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170

Superior Courts : Exchequer.-Analytical Digest of Cases. boy before him and saying he had told him not that the defendant had committed the plaintiff to kill the duck. The commitment directed to prison. In order to prove this it was neces. the boy to be corrected, and on the governor sary to give in evidence the commitment, which of the gaol writing to the defendant whether put the plaintiff out of Court, as until it was was to be carried into effect, he had replied in quashed no action could be brought. It also the affirmative as the boy was very bad, and showed on the face of it that the trespass was both his masters had complained to him that caused by the defendant in his capacity of a they couid do nothing with him. The de- magistrate, which entitled him to notice. The fendant pleaded “not guilty by Statute.". and second

count was for maliciously, inciting the on the trial before Cresswell

, J., at the last plaintiff's master to make a charge before the York Assizes, a nonsuit was directed on the defendant under the Masters and Servants' ground that the defendant was entitled to notice Act, and for maliciously and without reasonof action under the 11 & 12 Vict. c. 44. able and probable cause committing the plain

B. Thompson showed cause against the rule, tiff to prison on that charge. This was a count which was supported by Price on the ground for an act done in execution of the office of a that the question, whether the defendant had magistrate, inasmuch as it showed there was a acted bonâ fide, should have been put to the charge before the defendant on which he acted, jury, as if the defendant had acted malá fide he although it might be that he had ineited it, but was not entitled to notice, citing Booth v. Clive, of which there was not sufficient evidence. The 10 C. B. 827; 2 L, M. & P. 283.

defendant was therefore entitled to notice, and The Court said, that the first count of the the rule must be discharged. declaration was in trespass and complained

ANALYTICAL DIGEST OF CASE S,

SELECTED AND CLASSIFIED IN ALL THE COURTS.

APPEAL.

House of Lords.

that the party had no title to come before the ANNULLING ADJUDICATION.

Vice-Chancellor, except on appeal against the See Bankruptcy.

adjudication, and that for that purpose the petition was presented too late. Carter vi

Dimmock, 4 H. of L. Cas. 337. Costs. There had been a previous decree, in substance the same as that which was ap

COSTS, pealed against, but made in a different suit and

See Appeal; Practice. by a different Judge : the appeal was dismiss

EVIDENCE. ed with costs. Russell v. Dickson, 4 H. of L. As to whether lands parcel of manor.--Entry Cas. 293. And see Bankruptcy.

by steward in book. - In an action of ejectment

the question was, whether certain lands, known BANKRUPTCY.

as Kingston Pastures, were part of the manor Annulling adjudication.- Appeal. - Laches of Hayling? The lands had been purchased

A person adjudicated a bankrupt under the from the Duke of Norfolk. An entry in a 12 & 13 Vict. c. 106, must, if he desires to book found among the muniments of the annul the adjudication, proceed under the Norfolk family was tendered in evidence, for 104th section of that Statute. If he omits to

the

purpose of proving the affirmative of the do so, he can then only proceed by petition of issue. The entry, which was made by a steward appeal before a Vice-Chancellor (to the Court

of that family, spoke of an indenture which of Appeal in Chancery under the 14 & 15 " recited a lease made by the Earl of Arundel, Vict. c. 83, s. 7).

and which, tracing the lands into the possesOn the 15th February, 1851, A. was adjudi-sion of R. H., went on to say that “R. H. decated a bankrupt. On the 19th, a duplicate of miseth unto, &c., all those pastare grounds the adjudication was served upon him, he did lying in Kingston, in the parish of Portsea, not appear to show cause against the adjudica- parcel of the manor of Hayling,"ses tion, and on the 28th the notice of it was pub

Held, that this entry was a mere recital of lished in the Gazette. On the

19th of March, heard of, and was not admissible either as a

some docnment which the writer had seen or he presented a petition to the Commissioner tó annul the adjudication. The Commissioner entry made by a person in the discharge of his pronounced

his decision on the 14th of April, duty, or as an entry against the interest of the and

on the 23rd the bankrupt appealed to the person who made it, nor was it evidence of reVice-Chancellor.

putation to prove that the lands were parcel of Held (affirming'a decision of Lord Chancel the manor. Doe d. Padwick v. Witicomb, 4 lor Truro), that the petition of the 19th March H. of L. Cas.

