only, with remainder to his children as pur-
chaser, then as he never had any issue in the estate,
the plaintiffs as claiming under the residuary devisee
are entitled to possession, and will be entitled to
recover in this action. The question, therefore, is
one of those which are of very frequent occurrence;
namely, whether the word "issue" is to be treated as a
word of limitation or a word of purchase. The general
rule in these cases is clear and well established; the
word "issue" in a will prima facie, means the same
thing as heirs of the body, and is to be considered as
a word of limitation; but such prima facie construc-
tion will give way if there be on the face of the will
sufficient to show that the word was intended to have
had a less extensive meaning, and to have applied
generally to children, or to descendants of a particular
class, or at a particular time. Though, however, the
rule thus stated is perfectly clear, yet its application
is often very difficult; the question in each par-
ticular case is, what are the circumstances that
in each case are to be considered sufficient to
indicate that the word has been used in the
restricted sense? Indeed the rule itself is one not
more applicable to the word "issue" than it is to
the words "heirs of the body," or indeed to any
other word which can be suggested. In all cases the
prima facie import of the words used by a testator is
liable to be controlled or modified by the context;
when it was once established that a devise to a man
and his "issue," means the same thing as a devise
to him and the "heirs of his body," it might have
appeared reasonable to hold all the rules of con-
struction applicable to the latter words, were appli-
cable to the former also. Considering the great im-
portance of adhering to general rules in the interpre-
tation of wills, with the view of attaining to as much
certainty and uniformity of decision as the subject
admits, the Courts have been less reluctant to narrow
the prima facie meaning of the word "issue" than
the words "heirs of the body," and have done so in
some cases so nearly resembling the present as to be
incapable of being distinguished from it on any satis-
factory ground. But we, without deciding what the
construction would have been if the words "heirs of
the body" had been used, feel ourselves bound to
take the same course, and to hold that the grandson,
George Dangerfield, took an estate for life. The case
of Greenwood v. Rothwell (6 Mann. & Graing. 628)
is precisely in point; that was a devise to J. G. for
his life, and after his death to all and every the issue
of his body as tenants in common, and the heirs of
such issue: under this devise the Court of Common
Pleas decided that J. G. took an estate for life. That
case is a distinct authority for holding that where
there is a devise to one for life, and remainder to his
issue as tenants in common, and remainder to the
heirs general, the issue to take as purchasers in fee
It would be impossible to decide in the case before us
that the grandson took an estate tail, without at the
same time overruling the case of Greenwood v. Roth-
well, but all the circumstances there indicating that
the word "issue" is a word of purchase and not of
limitation, occur also in the case before us, with the
further circumstance that in the present case the par-
ties to take under the description of "issue,"
only to take when and as they attain the age of
twenty-one years, which brings the case very closely
within the principle of Merrett v. James (1 Brod. &
B. 484), where the gift over in case of the issue dying
under twenty-one, was held of itself insufficient to
shew that the word "issue" was used in its limited,
and not in its general sense. Whether the decision in
that case was quite satisfactory is not now in ques-
tion, but it would be a strange thing where in the pre-
sent case we find that where the qualification which
in Greenwood v. Rothwell was sufficient to induce the
Court to treat the word "issue" as a word of purchase,
and also the words in Merrelt v. James were con-
strued to have the same effect, to hold that both
these cases ought to be disregarded, and that acting
upon some supposed rule of law, the more extended
and legitimate meaning of the word "issue" must
be adhered to. But it is not merely these two
cases we should have to encounter, in deciding
that the grandson took an estate tail; such
a decision would be in direct opposition to the
case of Lees v. Morey (1 Y. & Col. 589), in this
Court. That was a devise to U. J. for life with a
remainder to his lawful issue and their respective
heirs, in such shares as U. J. should appoint, but in
case U. J. should not marry, to U. J. when he should
attain twenty-one, then to the testator's son to hold,
and his heirs. The Court, after great deliberation,
held the word "issue" there to be a word of pur-
chase, and that U.J. took for life only. This deci.
sion proceeded on the ground that the issue were in-
tended in default of appointment to take as tenants
in common, and to take an estate in fee, but only in
the event of their attaining twenty-one, and such cir-
cumstances were held sufficient to show that "issue"
is used in its restricted, and not in its primâ facie
general meaning-descendants extending through all
time. The Court, in those and similar cases, con-
strued a devise over in default of issue as clearly
meaning a devise over on a general failure of issue,
and proceeding on that construction of a devise over,

are

it was a very natural corollary that a general devise tion mentioned, and keeping it continually so placed,
to issue must have been also intended to embrace except as before at the said divers times that the de-
all the issue, so as to make the objects of the devise fendant was the occupier of the said close, called Care-
over co-extensive with those, on failure of which the less Close, adjoining the water-course, and as the
devise over was to take effect; and this might very occupier at the time being, of the said Close for a pe-
fairly justify the Court in disregarding the circum-riod of twenty-one years next before the commence-
stances, which, but for the devise over, would have ment of this suit, now has the right, and without inter-
had the effect of narrowing the prima facie effect of ruption had, from time to time, as occasion required,
the word "issue." All the other cases relied on by of removing part of the weir, and placing and fixing
the defendant would, on examination, be found either the same at a lower height than the rest of the said
to have turned the words "heirs of the body" into water, and keeping and continuing the said part of
the word "issue," or else to have wanted some cir- the said weir at such lower height as aforesaid, and
cumstances which, in Merrett v. James, Lees v. thereby had the right of irrigating the said close for
Morey, and Greenwood v. Rothwell, were held to the beneficial enjoyment thereof. There is a demurrer
make the word "issue" a word of purchase, and not to this plea, on the ground that it is an argumentative
a word of limitation. Upon these authorities we feel denial of so much of that part of the declaration to
bound to hold that the grandson, George Dangerfield, which it is pleaded, that the water of such stream or
took for life only, and that, on his death, without watercourse ought to bave run and flowed by
having had issue, the residuary devise took effect. It means of the said weir. We who heard the argu
may be right to advert to one matter contended for ment in this case, namely, my brothers Rolfe, Platt,
upon the argument at the Bar, namely, that in this and myself, have considered it, and are of opinim
case there was in fact a devise over, inasmuch the plea is good, We came to the conclusion that
as the residuary clause will carry all the in- the plea is not bad as an argumentative traverse, an
terest not previously given to the issue; but the ground of the objection stated on special
this is founded alogether on fallacy. A gift over murrer, on account of the peculiar nature of the right
in the cases where it has been relied on, has given by Lord Tenterden's Act, the twenty years
always been a gift expressly in default of issue, and enjoyment by the occupier. Such enjoyment, in order
it is important in helping the Court to come to a de- to give a right under that statute, must be up to th
cision; it depends entirely on the circumstances. time of the commencement of the suit, not up to the
That it is to take effect only in the failure of general time of the act complained of, consequently the enjor.
issue, where the language has always been such as ment of twenty years or more before that act is only
fairly to warrant the Court in saying that the devise what may be termed an inchoate title, which may be
over was to take effect only on the general failure of concluded or not by an enjoyment subsequent, or
issue, and so reasoning backwards, to infer that in accordingly as the enjoyment is one not continued
an original devise the word "issue" meant issue to to the commencement of the suit,
This appa
all general issue, may be matter of doubt; but it is rent absurdity arises from a strict construction
quite clear that none of the reasons on which in those of the section that has already been fully considered
cases the judges have proceeded, can be applied to a by this Court in the case of Wright v. Willis (1 M. &
general residuary devise of all not previously dis- W. 77), and the literal interpretation adhered to, the
posed of. It can make no difference whether the in- Court intimating its opinion that the mischief of such
terests in real estates are undisposed of, and are to be a construction was rather apparent; and the decision
carried by the law to the heirs, or disposed of by the in that case was fully allowed and acted upon by the
testator and the devisee. It remains only to advert Court of Queen's Bench in the case of Richards Y
to a point rather suggested than seriously argued; Fly (3 Nev. & Per. 67). The plea, therefore, which
namely, that even taking George Dangerfield to have states an inchoate right at the time of the act com
been tenant for life only, yet that the deed of plained of, and that such an incomplete right exists
disentailure had the same effect as a fine or recovery under the statute, gives an implied colourable title to
would formerly have had, in divesting a subsequent the plaintiff at the time of the act complained of.
contingent estate, and so creating a tortious fee; but confesses a right at that time to have the weir at a
the answer given by the plaintiffs' counsel was con- certain height, but avoids that right by shewing that
clusive. The deed would have had no such operation the defendant is then in such a position as that
at common law, and its effect under the statute de- by matter subsequent he had such a right to pull
pends entirely upon its having been executed by a down any part of the weir. Had the plea (as it might
tenant in tail; and as we are of opinion that George have done if the facts warranted it) stated,
Dangerfield was not tenant in tail, his deed can have plete right in the defendant americash of
no statutable operation. We are
of water mk cue
for the reason, a have already stated, that George by known existing grant or prescription, it would
Dangerfield took an estate for the term of his life certainly have been an argumentative traverse,
only; and that on his death without having issue, the such being inconsistent with the plaintiff's right
plaintiffs claiming under the residuary devise became at the time to have the weir at the height
entitled to the rents in question; consequently, they claimed, it would have been bad without a special
are entitled to our judgment in this action.
traverse of the plaintiff's right. But as the plea is
founded on Lord Tenterden's Act only, no title under
that Act can be absolutely good at the time of the
Act, however old the possession might have been
but the stating a title under that Act by prior and
subsequent enjoyment together, is not inconsistent
with the plaintiff's alleged right at the time, and there-
fore is not an argumentative traverse, but is good by
way of confession and avoidance. Our judgment is
therefore for the defendant.

