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should be at liberty to take the 201. out of Court, defendant to plead de novo. Whereupon defendant pleaded to the first count, that a bill of exchange had been given for and on account of the alleged cause of action; and that, after action brought, the said bill had been paid by the payment of 201. by an indorser and by payment of the defendant of another 20%., being the 201. which had been taken out of Court. This plea, the plaintiff confessed, entered a nolle prosequi to the second count, and proceeded to have his costs taxed; and the contention was, 1st, whether plaintiff was entitled to any costs at all; 2nd, if to any, whether on the higher or lower scale; 3rd, whether, at all events, the costs arisen out of the second count were not the defendant's. The Master gave his allocatur on these points in favour of the plaintiff.

Prentice, for the plaintiff, now showed cause. He called attention to the R. 23, T. T. 1853, which, being made under statutory powers, was as effective as an Act of Parliament, and, therefore, could not be overridden by the County Courts Act. That Act can only apply when there is "judgment to recover 201. or less," which is not the case here at all. As to the costs on the indebitatus count, the Master offered to allow defendant his costs on that; but Cattlin never brought in his bill of costs: his only claim to review the taxation in this respect can be in regard to a sum of 6s. 8d. for the summons sent back to the Judge at Chambers, and which was charged against him; but that sum is too trifling to be regarded by the Court as sufficient ground for sending the matter back to the Master,

Newton v. Boodle, 4 C. B. 359.

Cattlin, defendant in person.-The County Courts Act is expressly in my favour; for the plaintiff has only recoved 207. from me. It was not necessary for me to bring in my bill of costs at once, and, as to the 6s. 8d., it is charged against me in a matter in which I succeeded on application to the Court, and was directed by it to Chambers.

ERLE, C.J.-This rule must be discharged. The

main question is, whether the plaintiff was not deprived of costs by the County Courts' Act, or whether his costs should not be taxed on the lower scale. The facts of the case, and the R. 23 T. T. 1853, seem to dispose of the first part of the question. The action was on a bill for 391. 1s., and there were at first pleas partly in bar, partly as to payment into Court, then an altogether fresh plea is pleaded, that before action brought a bill of exchange was given in respect of the first cause of action, and that it was paid after action. Now this last plea was the operative plea before the Master, and was rightly taken by him in connection with the above rule, which seems to me to be a statutory enactment in effect, and gives a statutory specific privilege-namely, that in every case of pleas like this plaintiff may confess the plea, and recover

his costs up to the time of the plea pleaded. As to whether the costs ought not to have been taxed on the lower scale, the 7th of the Directions to the Masters of H. T. 1853, disposes of that, for this Court has held that this rule does not apply where at the commencement of the action the debt due exceeded 201., and here at the issuing of the writ the debt was 397. 1s. The 6s. 8d. was improperly charged against the defendant, and is the only matter of objection. The rule must therefore be discharged, and defendant must pay the costs of this application, minus the 6s. 8d.

WILLIAMS, J.-I agree that the rule should be discharged. Speaking for myself alone, I consider the plea to be of a novel and unusual kind, it first states that a bill of exchange was given before action for and on account of the cause of action in the first count, which is alone a perfect answer, and suspends the remedy, if true, and then goes on to say that the bill has been paid after action, which raises another defence. This was very embarrassing to the plaintiff, as he could not tell what was the actual defence, and difficulties would arise on a traverse of the plea as to what was the issue. As it is, I think the Master was justified in treating it as a plea in the nature of puis darrien continuance pleading.

WILLES and KEATING, JJ., concurred.

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Evidence of Marriage-Omnia Præsumuntur pro Matrimonio.

The same presumptions will be made in favour of any marriage lawful by the laws of England, that are made in the case of marriages solemnised according to

the rites of the Church of England.

This was an action for goods sold, to which, among others, there was a plea of coverture, and at the trial, before Keating, J., at Guildhall last term, the proof given in support of the plea consisted of the evidence of the defendant that in 1844 she was married to one John Lambert, at the Roman Catholic chapel in York Street, Portman Square, by a priest in the garb of the Roman Catholic clergy, and with the usual rites of that Church. The witness then pulled out of her pocket two documents, one purporting to be a certificate of the marriage by the priest and signed by him, the other a certificate of the Vice-Consul for France that they had been before him and been civilly married. The witness further said, that she received a letter from her husband a month or two before, and that her husband was in Australia.

