examine witnesses abroad, although the affidavit in support of the application did not shew that the evidence of the witnesses would he adrhissible in the cause, and although the witnesses resided at a great distance, and consider- able delay would be occasioned by the commission being granted. Dye v. Bennett, 1 L. M. & P. 92. In an information by the Attorney General, on behalf of her Majesty's Customs, the Court hasno power, either Tjy virtue of its general jurisdiction at common law, or under the 1 Will. 4. c. 22, at the defendant's instance, to direct a corrimissidh for the examination of witnesses. It will not use. its power'of postponing the trial ifor the purpose of compelling the Crown to consent to such commission. Attorney General v. Bovet, 15 Law J. Rep. (n.s.) Exch. 155; 15 Mee. & W. 60; 3 Dowl. & L. P.C. 492. The Court of Chancery, by a decree in a suit, directed an issue^at law to be tried in this court, when the plaintiff had a verdict A new trial of the issue was subsequently directed, and a commis- sion granted, by the Court of Chancery, to the de- fendants to examine a witness residing in France. On application to this Court to instruct the Chan- cery commission to allow the plaintiff to cross- examine such witness before them vivd voce, ox for the appointment of a commission by this Court to take such cross-examination, — Held, that the Couit would not interfere in any way to alter the powers and duties of Commissioners appointed by the Court of Chancery. Hargrave \'. Hargrave, 16 Law J. Rep. (N.s.) C.P. 271 ; 6 Dowl. & L. P.C. 151 ; 4 Com. B. Rep. 648. Where a commission to examine witnesses abroad issues under the 1 Will. 4. c. 22. a. 4, the names of the commissioners and the place at which it is to be executed must be specified in the order autho- rizing the commission, or in some subsequent order. A commission authorized the swearing of an^n- terpreter on the examination of French witnesses. The return shewed that the interpreter had been sworn, but did not state that he interpreted the evi- dence of any of the witnesses ; — ^Held, unnecessary. 736 WITNESS ; (D) Examination. The commission directed the witnesses to be examined apart Qiusre — Whether the return must expressly state they were so examined. Gremlle v. Stulz, 17 Law J. Rep. (U.S.) Q.B. 14; 11 Q-B. Rep. 997. A criminal information is not an action depend- ing within the I Will. 4. c. 22 ; and an order for the examination of a witness on interrogatories will rot be made in such a matter. Regina v. Inha- bitants of Upton St. Leonardos, 17 Law J. Rep. (n.s.) M.C. 13; 10 Q.B. Rep. 827. A Judge's order for a commission to examine witnesses need not contain the names of the com- missioners, as they are to be ascertained by subse- quent arrangement between the parties. Such a commission is not a writ, nor has it the incidents of one, and therefore it need not be tested in term time. Nicholor Nlcol v. Alison, 17 Law J. Rep. (N.s.) Q.B. 355 ; 11 a.B. Rep. 1006. A Judge's order directed a commission to issue for the examination of witnesses at Newfoundland. The commission directed the Commissioners to summon the witnesses at a certain place, to be ap- pointed by them for that purpose, in Newfoundland, and then and there examine them apart, vivd voce, and directed the commission and depositions to be returned sealed up. It was proved that papers, in the handwriting of the Commissioners, and sealed up, purporting to be a return of the commission, were delivered at the Master's ofBce, but no evidence was given by whom they were brought, or that they were in the same state as when delivered by the Commissioners. The commission returned was identified as that issued. The examinations of the witnesses did not on the face of them purport to be taken apart: — Held, first, that the commission sufficiently provided for the time, place, and man- ner of examining the witnesses. Secondly, that there was due proof of the return. Thirdly, that it must be presumed that the witnesses were examined apart. Simms v. Henderson, Henderson v. Henderson, 17 Law J. Rep. (n.s.) Q.B. 209; 11 Q.B. Rep. 1015. An order to examine witnesses upon interroga- tories under the 1 Will. 4. c. 32, cannot be granted before issue joined, although an undertaking not to examine until after issue joined be offered. Clutter- buck V. Jones, 18 Law J. Rep. (n.s.) Q.B. 11 ; 6 Dowl. & L.P.C. 251. An order for a mandamus to issue for the exami- nation of witnesses, under the 43 Geo. 3. c. 63. s. 44. must be made by the Court, and cannot be made by a Judge at chambers. Clarke v. East India Co., 18 Law J. Rep. (n.s.) Q.B. 23 ; 6 Dowl. & L. P.C. 278. (D) Examination. (a) In general. The rule of public policy, which prevents a wit- ness being asked such questions as will disclose the informer, if he be a third person, applies equally to questions which will disclose whether or not the wiUiess himself was the informer. Therefore, in an information by the Attorney General for a breach of the revenue laws, the Court d'cided that a witness for the Crown could not be asked this question, " Did you give the informa- tion 1" Attorney General v. Briant, 15 Law J. Rep. (N.s.) Exch. 265 s 15 Mee. & W. 169. A witness may be asked whether he has agreed to sell goods on commission, although the terms of such agreement have been reduced to writing, Whitfield V. Brand, 16 Law J. Rep. (n.s.) Exch. 103; 16 Mee. &W. 282. Trover by A against the assignees of one H for seizing goods of A. The plaintiff gave evidence that prior to the bankruptcy the person in possession, and apparently the owner, had assigned them to C, who