Judgment for the plaintiff.

WARD V. ROBINS.

In an action on the case for obstructing a water-course,
the declaration set out a right to enjoy the water by
means of a certain weir, which it alleged ought to
have been kept at a certain height; and the breach
was, that the defendant pulled down the said weir
and placed it at a lower height, whereby the plaintiff
was interrupted in his said right. To this the de-
fendant pleaded a special plea, that he was the occu-
pier of the close adjoining the said weir for the time
being for twenty-one years next before the commence.
ment of the suit, and NOW HAS the right, from
time to time, as occasion may require, to lower the
said weir, for the purpose of irrigating the said close
for the beneficial enjoyment of the same. Held, on
special demurrer, that the said plea was not bad as
amounting to the general issue, on the ground that
as the plea was framed on Lord Tenterden's Act,
stating a title under that Act by prior and subsequent
enjoyment together, it is not inconsistent with the
plaintiff's alleged right at the time, and therefore
was not an argumentative traverse, but was good by
way of confession and avoidance.

This case was argued some time since, and as the
facts of the case and the point decided appear so fully
from the judgment of Parke, B. it is unnecessary to
set them out here.

JUDGMENT.

act complained of

Judgment for the defendant,

LOAD and ANOTHER, . GREEN and OTHERS,
assignees of John Banister, a bankrupt.
In an action of trover againt the assignees of a bank-
rupt, to recover certain goods, it appeared, that the
bankrupt had, on the 1st of July, fraudulently
bought the said goods of the plaintiff without any in-
tention of ever paying for the same; immediately
after the delivery of the goods he became bankrupt,
and a fiat issuing against him, his assignees (the de-
fendants) on the 8th of July, finding the goods on the
premises of the bankrupt, seized the same as being in
his order and disposition, under 6 Geo. 4, c. 16, S
74: Held, that the assignees were not entitled to the
goods, as they were obtained by a fraudulent pur..
chase of the bankrupt, and that the plaintiff had
right to disaffirm the sale, revest the property in the
goods in themselves, and recover their value in an
action of trover against the assignees,

This was an action of trover, brought to recover the value of certain silk and other goods. The fendant pleaded two pleas; first, not guilty and se condly that the plaintiffs were not possessed of said goods.

question

PARKE, B.-This was an action on the case for obstructing a water-course. The plaintiff declares that he ought to have had and enjoyed, and still of right ought to have and enjoy, the benefit and advantage of a stream of water in the county aforesaid, At the trial it appeared that the goods which of right ought to have run and flowed by means had been fraudulently purchased of the plaintif of a weir, which weir ought to be kept at a certain one John Banister (just before his bankruptes) height for the purpose of supplying the mill with without any intention of paying for them. water. The breach is, that the defendant, at a cer- goods were delivered to Banister, on the 4th of tain time, pulled down the weir, and placed and fixed and on the 8th of the same month the defendants, the same at a much lower height than it ought to his assignees, seized the goods on his premises. have been. And there is a special plea, as to the bankruptcy, it appeared, took place immediately after supposed pulling down the weir, and placing and fix. the delivery of the goods. The question WTAS, ing the same at such lower height, as in the declara-ther the defendants, as assignees, had acquired a pro

perty in the goods, as being within the order and dis- Campbell (Scho. & Lef. 336). In construing the anaposition of the bankrupt, under 6 Geo. 4, c. 16, sec. logous Irish Act, his Lordship says it refers to 72, or whether the fraud which had been practised chattels which are in the order and disposition of any by the bankrupt prevented any property passing to person who is not the owner, and to whom they did him. A verdict was directed to be entered for the not properly belong, and who ought not to have had plaintiff, damages 1077. 6s. 6d. with leave for the de- them, and who had been permitted by the owner unfendants to move to enter a nonsuit or a verdict. conscientiously to have such order and disposition, Humfrey obtained a rule nisi accordingly, against the object was to prevent deceit by a trader by goods which being left in his possession to which he was not enMartin, Q. C. and Wordsworth, shewed cause, titled; but in the construction of the Act the nature citing Miller v. Demetz (1 M. & R. 479); Ex parte of the possession of the property must be considerd, Carlow (2 Mont. & Ayr. 39); Noble v. Adams (7 and the words must be construed to mean possession Taunt. 59); Fergusson v. Carrington (3 C. & P. 457); of the goods, and with the consent of the true Milwood v. Forbes (4 Esp. 171); Tooke v. Hollins- owner. In order, therefore, to bring this case within worth (5 Term R. 215); Sinclair v. Stevenson (2 the statute, there must be a real owner distinct from Bing. 514). the apparent owner, and the real owner must consent Humfrey and Aspland, contrà, cited Parker v. Pa- to the apparent ownership of another as such. In trick (5 Term R. 175); Wright v. Lawes (4 Esp. 82). this case, the plaintiff did not consent to the apCur. adv. vult. parent ownership, as such he never contemplated The judgment of the Court was, on the subsequent permitting the bankrupt to obtain credit by means Term, delivered by of possession and ownership of property which PARKE, B.-This case was argued before the Lord really did not belong to him, but intended to Chief Baron, my brothers, Alderson, Platt, and my-part with the property itself, and divest himself self during the last Term. It was an action of trover altogether of all right thereto; and though in against the defendants who were assignees of the consequence of the bankrupt's fraud upon him he had bankrupt to recover goods obtained from them by a a right to annul the contract, the right did not exist fraudulent purchase from the plaintiff, without intend- until after the bankruptcy. Consequently, at the ing to pay for them. If the plaintif has a right to time of the act of bankruptcy on which the title of the recover in the suit by avoiding the contract on the assignees depends, the bankrupt was not the appaground of fraud, it would be upon the principle of the rent owner, but the real owner; therefore the statute case of Noble v. Adams (7 Taunt. 59). The purchase does not apply. It is to be understood these observatook place on the 1st of July; the delivery of the tions are not meant to affect that class of cases in goods on the 4th; the fiat, under which the defend- which the real owner of goods gets into possession ants were chosen assignees, issued on the 8th. The only by the interest of the bankrupt, as where he repetitioning creditor's debt was contracted on the 4th leases the bankrupt under such circumstances that of June; the act of bankruptcy took place on the the bankrupt would of necessity carry with him the 23rd of June; the assignees took possession of the reputation of absolute ownership. These cases progoods, and having refused to deliver them up, the ceed upon the principle that the true ownership and plaintiff brought this action. If the act of bankruptcy the apparent ownership of the bankrupt are contrary is taken to be on the 23rd of June, no further question to truth, because it is the result of the consent which the can arise, but the defence of the assignees rests on plaintiff gave whether it would, in this particular case, the ground that they are entitled to the goods as fall within the statute, as where there was a delivery having been in the possession of the bankrupt, the in fraud long before the action brought, and he omitted apparent owner, with the consent and full knowledge of within a reasonable time to avail himself of the right the true owner, under the 72nd sec. of the 6 Geo. to rescind the contract, is no question in the present 4, c. 16. But to come within that section, the goods case; for the act of bankruptcy follows the sale and must have been in the bankrupt's possession at the delivery within a short time, and it was mainly on tine of the set of bankruptcy, or at the time of com- that ground the opinion of Lord Wynford proceeded mitting the act of bankruptcy; and if they did not in the case referred to. The judgment must, therecome to him until afterwards, the statute does not fore, be for the plaintiff, and the rule must be disapply. (Lyon v. Wildon, and Others, 2 Bing. 334.) If, charged. Rule discharged. however, our decision were to proceed on this ground, and we were of opinion that if the act of bankruptcy ware subsequent to the delivery, the assignees would have been pejad. the defendant's counsel, should yield to the request of Coals Act-Qui tam action-Jurisdiction of Courts at

ada gre rule for a new

Wednesday, April 29.
COLLINS v. HOPWOOD.

