« ZurückWeiter »
the avoidance of the bill by its subsequent alteration after acceptance, as upon the point—whether it has ever been accepted at all.
It is in evidence that the defendant authorised only the affixing of his signature to a general acceptance; and that, afterwards, an acceptance was attixed in a different form, which he had not sanctioned. It cannot, therefore, be said that he accepted the bill which was produced at the trial. This appears to me to get rid of the difficulty of reconciling the two cases that have been principally relied upon.
The rule must be made absolute.
 COLTMAN J. There seems to be some conflict between the cases of Calvert v. Baker and Hemming v. Trenery; which has created a doubt with respect to the present case. But upon further consideration it appears that, without deciding between them, we may hold that here the defendant did not accept at all, the authority being to draw a bill in a particular form.
MAULE J. No fact was left, or was desired to be left, to the jury. The judge decided; but he reserved the point. The proper result of the evidence was, that the defendant authorised Bowie to draw and accept generally. That being so, the question is, whether this bill was ever drawn in any other way than as payable at the Bank of England. It seems to me that it was not. The drawing and the accepting of the bill must be considered as taking place at the same time; and, in such a case, until all is written which the party is about writing, the whole is in fieri. I therefore agree that a nonsuit should be entered.
CRESSWELL J. I am of the same opinion. It appears to me that this bill never existed as an accepted bill, otherwise than as a bill payable at the Bank of England; and I think that the defendant never did accept such a bill.
 WETHERED v. CALCUTT. June 3, 1842.
[S. C. 5 Scott, N. R. 409; 11 L. J. M. C. 123; 6 Jur. 487.) In an action against B., an overseer, for a penalty alleged to have been incurred under
the 17 G. 2, c. 3, for not delivering a copy of the poor-rate to A., an inhabitant, it appeared that A. was a churchwarden of the parish. Held, that A. was not entitled
to such copy.
Debt, on the 17 G. 2, c. 3. The first count of the declaration alleged that the plaintiff was an inhabitant of the parish of Little Marlow, and the defendant one of the overseers of the poor of the said parish ; that on the 17th of May 1841, the churchwardens and overseers of the said parish made a certain rate for the relief of the poor, which said rate was duly allowed ; that afterwards, to wit, on the Sunday next after the allowance of the said rate, to wit on the 23d of May in the year aforesaid, the said church wardens and overseers of Little Marlow aforesaid, did reduce a certain notice of the said rate having been allowed as aforesaid, into writing, and did, previously to the commencement of divine service in the parish church of Little Marlow aforesaid, on the day and year last aforesaid (the said last-mentioned day being the Sunday next, after the allowance of the said rate as aforesaid), affix copies in writing of the said notice on the doors of all the churches and chapels within the parish of Little Marlow aforesaid ; and that public notice of the said rate having been so allowed as aforesaid, was then duly given, according to the form of the statute in that case made and provided. The count then alleged a demand to inspect the rate, and a refusal by the defendant, &c.
Second count, that the plaintiff being such inhabitant, and the defendant being such overseer of the poor of the said parish, and the said rate being so made, assessed, allowed, published, and notified as in that behalf aforesaid, he the plaintiff afterwards, at a reasonable and seasonable time in that behalf, to wit on the 11th of October in the year aforesaid, demanded of the defendant  so then being such overseer of the poor of the parish as aforesaid, a copy of the said rate so made, allowed, assessed, published, and notified as aforesaid, and was then to wit, upon and at the time of the making of the said demand, ready to pay and offered to pay to the defendant for the same at and after the rate of 6d., for every twenty-four names thereof, and in the said rate, according to the form of the statute in that case made and provided; yet the
C. P. XII.-8*
defendant did not, nor would then, nor had he at any time since delivered or given to the plaintiff a copy of the said rate, or any part thereof, &c.
The defendant pleaded—not guilty “by statute.'
At the trial before Atcherley Serjt. at the last spring assizes at Aylesbury, it appeared that the plaintiff, who was one of the church wardens of the parish of Little Marlow, had, on the 11th of October 1841, called upon the defendant, one of the overseers of the same parish, and had demanded to inspect the rate in question, and also a copy thereof, at the same time tendering 10s. for such copy. The defendant informed him that the rate-book was in the possession of one Phillips, an assistant overseer, but said that he would send for it, and would let the plaintiff have a copy on the Thursday following. On the same day Phillips, by the direction of the defendant, carried the rate-book to a person of the name of Ward, in order to have a copy made of the rate. On the 25th of November the plaintiff's attorney wrote to the defendant, threatening to proceed against him under the statute of the 17 G. 2, c. 3. On the 27th of November the attorney for the defendant replied, stating, among other things, that “the copy of the rate required by Mr. Wethered was made upwards of a month ago; which he has been informed of. It has been, and now is, ready for delivery by me, on payment of 20s., my charge, and, now, the further charge of 5s."