had for valuable consideration assigned them to the plaintiff. The plaintiff had put a person in pos- session of the goods, but C continued to carry on the business in the house where they were. On the part of the defendants, it was suggested, that the transaction was colourable, and that the goods he- longed to the bankrupt H. Before any evidence was offered of any connexion between the plaintiff and H, one of the witnesses for the defence was asked " whether he remembered C making a claim to the goods after the bankruptcy." The question was disallowed ; — Held, that the question ought to havebeen allowed. Fordv. Elliott, 18 Law J. Rep. (n.s.) Exch. 447 ; 4 Exch. Rep. 78. Qucere — Whether a notary may be asked as to the general course of business among notaries in London. Lysaght v. Bryant, 2 Car. & K. 1016. The mere fact of counsel, whilst cross-examining a witness, putting a document into the witness's hand, and asking him whether it is in his hand- writing, does not entitle the opposite counsel to see such document. But the opposite counsel has a right to see the document, before the cross-examin- ing counsel proceeds to found any question on the document itself. Cope v. Thames Haven Dock Co. 2 Car. & K. 757. On the trial of a jTrisoner, his counsel may ask a witness for the prosecution, whether he did not make a certain statement whilst under cross-examin- ation before the magistrates, although the deposi- tions contain no note of such cross-examination. Regina v. Curtis, 2 Car. & K. 763. The Judges have laid down a rule, that a prose- cutor is not bound to call witnesses merely because their names are on the back of the indictment; but the prosecutor ought to have all such witnesses in court, so that they may be called for the defence, if they are wanted for that purpose ; if, however, they are called for the defence, tlie person calling them makes them his own witnesses. Regina v. Wood- head, 2 Car. & K. 620. (b) Contradicting, Where A was called by the defendant to prove conversations between the plaintiff and the agents of the defendant j and after the defendant's case had closed, it was proposed to call B on the part of the plaintiff, to contradict A :— Held, that, notwith- standing the course of cross-examination pursued by the defendant's counsel had been such as to give notice of the defendant's case, B might be called to contradict A as to what took place between the plaintiff and the agents of the defendant, on any occasion on which A had admitted in his evidence that B was present. Cope v. Thames Haven Dock Co., 2 Car. & K. 758. WITNESS; (D) Examination— WRECK. 737 In an information against the defendant, for using a cistern, in the making of malt, without making an entry thereof, as required by the act of Parliament, a witness was asked by the defendant's counsel if he had not stated to one C that the Excise officers had offered him 201. to say the cistern had been used j the witness having denied the alleged statement, — Held, that evidence could not be giveii to shew that he had in fact made the statement. Where a witness is asked if he has made a certain statement, which is material to the issue and at variance with other parts of his evidence, and he denies that he has made such statement, evidence may be given to shew that he did in fact make the statement. Where a witness is examined as to a fact, with a view to shew that he is biassed as to the cause, and he denies the fact, evidence may he offered in con- tradiction to prove the fact. Attorney General v. Hitchcock, 16 Law J. Bep. (n.s.) Exch. 259 j 1 Exch. Rep. 91. A witness, who upon the trial of a cause gives evidence adverse to the party calling him, may be asked whether he had not given a different account ofthe same matter before the trial. But, per Patteson, J. and Coleridge, J., in the event of a denial by the witness, another witness cannot be called to contra- dict him in that respect. The party calling a witness may, afterwards, ex- amine other witnesses as to the truth of statements made by such witness, tending to throw discredit upon them, for the purpose of setting up their credit. The plaintiff, in an action for an assault, being under age, sued by her father as her next friend. A witness, on behalf of the plaintiff, gave evidence which went to disprove the cause of action, and stated that the plaintiiTs father had tampered with her before the trial as to the evidence she was to give j and on her cross-examination, that the plain- tiff had told her, that her brother and she went to romp in the cellar, and she fell over a barrel and so hurt herself: — Held, that the father of the plain- tiff might be called to contradict the statement as to his having tampered with the witness, and the plaintiff's brother to contradict his ever having romped with the plaintiff, such statements being relevant to the matter at issue. Melhuish v. Col- lier, 19 Law J. Hep. (n.s.) Q.B. 493. (c) Refusal to answer. An attorney who prepared a testamentary paper, at the instance of the party benefited by it, is not privileged, on the ground of professional confidence, to withhold from the Court, facts relating to contem- poraneous acts, upon which he founded his opinion of the testamentary capacity of the party making the will. Jones V. Godrich, 5 Moore, P.C. 16. Where a witness declines answering on the ground of its tending to criminate him, he is entitled to claim protection from answering at any period of his examination ; and, if compelled to answer after such claim, what he says is to be deemed under compulsion, and inadmissible against him. Per nine Judges, contra six. Regina v. Garhett, 1 Den. C.C. 236 i 2 Car. & K. 4-71. Digest, 1845—1850, (E) Attachment against. In support of an application for an attachment for not obeying a Crown Office subpoena, it was sworn that " application was made, on behalf of the overseers ofthe parish of S," to three Justices, &c., to inquire into the place ofthe last legal settlement of A, B, &c., and to make an order for their removal; — Held, insufficient, for not shewing such a com- plaint by the overseer as to give the Justices juris- diction. Regina v. Viclcery, 16 Law J. Rep. (n.s.) M.C. 69. WOMEN. An act to protect women from fraudulent prac- tices for procuring their defilement. 