Westminster.

has jurisdiction. Reeve qui tam v. Poole is, in principle, a direct authority in favour of the plaintiff.

Judgment for the plaintiff, with leave to defendant to plead over on payment of costs.

Friday, May 1.

REG. v. Woodruffe. Liability of a person having adulterated tobacco in his possession, under stat. 5 & 6 Vict. c. 93. In this case an information had been laid against the defendant for having in his possession a quantity of manufactured cut tobacco, with which sugar and other saccharine matter was mixed, the proceedings being taken under the provisions of the stat, 7 & 8 Geo. 4, c. 53. The information having been dismissed by the justices of petty sessions of the borough of Yarmouth, the excise officer appealed to the quarter sessions, who dismissed the appeal, subject to a special case stated by the justices of quarter sessions, for the opinion of the Court of Exchequer. Two questions were raised by the special case for the decision of the Court-1st. As to the validity of the notices of appeal, and of trial of the appeal; and, 2nd. Whether the defendant could be convicted under the stat. 5 & 6 Vict. c. 93, s. 3, of having in his possession adulterated tobacco; it appearing that the defendant, although having such tobacco actually in his possession, was not aware that it was adulterated in the manner prohibited by the Act.

Jas. Wilde, for the Crown, contended, Ist. That the notices of appeal and trial were regular and sufficient, according to the statutes 7 & 8 Geo. 4, c. 53, ss. 82, 83, and 4 & 5 Wm. 4, c. 51, ss. 22, 23. 2ndly, He argued on the merits that the very object of the Legislature in passing the stat. 5 & 6 Vict. c. 93, is to prevent possession of adulterated tobacco by intentionally stringent enactments, and to throw upon the party charged with this particular offence the onus of shewing that the tobacco in his possession is not so adulterated as charged. He argued that the lastmentioned Act was passed for the protection of the public, and that consequently the Court would give its provisions full effect, notwithstanding any private hardship which might be caused by so doing; and, lastly, he observed, that from the facts stated in the special case it was clear that the defendant had the tobacco in his possession knowingly, and therefore it lay upon him to prove in answer to the information that it was not adulterated. He cited, The AttorneyGeneral v. Lockwood (9 M. & W. 568); Rex v. Marsh (4 Dowl. & Ryl. 261); and referred to the recent proceedings in The Attorney-General v. Smith, in which the defendants (distillers) were convicted of an infraction of the Excise Laws.

Crompton, for the defendant, argued that the notices were irregular, and that great hardship and

trial on the payment of costs, as at the triar the coal deficient in weight, under 1 & 2 rm: 4; e: 76, † and application of the stat. 5 & 6 Viet. c. 93. He

when the number of sacks deficient, in respect of one
transaction, exceeds fire.

67

cited Bateman's Excise Laws, 123.

Wilde, in reply, was stopped by the Court. POLLOCK, C.B.-A reference to the stat. 4 & 5 Wm. 4, c. 51, s. 22, 23, will shew that the objections raised to the validity of the notices are untenable. Then as to the more important question, viz. whe ther the defendant in the present case has been guilty of a violation of the Excise Laws-he knew that he was in possession of this tobacco-then, by the Act, persons dealing in this article are required to use proper caution, and are made responsible if it be of a specified description, that is to say, adulterated by an admixture of sugar or saccharine matter. The defendant was bound to examine the tobacco, before might have protected himself against the consequences of its proving to be adulterated by requiring a guarantee from the vendor. The 3rd section of the stat. 5 & 6 Vict. c. 93, is very stringent, and applies even where the party in possession of adulterated tobacco subsequently that it was so adulterated. The offence has been fully brought home to the defendant. The rest of the Court concurred.

version under 2nd section. The question required the carman to weigh seventeen of such sacks, he suffered it to come into his possession, or he

these

learned judge had not his attention sufficiently called to the alleged act of bankruptcy on the 23rd of June. Our opinion, however, is that, assuming that the act of bankruptcy took place after the 4th of July, and This was a demurrer to a declaration. The declathat the goods must have been delivered, the assigration stated that the defendant was a seller of coals, nees are not entitled; as the goods were obtained by carrying on his business at a certain wharf within 25 a fraudulent purchase, and the plaintiff had a right miles of the General Post-office of the City of London, to disaffirm it, reinvest the property in the goods, and that he sold to the plaintiff, at the said wharf, and to recover their value in an action of trover two tons of coals, to be delivered to him in sacks; against the bankrupt; as the fupt: as the assignees took, by virtue that he then sent from the said wharf to the house of the assignment, and such interest only as that of the plaintiff in Broad-street, Westminster, in the which the bankrupt had, the plaintiff had a right county of Middlesex, a quantity of coals in twenty to recover the value of the goods in the bands of sacks, as and for the said two tons of coals, with a ticket the assignees in the same form of action on a con- stating that each sack contained 224 pounds of coals, assignees are entitled to as required by the Act; that the plaintiff thereupon is, whether there was a case of apparent ownership and procured the attendance of a credible and indifat the time of the bankruptcy, with the consent ferent person to be present at the weighing; that of the true owner, within the meaning of the said seventeen sacks were accordingly weighed, the repealed Act, the 21 James, and the exist- and each of such sacks contained less than 224 pounds ing Act, that of the 6 Geo. 4, c. 16, s. 72: we think weight of coals, contrary to the form of the statute ct, that of there was not. counsel on the behalf of the defen- force of the statute in such case made, and provided, dants decided that where goods are obtained by fraud the defendant forfeited, for his said offence, the sum before the act of bankruptcy, and are in the bank of five pounds for every such sack of coals so found rupt's possession at that time, they pass to the assig-deficient as aforesaid, then and there amounting, in nees under the clause relating to apparent ownership. the whole, to eighty-five pounds. In Milward v. Forbes (4 Esp. 178), Lord Ellenborough's judgment proceeded on the ground that the property actually passed to the bankrupt by the sale under the circumstances of that case; and in Sinclair v. Stevenson (2 Bing. 514), the jury negatived fraud, and they also found, incorrectly, as it would seem, the transaction to be usurious; and though the Chief Justice, Lord wynford, appears to an opinion that if goods were obtained by means of fraud, and were left in the bankrupt's possession by the true owner for a long time before the act of bankruptcy, the assignees would be entitled to them on the ground of apparent ownership; that dictum was extra-judicial, and the Court did not decide the case on that ground. In Halswell Hunt (5 Term R. 231), the was decided on the ground that the property actually passed to the bankrupt, and not only by apparent owner- Prideaux, contrà, was not called upon. wal ship. Not being bound by the decisions, we must By the COURT.-The plaintiff is entitled to judgconsider whether the case falls within the prin- ment. This is one penalty, the number of sacks deciple of the 21 Jac. the meaning of this section livered regulating the possible amount of forfeiture, is well explained by Mr. Baron Richards in Joy v. which may exceed the sum over which the magistrate Brown and Co. acted as bankers, although not un way 1902 / 08781990) 543 11 88 (Jagind sowol dowe je smsë odë goi] (xovu seiroh & le goulashouts hall du gunayoony bas

Hed upon by one of the cases cited and re- in such case made and provided, whereby, and by was not aware when it came into his possession, or

Demurrer, for that the penalties for which the declaration proceeds are under the provisions of 1 & 2 Wm. 4, c. 76, which imposes these penalties, recoverable only before a justice of the peace, and that an action of debt does not lie.