It was admitted that the rate had been duly made  and allowed, but the only evidence of publication was, that a paper which purported to be a notice of the making and allowance of the rate, was produced by Phillips the assistant-overseer; and after being read in the church, was taken away by the defendant. The rate had been collected, and had been paid, among others, by the defendant.
For the defendant, it was contended ; first, that there was no evidence of the publication of the rate; secondly, that the plaintiff being himself a church warden, was not within the 17 G. 2, c. 3; thirdly, that the defendant was not liable to the penalties imposed by the act, there having been no wilful refusal or neglect on his part to produce the rate, &c.; and, fourthly, that the demand to inspect the rate, &c., should have been made on Phillips the assistant-overseer, and not upon the defendant ; Bennett v. Edwards (a)!; where it was held that an assistant overseer, appointed under the 59 G. 3, c. 12, having, by virtue of his office, the poor-rate in his custody, is liable to a penalty under the 17 G. 2, c. 3, for refusing to produce it to an inhabitant when lawfully demanded.
The learned judge having directed a verdict for the plaintiff, for the amount of the penalties, with leave for the defendant to move to enter a nonsuit, if the court should be of opinion that any of the objections taken were valid,
Storks Serjt., in Easter term last, obtained a rule nisi accordingly.
Channell Serjt., (with whom was Gunning), now shewed cause). It is submitted that there is nothing  in the statute of 17 G. 2, c. 3, to limit the right thereby given, of enforcing the production, or the delivery of a copy, of the rate, in the manner that has been suggested. By section 2, churchwardens and overseers are to permit "all and every the inhabitants” of the parish, to inspect the rate at seasonable times, and, on demand, to furnish copies to "any inhabitant.” By the third section, in case any churchwarden or overseer shall not permit "any inhabitant or parishioner to inspect the said rates, &c., he shall forfeit the penalties therein mentioned ; which are to be paid to the party aggrieved. The plaintiff is not the less an inhabitant parishioner, because he is a churchwarden. Supposing one of the overseers to take possession of the rate, and to refuse to produce it to the other parish officers, there seems no reason why they should not have the protection of the statute. It would be hard, if because a party is either a church warden or an overseer, he should be deprived of the benefit of the act, and be compelled to bring an action (a)to recover possession of the rate. It may be much more important to a church warden than to another inhabitant of the parish, to see the rate. À churchwarden or an overseer who does not sign a rate, may clearly appeal against it; and being within the words of
(a)' 8 B. & C. 702, affirmed in the Exchequer Chamber, Edwards v. Bennett, 1 Bingh. 230, 3 Y. & J. 458, 3 M. & P. 749.
(1) As the judgment of the court proceeded solely upon the second point, the argument on the other objections is omitted.
(a)" Quære, et vide post, 573 (a).
the statute, the court will not exclude him from its provisions, if a case can be conceived in which he may be a party aggrieved by a non-compliance therewith.
Storks Serjt., contrà. As no authority is to be found on this point, the court will look at the act, to see if the plaintiff comes within it. The preamble shews that the inconveniences meant to be remedied were caused by the parties who made the rate withholding it from the rest of the parish. The church wardens and  overseers are by the statute clearly put in contradistinction to the other inhabitants; for the second section evidently contemplates the case of the former being called to produce or furnish a copy of the rate to third parties. It cannot be supposed that the remedy given by the act was meant to apply to church wardens or overseers, who must be presumed to have the possession of those rates, the production of which the statute was passed to enforce.
TINDAL C. J. This is an action under the 17 G. 2, c. 3, for penalties alleged to have been incurred by the defendant as one of the overseers of the parish of Little Marlow, in the county of Buckingham, for refusing to allow the plaintiff, a rated inhabitant of the parish, to inspect a rate made for the relief of the poor, and also for refusing him a copy of such rate So far as the first count is concerned, it was not made out by the evidence, there having been no refusal to allow the plaintiff to inspect the rate. There was, however, some evidence to support the second count; and the question is, whether, on the facts proved, the case is brought within the statute. It seems to me that the act was passed to give the inhabitants a remedy against the officers of the parish, and that the word “inhabitants” is used in contradistinction to “churchwardens and overseers.” If the church wardens and overseers of this parish had done their duty, the whole of them, including the plaintiff, would have been present when the rate was made ; and the legislature could never suppose that officers, whose duty it is to be so present, assisting in making the rate, could require the aid of the act, in order to inspect it or to obtain a copy. It
to me, therefore, that the plaintiff has not brought himself within the act. It has been argued, that what took place when the defendant desired the assistant-overseer to furnish the plaintiff with a copy of the rate, was an admission  on his part that he was liable to do so; but I do not think that his voluntary promise placed the defendant in a worse position than that in which he stood before.