12 & 13 Vict. <;. 76 i 27 Law J. Stat. App. i. WORK AND LABOUR. In an action for work and labour, where there had been a breach of contract on the part of the plaintiff, — Held, that, under the common counts, he could not recover a quantum meruit, nor prove that his breach of contract arose from the defendant's default. Kewley v. Stolces, 2 Car. & K. 435. A working engineer was employed by the paten- tee of a buoy to invent and make a machine for air- tubes. He made a working.drawing, and ultimately manufactured a ring which was effectual for this purpose. The. patentee never accepted the ring, and an action was brought against him for work, labour and materials: — Held, that the plaintiff in that action was entitled to recover a remuneration for his skill and labour employed in the invention and design of the machine. Grafton v, Armitage, IS Law J. Rep. (n.s.) C.P. 20; 2 Com. B. Rep. 336. In an action for work and labour, the plaintiff, who was an attorney, proved that he had rendered professional services for the defendant, as his agent, at a contested election for a seat in parliament. It also appeared on the plaintiff's evidence that the plaintiff had voted at the election for the defendant, although by law » paid agent is forbidden to vote. The defendant gave evidence to shew that the plaintiff agreed to render his services gratuitously. The Judge directed the jury'that the plaintiff was entitled to a verdict, unless the defendant made out to their satisfaction that the services were to be gratuitous: — Held, a misdirection, and that the true question for the jury should have been, whether, taking all the evidence together, the plaintiff had made out that he was to be paid for his services. Hingeston y. Kelly, 18 Law J. Rep. (n.s.) Exch. 360. WRECK. The laws relating to wreck and salvage consoli- dated by the 9 & 10 Vict. c. 99; 24 Law J. Stat. 250. A vessel which had stranded within low-water 5B 738 WRITS. mart and which was taken possession of by the bailiff and the lord of the manor, not at low water, but when the tide was in to the extent of some feet, condemned as droits of Admiralty. Claim of the lord of the manor to the proceeds of the sale thereof as wreclmm maris overruled. Semble, the jurisdic- tion of the Admiralty subsists at the time when the shore is covered with water; the jurisdiction of the common law when the land is left dry. The Pauline, 2 Rob. 358. WRITS. (A) Writ of Right. (B) Whit of Rebellion. (C) Whit of Trial. (A) Writ of Right. [Hatton V. Macready, 5 Law J. Dig. 830 ; 2 Dowl. & L. P.C. 5.] (B) Writ of Rebellion. A commission of rebellion is not a criminal or supposed criminal matter within the provisions of the 31 Car. 2. "c. 2. (Habeas Corpus Act), that statute relating to persons in custody for misde- meanours, for which they may he tried. Cobbett v. Slowman, 19 Law J. Rep. (n.s.) Exch. 268 ; 4 Exch. Rep. 747. (C) Writ op Trial. Where there are several issues joined in a cause, and a writ of trial directs a jury to be summoned to try "the issue," this is an irregularity which is waived by the defendant's appearance at the trial. Towers v. Turner, 15 Law J. Rep. (n.s.) C.P. 249; 4 Dowl. & L. P.C. 177. Where, on the trial of a cause under a writ of trial, a verdict was taken by consent for the plaintiff, subject to a reference to an arbitrator, and in con- sequence of the arbitration not being proceeded with, the plaintiff, without getting rid of the frst verdict, gave a fresh notice of trial, and obtained a verdict in the absence of the defendant, who did not appear at the trial, the second verdict, and all pro- ceedings since the first trial, were set aside for irre- gularity. Harrison v. Greenwood, 15 Law J. Rep. (N.s.) Q.B. 92; 3 Dowl. & L. P.O. 353. The defendant, appearing and consenting to an order for a writ to try the issue (two issues being joined), was held to be estopped from moving to set aside the writ, which directed the sheriff to try "the issues," although he objected, at the trial, that the writ was not warranted by the order. Humblestone v. Welham, 5 Com. B. Rep. 195. The plaintiff having obtained a verdict in a writ of trial, a Judge at chambers, instead of staying the execution of the writ, made an order on the 6th of July 1846, for setting aside the verdict, on the ground of the irregularity of the notice of trial : — Held, that this was not a nullity, but an irregula- rity ; and that an application to rescind the order made on the last day of Trinity term 1847 was too late. Orgill v. Bell, 17 Law J. Rep. (N.s.) Exch. 52; 1 Exch. Rep. 466 ; 5 Dowl. & L. P.C. 217. A writ of trial may be tested in vacation. Collett V. Curling, 17 Law J. Rep. (N.S.) tt.B. 216; 5 Dowl. & L. P.C. 605. The party who ultimately succeeds in obtaining the verdict under a writ of trial, is afterwards entitled to have the writ of trial delivered up to him by the sheriff, in order that he may make the proper entry of the verdict