Scotland, in support of the demurrer contended, that the proceedings should have been before a justice of the peace, as the penalties in respect of each sack could not exceed 51. and the statute provided that all penal. ties not exceeding 251, should be recoverable before a justice of the peace. Even if the whole forfeiture was to be regarded as one penalty, the party must go before a justice, because the statute authorized the mitigation of the penalty, which could only be done by a justice of the peace

Cases cited: Cates qui tam v. Knight (3 T.R. 442);
Reeve qui tam v. Poole (4 B. & C. 155).

Order of Sessions quashed, and defendant convicted in the mitigated penalty of 501.

Saturday, May 2. COOPER v. FALKNER. Motion to enter a nonsuit. This was an action on a banker's cheque, and there) was only one count in the declaration which was in the usual form. At the trial the plaintiff had a verdiet. Damages, 3661.

Crowder, Q.C. now moved (pursuant to leave reserved) to enter a nonsuit; he stated that the question would turn on the Stamp Act. It appeared that at the trial a document was tendered in evidence, which, in form, resembled an ordinary banker's cheque, drawn on Messrs. John Brown and Company; it was objected to on the ground that there were no bankers in London trading under the firm of John Brown and Co. and, therefore, it did not come within the exemption in favour of bankers in the Stamp Acts (55 Geo. 3, c. 184, and 9 Geo. 4, c. 49, s. 15), but required a stamp. It was then sought on the part of the plaintiff to shew that John

registered at Somerset House under 7 & 8 Vict. c. 32, s. 21. The evidence, however, only went to shew that similar cheques had been taken to the office of Brown and Co., and had been paid "over the counter." On the other hand, a witness was called on the part of the defendant, who stated that Brown and Co. were bill brokers, and not bankers, but that he had bought cheques of them, two or three at a time; and had drawn on them, paying in money to meet each transaction: he, however, kept no account with them, or had any pass-book, and the whole mode of dealing was alleged to be fraudulent; for when the cheques were paid away they were crossed, so as to render it necessary to pay them through a banker, and so a day's credit was obtained. [POLLOCK, C. B. -Do not many of the foreign agents pay cheques drawn on them in this way-army agents for instance?] No doubt; but they keep funds of the party so drawing, and act in all respects as bankers. The question really is, did Brown and Co. act as bankers so as to come within the exemption in the Stamp Act?

Cases cited: Castleman v. Ray (2 Bos. & Pul. 383.) Rule nisi.

RAMSBOTTOM v. DUCKWORTH. Motion to enter a verdict for the plaintiff. This was an action of replevin for taking certain goods of the plaintiff. The defendant avowed the taking as for a church-rate made in a certain chapelry, of which he was the chapel-warden. At the trial a verdict was directed for the defendant, with leave for the plaintiff to move to enter a verdict for 31. 3s., which was the value of the goods taken.

Martin, Q.C.,_ now moved accordingly on several grounds. 1st. That the rate under which the defendant justified the taking was bad, as being made on the landowners only in the chapelry, and not the whole of the property in the chapelry. (See 1 Burn's Justice, 648, and Ambrose v. Hutton, 1 H. Bl. 644.) 2nd. That the proceedings were wrong, as it was not stated on the face of the plea, that the examination of the persons upon whose complaint the rate was ordered to be paid by the justices (under 53 Geo. 3, c. 127, s. 7) was upon oath, but only that they were "duly" examined. This, it was contended, was not sufficient; and Re Gray (2 Dowl. & Low. 539) was cited. It was also objected that there was a variance between the statement of the person to whom the debt was due and the proof; and also that it was not alleged that the warrant (which was directed to the constable of Eaglesfield) was executed by him. Rule nisi.

WALLER V. BLACKLOCK. Motion to review the Master's taxation.

Wednesday, May 6.
PARKER V. PERRY.

did not disclose a sufficient ground for their interference in the manner required by the plaintiff, and refused the rule. Rule refused

BLUNDELL v. YATES.-Stammers shewed cause against the rule nisi for a new trial in this case, which had been ob.. tained by Charnock (April 17). The question was whether the evidence adduced for the defendant was sufficient to estab Rule absolute.

A notice of declaration describing the declartion as in
debt where the writ was issued on promises is irre-
gular, and the Court, on motion, will set aside such
notice. Regularity of affidavit taken before a country
commissioner, one of a firm acting as defendant's at-lish his plea of set-off.
torneys.

O'BRIEN V. CLEMENT.-Lush moved for a rule to show
cause why an order of Platt, B. made in this cause, should
Atherton shewed cause against a rule obtained by not be rescinded. The action was for a libel published in a
Greaves, to set aside the notice of declaration given newspaper, and the order of the learned judge was, that the
by the plaintiff in the above case; it appeared that defendant should be at liberty to plead the two following
the writ was on promises, whereas the notice de- pleas:-1st, not guilty; 2nd, as to part of the libel, an ape
scribed the declaration as being in debt. Atherton logy in the declaration set forth under stat. 6 & 7 Vict. e. 98,
contended, first, that the affidavit on which the rules. 2, together with payment into Court. Rule to shew one.
nisi had been moved, could not properly be used, inas- LEE v. DREW.-Thomas shewed cause against a rule for a
much as it had been sworn in the country before a new trial in this case. The action was against the indorser
commissioner who was a member of the firm, acting of a bill of exchange, to whom it appeared that notice of
as attorneys for the defendant in the matter of this dishonour had been given by the drawer; there being, how
application; as to this he referred to Kidd v. Davis ever, no evidence to shew that the drawer had given such
(5 Dowl. P. C. 568); secondly, he argued that the calling upon Pigott to support his rule, held the nouce
notice by order or request of the plaintiff, the Court, without
application ought to have been to set aside the de- clearly insufficient.
claration, and not merely the notice of declaration; he
cited Robinson v. Errington (9 Dowl. P. C. 107) to
shew that the application to set aside the notice and
the declaration would have been justified.

Greaves, in support of his rule, observed that the
defendant could make no other application than the
present, because he could not ascertain whether the
declaration was correct or not, except by taking it out
of the office where it had been filed, which would, if
it proved to be correct, amount to a waiver of the
irregularity in the notice; he cited Beaumont v. Dean,
(4 Dowl. 354.)

By the COURT.-The first objection which has
been taken by Mr. Atherton is answered by
the fact, that the attorney's name is not on the
record at the present stage of this cause, and it does
not sufficiently appear, that the party before whom
the affidavit was sworn, acted for defendant at the
commencement of the cause. (Doe v. Roe, 5 Dowl.
P. C. 409.) As to the second point, the plaintiff's
course is clear; if the declaration is right, he must
give a new notice; if wrong, he must give a new
notice, and declare in the proper form of action.
Rule absolute.

BUSINESS OF THE WEEK.
Thursday, April 30.

SLACK V. FRANCIS.-E. James moved for a nonsuit, on
the ground that there was no sufficient evidence of a conver-
upon which the jury might act.
sion. The COURT said there was ample evidence in the case
Rule refused.

In this case it appeared issue had been joined, and Q.C., Addison, and Manesty were heard in support of the

the cause entered for trial at the Summer Assizes for 1844, but was made a remanet. In 1845 the defendant made an application to a judge at chambers to be allowed to amend one of his pleas, which was pleaded only to a part of the declaration, and to be allowed to plead it generally to the whole declaration. This was opposed by the plaintiff, but the learned judge allowed the amendment on payment of the costs of, and occasioned by, such amendment. These were accordingly paid, and the amendment made the cause went down for trial, when a verdict was found for the defendant on the amended plea, which went to the whole cause of action, but the issues on the other pleas were for the plaintiff. On the taxation of costs, the Master allowed the defendant the general costs of the trial, but refused to allow him his costs at the previous assizes, when the cause was made a remanet, but, on the other hand, allowed the plaintiff

all his costs at that assize.

KNIGHT V. THE MARQUIS OF WATERFORD.
Part heard.
Friday, May 1.
KNIGHT V. THE MARQUIS OF WATERFORD.Watson,
rule obtained in this case.
Cur, adv. vult,
Saturday, May is
WOOD v. COWLING.-Jervis, Q.C. moved for a new trial.
Cur. adv. vult.
FALKNER U. GIBBS.-Paine moved to set aside the issue
which had been delivered herein, on ground of irregularity.
The Court rose at one to take Crown cases with the other
judges.

