1832. EVANS บ. MORGAN and Another. been proved. Now if the condition was not complied with, the delivery is not justified, and the note is no note, nor could plaintiff recover till Davis attested. On the ground of misdirection. If the consideration for the note, viz. the crops, manure, &c. have not passed to the defendant, there is an entire failure of consideration. [Bolland B. I left it to the jury to say whether or not possession was given up.] The true question was not that merely, but whether he had had possession at the time, and in the manner in which he was entitled to have it. Lord LYNDHURST C. B.-The summing up of the learned judge amounts to this, Was the bargain completed? If it was, the plaintiff was not to suffer by the misconduct of Davis. The question whether the farm was delivered up on the following day was a fact for the jury, and the balance of the evidence is in favour of their verdict. As to the marriage of the defendants, there was suf ficient evidence of their living together as man and wife. BAYLEY B.-There was sufficient primâ facie evidence of marriage uncontradicted. It was not put to the judge at the trial that the marriage was not proved, but ingeniously to the jury that there was no evidence of the marriage. The real merits of the case are, that at a meeting at a public-house on the 9th October, a bargain took place between the incoming and outgoing W. Morgan and Jane Rees were to give a note for the plaintiff's crops, manure, &c. on this condition, that possession was to be delivered up to the defendant Morgan by Davis on the following morning. There was strong evidence on that point, for Morgan's cattle were seen on the premises the next morning, and were there from day to day afterwards, while the plain tenants. tiff had no stock there. It is true, that it appears from the evidence of the constable Sanders, that the plaintiff was turned out of possession of the house, but whether of more than the house or of any part of the land did not appear. It was not in evidence that he did any act to keep possession of the land. Nor was it part of the bargain that he should be turned out of the house, but he was to keep possession of it for three or four weeks on paying one shilling a week. No doubt delivery of the note by the defendant to an agent for himself and the plaintiff, would be delivery to the plaintiff, provided that those circumstances afterwards existed which would warrant actual delivery to the plaintiff. The plaintiff's right to sue on the note would not be gone, if he had done all in his power to give up possession. After the finding of the jury it appears the wrongful act not of the plaintiff, but of Davis, that attestation of the note was withheld. VAUGHAN B.—I am of the same opinion. The conclusion to which the jury have come may be supported. The reputation of marriage not having been made the subject of cross-examination, there is sufficient primâ facie evidence of the marriage. As to the fact of the delivering up of possession on the following day, the evidence of the plaintiff that it was so given up predominates. The fulfilment of the condition on which the delivery of the note was to depend was for the jury; and if it was performed, Davis was bound to give up the note to plaintiff. It is clear that the case was left to them on the only ground on which it could be left. BOLLAND B. concurred. Rule discharged. 1832. EVANS v. MORGAN and Another. 1832. tion to tax an attorney's bill for business out and prose JONES, Gent. One, &c. against BYWATER. The applica- THESIGER had obtained a rule to refer to the master for taxation a bill of costs amounting to 27261. incurred in suing out and prosecuting a commisdone in suing sion of lunacy, and in various other proceedings ineffeccuting a com- tually instituted by the defendant in order to establish lunacy should the lunacy of one Davies, on the ground that the items be made to the for the expenses of proceedings previous to commission issued were on the common law side of the court of chancery, viz. in the petty bag office (a), and therefore taxable as charges &c. "at law" within 2 G. 2. c. 23. s. 23. mission of Lord Chancel lor, though after action brought on the bill in a court of law. Whether a bill for such charges is taxable under 2 G. 2. c. 23. as for charges in law or equity, quære. D. Wakefield showed cause. The question is, Whether these are proceedings at law or in equity taxable within the statute. In Wilson v. Gutteridge (b) the court of K. B. laid it down that a court has a paramount jurisdiction independently of that statute to refer an attorney's bill for taxation. But though Lord Tenterden adhered to that case when cited in Dagley v. Kentish (c), Littledale J. differed, and on conference with the other judges, so much doubt was entertained on the point, that Wilson v. Gutteridge was not relied or acted on. But these proceedings are not in equity. A bill for business done in order to the suing out a commission of bankrupt is not taxable, Burton v. Chatterton (d). Now these items stand on no different footing, for as in bankruptcy the chancellor sat under a separate commission (e), so in lunacy he acts under another authority, distinct from the custody of the great seal, viz. a warrant under the sign manual. That authority (a) S Bla. C. 48, 49. 