1846.

warrant shewed that a separate declaration and a separate judgment were contemplated. If in order to satisfy those DALRYMPLE words "and each of us," the course suggested on the other

v.

FRASER

side were adopted, the effect would be that there might be and Another. separate appearances, separate declarations, and then there must be a joint judgment. It could not be supposed that the parties intended so unreasonable a mode of proceeding. The fair presumption was, that the parties intended the warrant to be several as well as joint. If so, then were the other words of the instrument inconsistent with such a construction? They were not, because the expression "an action" might well mean an action against each, it being only necessary to construe it distributively. By adopting this mode of construction, all the words of the instrument were rendered operative, and a reasonable meaning given to them; whereas by adopting the other, some of the words must be discarded, and inconvenient consequences would result. With respect to the case of Gee v. Lane, it was not in point, because the language of the warrant there rendered the instrument clearly joint. The same observation was applicable to the case of Raw v. Alderson. With respect to the meaning of the word "each," it clearly implied severally, and had so been construed in wills as in the case of Kew v. Rouse (a); and the word "and" might, in order to effectuate the intention of the parties, be construed as "or." Thus in Swift d. Huntley v. Gregson (b), where a power was given to appoint real estate "to the use of such child and children," an exclusive appointment to one was held good. There Ashurst, J., said, "it appears to me that the true construction of this settlement is, that the father should have a discretionary power to appoint to any child or children.'" Whether, therefore, the instrument was construed according to the language of it as it stood, or the word "and" was construed "or," the meaning of the parties

(a) 1 Vern. 353.

(b) 1 T. R 432.

1846.

DALRYMPLE

v.

FRASER

and Another.

must fairly be presumed to be that the instrument should be both several and joint.

TINDAL, C. J.-The question is, what is the predominant intention of the parties as expressed in this instrument? Now, in the beginning, they authorize the attorneys to appear in the Court of Common Pleas "for us and each. of us," and then and there to receive a declaration "for us and each of us ;" and if it stopped there, it might be doubtful whether a joint or several action were contemplated; but then it goes on to say, "in an action of debt," and subsequently proceeds, and "thereupon to confess the same action, or else to suffer judgment by nil dicit, or otherwise, to pass against us in the same action." That clearly contemplated only one action and one judgment. This construction is confirmed by the subsequent clause, which provides, "after the said judgment shall be entered up as aforesaid, for us and in our names to execute a release of errors, touching or concerning the aforesaid judgment." Looking at these expressions, it appears to me that judgment was intended, and that judgment should be, against both.

MAULE, J.—I am of the same opinion.

CRESSWELL, J.-I think the language of the warrant of attorney contemplates a joint, and excludes a several judg

ment.

ERLE, J., concurred.

Rule discharged.

1846.

823

BROWN V. GILL.

ERROR on a judgment of the Court of the manor of Taunton Dean, Somersetshire. To the writ of false judgment issued in this case, the sheriff made a return under the seals of himself and Wm. Kinglake, the steward, and four free suitors of the said manor, lawful men of the said Court, and the record set forth in the schedule to the writ was as follows:

On a return

to a writ of

false judgment ceedings in a of the proCourt baron to

recover a debt, the Court was

stated to have been held before W. K. Esq., steward of the said Court, and

of

w. U. and

8th

W. M. and

others, free

and

suitors of the

said Court:

Held, that it for the

was not neces

sary

"Taunton Dean, Somersetshire, to wit. The Court Baron of Robert Mattock, Esq., Lord of the Manor Taunton Dean, in the City of Somerset, held on the day of November, A. D. 1843, at the Castle Hall, in for the said Manor, and within the jurisdiction of the said Court, according to the custom of the said Court and of the said Manor, from time whereof the memory of man proceedings runneth not to the contrary, there used and approved of in the steward the said Court and Manor, before William Kinglake, Esq., steward of the the steward of the said Court, a free suitor thereof, and mano William Upham, and William Hurdley Mulford, and others, free suitors of the said Court. Be it remembered that at