COLTMAN J. I also am of opinion that this case is not within the statute. It seems to me that it would have been a good answer to give to the plaintiff's demand of a copy of the rate, “You are a churchwarden-make a copy for yourself.” The act does not apply to a case like the present; for no inconvenience could ever be contemplated as likely to arise from the church wardens and overseers themselves not possessing a power over their own rate (a). The object of the statute clearly was, to give a remedy to the inhabitants against “ the unlimited power” of the parish officers to make rates, and by which they were liable to be oppressed. Therefore, when the acts speak of “ inhabitants” and" parishioners," those words must be understood as being used in contradistinction to “churchwardens and overseers ;" for a penal statute is not to be extended beyond its fair and necessary construction.
MAULE J. I also think that the rule must be made absolute. The statute, after reciting that " great inconveniencies do often arise in cities, &c. by reason of the unlimited power of the churchwardens and overseers of the poor, who frequently, on frivolous pretences, and for private ends, make unjust and illegal rates, in a secret and clandestine manner, contrary to the intent and meaning of the stat. 43 Eliz. c. 2," directs (s. 1) that public notice shall be given in the church of every rate for the relief of the poor, the next Sunday after it shall be allowed. By the second section it is provided, that the church wardens and overseers of the poor, or other persons authorised as aforesaid, in every parish, township,  or place, shall permit all and every the inhabitants of the said parish, township, or place to inspect every such rate at all seasonable times, paying Is. for the same, and shall upon demand forthwith give copies of the same or any part thereof, to any inhabitant of the said parish, township, or place, paying at the rate of 6d. for every twenty-four names. The third section enacts, " that if any churchwarden or overseer of the poor or other person authorised as aforesaid, shall not permit any inhabitant or parishioner to inspect the said rates, or shall refuse or neglect to give copies thereof as aforesaid, such churchwarden or overseer,
(a) Vide tamen, post, 573, n.
or other person authorised as aforesaid, for every such offence shall forfeit and pay to the party aggrieved the sum of 201., to be sued for and recovered by action of debt,” &c. It is contended on the part of the plaintiff that church wardens are comprehended in the expression, "any inhabitant or parishioner;” but it appears to me, that the generality of those terms must be limited by the intention and object of the act. Previously to the statute an obvious wrong might be suffered by the inhabitants of a parish, in having secret rates imposed upon them; and the act meant to give a copy to those persons, who, without its aid, could not obtain such copy. It is not without precedent to construe a statute by what is presumed to have been its intention, notwithstanding you thereby limit its effect. By the seventeenth section of the statute of frauds, 29 Car. 2, c. 3, it is provided that, in order to charge a party upon a contract for the sale of goods, there shall be some note or memorandum in writing of the bargain, made and signed by the parties to be charged by it or their agents thereunto lawfully authorised. Construing that clause literally, it would include the case of one of the parties signing as the agent of the other ; but it was held, in Farebrother v. Simmons (5 B. & Ald. 333), that the agent  contemplated by that section who is to bind a defendant by his signature, must be a third person, and not the other contracting party.
CRESSWELL J. The three sections of the statute were framed in order to provide a remedy for the inconveniences recited in the preamble. The first section directs that the churchwardens and overseers shall publish every rate when made, in the manner thereby prescribed ;” the second “that they shall permit all inhabitants to inspect the rates at seasonable times, and, on demand, give copies thereof at a certain price;' and the third section provides “that if any churchwarden or overseer shall not permit any inhabitant or parishioner to inspect the rates, or shall refuse or neglect to give copies thereof, he shall forfeit and pay to the party aggrieved” a certain sum, to be recovered as therein mentioned. It is quite clear that the relief provided in these clauses is for the same class of persons. The churchwardens and overseers are all presumed to be cognisant of the rate, and are entitled to the possession of it ; consequently they have a higher right than the one given by the act--to a mere inspection, or a copy of the rate. It cannot therefore be supposed that the statute was meant to apply to them.
Rule absolute (a).
 DIRKS v. RICHARDS. June 4, 1842. [S. C. 5 Scott, N. R. 534 ; 6 Jur. 562: at Nisi Prius, Car. & M. 626. Referred to,
In re Llewellin,  3 Ch. 149.] A picture was placed by A. in the hands of B. for sale. B. deposited it with C.
On its being demanded by A., C. claimed 5s. for warehouse-room; but on a second demand being made, with an offer to pay any claim which C. might have for warehouse-room, C. refused to give up the picture without being paid 81. due to him from B.-Held, that the demand of the 81. amounted to a waiver of the claim for warehouse-room, and that it rendered a specific tender in respect thereof unnecessary.
Detinue, for a picture. Pleas : non detinet, and not possessed ; upon both of which issue was joined.
