CASES

ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH,

IN

Hilary Term,

IN THE FOURTH YEAR OF THE REIGN OF WILLIAM IV.—1834.

Ex parte ALLEN.-p. 35.

A. is charged with a felony before three magistrates, who, upon hearing evidence, admit him to bail, and afterwards, upon additional evidence, commit him to gaol. A. is not entitled to a habeas corpus to be discharged out of custody.

CROWDER applied for a rule to show cause why a writ of habeas corpus should not issue to bring up the body of Richard Allen, confined in Fisherton gaol, in Wiltshire.

Allen had been taken before three magistrates, charged with a felony, and after evidence of the felony had been gone into was admitted to bail, upon his giving his own recognizance and that of two other persons, each in 2007., for his appearance at the next assizes. He was afterwards apprehended again and brought before two of the same magistrates, when further evidence was gone into, and he was committed to Fisherton gaol.

Crowder in support of the application. The magistrates having had the case regularly brought before them, and having decided, after hearing the evidence, that the party should be admitted to bail, had no right to issue a warrant for his apprehension on the same charge, and then to commit him to gaol. Under 7 Geo. 4, c. 64, s. 1, the magistrates were authorised either to dismiss the charge or to hold the party to bail, or to commit him to prison. Their decision was to admit him to bail, and they accordingly took bail for his appearance. This then was an adjudication by the three magistrates before whom the case was first heard. [DENMAN C. J. There was no adjudication at all when bail was taken. What is there in that act to deprive them, or any other magistrates, of the power to commit upon hearing fuller evidence of the felony ?] They decided upon the middle course of admitting to bail, and the party was put to the trouble and expense of procuring sureties for his appearance. He ought not then to be harassed by a second apprehension; nor is there any necessity that such a power should reside in the magistrates; for it is their duty, and indeed their constant practice, when not satisfied with the evidence adduced before them, to remand the prisoner for a further examination. Such a course ought to have been pursued on the present occasion.

DENMAN C. J.-It appears to me that the magistrates have taken the very course which it was most proper for them to adopt. The whole matter is not fully investigated in the first instance; subsequently fresh evidence is pro

cured, and the party is committed. It is necessary, for the ends of justice, that the magistrates should possess and exercise this power. There must be no rule.

LITTLEDALE J.-Suppose there had been but slight evidence given the first time the party was before the magistrate, then under the act he is to be admitted to bail; but nevertheless if afterwards further evidence is discovered, he may be fully committed by the magistrates. The magistrates do not remand except where further evidence of the crime is expected. Here it may be that the evidence which was afterwards produced was not at all anticipated. TAUNTON J. and PATTESON J. concurred. Rule refused.

PARKER v. BURGESS.-p. 36.

To ground a motion for a contempt in disobeying a rule of court, it is not sufficient to show the party the original rule, without personal service of a copy of such rule. HEATON moved for an attachment against T. C. Wright, the attorney for the plaintiff, for the nonpayment of a sum of money, in obedience to a rule of court made in this cause, and the Master's allocatur thereon. His motion was grounded upon an affidavit, which stated that the defendant did, on the 26th November last, serve T. C. Wright with a copy of the rule of court, by leaving the same with a servant at the office of the said T. C. Wright, and did, on the 29th of the same month, produce to and show to the said T. C. Wright the said rule, with the Master's allocatur thereon, and at the same time did demand of him the money, which he refused to pay. He contended that the rule requiring a personal service of the copy of the rule of court had been substantially complied with, by showing the original at the time when the demand was made, the object of that rule being merely that the court might be certain that the party sought to be attached knew of the rule which he was called upon to obey; and he observed that it is not laid down in the books of practice, that the copy must be personally served.

The court however said, the service of the copy of the rule is not sufficient. The rule of practice is well known to us, and is of every-day occurrence. There must be a personal service of the copy of the rule, as well as a personal demand of the money. Rule refused.

The KING v. The Justices of BUCKINGHAMSHIRE.-p. 68.