Monday, May 4.
MONEYPENNY. DEERING.

Rule nisi.

Rule absolute. WOODGATE v. HILL.-Humfrey, Q.C. shewed erase against a rule obtained by Butt, Q. C. calling on the plantif to give security for costs, or for a stay of proceedings in default of his so doing. The case involved no point of the slightest interest. Humfrey cited Doyle v. Anderson t Dowl. 596.)-Butt in support of his rule. Rule discharged COLGRAVE U. SUMMERTON.-Pigott shewed cause against

the rule obtained by Huddleston in this case (April 22.)

Rule absolute.

shewed cause (May 1 and May 5) against a rule which had
CASTLEMAN . CAPPER.-Crowder, Q.C. and Cleasby,
been obtained by Jerris, Q.C. for a new trial in this case, on
the ground that the verdict was against evidence and of a
misdirection. The action was on a policy of marine insu
rance, and the question was, whether a constructive total
loss of the vessel insured had or had not been proved by the
plaintiff. The argument turned of course on the facts alleged
to have been proved by either party, and about which there
hearing Jervis, Q.C. and Martin, Q.C. (James Wilde, with
seemed considerable uncertainty, and the Court now, after
them,) in support of the rule, made it absolute. The Lord
Chief Baron, who presided at the trial, expressing his disa
tisfaction with the verdict.
Rule absolute,

BAIL COURA

Thursday, April 30, 1846.

(Before Mr. Justice WIGHTMAN). REG. V. THE INHABITANTS OF NORBURY, SALOP. Motion to quash certiorari which has issued upon an affidavit, which omitted in the jurat the words "before me."

Phillimore moved for a rule to quash the writ of certiorari herein, on the ground that in the jurat of

Argument resumed, and continued to the end of the day, the affidavit upon which the writ was obtained, the
when it was again adjourned.
words "before me," were omitted.-Reg. v. Bloxham
(1 New Sess. Ca. 370).
Rule aisi,

Tuesday, May 5.

BOYLE v. BRANDON.-This was an action for seduction. leave and license. The jury found for the defendant on all Pleas 1, the general issue; 2, accord and satisfaction; 3, the issues thus raised; but Kennedy having obtained a rule nisi for a new trial, on the ground of misdirection as to the first issue, Watson, Q.C. consented, on behalf of the defendant, that the verdict should be entered for the plaintiff upon this issue, and for the defendant upon the two other issues. Cowling now moved for a rule, calling on the Kennedy subsequently obtained a rule, calling on the deMaster to review his taxation, and contended that plaintiff's costs on the first issue, as the general costs of the fendant to shew cause why the Master should not tax the there was nothing in this case to take it out of the cause, and why the defendant should not pay such taxed costs rule, that where a cause is made a remanet, the party without deducting his costs on the two other issues. Watultimately succeeding is entitled to the costs of pre-son, Q.C. now shewed cause against the above-mentioned paring to go to trial at the assizes at which the cause rule, citing Goodman v. Lane (1 M. & W. 136); Coss v. is made a remanet, as well as those of the trial. Raisin (7 Dowl. 203); Jervis's Rules, 366, 367; and Kennedy having thereupon admitted that he could not support Rule nisi. his rule, it was discharged. Rule discharged.

ELLIS v. HOZIER.
New trial.

This was an action before the Sheriff of Middlesex; verdict for the plaintiff; damages, 107. 10s.

H. Wilde now moved to enter a verdict for the defendant, or for a nonsuit, on the ground of misdirec❘ tion. The action was brought by the master of a club for the arrears of a subscription alleged to be due from the defendant as a member thereof. The only evidence against the defendant was that of a man named Sainsbury, who stated, that in 1841, a person of the same name as the defendant had been elected a member of the club; this the learned Under Sheriff ruled was sufficient to entitle the master of the club to recover the arrears of subscription. It was now submitted that there was not sufficient evidence that the defendant was the person who was so elected; also, that the master could not sue by himself for the arrears of subscriptions of the members; and also on the construction of the rules of the club, which had been put in at the trial,

Rule nisi.

CUTLER . PELLETIER.-Hindmarsh now shewed cause
against a rule obtained by Fitzherbert, calling on the plain-
tiff to shew cause why he should not be at liberty to sign
judgment for 501. debt, 1s. damages, and 40s. costs, and why

the cause should not be referred back to the arbitrator, or
why the verdict should not be set aside, or such other order
made, as to the Court should seem fit. The Court, with-
out calling upon Fitzherbert, made the rule absolute for
entering judgment for 501. The costs of the cause to follow

the award.

Rule absolute.

MONYPENNY v. DERING.-The arguments in this special
case, which was sent by Vice-Chancellor Wigram for the
opinion of this Court, and which was part heard on Wednes-
day, April 29, were this day concluded. Cur, adv. vult.
HAIGH U. PAVIS.-Rule nisi for a nonsuit, or for a new
trial, on the ground of misdirection.

Wednesday, May 6.
behalf of the plaintiff in the above action to bring back the
BEADELL v. MURRAY.-M. Chambers, Q.C. moved on
venue to London, on affidavits stating the plaintiff's belief
that an impartial trial could not be had in Hertfordshire, the
defendant being a magistrate of that county, and possessed
of considerable property therein, as well as local influence,
police force for the above mentioned county. The Court,
and some of the principal witnesses belonging to the rural
however, thought that the affidavit in support of the motion

Mandamus to justices to hear an appeal-Service of notice of appeal.

REG. v. THE JUSTICES OF CHESHIRE.

Townsend moved for a mandamus, directing the above justices to enter continuances, and hear an appeal against an order of bastardy. This was an appeal under the 7 & 8 Vict. c. 101, s. 4, and upon the trial ing that it was left at the usual place of residence of the appellant proved the service of his notice, by shewthe respondent. The justices, however, held this to be insufficient, and that the service of the notice ought to have been personal.-Reg. v. The Justices of the North Riding (1 New Sess. Ca. 574). Rule nisi.

Friday, May 1.

(Before Mr. Justice COLERIDGE.) REG. v. THE JUSTICES OF WORCESTERSHIRE. It is no excuse for not serving the notice of recognizance, under the 8 & 9 Vict. c. 10, s. 3, until many days after the recognizance has been entered into, that the party could not be found to be served personally, as the notice may be left at the party's dwelling-house, and sent by post.

Beadon moved for a rule for a mandamus, directing the above justices to enter continuances, and hear the appeal of one James Lowe, against an order in bastardy. The order in question was made on the 10th of March, 1846, whereupon notice of appeal was duly given. On the following 14th the appellant enVict. c. 10, s. 3, and gave the notice (as required by the tered into the recognizance, as required by the 8 & 9 same section), to one William Hayes, on Monday, the 16th, to be by him served on the mother. Hayes attempted to serve her with it personally on the 19th, home he was unsuccessful; on the 31st, however, he 21st, 23rd, and 28th, following, but not finding her at met her, and then delivered it to her. On the appeal

coming on for trial, it was objected, on the part of the respondent, that the notice of recognizance was not served in time, the 3rd section of the above enactment requiring that "the party entering into any such recognizance shall forthwith give or send a notice in writing of his having so entered into such recognizance to the woman in whose favour the said order shall have been made. * * *Provided that the sending of such notice or notices by the post shall be taken to be sufficient." The justices being of opinion that I due notice had not been given, dismissed the appeal. It was now contended that the justices were wrong, inasmuch as the word "forthwith" must be taken to mean within a reasonable time, and that in the present case all due diligence had been used to serve the woman with the notice. (Reg. v. The Justices of Wor•cestershire, 7 Dowl. 789.)

COLERIDGE, J.-I think that the justices in this case acted perfectly right. The section says that the notice is to be served forthwith: that is, without any delay which the circumstances do not justify; and here the delay is attempted to be excused on the ground that the woman could not be found in order to be personally served before the 31st March, but the section says expressly, that it is not necessary to serve the party personally, and here there is really nothing to shew why the woman was not served according to the statute, by sending the notice to her through the post, and they might therefore have served it by leaving it at the dwelling-house on the 16th. It is a general rule, that, where no particular mode of service is pointed out, a notice may always be served at the party's dwelling-house, and they might have done so in the present case; this, however, they do not do, but delay the service until they can effect it personally, which is not until the 31st.