425. was a petition of appeal against the Commis.

And see Leases. sioner's adjudication, and therefore could not

INSURANCE. be presented to the Commissioner, whose juris- Time-policy.-- Implied warranty of seaworthidiction in such matters was then at an end ;l ness. By the Law of England, in a time-policy

171

Analytical Digest of Cases: House of Lords. effected on a vessel then at sea, there is no im- changes in the lands a change was made in plied condition that the ship should be sea- the rent. The lease recited the indenture as a worthy on the day when the policy is intended demise to C. for three lives, and the longest to attach.

liver of them, with a covenant to “renew the Per Lord Campbell.-There is not, in a time. same for ever, on payment of 117.78. 6d. for policy effected on a vessel then abroad, any im. renewing the same on the fall of every life, plied condition whatever as to seaworthiness; within six months next after the fall of each Dot even as to the time when the vessel sailed life.” The habendum in the lease was for the on the voyage during which the policy attaches. same three lives; and S. covenanted that

Quere, whether there is any such implied“ upon the death or failure of the aforesaid life condition in a time-policy effected on an out- or lives, or any or either of them (meaning ward Bound ship lying in a British port where them), and upon C., his heirs, &c., paying the owner Yesides 13

“the sum of 111.78. 6d. above the annual rent, 19 A poliey of insurance was effected in London within the space of six calendar months, and on the 27th of November, 1843, on a ship then immediately after the death or failure of such abroad, se lost or not’løst, in port and at sea, in life," and 'on nomination, &c., "S., and his all mades and services whatsoever and where- heirs," &c., would add the life so nominated; soever, during the space of 12 calendar months, "and so in like manner from time to time succommencing on the 25th September, 1843, and cessively for ever thereafter on the failure of ending on the 24th September, 1844, both days every other several life or lives in the said lease included.” To a declaration for a total loss on or thereafter to be nominated." Renewals had, the 14th October, 1843, by perils of the sea, the from time to time, been made by the successors defendant pleaded that the “ ship was not, at of S. in the estate, sometimes after proceedings the time of the commencement of the risk in in Chancery to compel the same, sometimes the policy of insurance mentioned, nor at the without such proceedings; but in 1845, G., making of the said insurance, nor on the said the descendant of S., having absolutely refused 25th September, 1843, in the declaration men- to renew, a bill was filed against him by B., tioned, seaworthy, or in a fit and proper con- who had become possessed of C.'s lease. The dition to go to sea; but, on the contrary there. bill prayed for a renewal according to the of, was wholly unseaworthy.” It appeared in lease, which B. alleged to have been made in evidence, that on the 24th of September, 1843, conformity with, and under the obligation of, the ship was at sea seriously damaged, and in the indenture of 1746. This indenture could that state it succeeded in making Madras in the not be produced, but the memorial was tencourse of the following day. The verdict found dered and received in evidence. The defendant the plea to be proved in fact.

alleged, that the lease was ineffectual to bind Held (affirming the judgment of the Court the inheritance, as it was made by a person who of Exchequer Chamber, which had reversed a was, at the moment of executing it, only tenant previous judgment of the Court of Queen's for life, and he contended, that there was no Bench), that this plea did not afford a defence legal evidence of the indenture of 1746. He to the action, for that there was no implied con- also relied on the difference between the terms dition that the ship should be seaworthy on of renewal contained in the indenture and those the day when the policy was intended to attach. contained in the lease : Gibson v. Small, 4 H. of I., Cas. 353.