The court will not issue a mandamus to magistrates to do an act subjecting them to an action, of which the event may be doubtful.

Whether the owner of a farm composed partly of grass land, who, upon the determination of a lease, takes possession of the farm by a servant, who occupies it for the purposes of protection, but without dealing with the land, is liable to be rated ratable to the poor as a party beneficially occupying: quære.

The KING v. The Inhabitants of CHIPPING SODBURY.—p. 104. Held, that a judge's order or fiat for a certiorari to issue in vacation can only be granted

nisi.

By an order of justices, Martha Williamson (wife of Joseph Williamson), and her five children, viz., George, aged nine years; Samuel, aged seven years; Hannah, four; Thomas, three; Emma, two; were removed from Chipping Sodbury, in the county of Gloucester, to North Nibley, in the same county. This order was appealed against at the Gloucester Michaelmas sessions, 1832, and after the merits of the case had been heard, the counsel for

the appellants objected, first, that there was no adjudication, that the two eldest children had not gained settlements in their own right; secondly, that the adjudication should have been that the settlement of the husband was in North Nibley, and not, as was stated in the order, that the settlement of the wife and children was there; thirdly, that the children were removed as the children of the wife, and not as the children of the husband. Upon these objections the Court of Quarter Sessions quashed the order as defective in form, and not upon the merits, and the order of the Court of Quarter Sessions expressly so stated. A certiorari was sued out in Trinity vacation, 1833, under the fiat of the Lord Chief Justice, upon an affidavit of the above facts. The order of removal and the order of sessions having been returned with the certiorari, in Michaelmas term, Greaves, upon a statement in court of the above facts, and referring to several cases, (a) obtained a rule nisi to quash the order of sessions, on the ground that it quashed, for defect of form, an order that was perfectly good on the face of it.

W. J. Alexander was about to show cause, when the Lord Chief Justice inquired whether there had been a rule to show cause why the certiorari should not issue. It was stated at the bar, that the certiorari had been obtained on the fiat of the Lord Chief Justice in vacation in the first instance. Greaves, in support of the rule, stated that the invariable practice had been, that if a certiorari be applied for in vacation, where no case is stated by the sessions, it is granted on the fiat of a judge, and issues immediately; but if it be applied for in term time, a motion is always made in open court, for a rule to show cause why the certiorari should not issue; and that where a case has been stated, the rule nisi for the certiorari is obtained on counsel's signature only. He stated further, that in this case the practice had been inquired into at the Crown office, and the certiorari applied for and issued in pursuance of the information there obtained.

DENMAN C. J.-The rule for the certiorari cannot be granted out of term absolutely in the first instance. The rule to quash the order of sessions must be discharged. Rule discharged.(b)

(a) Rex v. Higher Walton, Burr. S. C. 162; Rex v. Ryton, Cald. 39, &c.

(b) As to the practice of issuing a certiorari in vacation, without a rule to show cause, upon a judge's fiat, see 1 Gude, 116; 2 Nol. P. L. 582. In Rex v. Newton, Burr, S. C. 157, Chapple J. granted his fiat for a certiorari to remove an order of sessions, but refused to grant it in respect of the original order. Afterwards the court said, "Here was a regular application to a judge within time, and with due notice as to the order of the sessions, and he was granted a fiat for a certiorari to return it." Both orders were quashed. And see Regina v. White, 1 Salk. 150; S. C. Holt, 132; 5 & 6 W. & M. c. 11, s. 4.

JAMES v. WILLIAMS.-p. 196.

"As you have a claim on my brother for 5l. 178. 9d. for boots and shoes, I hereby undertake to pay the amount within six weeks from this date. 14th January 1833." Held, that no action lies on this undertaking, inasmuch as no consideration appears upon the face of the instrument. (a)

(a) But in 3 Brod. & Bingh. 21, Jenkins v. Reynolds, Park J. says, "I do not go into the question whether the fact was well decided in Wain v. Warlters, because there may be different opinions as to whether or not a consideration did appear on the instrument, which was there the subject of discussion." And in the same case, (6 B. Moore, 106,) Richardson J. says, "I agree with my brother Park, that it is not necessary for us to give any opinion as to whether a consideration appeared on the face of the instru ment in Wain v. Warlters, but that we may decide on the principle there contained, viz., not only that the promise must be in writing, but that the consideration for the promise must be shown."