thereupon; and this, although he be the co-defendant of a party who has suffered judgment by default, -and as against whom damages have been improperly assessed under the same writ of trial. In such a case, a rule calling upon the sheriff and the plaintiff to shew cause why the sheriff should not deliver up the writ of trial is the proper form of application. Parker v. Clarke, 18 Law J. Rep. (n.s.) aB. 252; 7 Dowl. & L. P.C. 1. Under a writ of trial, a motion for a new trial may be made within four days of the return day of the writ, although more than four days have elapsed since the trial. Lewis v. Parry, 19 Law J. Rep. (n.s.) Exch. 192. ADDENDA. The following Cases have been accidentally omitted under their proper titles. ATTORNEY AND SOLICITOR. Lien for Costs. A firm of two solicitors transacted business for a client till November 1843, after which time the firm joined with them another partner, and the firm of three then transacted further business for their client : — Held, that the partnership of three had no lien upon papers which came, for the first time, into their possession, for costs due in respect of business done by the original firm of two. In re Forshaw, 17 Law J. Sim. 121. Rep. (n.s.) Chanc. 61 ; 16 BARON AND FEME. Separate Estate. By a marriage settlement the trustees were dur- ing the wife's life to receive the income of the settled property when it should become due, and to pay it to such person as she might from time to time ap- ADDENDA. 739 point, or to permit her to receive it for her separate use ; and it was declared that her receipts, or those of any person to whom she might appoint the same after it should become due, should be valid discharges : — Held, that she was restrained from anticipating the income provided for her. Field v. Evans, IS Sim. 375. wood, and that evidence was not admissible to shew that on former occasions those who put the hustings up took them away. Fuller v. Pattriclc, 18 Law J. Rep. (n.s.) Q.B. 237. CERTIORARI. Matteks op Practice. A certiorari having issued to the Justices at Quarter Sessions requiring them to return a con- viction by A and B, two Justices assigned to hear and determine divers felonies, &c., of T T on the 22nd of September 184'6, for certain trespasses and contempts against the 7 & 8 Vict. c. 112; the Ses- sions returned the conviction which had been filed, and which appeared to have been made by A and B, two Justices of the borough of N, for a single act of harbouring seamen under that statute, and did not set out the evidence on which it proceeded. On November the 25th, a rule for a concilium was obtained, and the case set down for argument, and the points delivered on the 16th of January. On that day a rule to quash the certiorari, and have the conviction taken off the file and returned to the Justices for the purpose of amending it by inserting the evidence taken, was obtained. The Court, in its discretion, discharged the rule. The real conviction having been returned by the Sessions, the variance between it and the statement in the certiorari was held to be immaterial. Regina V. Turk, 16 Law J. Rep. (k.s.) M.C. 114;; 10 Q-B. Rep. 540. CONTRACT. Consthuction op. The plaintiff agreed, in writing, to erect hustings for the defendant, "as before, with alterations, for J9l. 10s., by receiving the wood back again, and to find labour," &c. The hustings were destroyed by the mob as soon as the election was over : — Held, that the defendant was liable for not returning the DESCENT. Upon a claim to the inheritance of a Zemindary, situate in Midnapore, which had been in possession, for a long period anterior to the institution of the suit, by a family of Sutgop Brahmins, who had migrated from Bengal to Midnapore, but had re- tained their laws and and performed their religious ceremonies, according to the Daya-bhaga and other authorities in force in Bengal: — It was held, by the Judicial Committee, affirming the judgment of the Sudder Court, that the Daya-bhaga Sastras must govern the descent, and not the Mitacshara, which prevailed in Midnapore. A deed of gift of the Zemindary, to a stranger, by the widow of the Zemindar last seised, who died without issue, which gift was, made with the confirmation of the Bandhus, the mother's brother's sons, the heirs ; — Held, to be valid by the Daya- bhaga Sastras, as against a party claiming the succession according to the Mitacshara, as being descended, in the seventh remove, in the male line, from the common ancestor. Rany Sfrimuty Dibeah V. Rany Koond Luta, 4 Moore, In. App. 292. The title to land in Poornea being in dispute, upon the question, whether the Mythila or Nuddea law was to regulate the succession, the test to be applied is, the form and character of the religious rites and ceremonies, and the usages of the family. Where, therefore, a family of Bengali Soodra Sutgops, who had migrated, at a remote period, from the south-west of Bengal, where the Nuddea law prevailed, to the district of Poornea, where the Mythila law was in force, and had adopted and per- formed their religious rites and ceremonies, accord- ing to the law of Mythila, — it was held, by the Judicial Committee, affirming the decree of the Sudder Court, that the Mythila law, in such case, must govern the right of succession. Rany Pud- mavati v. Baboo Doolar Sing, 4 Moore, In. App. 259. TABLE OF CASES REFERRED TO IN THE PRECEDING ANALYTICAL DIGESTED INDEX. 1845—1850. l_In the following Table the asterisk * signijies that the case occurs twice in the same page.