to shew that

was also

manor: Held

correct style of the Court, and that it

above was the

was not a

presumption that the judicially in the proceedings: Held, that it was

steward acted

not necessary

names of more

to state the than two of

this Court comes here James Gill, in his proper person, and now here in the same Court levies his plaint against necessary John Brown, in the plea of 39s. 11d. in the same Court, and he finds pledges for prosecuting his said plaint, to wit, John Doe and Richard Roe; and now, in the same Court here, prays process of the same Court here, to be made to him thereon, against the said John Brown, in the plea of the said plaint, and it is granted to him," &c. It then proceeded to state the summons and appearance of the defendant, and various subsequent proceedings in the cause continued by imparlance, and all described as taking place at Courts "Held at the Castle Hall aforesaid, in and for the said Manor, and within the jurisdiction of the said Court, on, &c., before William Kinglake, Esq., Steward of the said Court, William Upham, and William

the suitors.

1846.

BROWN

v.

GILL.

Hurdley Mulford, and others, free suitors of the same Court." It then proceeded to state the award of jury process to try the issues joined between the parties at the ensuing Court. The return then proceeded-" And at which said Court, held at the place aforesaid, in and for the Manor aforesaid, and within the jurisdiction of the said Court, on the 13th day of October, 1844, before the said William Kinglake, Esq., Steward of the said Court, and William Upham and George Mathews, free suitors of the said Court, came, as well the said James Gill as the said John Brown, by their attorneys aforesaid." Then followed the statement of the trial, the verdict and damages in favour of the plaintiff, and concluded-" And hereupon the said James Gill prays the judgment of the Court hereof; and upon the premises aforesaid, it is considered by the said Court here, that the said James Gill do recover against the said John Brown, the said debt of 39s. 11d., and his damages, costs, and charges aforesaid, by the jurors aforesaid, in form aforesaid, assessed, and also 107. for his costs and charges by him about his suit in that behalf expended, by the Court here adjudged of increase to the said James Gill, and with his assent, which said debt, damages, and costs, amount in the whole to 11. 19s. 11d." Errors having been assigned,

Kinglake, Serjt., appeared for the plaintiff in error. The first error assigned was, that in the proceedings in the Court below, it appeared that they took place before Mr. Kinglake, steward of the Court, he not necessarily being a free suitor; none however but free suitors and the steward of the manor had a right to be present. No doubt, at the commencement of the return, it appeared that Mr. Kinglake was a free suitor, and therefore would have a right to be present, but he was not subsequently described in that character. It must therefore be presumed, that he had ceased to be a free suitor. In the character of steward of the Court, he would have no right to be present and act

judicially, as it appeared he had acted in the present case; for the law would not recognise a person acting in the mere ministerial character of steward of the Court as a competent officer to hold the Court. As steward he would have no right whatever to join in the exercise of the judicial functions of the suitors. The case was different from that of the Lord's Court, in which he alone presided; but which Court had no jurisdiction in plaints for debt. [Tindal, C. J.-He having been described at the commencement of the proceedings as a free suitor, would not his interest be presumed to continue?] That would not be so in the case of an inferior Court like the present, where no presumption could be raised in favour of the jurisdiction. Each step in the proceedings ought to disclose sufficient to shew that the cause of action was within the jurisdiction of the Court. As the record now stood, it appeared, that judgment had been pronounced by the free suitors in conjunction with a person who had no authority to join in that judgment. The case then came within the principle of Jones v. Jones (a), where it was decided that a declaration on the judgment of a county Court alleging it to have been held before the "sheriff and the suitors" was bad on special demurrer. There, Lord Abinger said, "The declaration alleges that at a certain county Court, before the sheriff and suitors,' the plaintiff recovered, &c. If any meaning be given to the word 'before' it implies that the sheriff sat there as a Judge, but he has no authority to concur in the judgment. Suppose the suitors differed, the sheriff might have given it against the suitors. That he could not do by law." Lord Abinger also observed (b), "Suppose a judgment recovered before the Court of Common Pleas were pleaded as a judgment recovered 'before the justices of our lady the Queen of the Bench, and the Lord High Chancellor,' it

(a) 7 Dowl. 841; S. C. 5 M. & W. 523.

(b) 5 M. & W. 527.

1846.

BROWN

v.

GILL.