It seems to be questionable whether after acceptance of a guarantee in the form given VOL. XXVIII.-39

in Wain v. Warlters, or in the principal case the creditor would not be precluded from suing the principal debtor, until the stipulated period had elapsed. If the creditor would be so precluded, the consideration would be sufficient.

It is not however, in all cases necessary that the contract be synallagmatic, viz., that the consideration of the guarantee be binding upon the creditor. A contingent resulting or springing consideration is sufficient. Thus where A. guarantees to B. the price of goods which B. may hereafter furnish to C., B. contracts no engagement to furnish goods to C., but if he does furnish them the consideration arises, and the guarantee attaches: Minett, Ex parte, 14 Ves. 189; Gardom, Ex parte, 15 Ves. 286; Warrington v. Furbor, 6 Esp. N. P. C. 89; Stapp v. Lill, 1 Campb. 242; S. C. per nomen Stadt v. Lill, 9 East. 348.

It is, however, of course competent to a party to stipulate that his guarantee shall not be binding without an express undertaking on the part of the promisee to perform that which, but for such stipulation, would have been a mere contingent consideration; Gaunt v. Hill, 1 Stark. N. P. C. 10.

A contingent consideration appears to be clearly insufficient to support a promise to pay an existing debt. Where, therefore, the guarantee is in this form, "I, G. B. M., hereby guarantee the present account of H. M. due to R. T. S. & Co. of 1121. 4s. 4d., and what she may contract from this date to the 30th September next," the guarantee appears to be void for the 112. 4s. 4d. And if void in part, it would be void for the whole, according to Lexington v. Clarke, 2 Ventris, 221. This objection does not appear to have been taken in Russell v. Mosely, 3 Brod. & Bingh. 211; more fully reported, 6 B. Moore, 521.

"In New York it has been decided, that the consideration, as well as the promise, must be in writing; Sears v. Brink, 3 Johns. Rep. 210. But if the promise be under seal, that of itself imports a consideration; Livingston v. Tremper, 4 Johns. Rep. 416. And, however sufficient the consideration, the promise must be in writing; Jackson v. Rayner, 12 Johns. Rep. 291. But where the guarantee or promise to pay the debt of another is made at the same time with the contract to which it is collateral, it is incorporated with the original transaction, and becomes an essential branch of it; the whole is one single bargain; and the want of consideration, as between the plaintiff and the guaranteeing party, cannot be alleged; Leonard v. Vredenburg, 8 Johns. Rep. 22, (2 edit.) and the cases cited in the reporter's note. Wain v. Warlters, 5 East's Rep. 10, is recognized in Sears v. Brink, as having given a sound construction to the statute. But the authority of both those cases has been questioned by Chancellor Kent, 8 Johns. Rep. 29. Lord Eldon, in Ex parte Minet, 14 Ves. Jun. 190, expressed a decided opinion against Wain v. Warlters, saying, There was a variety of cases directly contradicting it.' Chief Justice Parsons, and Chief Justice Parker, have, in effect, overruled it; Hunt v. Adams, 5 Mass. Rep. 360; Adams v. Bean, 12 Mass. Rep. 139; and Chief Justice Swift has stated the reasons for his unwillingness to consider the case as authority, in a very learned opinion, which is inserted in Mr. Day's edition of East's Reports, Vol. 5, p. 20. In New Jersey the Supreme Court have lately decided that it is not necessary that the consideration of a written undertaking to pay the debt of another, should be expressed in or appear upon the alleged agreement: Buckley v. Beardsley, 2 South. Rep. 570. One of the judges, however, dissented, upon the ground that the written memorandum did not contain, as well the consideration as the promise. In Pennsylvania, the Act of Assembly for Prevention of Frauds and perjuries, contains no provision upon the subject of a promise or agreement to answer for the debt of another. In Virginia, the statute requires only that the promise should be in writing; Violett v. Patton, 5 Cranch. 142. The court, however, said that their opinion in that case was not determined by the circumstance, there being a consideration expressed in the assignment;" Gardom, Ex parte, 15 Ves. jun. 286 n.-Note to American edition of Ves. xv. 286.