5 Nov. 1863.

now before us contains strong matter of presumption

Marshall Griffiths obtained a rule nisi on the ground that the chapel was registered, and that a registrar that there was no evidence of the marriage.

Beasley now showed cause.

According to the plaintiff's contention, if the marriage is void, the priest has committed a felony by the 39th section of the 6 & 7 Will. 4, c. 85, and has given a certificate which is conclusive evidence against him. But I contend that even though the place of worship may not be registered and the priest be guilty of a felony, the marriage is not void or null unless the parties "knowingly and wilfully" contracted marriage against the statutory regulations,

6 & 7 Will. 4, c. 85, ss. 20, 24.

The parties here manifestly intended to contract, and still believe they have contracted, a lawful marriage. Before the Act, very slight evidence of the marriage was enough,

Hopewell v. De Pinna, 2 Camp. 113; [WILLES, J., referred to Catterall v. Catterall, 1 Roberts. 580; Rex v. Brampton, 10 East. 287.] [ERLE, C.J., referred to section 35, that all marriages under the Act shall be "good and cognisable as marriages before the Act according to the rites of the Church of England."

4 Geo. 4, c. 76, s. 22;

*

Campbell v. Corly, 28 L. T. 109, coram P. C.] [WILLES, J.-In a case, before Lord Plunkett, in "Drury & Walsh's Reports," you will find it apparently held that the maxims "Omnia ritè esse," &c., and "Omnia præsumuntur pro matrimonio," both apply to the evidence of a marriage.]

Garth, in support of the rule; the Act renders it necessary that the chapel should be registered, and that a registrar should be present, of which facts there is no evidence, whatsoever; a registrar's presence is a sine quá non to a legal marriage, and if there is any inclination of the evidence as it stands either way, it is rather to show that no registrar was there.

ERLE, C.J.-This rule must be discharged. The question is, whether there was evidence on which the jury were justified in finding that the defendant was married. (His Lordship stated the facts.) If this marriage was valid it was so under the 6 & 7 Will. 4, c. 85. That Act provides that marri

ages in a registered building, and in the presence of a registrar, shall be valid marriages. Now it is not shown that the defendant knew the chapel was registered, or that a registrar was there; and the question is, whether we should presume these facts. I think we should so presume; mere cohabitation is good evidence of marriage, and though this rule of law applies specially to Protestants of our church, I do not see why it should not apply to all marriages lawful by the laws of England. The special case

The learned Judge probably refers to Piers v. Tuite, 1 Dr. & W. 279; affirmed 2 H. of L. Ca. 331.

was present, and to assume the contrary we should have to assume, see section 39, that the priest had committed a felony. The maxim omnia ritè esse acta præsumuntur applies.

WILLIAMS, J.-I am of the same opinion. I look at this case as raising the question, whether, when a marriage is solemnised by a third person, a presumption does not arise in favour of the marriage until the contrary appears.

WILLES, J.-Same opinion. Section 42, which enacts that marriages unduly solemnised with the knowledge of both parties are void, has a strong bearing upon the meaning of the Act. These parties bonâ fide believed, no doubt, that they were duly married This section must be taken as intended to modify the former sections, so much relied on by Mr. Garth. Presumptions in favour of marriage have gone very far. Lord Stowell's rule is well known, though it is true it must be taken in reference to the decisions in the Queen v. Milles (10 Cl. & Fin. 534), and recent cases. I refer to Lord Ellenborough's observations in Reg. v. Brampton (10 East, 289), as showing that besides the maxim of omnia ritè esse acta præsumuntur, which applies to the solemnisation, there, is an additional presumption omnia pro matrimonio præsumuntur,

which arises from the mere cohabitation.

I think, here, that certain preliminaries not having been shown to have been complied with, we should presume that they were complied with. KEATING, J., concurred.

C. P.

11 JAN. 1864.

Rule discharged.

BARTHOLOMEW v. MARKWICK.