Rule refused. Saturday, May 2. THE QUEEN V. THE RECORDER OF KING'S LYNN. In an order of removal, if it be clearly shewn that the justices received the complaint within their jurisdiction, and nothing appears to the contrary, it will be intended (without any express allegation) that they also made their adjudication within their jurisdiction. An adjudication which states it to have been made upon due proof upon oath as otherwise is good, as it will be intended that the words "as otherwise" mean legal proof. The whole of the adjudication should be read together, so that one part may explain and support another. Palmer shewed cause against a rule calling upon the recorder of King's Lynn to shew cause why a certiorari should not issue requiring him to return an Order of quarter sessions, together with an order of in order that the said orders might be quashed. against which the objection existed was in the ordinary form, and commenced as follows:

been made upon evidence taken upon oath. (Rex v.
Crisp. 7 East, 389.

Dundas, Q.C. and Metcalf, contrà, contended, first,
that it did not sufficiently appear that the justices, at
the time they made their order, were acting within the
borough of King's Lynn, for, from any thing appearing
to the contrary, they may have gone out of the bo-
rough, and have made the order. (R. v. Casterton,
suprà; R. v. Stockton, suprà; 2nd, that the natu-
ral position of the words shews that the meaning of
the order is, that the evidence was taken upon oath
and by other means. (R. v. Buckinghamshire, 14 L.J.
M.C. 45); 3rd, that the sentence commencing the
adjudication of the place of settlement being distinct
from the foregoing part of the order, it does not appear
to have been taken upon any evidence whatever.
Carrow, amicus curia, mentioned the case of R. v.
Rotherham (3 Q.B. 776).

COLERIDGE, J.-I think this rule ought to be discharged. With regard to the two last points, they are quite settled by the various authorities that have been quoted. As to the first point, the same objection was taken in The Queen and Rotherham, and although it is said that this objection was not much relied upon in that case, I am satisfied that it was fully argued. It appears that the form of the order in the present case is that which has been in use for a great many years, and is the same given in Burn's Justice by Doyley and Williams, which is certainly, therefore, entitled to great weight, and is like the form in the Rotherham case, in which Lord Denman, in giving judgment, said, "Upon the first point (the form of the original order) the Court gave sufficient answers to the various objections which were ugerd in the course of the argument, which we do not consider it needful to repeat. We shall now only add that we certainly should not be induced upon slight grounds to overturn a form of proceeding which we have reason to believe has been established by the usage of very near a century." As regards the second objection, unless this case can be distinguished from Luffe's case, that is an authority which I shall abide by; but it is said that this is not distinguishable from The Queen and Buckinghamshire, and that according to that case the second objection is clearly sustainable. Now it is clear to me that if Luffe's case had been cited in The Queen and Buckinghamshire, with the judgment of Lord Ellenborough, my brother Wightman would not have overruled it. It must be remembered, in considering this objection, that it must greatly depend upon the doctrine of intendment, and it is certainly more reasonable to intend that the words as otherwise" mean upon legal proof, than that they meant he reverse. I have heard nothing which shews that The King and Luffe is not a good authority, and I think it is precisely in point. Then as to this is the same form that has been in use for centuries, and although it is said that in some very Upon complaint of the churchwardens and over- late forms, this one is varied, yet this arises more seers of the poor of the parish of St. Margaret, in the from the greater nicety in modern times than from borough of King's Lynn, aforesaid, unto us whose any legal necessity; and the whole order ought to be names and seals are hereunto set, two of her Majes-looked at, and then it will be apparent that the adjuty's justices of the peace in and for the said bo- dication of the place of settlement is made upon the rough * * * * We, the said jus- evidence which is referred to in the former part of the tices, upon due proof made thereof, as well upon the order. No one can then doubt that as to the comexamination of the said Sarah Wray, of Sarah Harri- plaint, it is made to two justices of the borough, and son, and of James Hubbard upon oath, as otherwise that it is taken within the borough; but it is said, upon due consideration had of the premises, do ad- what was to prevent the justices, after having received judge the same to be true. And we do likewise ad- the complaint within the borough, from going out of judge that the lawful settlement of them, Sarah it to make their adjudication? Why, to suppose Wray and the said children, is in the township of that they may have done so, would be to intend someBowling, in the parish of Bradford, in the county of thing which we ought not to intend, and for which York," &c. there is no foundation. The proper inference is, that the parties having come within the borough to make complaint, the adjudication was made there also; and no place in particular being mentioned as the place where it was made, the fair inference is, that the whole was made at the only place mentioned in the order. The rule, therefore, must be discharged.

46

as to Jacobs should not be set aside, the defendant
having, on being served, made two requests to see the
original, which were not complied with. (Thomas v
Pearce, 2 B. & C. 761.)
Rule nisi.

Tuesday, May 5. Bankrupt—Commitment for not answering satisfactorily-Sufficiency of warrant. Allen, Serjt.-moved for a writ of habeas corpus to bring up into this Court a bankrupt who had been committed to prison by the bankrupt commissioner of the Leeds district. He was committed for not giving satisfactory answers; and the objection to the warrant was, that it did not specify which of the answers were unsatisfactory. He also insisted that the learned commissioner was wrong in holding, as a matter of fact, that the answers were unsatisfactory.

COLERIDGE, J.-This rule must be discharged. The case is distinguishable from the case cited. There the warrant, after setting out the questions and answers, stated, "several of which answers not being satisfactory," &c. and the Court held that it was bad for uncertainty; but here the objection does not arise, for the warrant refers to all the answers generally as not being satisfactory, and not merely to certain of them; and the case is like the case of Ex parte Dauncey, 4 Q. B. 671, where such a warrant was held to be good. Then, with regard to the fact, if I could see clearly that the answers were satisfactory, I might feel myself called upon to discharge the bankrupt, but in cases of this description, a judge would be slow to set his own judgment against that of the commissioner, who had the bankrupt before him, and had better means, from all the circumstances, of forming a correct judgment; but I must say, I think the commissioner was right in this case; for however satisfactory some of the answers may appear when viewed by themselves, I must say that the examination appears to me, when viewed as a whole, to be altogether entirely unsatisfactory. Rule refused.

removal confirmed by the arm he order of removal the third objection. It must be borne in mind that the applicant that this document should not be kept

This rule was obtained on the three following grounds-1st, because it does not appear that the justices acted within their jurisdiction; 2nd, because, from the words " as well upon oath as otherwise," it might have been that the justices made their adjudication upon evidence not taken upon oath; 3rd, because it does not appear that the adjudication of the place of settlement was made upon oath.

To the first objection it was answered, that it sufficiently appeared, particularly from the name in the margin, and the whole context, that the justices (who were justices for the borough) were acting within their jurisdiction. (R. v. Casterton, 14 L.J., M.C.5; R. v. Stockton-upon-Tees, 14 L.J., M. C. 28; R.v. Austen, 8 Mod. 309.) To the second objection, that the words "as otherwise" must be taken to mean "otherwise upon oath," for which there is the express authority of the judgment of the Court in Rex v. Luffe (8 East, 193), in which Lord Ellenborough said, in speaking of an order described to have been made upon the oath of the said Mary Taylor as other wise," it is true that it is not said 'as otherwise upon oath,' but as no evidence can properly be given otherwise than upon oath, it is not going further in making an intendment to support this order than has been done in other cases, to say that such other evidence must also be taken to have been given upon oath." (Rex v. Farringdon, 2 T.R. 471; Rex. v. Kempson (Cowp. 241, Nolan, 4th edit. 223; Rex v. Erith, 8 East, 539.) To the third objection, that the adjudication of the place of settlement, when taken in connection with the foregoing part of the order, sufficiently appears to have

Rule discharged with costs.

REG. v. THE JUSTICES OF MIDDLESEX.
Mandamus to justices to enter continuances and hear
an appeal where the appeal had been dismissed by
the Sessions in consequence of the appellants having
mistaken the name of one of the removing justices
who had signed his name very illegibly.
Chambers, Q. C. shewed cause against a rule for a
mandamus directing the above justices to enter con-
tinuances, and hear an appeal between the parishes of
St. Pancras and Hackney against an order of re-
moval. The appellant parish, owing to the illegible
manner in which one of the justices had subscribed
his name, had made a mistake in describing the order,
upon which the Sessions refused to hear the appeal.
Crowder and Prendergast, contrà.