~\ Abbey v. Howe, 886 Abbott V. Clarke, 281 V. Douglas, 24 v. Richards, 345 Abby V. Gilford, 581 Abington v. Lipscomb, 347 Abrahams v. Davison, 18, 550 Abram v. Ward, 248, 503 Absolon V. Marks, 95 Acaster v. Anderson, 345 Ackerraann v. Ehrensperger, 306 Ackroyd y. Smith, 721 Acland v. Buller, 691 Acraman, re, ex parte Hinlin, 75 , re, ex parte Webster, 599 V. Morrice, 298 Adam v. Rowe, 30 Adams v. Barry (Limitations, Sta- tute of), 410, 413; (Parties to Suits), 463 V. Freemantle, 626 V. London and Blackwall Rail. Co., 366 V. Rowley, 279 Addison, ex parte, re Hooper, 77 , in re, 32 V. Gibson, 222 Adey v. Hill, 460 Affleck V. James, 701 Agriculturist Insurance Co., in re, ex parte Spackman, 161 Airey v. Hall, 568 Albert, Prince, v. Strange, 193, 335 Alcock V. Kempson, 575 V. Royal Exchange Insur- ance Co., 273, 650 V. Sutcliffe, 717 Alder v. Boyle, 180 V. Keighley, 70 Alderman v. Bannister, 567 Aldred v. Constable, 644 Alexander v. Cana, 462 V. M.'Kenzie, 99 V. Newman, 457 Alexander v. Osborn, 557 V. Williams, 347* V. Young, 87 Alfred, The, 593 V. Farlow, 607 Allen V. Anderson, 243 V. Bussey, 534 V. Edmundson, 102 , V. Francis, 35 V. Greensiil, 456 V. Hay ward, 449 V. Kemble, 343 V. Knight, 435 V. M'Pherson, 733 V. Sea Fire Life Assurance Co., 159 V. Sharp, 629 Allfrey v. AUfrey (Account), 7 ; (Costs), 208; (Practice), 571, 574, 578, 588 Allworth V. Dore, 460 Alsager v. St. Katherine's Dock Co., 659 Alvanley v. Kinnaird, 672 Ambergate, Nottingham, and Bos- tori, and Eastern Junction Rail. Co. V. Coulthard, 144 V. Mitchell, 143 Ambrose v. Dunmow Union, 8 Ames V. Parkinson, 414 Amies v. Skillern, 390 Amiss, in the goods of, 729 Anderson, in re, 53 V. Boynton, 51, 53 V. Stather, 562,591 Andrew v. Andrew, 574 Andrewes v. Walton, 602 Andrews, in re, 602 v. Bousfield, 700 V. Lockwood, 508, 553 Angas' case, in re North of Eng- land Banking Co., 166 Angell, in re, 45 V. Harrison, 362 Angle V. Angle, 253 Ann and Mary, The, 663 Anonymous; (Arrest), 39 (Attorney and Solicitor), 48, 49 (Bankruptcy), 81 (Fines and Recoveries), 286 (Practice), 566, 591 Ansell V. Baker, 100 Ansley v. Cotton, 402 Anstie, in re, 416 Antrobus v. Hodgson, 395 Apothecaries' Co. v. Burt, 322 Apperley v. Page, 150 Appledore Tithe Commutation, in re, 688 Apps, ex parte, 171 Aquila, The, 605 Arbouin, ex parte, re Reay, 74 Arbuthnot v. Norton, 41, 234 Archbold v. Commissioners of Charitable Donations and Be- quests for Ireland, 125 Archer, re, ex parte Cunliffe, 71 , re, ex parte Shuckard, 229 v. Hudson, 176 V. Williams, 236 Arden, in re, v. Bingham, 647 V. Sullivan, 364 Armitage v. Coates, 30, 33 V. Insole, 182 Armitstead v. Durham (Injunc- tion), 335; (Pleading), 502; (Practice), 555 Armstrong, ex parte, 704 V. Christian!, 101 V. Normandy, 163 Armstrong's case, in re North of England Banking Co., \ 165 , in re Patent Elastic Pave- ment and Kamptulicon Co., 164 Arnold v. Arnold, 389, 555 V. Garner, 661 — — V. Mayor, &c. of Poole, 50 Arrow v. Hellish, 386 742 TABLE OF CASES. Arthur v. Beales, 104 Ashburner v. Wilson, 248 Ashburnham v. Ashburnhani, 398 Ashby V. Bates, 544 Ashley v. Brown, 548 v. Pratt, 650 Ashmore v. Lees, 457 Ashpitel V. Seroombe, 149 Ashton, in re, 635 V. Dalton, 435 V. Perkes, 479 Ashurst, in re, 45 * V. Mill, 431 Askew V. Peddle, 575 Askham v. Barker, 532 Asprey v. Levy, 434 Astley V. Fisher, 499 Aston V. Perkes, 479 Atchama V. Ramanadha, 17 Atcheson v. Atcheson, 390 Atkins V. Humphrey, 278 Atkinson v. Hornby, 356 V. Smith, 180 Atkyns v. Kinnier, 226 Atlas, The, 663 Atlee V. Gibson, 580 Attorney General v. Adams, 562 V. Andrews, 331 V. Bailey, 627* V. Bingham, 567 V. Blair, 122, 126 V. Boston, 120 V. Bovet, 274, 735 V. Briant, 736 V. Bristol, 124 V. Brodie, 124, 354 T. Brown, 675 V. Brown's Hospital, 124 V. Chambers, 573 V. Chester, Corporation of, 468, 572 V. Cleobury, 676 V. Clothworkers' Co., 123 V. Cooper, 565 V. Devon, Earl of, 1 22 V. Donnington Hospital, 591 V. Drapers' Co., 126 V. East Retford Grammar School, 124 V. Gains, 123 V. Gardner, 124, 467 V. Gibbs, 123, 128 V. Gilbert, 346 V. Great Western Railway Co., 136 V. Hallett (Forest Laws), 289 ; (Injunction), 329; (Pre- rogative), 594 V. Hailing, 275 V. Hertford, Marquis of, 402 V. Hitchcock, 737 V. Hodgson, 441 V. Ironmongers' Co., 126 V. Jones, 733 V. Lambe, 607 V. Lawes, 121, 211 V. Leicester, 442 Attorney General v. Lichfield, Corporation of, 621 V. London, Corporation of, (Costs), 210; (Practice), 552, 580 ; (Production and Inspection of Docu- ments), 607 V. Lucas, 425 V. Ludlow, Corporation of, 1 25 V. Magdalen College, Oxford, 120, 124 V. Malkin, 733 V. Marsh, 335 V. Merchant Venturers' Co. ot Bristol, 119 V. Mosley, 123 V. Munro (Charity), 122, 126; (Costs), 214 V. Murdoch, 120 V. Norwich, Corporation of, 331 V. Pearson, 453 V. Pilgrim, 123* V. Plymouth, Mayor, &c. of, 119 V. Rees, 507 V. Shield, 591 V. Shillibeer, 627, 628 V. Simcox, 402 V. Southampton, Guardians . of, 331 V. Stamford, 122 V. Thompson, 553, 564 V. Trevelyan, 125 T. Tufnell, 122 V. Vint, 122 V. Wakeman, 570 V. Walker, 627 V. Ward, 126, 442 V. Welsh, 329 V. Wiltshere, 387 V. Wimborne School, 255 V. Worcester, Corporation of, 442 V. Wyggeston Hospital, 123 of Jamaica v. Manderson, 110, 605 Augustien v. Challis, 645 Augustin V. Challis, 645 Auster v. Holland, 546 Austin V. KoUe, 490 Vj Rumsey, 267 Autey V. Hutchinson, 328 Avarne v. Browne, 709 Ayres v. Ayres, 727 Ayrton v. Abbott, 442 Baddeley, ex parte, 370 , in re, 608 T. Denton, 608, 621 v. Gingell, 678 Badham v. Badham, 36 Baggett v. Meux, 87 Bagnall, The, 16 Bagshaw v. Parker, 470 Bagshawe, in re, 55 Bagshawe v. Eastern Union Rail. Co., 153 Bail v. Mellor, 252 Baildon v. Walton, 412 Bailey v. Birkenhead, Lancashire and Cheshire Junction Rail. Co., 