427. (b) 3 B. & Cr. 157; and see post, 408, n. (a). (c) 2 B. & Adol. 412, post, 408, n. (e) Ferd v. Webb, 3 Brod. & Bing. 241. (d) 3 B. & Ald. 486. 1832. JONES v. has been committed by the crown to other great officers of state, besides the lord chancellor, e. g. the lord treasurer (a). The king may commit the custody of a lunatic to whom he pleases, and on the BYWATER. application of unprofessional persons. [Lord Lyndhurst C. B. Application for a commission of lunacy is made to the chancellor on affidavits, and I do not personally remember any instance of such an application except through the medium of a solicitor. certainly not a proceeding in equity.] This is Nor are these proceedings at law. In order to obtain a commission of review from the privy council it is usual to apply to the chancellor to report to the king. When that commission is granted, it would be issued by the chancellor in the same manner as a commission in lunacy, both being granted under the great seal, which is in his custody. So an appeal to the House of Lords is a proceeding neither at law or in equity (b), and the costs are therefore not taxable under the statute 2 Geo. 2. Looking at that act, it contemplates proceedings in some court, or brought with a view to such proceedings; but this is a proceeding to a commission. The writ de lunatico inquirendo has not been issued for many years. [Lord Lyndhurst C. B. The commission issued in order to an inquisition by jury partakes of the nature of that writ.] In inquiries in lunacy there is no view to adverse litigation in any court, and successive chancellors have declared the proceedings on all sides to have but the single object of ascertaining the state of mind of the party, though counsel appear on either side, to establish and support contradictory facts relating to that subject. Proceedings before the chancellor as visitor of a royal charitable foundation are on affidavits, which are entitled and filed in chancery: but yet are not taxable, though the chancellor, as such, has per(a) Wigg v. Tiler, 2 Dickens's Ch. R. 553. (b) 4 Pri. 279, 1832. JONES บ. sonally power virtute officii to superintend all charitable uses. Ex parte Dann (a). If a bill were taxable, because the great seal would be BYWATER. applied to the object for obtaining which the costs have been incurred, the costs of every application for a writ, patent, or commission, which issues under it, would be taxable as proceedings in law or equity. The mere fact of applying the great seal establishes nothing, and the clear intent of the act was to provide for cases where there is actual litigation at law or in equity, but for no other. Thesiger contrà. This is a proceeding for charges and disbursements at law, and as such, was taxable within the statute, so that it is unnecessary to discuss the weight of the conflicting authorities of Wilson v. Gutteridge and Dagley v. Kentish. Blackstone states that a commission of lunacy issues from that part of the officina justitia in the court of chancery, on its common law side, called the petty bag office (b), in lieu of the old writ de lunatico inquirendo; but the proceedings in order to obtain it partake of the nature of that writ, in empowering a jury to be summoned in order to ascertain whether the party be of sound mind or not. The inquisition thus taken is returned into the petty bag office; nor can the proceedings before that commission, if erroneous, be redressed but by writ of error in regular course of law (c). Thus the distinction is between the first commission to proceed by inquisition to the finding him lunatic or not (d), and the subsequent grant to a committee of the custody of the person if the party be found lunatic. In the latter case, the remedy against the chancellor's appointment of a committee is by appeal to the king in council (e). Yet the writ of error at law, to which the previous proceedings are subject, (b) 3 Comm. 49. (a) 9 Ves. J. 547. |