At the trial before Alderson B., at the last assizes for the county of Surrey, it
(a) An action lies by one joint-tenant, or one tenant in common of a chattel against another for destroying the joint or common chattel, but not for withholding or concealing it. The churchwardens and overseers cannot have actual joint possession of the rate except when all are together; and it would appear that one who was in malo lecti or in itinere when the rate was made, or who, though he may have once seen it, finds his memory too infirm to retain the particulars of every assessment, can get it from the unaccommodating holder, or even obtain a sight of it, only by force or by stratagem. “ If the one take the whole to himself out of the possession of the other, the other has no remedy in order to occupy in common, but to take it from him who has done to him the wrong, when he can see his time, (quaunt il veit son temps).” Littleton, sect. 323, Of Tenants in Common. And see 2 Wms. Saund. 47 h.
appeared that the picture had been placed in the hands of a person named Bye for sale. Bye deposited it with the defendant, an auctioneer, at the same time telling him that his charge for warehouse rent must be moderate. The plaintiff subsequently demanded the picture, whereupon the defendant made a claim of 5s. for warehouseroom. The plaintiff having made a second demand in writing, accompanied with an offer to pay the defendant any lien he might have on the picture for warehouse-room, the latter stated that he would not deliver it up until he was paid a debt of 81. due to him from Bye. No tender was made of any specific sum for warehouse-room. Scarfe 5. Morgan (4 M. & W. 270) was cited on behalf of the defendant.
The learned judge directed the jury, if they were satisfied that the picture was the plaintiff's, and that it was detained by the defendant, to find for the plaintiff
, telling them that by the demand of 8l., the defendant waived or dispensed with any tender for warehouse-room. The jury having found for the plaintiff,
Sir T. Wilde Serjt., in Easter term last, obtained a rule nisi for a new trial, on the ground of misdirection,  contending that a tender of a specific sum for warehouse-rent should have been made.
Shee Serjt. now shewed cause. The plaintiff having offered to pay what might be due for warehouse-room, the defendant's demand of 81. for the debt due to him from Bye, was clearly a waiver of his claim for warehouse-rent. It rendered the detainer unjustifiable, and dispensed with the necessity of making any tender of such rent. Knight v. Harrison, cited in Saunders on Plead. & Ev. 641, is precisely in point. That was an action of trover for 100 pieces of calico. It appeared that the defendant, a commission-agent at Manchester, had bought, as agent of Moravia and Co. of London, from the plaintiffs at Manchester, 1500 pieces of calico, to be paid for by a bill to be drawn by the plaintiffs on Moravia and Co. The goods were delivered to the defendant on the 2d of October. On the 4th of October Moravia and Co. stopped payment. The plaintiffs applied to the defendant for the goods then in his hands, and the defendant at first promised to return them, they not having been drawn for, but he afterwards said he would not deliver them, as it was doubtful whether he could safely do 50. The plaintiffs obtained an order from Moravia and Co., and shewed the order to the defendant ; on which he said he would not give up the goods until Moravia and Co. had paid his general balance, the amount of which he did not state. The plaintiffs demanded the goods and tendered an indemnity, but the defendant refused to accept it. It was contended for the defendant; first, that he had a general lien for his whole balance ; secondly, that he had a lien for 491., the amount of expenses incurred by him in getting the goods glazed : but Abbott Ć. J. said, “He has no lien for his general balance, as against the plaintiffs. As at the time of the demand he insisted on having (576] his general balance, and did not name his particular lien, but made too large a claim, he is precluded from setting it up now; for, if he had relied upon that then, it is most probable the plaintiffs would have paid it." There is an obvious distinction between Scarfe v. Morgan and the present case ; for here, the claim made by the defendant was in respect of a debt due to him from a third person, who was not the owner of the picture.
Channell Serjt. (with whom was Montague Chambers), in support of the rule. The question is, whether the claim of 81., which it is conceded the defendant had no right to make, dispensed with the necessity of a tender of what was really due to him for warehouse-rent. (Erskine J. In Boardman v. Sill (1 Campb. 410), the plaintiff brought trover for some brandy which lay in the defendant's cellars, and which, when demanded, he had refused to deliver up, saying it was his own property. Certain warehouse-rent was due to the defendant on account of the brandy, of which no tender had been made.
Lord Ellenborough held, that as the brandy had been detained on a different ground, and as no demand of warehouse-rent had been made, the defendant must be taken to have waived his lien, if he had one.) The present case is not to be distinguished from Scarfe v. Morgan. There, the plaintiff sent a mare to the defendant, who was a farmer, to be covered by a stallion belonging to him. The mare was taken to the defendant's stables, and covered accordingly, upon a Sunday. The charge for covering not being paid, the defendant detained the mare. A demand of her was afterwards made, but he refused to deliver her, claiming a lien, not only for the charge on that occasion, but for a general balance due  to him on another account. It was held that the defendant was entitled to a specific lien on the mare for the charge for covering her; and that the claim made by him to retain her for