Rescission of Contract-Pleading.

Where a special contract for the sale of goods is re scinded by one of the parties thereto, after delivery of part of the goods, the other may maintain against him an action on the money counts for goods sold and delivered, although the time fixed for payment of the original quantity of the goods has not elapsed.

which the defendant pleaded simply never indebted. This was an action for goods sold and delivered, to It arose under the following circumstances :—

to the warehouse of the plaintiff, and told the foreman The defendant, wishing to furnish his house, went that he should want 7007. worth of furniture, for which he would pay half in cash, and the other half by a bill at six months; the foreman desiring a reference of respectability, defendant showed him a number of shares in some public company. About 4008. worth of goods were then sent in, some on approval, some definitely ordered. The plaintiff then wrote to the defendant, stating that he wished for further

references as to the defendant's respectability, and asking the defendant, meanwhile to send on the half cash and the bill, in order to cover the account for the goods already delivered. To this the defendant replied, that this way of doing business would not suit him; that he should order no more goods, and desired plaintiff to take away from his premises all the goods that had not been ordered; but he did not remit either the cash or the bill, or give the references, or

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County Court-Concurrent Jurisdiction—
Practice.

When one of two plaintiffs lives more than twenty

offer back the rest of the furniture. Whereupon this miles from the defendant, the Superior Courts have

action was brought, being long before the six months had elapsed after which the bill, which was to have been given, would have fallen due.

At the trial before Keating, J., at the Guildhall, it was objected, 1st, that on the frame of the declaration, the action could not be sustained; 2nd, that the action was premature: but the Judge directed the jury that if they were of opinion that the defendant had rescinded and put an end to his own contract by his conduct, the verdict must be for the plaintiff, and a verdict was given accordingly, with leave to move to enter a nonsuit.

5 Nov. 1863.

Coleridge, Q. C., obtained a rule nisi accordingly, citing

"Chitty on Contracts," 384 (4th ed.);
Paul v. Dodd, 2 C. B. 800.

The Court now called on Coleridge, to support his rule. He cited the same authorities, arguing that the above case established that the plaintiff could not recover for a breach of the contract, except by a special count, and next that a count in that form even would not lie because the contract was entire, and could not be brought before the six months had elapsed.

O'Brien, Serjt., contrà, was not called upon.

ERLE, C.J.-The rule must be discharged. It seems that the plaintiff and defendant were in treaty in respect of a large quantity of goods, for one half of which he was to be paid in cash, and the other half by a bill at six months. Part of the goods were delivered under this contract, but no money or bill was given, then the action is brought for goods sold and delivered.

I think, if the special contract had remained open, the action properly lay on the special contract, and an action for debt, as for part of the goods already delivered, would not have laid; but here the defendant refused to carry out his part of the contract, and said, "I will take no more of your goods;" now that, I think, is a rescission of the contract, and the defendant having kept back the goods delivered, an action in this form lies. The authorities were much discussed

in my time, in the Queen's Bench, beginning with

Dela Tour's Case (2 El. & Bl. 678), and this principle is now firmly established.

WILLIAMS, WILLES, and KEATING, JJ., concurred. Rule discharged.

concurrent jurisdiction.

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He contended that it was not enough to show that one partner only (a sleeping partner) lived more than twenty miles from the defendant.

[THE COURT intimated that unless he could distinguish this case from Hickie v. Salamo, it was useless for him to continue the argument, as they were not disposed to overrule that case.]

He then objected that this was an appeal from a Judge at Chambers, and that all the materials used at Chambers were not before the Court.

Hance, in reply, said that they had all the documents that were important.

ERLE, C.J.-We are not going to lay down a rule that every document used at Chambers must be brought before the Court. It would often cause great and needless expense. We will consult the other Judges.

12 JAN. 1864.

Cur. adv. vult.

ERLE, C.J.-This was an appeal from a decision of my Brother Willes at Chambers, refusing to grant costs on the ground that one of two plaintiffs lived more than twenty miles from the defendant. We are of opinion, on the authority of Hickie v. Salamo, that these costs ought to be allowed. It was objected that this was an appeal from a Judge at Chambers, and that

all the materials before him ought to be brought before the Court. It is true that one document was omitted, but it was one which was allowed by the counsel on both sides to be immaterial. It is a very good rule that all documents used at Chambers should be brought before the Court; but one which was irrelevant must be taken as non-existent-therefore all were before us. WILLIAMS and KEATING, JJ., concurred.