Held, affirming the judgment of the Court 30 sino Ou LEASES.

below, that the plaintiff

' was entitled to the re09 09236 37

newal as prayed; that the memorial was proRenerals. Registered memorial of deed.- perly admitted as secondary evidence of the inEvidences, on the 5th January, 1746, being denture; that that indenture was to be treated tenant in fee simple of lands in Tipperary, exe as an original lease, containing a covenant, cuted an indenture, which was two days after- under the obligation of which the lease of 1750 warda registered under the Irish Registration was executed; that the obligation entered into Acts. The memorial represented that S. had, in 1746 being by the tenant in fee simple, his by the indenture, demised or agreed to demise performance of it in 1750 was valid, although these lands to C. for three lives therein-named, he was then only tenant for life; and that the with “a clause of renewal after the expiration acts of the successive tenants of the estate, of said lives thereinbefore-mentioned,” pro- although not evidence to prove the existence of vided that C., his heirs, &c., should, within six the covenant, became, when the covenant had months from the death of the last of said three been otherwise proved, evidence of the conuves, nominate such lifo or lives as he would struction which the parties, interested had

put have inserted,” and pay all rent, and "the upon it. sum of 111.78.6d, for adding or renewing such life of lives for sever." The memorial was tenu poti of the occașions of renewal, the

Tife against whom a bill had been signed by C. alone, and he registered it. In filed, was an infant.,, The Court of Chancery Feb. 1750, S. executed a settlement in contem- in Ireland ordered his guardian, to execute a plation of marriage, by which he made himself lease in conformity with the covenant contenant for life only in the estate comprised

, ie tained in the deed contra

mestral de

order was auexecuted a lease to C., in which the indenture of thorised by the Irish Statute 11 Anne, C. 3. 1746 was recited, and in consequence of some Sadlier v. Biggs, 4 H. of L. Cas. 435.

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MANOR.

PRACTICE.

172

Analytical Digest of Cases : House of Lords.
LEGACY.

and intrusted the care and charge of her to his See Will, 1.

brother. In a codicil, executed five years afterwards, he said, “I add 3,0001. to the

2,0001. to which M. S. is entitled under my See Evidence.

will, by which she becomes entitled to 5,0001." In about a year afterwards, and about 10 days

before his death, he made a further codicil, in Re-hearing. - Costs. – A judgment of this which he said, “Not having time to alter my House given on an appeal cannot be reversed; will, and to guard against any risk, I hereby but where such appeal and judgment have been charge the whole of my estates and property in obtained by suppression and misrepresentation, the funds with the sum of 20,0001., for my the House will afterwards discharge the order daughter, M. D.;" in this instance giving her granting the leave to appeal and the order con- his own name, as if she was a legitimate stituting the judgment thereon.

daughter. A decree in Chancery was made in January, Held, affirming the decree of the Court be. 1835, and enrolled in May of that year. A pe- low, that there were circumstances here to tition for leave to appeal against it (the proper rebut the prima facie presumption in favour of time for appealing having gone by) was pre- the last legacy being treated as additional, and sented in February, 1839, and refused. The that it was only in substitution for the sums party who was dissatisfied with the decree filed previously given. Russell y. Dickson, 4 H. of à bill of review in 1844. A demurrer to that L. Cas. 293. bill, for want of equity, was allowed. The order 2. Construction.- Proviso.-Living at her allowing the demurrer was appealed against in death.M. D., devised certain estates to his 1846, and in the appeal the original decree was nephew, Sir J. E., Bart., for life, and after Sir expressly complained of. In July, 1847, there J. E.'s decease, to his second son, and his heirs was a general dismissal of the appeal, and the male; and in default to the third son, and his order allowing the demurrer was specially men- heirs male, and so on, with a proviso that if the tioned in the order of dismissal; but the origi- baronetcy should come or descend to the senal decree was not mentioned. In 1848, there cond son of Sir J. E., the estates should go over was a petition for leave to appeal against the to the next in succession. P. J., the father of original decree and certain other orders made in Lady E., by a will made subsequently to that the course of the proceedings, but which had of M.D., devised his estates to his daughter, not then been enrolled, and in the petition it Lady E. for life, then to her eldest son for life, was stated, that "it appeared by the order of and his heirs, and for default, &c., to the seJuly, 1847, that the decree of January, 1835, cond son of Lady E. for life, and to his heirs had not been complained of, and therefore that (“ in case he shall not become, or shall not their lordships had not made any declaration continue, seised of the real estates of M. D. by with respect to it," and that “the said decree virtue of his will ”), and to the third and every had never been adjudicated upon by their lord- other son of Lady E., subject to the like conships.” On this petition, and after other pro- dition : "provided always, that if it shall hapceedings taken, leave was given to include in pen that my said daughter shall have no issue the appeal the decree of January, 1835. The male of her body living at her death, or no such appeal was heard exparte, and in June, 1850, issue male as shall be entitled, by the true the decree was reversed.