143 V. Bracebridge, 147, 547 V. Bristowe, 47 V. Haines, 147, 547 V. Harris, 628 V. Macaulay (Company), 147; (Money paid), 434 ; (Practice), 546 V. Pearson, 147 V. Robson, 202 Baillie v. Edwards, 637 V. Moore, 5 Baily v. Lambert, 558 V. Turner, 351 Bain v. Kirk, 221 V. Whitehaven and Furness Junction Rail. Co. (Bill of Ex- ceptions), 94; (Company), 140 ; (Evidence) 265 Bainbridge v. Lax, 5 Bainbrigge, in re, 56 V. Baddeley (Pleading), 505 ; (Practice), 556, 575 Baird v. Hodges, 23 Baker, ex parte, in re Larne, Bel- fast and Ballymena Rail. Co., 172 V. Baker, 386 V. Coe, 536 V. Coghlan, 534 V. Cotterill, 30 T. Gibson, 450 T. Hunter, 31 V. Jupp, 348 V. Meryweather, 56 V. Plaskitt, 156 V. Sowter, 576 V. Tucker, 248 Baldwin v. Damer, 559 V. Padwick, 350 Balman v. Sharp, 534 Bamford v. Bamford, 254 V. lies, 599 Bampton v. Birchall, 504, 553 Banin v. Jones, 86 Bank of Australasia V. Breillat, 605 V. Harding, 288 Bank of England v. Johnson, 63 Bank of Scotland v. Fenwick, 62 Banks v. Newton (Costs), 200; (Error), 262; (Practice), 545 - V. Parker, 467 V. Whittall, 437 Banner v. Jackson, 271 Banwen Iron Co. v. Barnett, 158* Barber, ex parte, in re London and Manchester Direct Inde- pendent Rail. Co., 160, 164 ex parte, in re Tring, &c. Rail. Co., 78 in re, 53 V. Butcher, 227 TABLE OF CASES. 743 Barber v. Grace, 477 V. Lemon, 106 V. Thomas, 25 Bardell v. Miller, 534 v. Spiuks, 284 Barff, ex parte, re Cousen, 75 Barker v. Birch, 7 V. Harrison, 596 V. North Staffordshire Rail. Bathe V. Dickman, 536 Bathwick Paving Act, in re, 444 Batten, in the goods of, 728 Batty V. Marriott, 299, 549 V. Melillo, 496 Bauly, in the goods of, 727 Bawley v. Hancock, 335 Baxter, in re, 52 V. Nurse, 514 Co., 366, 371 Bayard, in the goods of, 732* Rogers (Administration Bayley v. Bradley, 707 of Estate), 1 5 j ( Parties to v. Overseers of Nantwieh, 455 Suits), 464, 467 V. Stead, 551 Barley v. Walford, 284 Barlow v. Browne, 432 Barnes, ex parte, 46, 211 f. Attwood, 200 v. Keane, 59 V. Shore, 131* V. Vincent, 732 V. Ward, 448, 449 Barnett, ex parte, in re Ipswich, V. Wilkins, 595 Baylies, ex parte, in re Gibbs, 77 Bayliffe v. Butterworth, 138 Bayly v. Buckland, 548 Baynton v. Hooper, 586 Beadle, in the goods of, 727 Beadon, in the goods of, 728 V. King, 570 Beale, in re, 49 V. Mouls, 145 V. Symonds, 574 Norwich and Yarmouth Beames v. Farley, 195, 319 Rail. Co., 172 •^ V. Cox, 428 V. Lambert, 145 V. Papineau, 567 Barnewall v. Sutherland, 545 Barrett, ex parte, 373 V. Jermy, 342 V. Stockton and Darlington Rail. Co., 8* Barron, ex parte, in re Scott, 589 Barrow v. Arnaud, 626 Barrs v. Jackson, 587 Barry v. Marriott, 320 V. Nesham, 470 Bartholomew v. Harris, 730 Bartholomew's Trust, re; 392 Bartlett, in re, 130*, 452 V. Bartlett, 581 V. Benson, 98 Barton, ex parte, re Charles, 75 , ex parte, re Harvey, 82 v. Ashley, 455 V. Aston, Overseers of, 460 Bearcliffe v. Dorrington, 14 Beard v. Egerton, 474, 475 Beardmer v. London and North WestemRail. Co., 612 Beattie, re, ex parte Kelsall, 73 Beauc6 v. Muter, 254 Beaufort, Duke of, v. Morris, 336 , Duke of, V. Phillips, 353 , Duke of, V. Smith, 269 V. Swansea, Mayor of, 270 Beaumont v. Biengeri, 296 V. Greathead, 479 V. Reeve, 43 Beavan v. Cox, 452 Beazley v. Bailey, 538 Beckham v. Drake, 71 Beckitt V. Billborough, 159 Bedson, in re, 213, 214 Bedwell v. Coulstring, 478 Beech V. Ford, 179 V. Jones, 96, 268 V. St. Vincent, Earl, 686 Beeching v. Morphew, 89 Beenlen v. Hockin, 456 V. Dawes, 235 Barwell v. Hundred of Winter- Beeton v. Jupp, 348 stoke, 429 Beilby v. Shepherd, 655 Barwise, re, ex parte Cocks, 75 Belcher v. Bellamy, 72 Baskcomh v. Harrison, 13 v. Brake, 81 Bass, ex parte, in re London and v. Campbell, 72 Manchester Direct Inde- v. Goodered, 17, 535 pendent Rail. Co., 164 v. Gummow, 67 , ex parte, in re Stephens, 52 v. Patten, 71 Bastenne Bitumen Co., in re, 172 Belfast Rail. Co. v. Strange, 496 Batavier, The, 663 Belke's Charity, in re, 705 Batchelor v. Middleton, 410, 465 Bell, ex parte, re Tunstall, 69 Bate V. Pane, 277 v. Alexander, 463, 532 Bateman, in re, 45 v. Bell, 275 V. Hotchkin, 250, 685 v. Bidgood, 68 v. Margerison; (Evidence), v. Coleman, 707 266 ; (Parties to Suits), v. Corey, 637 465,466; (Pleading), 504 v. Ingestre, 103 v. Wiatt, 334 v. Mexborough, Earl of, 502 Bates V. Townley, 31, 34, 37 v. Welch, 306 Bather v. Brayne, 541 .Bellamy v. Burch, 665 Bellamy v. Sabine, 656 Bellringer v. Blagrave, 223 Belsham v. Harrison, 569 V. Perceval, 578 V. Percival, 553 Benbow, ex parte, re Benbow, 78 V. Davies, 210, 557 Benett v. Peninsular and Oriental Steam Boat Co., 1 15 Benhamv. Gray, 472 V. Mornington, 112 Benn v. Dixon, 243 Bennett, ex parte, 396 V. Bull, 600 V. Burgis, 700 V. Cooper, 41 1 V. Deacon, 665 Benson, in re, 45 V. Chapman, 659 V. Duncan, 655 V. Heathorn, 159 V. Lamb, 670 Bentley v. Carver, 196 Benton v. Polkinghorne, 351 Benyon v. Cresswell, 658 Berdoe v. Spittle, 495 Beresford, ex parte, in re Koll- mann's Railway Locomotive and Carriage Improvement Co., 167 Berkeley v. King's College, Cam- bridge, 284 V. Swinburne, 393. Berkley v. DeVere, 542 Bernard V. Hyne, 16 Borrow v. Morris, 554 Berry v. Attorney General, 588 V. Irwin, 339 V. Morse, 304 Berwick-upon-Tweed, Mayor, &c. of, V. Murray, 568, 600 Besley, ex parte, in re Direct Exeter, Plymouth, and Devon- port Rail. Co., 168 Bessell v. Landsberg, 364 Bethlem Hospital and Bridewell Hospital, 616 Bevins v. Hulme, 488 Beynon v. Jones, 86 Bickford v. Parsons, 358 V. Skewes, 474 Biddies v. Biddies, 391 Biddulph V. Lord Camoys (Lu- natic), 415 ; (Practice), 561,580 V. Dayrell, 586 Biggs, in re, 581 Bignell v. Harpur, 278 Bignold, in re, 54 Billing, in