Monday, May 4.

Rule absolute.

R. v. GRUNDY AND THREE OTHERS. Pashley moved for a mandamus against a person of the name of Grundy, and three others, to compel them to produce to the applicants, the justice's warrant under which they are appointed overseers of the poor of the township of Kirkby Lonsdale, in the county of Westmorland. The applicants were ratepayers of the township, and the object they had in view was to question the legality and sufficiency of the appointment, and by that means to quash it. The main objection was, that Grundy was not a substantial householder, and they had reason to believe that this fatal objection to the validity of his appointment appeared upon the face of the document. It was important to back, and very desirable that this Court should enforce its production, instead of allowing the parties, by refusing to produce it, practically to oust the Court of its jurisdiction. R. v. Great Farringdon (9 B. & C. 541). The importance of having this matter discussed was shewn by a very recent case in the Queen's Bench, R. v. Bradford, in Wiltshire, where a question was raised, though not determined, as to the validity of an order of removal thirty years old, made by parties whose appointment to the office of overseers of the poor was, upon the face of it, illegal and void. As it was impossible to say which of the four overseers might have the custody of the appointment, it was submitted that the rule ought to be against all four. It appeared from Burn's Justice, title Poor, p. 33, that the appointment might be removed, and that the Court would look at its validity. (R. v. Justices of Staffordshire, 6 N. E. 84, 89; R. v. Chapman, 1 Wilson, 305; R. v. Shervy, 3 T. R.; R. v. Hull, 7 Dow. 690; R. v. Dawson, 2 Dow. N. S. 20).

Cur, adv. vult.

DOE dem. HAXBY v. PRESTON AND ANOTHER. This was a rule to set aside an award of R, M. Matthew, esq. Barrister-at-law.

Addison shewed cause, and on opening the case proposed to read a copy of the arbitrator's notes, verified by the affidavit of his clerk.

Martin, Q. C. (Rew with him) would not object to this being read if the judge thought it right; but the copy, in strictness, could not be evidence, and he submitted that an arbitrator ought not to be called upon to produce his notes; and if this was so, they certainly ought not to be obtained through the medium of the clerk.

COLERIDGE, J.-Arbitrators, and especially when they are gentlemen at the bar, very properly refuse to make any affidavit, and you must not obtain that indirectly from the clerk which you cannot get directly from the master. I cannot allow the notes to be read.

The case was then proceeded with without the notes.
Cur. adv. vult.

Wednesday, May 6.

(Before Mr. Justice COLERIDGE.)
ROWBOTTOM v. BULL.

(Before Mr. Justice WIGHTMAN.) THOMAS v. JACOBS and ANOTHER. Rule to set aside service of a writ of summons, on the ground of the original not being shewn on demand. Pigott moved for a rule calling upon the plaintiff to A judicial reproof of the practice of drawing tricky shew cause why the service of the writ of summons

demurrers and frivolous pleas.

Hawkins shewed cause against a rule to set aside a rule calling upon the respondent parish in this case to pay a demurrer as frivolous.* Butt, Q.C. contrà.

Cur. adv. vult.

the costs of the mandamus argued last Term. Rule nisi.
REG. . THE SHERIFF OF BUCKINGHAMSHIRE. Butler
attachment against the sheriff herein.--Grey, contrà.

tor of B, and say "we wish that this debt, due hithert from B alone, shall be a debt from B and C together," and A accedes to that, although no writing passes, that

In this case Mr. Justice COLERIDGE made the V. Croren.)-Archbold shewed cause against a rule for an agreement is valid and effectual, and is not impact

following forcible observations in condemnation of counsel lending themselves to assist parties in false er frivolous pleading:-"I do marvel that gentlemen who would kick an attorney out of their chambers if he desired any thing wrong in an ordinary way, will, nevertheless, consent to draw tricky demurrers and frivolous pleas. The practice degrades the counsel and special pleader, and makes them ministers of gross injustice, and parties to the frauds of other persons.

AUSTER v. HOLLAND.

Where a trustee under a deed of separation refuses to bring an action to recover the annuity to the wife, secured by such deed, and an indemnity is offered, the Court will not, at the instance of the defendant, set aside the proceedings in an action brought against him in the name of such trustee, even though it is sworn that such action is brought against the wish and consent of such trustee.

To be referred to the Master preliminary to the attach.
ment going.
Ex parte HOCKIN.-T. C. Foster moved to strike this
gentleman off the roll of attorneys, at his own request.
Application granted.
Monday, May 4.
JEFFERIES V. MAY.-Crompton shewed cause against a
rule herein for changing the renue from Middlesex to
Bristol.-T. W. Saunders, contrà. Rule discharged.
BOULTON . PRITCHARD.-T. W. Saunders shewed cause
against a rule for judgment as in case of a nonsuit.
Warren, contrà.

Rule nisi.

Rule discharged upon a peremptory undertaking.
TOTTERTON U. SHEPPARD.-Pigott shewed cause against
a rule, calling upon a Mr. Robert Swann, an attorney, to
pay a sum of 71. pursuant to his undertaking. Joyce, contrà.
Rule absolute, with costs..
Tuesday, May 5.
LEWIS U. ARUNDEL.
Rule refused.
BUTTERWORTH . WILLIAMS.-Jerris, P. P. moved to
amend the judgment roll, by inserting the true date of the fi.
fa. and ca. sa.
THE BARON DE BODE . THE QUEEN.-Manning, Serjt.
(Anstey with him), moved for a rule calling upon the Attor
ney-General to shew cause why he should not enter up judg-
ment against the Baron de Bode. It was wished to question
the judgment of this Court, and this could not be done un-
less the judgment was entered up.
R.. FAIRHURST.-Cowling moved to admit the prisoner
Re JAMES.-Hawkins produced the additional affidavits
required herein for the purpose of admitting the prisoner to
bail in a case of rape.

to bail.

Rule nisi.

Cur, adv. mult.

Rule for a certiorari, and rule nisi to admit to bail.

GRIFFITHS . THOMAS AND EVANS.-Rule nisi for the Master to review his taxation.-Butt, Q. C. and Gray, shewed cause.-Martin, Q. C. and R. V. Williams, contrà.

or affected by the Statute of Frauds. The effet af
it is for a valuable consideration to extinguish the
first, and for a valuable consideration to substitute
for it the second. Of course the very words to which
I have referred need not be used. If there's af.
cient evidence, under the circumstances of the case,
that the intention of the parties was so, that will be
as effectual as if the most formal expressions had bez
used. The question of fact, then, before me is vie
ther the circumstances of this case, as they an
in evidence, are sufficient to satisfy the Court, adge
of fact, that the intention of Mr. Lendon, the
and of Mr. Lendon, the son, and of Miss Lanvin
stood in the position I have mentioned, was so. Nn,
however vague and inaccurate to the ear of the a
yer may sound the expression of a trade baga
debt, yet that is not so with the world in genera I
is a familiar notion, a familiar mode of expres
where money has been lent to a trader for the purse
of his trade, and which is known to be used by hi
that manner. I am of opinion, upon the evidence.
the impression of Miss Lane, the creditor, and of E
Lendon the elder, the debtor, was of that descripta
with reference to the debt that was due from hi
her in the year 1838, when he admitted his son
partnership. I think it very probable, treating i
debt in the way that I have mentioned, that all parts
considered the trade as changed by the admission of
the son into that business, and that it was considered
that the trade was indebted, and is still indebted to
Miss Lane for the money. I am of opinion that the
understanding was communicated to Miss Lane
the uncle and cousin, or one of them, with the asses
of both, and that Miss Lane distinctly acceded ta
that. I am of opinion, that from thenceforth al
and the evidence satisfies me, placing myself in the
position of a jury, that is, considering myself merely as
a judge of fact, that it was in effect agreed between
the three, that the separate debt of the father should
become the joint debt of the father and the son. I am
of opinion that the pecuniary transactions, after the
commencement of the partnership, were more clearly,
if possible, but more certainly upon the same footing,
The conclusion at which I arrive is this, that such,
if any, sum as at the time of the bankruptcy was due
to Miss Lane upon this account was a joint debt from
both the bankrupts. Let the costs be paid out of the
joint estate.