CARMICHAEL v. HOUCHEN.-p. 203.

The rule of E. T. 2 G. 4, requiring the grounds of the objection to an award to be stated upon a rule nisi to set it aside, applies to the certificate of an arbitrator empowered to ascertain the amount due from the defendant to the plaintiff, and to certify the same to the associate, by whom a verdict is to be entered accordingly.

WYKES v. SHIPTON.-p. 240.

Where a cause is referred to an arbitrator, it is not necessary that he should find for the plaintiff or defendant in the very words of the issue. It is sufficient if he decides substantially the question in dispute.

An award made upon a reference of a cause, and all matters in difference between the parties, is bad if it omit to assess damages upon a judgment of nil dicit upon a new assignment of excess.

TRESPASS for breaking and entering the dwelling-house of the plaintiff, and pulling down a flue belonging to the dwelling-house, and nailing a plate against the wall of the dwelling-house, across an opening in the wall through which the smoke arising from a fire-place in a room, parcel of the dwellinghouse, was accustomed to escape and to pass through, and along the said flue, into a chimney then standing and being between the said dwelling-house and another dwelling-house next adjoining. The declaration contained two other counts, describing the injury in more general terms, and a count de bonis asportatis. The defendant pleaded, first, the general issue; three pleas justifying the breaking and entering the dwelling-house, the pulling down the plate and the flue; and fifthly, leave and license. The plaintiff joined issue on the first plea, replied de injuria to the second, third, and fourth pleas, took issue on the fifth plea, and newly assigned that the defendant tore down another and a different part of the flue belonging to the dwelling-house. The defendant joined issue upon the replications to the second, third, fourth, and fifth pleas, and suffered judgment by nil dicit on the new assignment. The cause came on for trial at the summer assizes, 1833, when, by the consent of the parties, it was referred on the following terms: that a verdict be entered for the plaintiff, damages 1007. costs 40s.; and that the said cause, and also a certain indictment against the defendant for an assault, shall be subject to the award of A. B., to whom the causes respectively, and all matters in difference between the said parties, are referred, to order and direct that verdicts shall be entered therein, as he shall think proper; and further to direct what shall be done between the parties to secure the enjoyment of an exit for the smoke to both of them in the occupation of their respective dwelling-houses, and that the same shall be without reference to their respective legal rights; and that the defendant shall pay such compensation as the said arbitrator shall think fit to award against him, to the said prosecutor of the said indictment; and that the arbitrator shall order and determine what he shall think fit to be done by either of the said parties respectively, respecting the matters in dispute. The costs of the cause to abide the event of the award, and the costs of the reference, and all other costs, to be in the discretion of the arbitrator. The arbitrator, by his award, found that the plaintiff had no right to use the flue. communicating with the defendant's premises, as an exit for the smoke from the fire in the plaintiff's shop, (in respect of an obstruction of which use by the plaintiff, the action was brought,) and therefore ordered that the verdict entered for the plaintiff in the cause should be set aside, and a verdict entered for the defendant; and that the defendant should, within three calendar months after the date of the award, pay the plaintiff 107. as a compensation for the assaults; and that each of the parties should pay his costs of the reference, and that the costs of the award should be paid in equal moieties.

In Michaelmas term last, Channel obtained a rule nisi to set aside this award, on the ground that the award did not sufficiently dispose of or put an end and determination to this cause, but at most only disposed of and determined a part of the cause, viz. certain issues in fact raised by the pleadings; and that it did not assess any damages upon, or determine, or in any way adjudicate upon the residue of the cause, viz., the damages to which the