re, 54 V. Coppock, 64 V. Hitchings, 35 1 V. Webb, 704 Binns v. Parr, 581 l^irch V. Birch, 727 V. Cropper, 699 V. Edwards, 456 V. Lowndes, 349 7-14 TABLE OF CASES Bird V.Brown, 682 V. Heath, 576 V. Higginson, 196 V. Jones, 281 Y. Smith, 492 Birienhead, The, 664 Birkenhead, Lancashire, and Che- shire Junction Rail. Co. V. Brownrigg, 140, 145 V. Cotesworth, 144 v. Pilcher, 143 V. "Webster, 144 Birkhead v. North, 276 Birley, re, ex parte Buchanan, 83 Birmingham, Overseers of, exparte, in re Birmingham New Library, 618 Mayor, &c. of, v. Kegina,300 Churchwardens of, v. Shaw, 618 Birmingham and Gloucester Rail. Co., in re, ex parte Rector of Bredicot, 373 Bishop, in re, 82, 328 V. Cappell, 386 V. De Burgh, 285 V. Helps, 456 V. Sraedley, 458 Black V. Baxendale, 115 V. Low, 549 Blackburn, in re, ex parte Hall, 77 V. Smith, 709, 714 Blackburne v. Staniland, 558 Blacketer v. Gillett, 284 Blackford v. Hill, 230 Blaekham v. Pugh, 404 Blackie v. Pidding, 108, 269 Blackmore v. Smith, 560 Blagg v. Sturt, 404 Blagrave v. Blagrave, 247, 573 Blagrove v. Hancock, 252 Blair v. Bromley, 292 v. Ormond (Evidence), 269 ; (Pleading), 503; (Practice),591; (Stamp), 674 Blake v. Newhurn, 646 V. Phinn, 710 Blakeley, ex parte, in re Northern Coal Mining Co., 166 Blakelock v. Sharpe, 384 Blakesley v. Smallwood, 278 Blanchard v. De la Crouee, 327 Bland v. Dax, 549 Blandy v. De Burgh, 52 Blanford v. Morrison, 679 Blenheim, The, 663 Blenkinsopp v. Blenkinsopp (Fraud), 293; (PracticeJ, 568, 590 Blogg V. Bousquet, 546 Bloye's Trust, in re, 701, 705 , ex parte Lewis, 25 Bluck V. Siddaway, 432 Blundell v. Stanley, 375 Boden v. Smith, 678 Bodley v. Reynolds, 19, 696 Bodmer's Patent, in re, 476 Boileau v. Ruthin, 266 Bold v. Rotherham, 650 Bold Bncclcugh, The, 16 Bolton, in re, 207 Bonaparte, The, 654 Bonar v. Mitchell, 100 Bond, ex parte, 318 V. Nurse, 87 Boosey v. Davidson, 192, 193 V. Purday, 192 Booth V. Millars, 544, 545 V. Millns, 544, 545 Boothby v. Boothby, 629 Boothroyd, in re, 189 Boozey v. Tolkien, 193 Bopart v. Hicks, 109 Bordier v. Bamett, 349 Boreham v. Bignall, 384 Borough of St. Marylebone Joint Stock Banking Co., in re, ex parte Busk, 169 , ex parte Davidson, 171 , ex parte Stanhope, 170 Borton v. Borton, 390 Bosanquet, ex parte, re Boyd, 472 V. Shortridge, 173 Bostock V. Shaw, 462 Botten V. Tomlinson, 431 Bottomley v. Buckley, 27 Boucher v, Murray, 21 Boughton V. Boughton, 723 V. James, 723 Boulcott V. Woolcott, 494 Boulter v. Brooke, 267, 469 v. Peplow, 267, 469 Boulton V. Pritchard, 542 Bousfield V. Edge, 538 V. Mould, 572 V. Wilson, 137, 677 Bouverie v. Bouverie, 393 Bowden \. Bowden, 698 Bowditch V. Balchin, 38 V. Fosberry, 38 Bowdler, in re, 325 Bowen, in re, v. Evans, 326 V. Evans, 292 v. Owen, 634 V. Williams, 28, 32 Bowers v. Nixon (Amendment), 21, 22; (Landlord and Tenant), 361 Bowlby V. Bell, 139 Bowman v. Bell, 584 Bowner, ex parte, re Pulvertoft, 76 Bownes v. Marsh, 93, 674 Bowring, re, ex parte Lawrence, 77 Bowyer v. Cook, 205 Boyce v. Boyce, 252 v. Webb, 2 Boyd, re, ex parte Bosanquet, 472 V. Mangles, 70, 660 V. Moyle (Guarantie), 304 ; (Pleading), 503, 504 Boydell v. Harkness, 105 Boyle v. Ferral), 41 Boynton, ex parte, 91 Boyson v. Gibson, 658 Braoegirdle v. Peacock, 501 Bradley v. Bardsley, 106 V. Barlow, 392 V. Grey, 351 Bradshaw, ex parte, in re East and West India Docks, &c. Rail. Co., 374' Braham v. Joyce, 602 V. Watkins, 540 Braithwaite v. Gardiner, 97 Branch v. Browne, 683 Branchardiere v. Elvery, 194 Brandao v. Bamett, 61 Brandon v. Woodthorpe, 85 Branscombe v. RowcliflFe, 177 Bray v. Akers, 563 V. South Eastern Rail. Co., 370 Bredicot (Rector of), ex parte, in re Birmingham and Gloucester Rail. Co., 373 Bremner v. Chamberlayne, 56 Brenchley v. Still, 728, 731 Brettell v. .Williams, 306 Breynton v. London and North Western Rail. Co., 612 Briant v. Dormer, 696 Bridgeford v. Wiseman, 349 Bridges v. Hinxman, 464 V. Wilts, Somerset, and Wey- mouth Rail. Co., 372 Bridgnorth, Corporation Collins, 685 Bridson v. Benecke, 334 Briggs, ex parte, in re C- V. Hartley, 397 v. Merchant Traders' Ship Loan and Assurance Associ- ation, 630 Bright V. North, 331 Brighton V. North, 331 Brighton, Lewes and Tunbridge Wells Direct Rail. Co. in re, 172 Brine v. Bazalgette, 407 Brink v. Winguard, 284 Bristow V. Sacqueville, 265 Bristowe v. Needham, 584 Britt V. Pashley, 38 Brittain v. Lloyd, 58, 434 Britten v. Britten, 85 Broad v. Carey, 205 Brocklebank v. Whitehaven Junc- tion Rail. Co., 365 Bromage, ex parte, in re Jones, 71 V. Lloyd, 97 V. Vaughan, 101 Bromley v. Wright, 383 Brook, ex parte, in re Willis, 75 V. Rawl, 667 Brook's Divorce Bill, in re, 253 Brooke v. Spong, 484 , Lord, v. Ilounthwaite, 670 , Lord, V. Warwick, Earl of, 250 Brooker v. Cooper, 204 Brookes V. Cresswell, I, 131 Brookman, in re, 417 of, V. 48 TABLE OF CASES. 