meaning of this my will, to my real estates, Held, that this reversal had been obtained hereby limited and settled as aforesaid, then, by suppression and misrepresentation, and the and in either of those cases, I devise all my parties affected by it having petitioned for re- said real estates, subject respectively as aforelief, the House discharged the order giving said, to all the daughters (if

more than one) of leave to appeal against the decree of January, the body of my said daughter, who shall be 1835, and the order which had reversed that living at her death, as tenants in common, and decree.

their heirs, &c.," with cross remainders amongst No costs were given. Exparte White v. them; "and if there should be but one such Tommey, 4 H. of L. Cas. 313.

daughter living at my said daughter's decease, and no issue of any other such daughter then

in being, then to such only surviving daughter See Leases.

and her heirs.” At the time of the death of Lady E. there were two sons and several

daughters living; both sons afterwards died 1. Legacy.-- Substitutional or additional.-- without issue : Where a legacy is given in each of two differ- Held, that the daughters of Lady E. did not ent instruments, the testator must, prima facie, take any estate under the limitations

of the will be understood to have meant to give two sepa- of P. J., for that the words “living at her rate legacies; but there may be circumstances death” applied to both branches of the proto rebut that proposition.

viso, and that the contingency on which the A testator gave by his will, "To my natural daughters were to become entitled determined or reputed daughter, M. S., 2,0001., for her own at the death of their mother. Eden v. Wilson, sole and separate use, the interest thereof, at 5 4 H. of L. Cas. 257. per cent., to be expended on her education ;"

RENEWAL OF LEASES.

WILL.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JULY 8, 1854.

SUMMARY EXECUTION ON BILLS mercial community, as in its consequences OF EXCHANGE.

to the legal practitioner.

There are, therefore, two points of view

in which to consider this question :-- 1st, THREE months ago—namely, on the 8th the interest of the public; and 2nd, the inApril, immediately after this important al- terest of the practitioner in carrying the teration in the Law was proposed by Lord measure into effect. Looking at the preBrougham-we submitted to our readers a vailing spirit of reform it would be manivery full statement of the clauses in the festly in vain to appeal to Parliament in Bill, with the explanatory observations of behalf of the Profession, unless it can be its promoters. It does not appear that any shown that the good of the public is at objection was at first taken to the measure, stake. We apprehend that any petition either in town or country, upon public or against the measure from the Attorneys, professional grounds. The Bill comprised founded on the anticipated injury to themà clause authorising all attorneys and so- selves, would be altogether ineffectual. We licitors of the Superior Courts to act as should have the Honourable Mr. Bouverie notaries for the purposes of the Act; but again urging, “That the fact of the Bill in the Select Committee to which the Billbeing opposed by the attorneys was the was referred, this provision was struck out, strongest argument in its favour.” Let us, in consequence of the opposition of a very therefore, in the first place investigate the large body of the bankers and merchants public grounds on which its promoters enof London. The Bill, as altered by the deavour to support their proposition. Select Committee, was re-printed on the The argument in favour of the principle 18th May, and the 20th clause of the adopted by the Law of Scotland, and which amended Bill expressly provided that the it is thus proposed to extend to England, is Act should not interfere with any existing briefly as follows :remedy of the holder of a bill or note, “That bills of exchange and promissory either at Law or in Equity.

notes ought not to be treated as mere conThe Bill came down to the House of tracts for the payment of money, enforceCommons on the 2nd June, and the atten- able only by action, in which the onus protion of the Profession was afterwards called bandi on every point rests with the holder, to the injury likely to be inflicted by limit- but as securities which are certainly to be

w ing the protesting dishonoured bills to paid when due.” notaries public, particularly in country dis- And it is contended that the advantage tricts. But until within the few last days, arising from this rule of law is, that bills it does not appear that any objection was and notes are circulated as money, and the raised to the principle of the Bill as it may only point to be considered by the person be supposed to affect the public at large, receiving them is, whether the credit of the The time, however, seems to have arrived parties is satisfactory. It is held that when the subject must be fully discussed when a man puts bis name to a bill as with reference as well to the alleged evils drawer, acceptor, or indorser, he advisedly which the Bill proposes to remove, and the pledges his credit to the fullest extent that benefits it seeks to confer on the com- he will pay it. Consequently under the

Vol. XLVIII. No. 1,374.