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A man is not entitled to notice of action under a statute requiring such notice to be given, merely on the ground that the act done by him for which the action is brought was done in the bonâ fide belief that he was acting under the powers conferred by the statute; but he must also show that the facts which formed the ground of that belief would have justified him, if true.

This was an action against a cab proprietor for defacing a cabman's licence; tried before Byles, J., in the Sittings after last term, verdict for plaintiff, damages 201., with leave reserved to defendant to enter a verdict on the ground that he was entitled to a month's notice of action by virtue of the Hackney Carriage Act, the defendant having defaced the licence by writing on it —that the plaintiff had broken his cab, and refused to pay anything-in the bond fide belief that he was justified by the Act in so doing.

Kemp, now moved for a rule nisi. The 47th section of

the Act in question, 6 & 7 Vict. c. 86, enacts that notice of action shall be given before any action is brought for anything done "in pursuance of the Act." The defendant honestly believed he had a right to indorse the licence according to the fact, though no doubt the proper course would have been for him to have gone before a magistrate, and got him to make the indorsement, for the Act gives a magistrate power to indorse in this manner-sect. 21.

ERLE, C.J.-The statute gives to the magistrate alone power to make such an indorsement of the licence. In the case of Hermann v. Seneschall, (13 C. B. (N. s.) 403) the rule is put very clearly by my Brother Williams; he says, the defendant is entitled to notice of action if he honestly believed in a state of facts, which if true would have justified him. Now as the magistrate is the only person entitled to indorse the licence, the only way in which the defendant could take advantage of the rule would be, if he honestly believed he was a magistrate; and there is no reason for supposing that he believed that.

WILLIAMS, WILLES, and KEATING, JJ., concurred. Rule refused.

Note.-See Orchard v. Roberts, 3 N. R. 213.

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Charter-Party-Breach of Covenant.

The defendant covenanted, by charter-party, to load a "full and complete cargo of sugar, or other lawful produce." He loaded the vessel with as much timber as she could carry, but there was room for 30 tons of broken stowage :

Held, that the covenant had been broken.

This was an action on a charter-party, and was tried before Erle, C.J., at the last London Sittings.

The defendant covenanted that he would take the vessel to Havannah, discharge the cargo then on board, and then load from his agents "a full and complete cargo of sugar, or other lawful produce." Rates of freight were specified to be paid by the charterer to the owner, "for sugar and molasses, per ton, &c.; same rates for rum, per liquid tun, and per load for timber; other goods, if any be shipped, to pay in proportion to the foregoing rates, except what be shipped for broken stowage, which shall pay as customary.”

The vessel proceeded to Havannah, discharged her cargo there, and then began to load with timber. She took on board as much timber as she could carry, but it was proved that she might have carried thirty tons of "broken stowage " in addition. This was said to be a breach of the covenant. The learned Judge left to the jury the question, whether the vessel contained a "full and complete cargo." A verdict was found for the plaintiff.

for a new trial on the ground of misdirection. He Karslake, Q.C. (F. M. White with him), now moved contended that the construction of the charter-party and complete cargo had been carried according to the was for the Court and not for the jury, and that a full doctrine laid down in

Moorsom v. Page, 4 Camp. 103; and
Irving v. Clegg, 1 Bing. N. C. 53.

ERLE, C.J.-This was entirely a question for the jury they have disposed of it, and I am by no means dissatisfied with their decision. If it were a question for the Court, e. g. I come to the same conclusion. The words of the charter-party are "a full and complete cargo." The defendant might load with whatever merchandise he chose, but he was bound to fill the vessel. If the cargo with which he loaded left room for broken stowage, he was bound to add so much of that to the timber as would fill the vessel.

for the reasons he has given. WILLIAMS, J.-I concur in my Lord's judgment,

WILLES, J.-I am of the same opinion, but wish to add, that I think this case is distinguishable from Moorsom v. Page, and that our decision here is not inconsistent with the ruling of Lord Ellenborough

there. In that case the vessel was full, and it was held that the defendant was not bound to take out some of the ballast and replace it with copper. Here there was an actual vacant space, which might have been filled with thirty tons of broken stowage.