745 Brooks V. Bockett, 52, 54 Broome v. Gosden, 405 V. Regina, 316 Broomhead, in re, 57 Brouard v. JJumaresq, 606 Brough V. Eisenberg, 536 Brown, ex parte, re Fenwick, 74 , in re, 414 — — , in the goods of, 727 ■ V. Andrew, 146 V. Bamford, 87 V. Brown, 586 V. Byers, 430 V. Chapman, 282 V. Cole, 438 V. Cooke, 193 V. De Winton, 98 V. Gill, 328 V. Hartill, 218 V. Home, 557* V. Hutchinson, 689 < V. Jones, 487 V. Kempton, 69 V. Lake (Costs), 21 1 j (Prac- tice), 553, 590 V. Lee, 174, 563 V. Mallett, 662 V. Notley, 692 V. Oakshott, 570 V. Robertson, 567 V. Stanton, 562 V. Thurlow, 667 V. Wlnteway, 243, 246 V. "Wilkinson, 662 Browne v. Burton, 717 V. Houghton, 684 Browning v. Budd, 726 Brownrigg v. Rae, 432 Bruce v. Charlton, 582 V. Kinlock, 207 V. Morice, 250 Bruin v. Knott, 318 Brunskill v. Powell, 323 Brunswick, Duke of, ex parte, in re Clements, 407 , Duke of, in re, 45 , Duke of, V. Duke of Cam- bridge, 606, 580 , Duke of, V. Hanover, King of, 354 • — — , Duke' of, V. Harmer, 18, 407 , Duke of, V. Sloman, 18, 23 ', Duke of, V. Slowman, 694 Bryan v. Child, 69 V. White, 732 Bryant v. Wardell, 695 Brydges v. Bacon, 565 Brymer v. Thames Haven Dock and Rail. Co., 493 Buchanan, ex parte, re Birley, 83 V. Greenway, 210, 440 V. Hodgson, 567 V. Malins, 505 Buck V. Shippam, 229 Buckell V. Blenkorn, 529, 630 Buckland, re, ex parte Reid, 437 Buckle, in re, 704 Digest, 1845—1850. Buckle V. Fawcett, 239 Buckley, ex parte, re Clarke, 74 V. Hann, 203 Budge, in re, 421 V. Budge, 575 Bugg V. Scott, 201 Bull, in re, 79 V. Faulkner, 440 V. Pritchard, 252 Bullock V. Chapman, 333 Bulmer v. Allison, 713 V. Bousfield, 536 Bunbury V. Hewson, 128 Bunnett V. Foster, 211 Bunter v. Cresswell, 634 Burbidge, ex parte, re Clark, 76 V. Robinson, 569 Burchell, in re, 212 V. Giles, 206 Burder v. Mavor, 130 Burdou V. Benton, 96 Burkitt T. Blanshard, 638 v. Ransom, 208, 609 Burley v. Evelyn, 397 Burling v. Read, 451 Burlinson's case, in re North of England Joint-Stock Banking Co., 166 Burlton v. Carpenter, 561 Burmester v. Crompton, 62 Burn V. Boulton, 412 Burnand v. Wainwright, 31 Burnard v. Wainwright, 31 Burnby V. BoUitt, 711 Burnes v. Pennell, 595 Burness v. Guiranovich, 602 Burney v. Macdonald, 698 Burnham v. Bennett, (Baron and Feme), 84, 87 ; (Power), 529 Burnie v. Gelting, 186 Burnside v. Dayrell, 149 Buron v. Denman, 643, 668 Burrell v. Baskerfeild, 251 V. North, 115 Burrows v. Gabriel, 534 Burton v. Aston, Overseers of, 460 - — - V. Gery, 457 V. Langham, 457 V. Mount, 683 V. Penton, 96 V. Reevell, 379 Bury V. Blogg, 22 V. Peers, 546 Bush V. Shipman, 228, 229 Bushel V. Wheeler, 296 Bushell V. Boord, 718 V. Luckett, 458 V. Slack, 349 Busher v. Thompson, 457 Busk, ex parte, in re Borough of St. Marylebone Joint - Stock Banking Co., 169 Butchart v. Dresser, 62 Bute, Marquis of, v. Glamorgan- shire Canal Co., 869 , Marquis of, v. Harman^ 642 Butler, in re, 43 v. Corney, 204 Butler V. Fox, 715 V. Frost, 349 V. Gardiner, 687 Butlin V. Masters, 683 Butterfield, ex parte, re Butter- field, 75 , in re, 319 Butterworth v. Harvey, 392 V. Williams, 549 Buttigieg V. Booker, 107 Byngv. Clark, 335* V. Clarke, 663 Bynner v. Regina, 476 Byrne v. Knipe, 321, 827 C , in re, ex parte Briggs, 48 Cafe V. Bent, (Administration of Estate), 15; (Conversion and Re-conversion), 186 ; (Trust and Trustee), 698 Caine v. Horsfall, 656 Caines v. Smith, 425 Cairns v. Raine, 686 Caldwell v. Dawson, 676 Callander v. Howard, 480 Callow V. Howie, 88 Calrnady y. Rowe, 303 Calvert v. Gandy, 675 Camac, in re, 383 Cambrian Grand Junction Rail. Co., in re, 172 Cambridge (Corporation of), ex parte, 372 Cambridge and Colchester Rail. Co., in re, ex parte Marsh, 16j3 Cameron v. Wynch, 695 Cameron's Co., in re, ex parte Walter, 172 Camilleri v. Fieri, 603 Camoys, Lord, v. Blundell, 726 Campbell v. London and Brighton Rail. Co., 140 V. Regina, 317 v. Smart, 535 V. Webster, 102 Cann's Estate, in re, 372 Cannam v. Farmer, 89 Canuan v. Hartley, 368 Cannoch v. Jones, 380 Cansfield v. Blenkinsop, 127 Canterbury (Archbishop of), ex parte, in re East Lincolnshire Rail. Co.'s Acts, 682 Capel v. Jones, 405 Capell V. Overseers of Aston, 468 Cape Packet, The, 631 Capes V. Jones, 326 Capper, ex parte, in re Direct Birmingham, 8jc. Rail. Co., 167 , ex parte, in re London, Bris- tol, and South Wales Direct Rail. Co., 162 Card V. Case, 24 Card's Patent, in re, 476 Carey, re, ex parte Hall, 70 Carlisle v. South-Eastern Bail. Co., 141, 332 5C 7m TABLE OF CASES. Carmichael v. Carmichael, 275, 280 V. Ogilby, 566* Came v. Mitchell, 670 Carpenter v. Bott, 385 V. Hall, 538 Carpraael v. Powis, 234, 271 Carr, ex parte, 286 v. Henderson, 209 V. Mostyn, 127 Carruthers v. West, 98 Carter v. Barnard, 214 - — V. Flower, 102 V. La^gart, 399 V. Smith, 566 V. Taggart, 26 V. Wormald, 5 Casement v. Fulton, 729 Castelli v. Cook, 332 Castendieck v. De Burgh, 587 Cater v. Chignell, 322 Caterer v. Dean, 201 Catherine, The, 216 Catlin V. Barker, 544 Caton v. Rideout, 84, 276 Catterall v. Catterall, 425 V. Lees, 500 Cattlin, in re, 48 Caunt T. Thompson, 22, 102 Cavendish, re, ex parte Hehery, 83 Cawthorne, in re, 438 Chahot, in re, 608 V. Lord Morpeth, 608 Chaddock v. Wilbraham, 692 Chadwick v. Herapath, 406 Chalk V. Raine, 570 Challen v, Shippam, 700 Chamberlain v. Thacker, 440 Chamberlaine v. Chester and Birk- enhead Rail. Co., 155 Chamberlayne, ex parte, re West, 83 Chamber.^, re, 77 V. Chambers, 186 V. Howell, 473, 564 V. Smith, 210 Chambres v. Jones, 129 Chamney, in the goods of, 729 Champion v. Champion, 558 Chancellor v. Morecraft, 468 Chant V.Brown, 271, 580 Chantler v. Lindsey, 89 Chaplin v. Clarke, 150 V. Showier, 536 Chapman v, Becke, 534 V. British Guiana Bank, 101, 102 V. King, 536 V, ililvain, 62 V, Rawson, 544 V. Speller, 433 V. Sutton, 22, 23 Chappell V. Purday, 193, .5S8 Charles, re, ex parte Barton, 75 Charlotte, The, 631 Charlotte Wylie, The, 631 Charter v. Greame, 419 Chartres' case, in re St. George's Steam Packet Co., 169 Chater v. Chignall, 322 Chaantler v. Robinson, 1 16 Chawner v. Cummins, 426 Cheesborough, ex parte, re Fearn- ley, 80 Cheese v. Cheese, 682 Cheltenham and Great Western Rail. Co., in re, ex parte Craven, 372 Cherry v. Heming, 218,294 Chester and Crewe Rail. Co., in re, ex parte Chetewode, 374 Chesterfield, Lord, v. Page, 333 Chetewode, ex parte, in re Chester and Crewe Rail. Co., 374 Chieftain, The, 631 Chilcote V. Kemp, 230 Chilton V. London and Croydon Rail. Co., 136 Chinn v. Bullen, 203 Chipchase v. Sim]