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L

174

Summary Execution on Bills of Exchange. Scotch “summary diligence" system, it debt and costs; and in many instances he follows that payment may be enforced by may be unable to procure such security. speedy process, unless the party called upon This will often operate as a denial of justice. to pay can show a sufficient defence.

5th. That such speedy execution against Now, in opposition to this view, it is all parties to a bill will work great injustice contended that since the recent amendments to the other creditors of the defendant in the procedure of the Common Law whose property may be taken in execution. Courts, there is quite sufficient of “sum- The credit of the debtor is pledged to all mary diligence" or speedy execution for any alike, and it is an unfair preference to safe or useful purpose. Judgment may be enable a bill holder to sweep away, it

may obtained in eight days from the service of be, the whole of the debtor's assets, or to the writ of summons, and execution may be sacrifice a large part of them by a premaissued in another eight days, at a less ex- ture sale under an execution. pense in the Superior Courts than in the 6th. That if the Act should pass into a County Courts. If this time be too long, law, traders, in order to prevent an undue it may be shortened, without resorting to a preference where the hostile holder of a new mode of procedure which cannot safely bill refuses to grant time, will be driven to be cheaper, and probably will be dearer, for immediate bankruptcy, although they might the fees must be adequate to pay the salary be able to maintain their position if time of the new registrar and the expense of his were allowed. establishment.

7th. That the harshness of the law will We are informed, moreover, that a large often induce debtors to resort to unfair body of merchants, manufacturers, and means for the purpose of saving themselves traders of London are now coming forward or their other creditors from what they may to oppose the Bill, because they are of deem oppressive consequences. opinion that six days is too short a time to 8th. That there will be great danger of place a debtor within the absolute power of perverting the proposed summary proceedan execution against his body or goods by ings to fraudulent purposes by collusion a hostile creditor. We have just been put between debtors and fictitious creditors, for into possession of the substance of a petition a dishonest debtor might obtain an extenfrom the London Association for the Pro- sive credit, avoiding generally the accepttection of Trade, consisting of several thou- ance of bills, and enable a few fictitious sand members of the mercantile, manufac- creditors to register their bills and take prefacturing, and trading classes ; and they re- cedence of the bona fide creditors. present that the Bill will be prejudicial to 9th. That the effect of the bill will prothe interests, both of debtors and creditors. bably be, largely to diminish the issue of Their objections may be thus summed up : bills of exchange, and thereby lessen the

1st. That the proposed enactments will facilities of carrying on trade. operate with great severity and oppression These reasons in behalf of the trade and on small traders whose means of meeting commerce of the country evidently deserve engagements depeud on their customers' the most serious consideration. The petipunctuality, and their general business tioners object to the Bill in toto. returns.

We proceed next to consider the question 2nd. That a trader who may have in- as it bears on the rights and privileges of dorsed an acceptance, and from the default the practitioners in the Superior Courts. of others is unable to meet it, can under Now, inasmuch as this new business of the present law obtain time at a moderate noting and protesting bills for the purpose expense, and in the interval may be enabled of registration must be done by a legal to find the means of payment.

agent, it had better be confided to one than 3rd. That whatever may be the case with divided between two classes of practitioners. regard to the acceptor, it is unjust to sub. In London none of the notaries (with, we ject the drawer, and still more the indorser, believe, two exceptions only) are attorneys ; of a bill to immediate execution, ---making and after they have noted and protested the no allowance for unavoidable accident or bill, it must be handed over to an attorney illness or death of the parties primarily of the Court of Common Pleas to get reliable.

gistered and procure the order of a Judge. 4th. That where a trader conceives he As the attorney can readily perform the has a defence either wholly or partially, it whole duty, and the notary cannot, why is a great hardship to shut out such de- should two persons be employed ? It is fence, unless he can find security for the very much like the practice which prerailed

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