KEATING, J., concurred.

C. P.

15 JAN. 1864.

}

Rule refused.

LONDON INVESTMENT COMPANY
v. MONTEFIORE and Others.

Policy of Insurance-Assignment.
Notice of assignment of a policy of fire insurance
and application for payment by the assignee after the
loss insured against, create no legal obligation on
the insurer to pay the assignee.

In this case the plaintiffs were mortgagees by assignment of a policy of insurance of certain household premises at Stratford, and of the lease itself, in respect of a sum of 1307. advanced to the lessee, one Page. The premises were burnt down after the completion of the mortgage, and before notice to the defendants, the insurers, of the assignment of the policy. Upon the loss occurring, the plaintiffs wrote to the defendants requesting them to retain the money due to Page on the policy, as they were the mortgagees. Reply, that defendants could do nothing unless the money were attached. The manager of the plaintiff then called on the defendants, and told them an attachment was not necessary, for the plaintiffs held the lease; but the defendants replied it was their invariable practice to require an attachment before paying over any money. An attachment accordingly issued out of the Lord Mayor's Court, and plaintiffs applied for the money. Defendants replied by letter, that if the attachment were taken off, and plaintiffs would come with Page, the next day the money should be paid. There was a conflict of evidence as to whether the managing clerk of the defendants had expressly promised to pay the plaintiffs.

The case was tried before Byles, J., last term, and the following questions were left to the jury :

:-

1st. Had the defendants' clerk authority to make an express promise to pay? Answer: Yes.

action at law by plaintiffs, unless there had been an express contract to pay them. Now, the misdirection complained of was the putting the very question to the jury which was to ascertain this fact :-"Did, in fact, the defendants make the contract alleged?" To which the jury have said, "No."

Then, as to the letters. They simply state the money "shall be paid." It might have been very inadvisable to have recognised the title of the plaintiffs to the debt, and it must be observed it is never said that "you shall be paid." We do not think the words employed are equivalent to that expression.

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Construction of Deed-Right of Way-Trespass. A deed purported to convey land of the width of thirty feet. Before the execution of the deed, the land in question had been marked out by stakes; but it had not been done very accurately. On a dispute arising whether exactly thirty feet passed, or the land staked out, the Judge left the question to the jury:

Held, he was wrong in so doing: that he should have asked the jury under what circumstances the deed was executed, and then have put his own construction on it. If a defendant has a right of way through plaintiff's land to close A, but not to close B adjoining, and he uses the way to carry materials through close A on to close B, it is a proper question for the jury whether such use was bonâ fide or merely colourable.

This action was brought for a trespass alleged to have been committed on the plaintiffs' bridge and roadway, and for depositing building materials, &c, thereon. The defendants pleaded inter alia (except as to depositing the materials), a right of way appurte nant to a piece of land, of which the defendants were

2nd. Was there an express promise in fact? Answer: tenants, to one Wheeler, who had purchased the said

No.

Thereupon the learned Judge caused a verdict to be entered for the defendants.

J. J. Powell, Q. C., now moved for a rule nisi, on the ground of misdirection. The learned Judge asked an immaterial and wrong question of the jury in putting the second question to them, for the letters show a complete contract to pay. The plaintiff's title was complete in equity.

ERLE, C.J.-There has been no misdirection. The insurers were debtors to Page, and paid him the debt in question. This being the case, there could be no

land with the right of way from the plaintiffs. There was a new assignment, to which the defendants paid 40s. into Court, and the plaintiffs replied damages ultra. This cause had been twice tried.

At the first trial the verdict was for the plaintiffs on all the issues; but a new trial was obtained by the defendants, on the ground of misdirection in the Judge, in telling the jury that unless Wheeler had expressly demised the way with the land to the defendants, the way did not pass. This Court held that the way was appurtenant, and passed by the demise of the land without express words.*

* 1 N. R. 326.

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