Lush shewed cause against a rule to set aside the writ of summons, and all subsequent proceedings, on the ground that the action had been commenced without the sanction of the plaintiff, and against her express wish. It appeared that the defendant and his wife having agreed to separate, a deed was executed whereby the defendant covenanted with the plaintiff, as trustee, to pay her, for his wife's use, the annual sum of 401. by monthly payments. Five of these payments being in arrear, the defendant was frequently applied to for them, and not being paid, the present plaintiff was requested to sue for them, and an indemnity was offered her; she, however, declined to do so, whereupon this action was com menced in her name. The present motion was made at the instance of the defendant. It was now argued, within the fence days. There were several objections to the transactions between them proceeded upon that bass, that under the circumstances, the action was rightly brought in the trustee's name, it being the only means whereby the annuity could be recovered, she having herself refused to bring the action, and an indemnity having been offered to her. (Chambers v. Donaldson, 9 East, 471, per Lord Ellenborough; Spicer v. Todd, 2 Cromp. & Jer.)

Gray was called upon to support his rule, and contended, that in such a case as this, which he urged was distinguishable from those quoted (particularly as no collusion was shewn to exist between the plaintiff and the defendant), the trustee had a discretion to exercise which the Court would not control. (Robson v. Eaton, 1 T. R. 62.) That a payment in such an action so brought against the consent of the plaintiff, would be no answer in an action subsequently brought by the same plaintiff for the same amount. (Hubbard v. Phillips, 14 L. J. Ex. 103.) That the only

to compel the trustee to sue is in equity. IDGE, J.-I am of opinion that this rule ought to be discharged. It is an application to set aside the proceedings in an action brought at the instance of the wife to recover the amount due under a deed of separation, and the ground of the motion is, that the action is commenced without the sanction of the plaintiff, who is the trustee for the wife under the deed. It is suggested that there is collusion between the plaintiff and the defendant, and I think that the facts of the case, rather than the statements in the affidavits, shew that this is really so, because the defendant knows that unless the plaintiff sues he cannot be sued at all, and therefore comes himself to take advantage of her disinclination to proceed, and she, on her part, knowing that she is the proper person to sue, and having had an indemnity offered to her, gives no reason why she will not interfere, but merely declines, so that it is pretty clear that she has either some feeling for the defendant or some against his wife, which induces her to abstain from taking those steps which are required of her. There is really no hardship upon her in this action being brought against her consent, because it appears that she has been offered an indemnity which she does not accept, nor does she even come to this court to complain of the action. If she really objects to the proceeding, she knows that the rule is to apply to this Court, and therefore if the action is not really brought with her good will, it certainly must be taken to be carried on with her sanction. Rule discharged with costs.

BUSINESS OF THE WEEK.

Thursday, April 30. REG.. THE COMMISSIONERS OF EXCISE.-Martin, Q. C. moved, on the part of Mr. Barrow, for a mandamus, directing the above commissioners to grant (under the circumstances) their permit for the removal of spirits.

Rule nisi.

WILDE v. HOWARD.-T. W. Saunders moved for leave to enter an appearance on a return to a distringas of nulla bona. Application granted. Friday, May 1.

Cur, adv. vult.

Re VAUGHAN HUGHES, a prisoner in Montgomery gaol. He was committed by a magistrate's warrant, under 58 Geo. 3. c. 43, for unlawfully having salmon in his possession warrant; first, the complaint was before two justices, whilst the commitment was by one only; secondly, the warrant did not shew that any fence days were fixed; thirdly, it did not shew any information or summons; fourthly, it did not allege that this was the first offence, and, if it were not, the only, was illegal, as being shorter than the statute allowed; punishment awarded, which was two months' imprisonment and, lastly, it did not shew who the informer was, although he was entitled to half the penalty.

Rule nisi.

Wednesday, May 6.
LOUTREUIL. PHILLIPPE, — Hoggins shewed cause
against a rule herein, for security of costs. Ball, contrà.
Rule absolute.
rule for setting aside the capias herein. Godson, Q. C.
HOPKINSON v. LEMAGE.-Miller shewed cause against a
contrà.
Rule discharged

REG. v. THE MANCHESTER. BURY, AND ROSENDALE
RAILWAY COMPANY.-Archbold shewed cause against a
rule for quashing the writ of mandamus herein, for not
being drawn up in conformity ale da sule. rug, contra.

Rule absolute.

Archbold then moved for a rule to amend. Granted.
REG, v. WELLSMAN.-Couch shewed cause against a rule

COMMISSIONERE SUUNTS.
Saturday, April 25.
(Before Mr. Commissioner GOULBURN.)
Re-

Practice Small Debts-Acts.

for an attachment for not obeying a rule of Court. Cole, The application for a summons under the Small Debis contrà.

Rute absolute, with costs; the attachment to lie in the
office for a fortnight.

Bankrupt and Insolvent Courts.

COURT OF REVIEW.

April 22 and 28.

Ex parte LANE re LENDON.
Joint and separate estate.-Statute of Frauds.
Where A was a creditor of B, and B and C entered into
partnership, and, by verbal agreement among the
parties, A was treated as the creditor of B and C,
such an agreement was held not to be affected by
the Statute of Frauds, and B and C having sub.
sequently become bankrupts, A was permitted to prov
e against the joint estate.

In this case a debt was due to the petitioner, Miss
Lane, from her uncle Mr. William Lendon the elder,
a currier, at Exeter. In 1838 a partnership was
entered into between William Lendon the elder, and
his son William Lendon the younger, but no articles
of partnership were executed on that occasion. There
was an alteration in the banker's books of the name
of the account, but the terms of the partnership were
only agreed upon in vague conversations between the
partners. The debt due to Miss Lane was alleged
by the petition to have been subsequently treated
as a debt due from the partnership, and the present
petition was for liberty to prove on account of the
debt against the joint estate of the Lendons, who had
become bankrupt. The petitioner, and Mr. Lendon
the younger were examined virá voce at some length.
the different parties.
Swanston, Terrell, Russell, Bacon, and Kinglake, for

Act must be personally signed by the creditor; it will not be sufficient if signed by his attorney. An attorney had applied for a summons under the Small Debts Act, the application being signed by himself as plaintiff's attorney. The summons having been refused by the registrar, the attorney now ap plied to the Court, stating that he was the attorney upon the record for the plaintiff.

His HONOUR said that, referring to the language of the statute, it expressly directed that the summons should be "upon the application of such crediter by any petition or note in writing, according to the form in the schedule (B.) annexed." And the form in the schedule is, "Be pleased to summon C.D.d

to answer touching the debts due to me, by the judgment (or order) of the Court of on my behalf." This clearly shewed that the appli cation should be by the creditor personally.

Thursday, April 23.

(Before Mr. Commissioner FANE.) Re F. F. Cooper.

An insolvent, who has petitioned the Court for the Relief of Insolvent Debtors, is entitled to a locus standi in this Court for debts in his schedule euntracted since the date of his petition to the Insolreal Court.

Semble, that where an insolvent has applied to another tribunal, this Court will not receive his petition on account of debts contracted previously to such application.

Insolvent, in July, 1844, had been taken in execu tion for a debt under 201. and had petitioned the Insolvent Court, under 1 & 2 Vict. c. 110; he was admitted to bail, and a day appointed for the hearing of the petition. In August, and before the day so The following cases were cited: Thomson v. Perce-appointed, he applied to a judge in Chambers, under val, Ex parte Clowes (2 Bro. C. C. 595); Ex parte 7 & 8 Vict. c. 96, and obtained an order for his dis Parker (2 Mont. Dea. & De Gex, 511); Ex parte charge. At the hearing of the petition he did not Kedie (2 D. & C. 321); Devaynes v. Noble (1 Mer. appear. Afterwards he petitioned the Court of 591). Bankruptcy under 7 & 8 Vict. c. 96, s. 2. The CHIEF JUDGE.-If A is creditor of B, and B On the part of the opposing creditors, it was ob and C propose to enter, or have entered, into partner-jected that the petitioner having already petitioned REG. THE JUSTICES OF SURREY.-Pashley moved for ship together, and address themselves to A, the credi- the Insolvent Court, under which petition his estate

Ex parte FRANCIS WARD.-Allen, Serjt. moved for a writ of habeas corpus, to discharge the applicant out of the custody of the gaoler of York gaol, to which he had been committed by virtue of a warrant of Mr. Commissioner West, of Leeds. Cur, adv. vult.

Saturday, May 2.