328.

Superior Courts: Queen's Bench. ---- Queen's Bench Practice Court.

Mr. Justice Wightman. I think this was not a mere transfer of the mortgage within the provisions of the 3 Geo. 4, c. 117, s. 2, because a new security was given by the introduction of parties who are now made personally responsible, but who were not so before, and a deed stamp therefore is rendered

Queen's Bench Practice Court. (Before Mr. Justice Wightman.) Eastham v. Tyler. Trinity Term, 1847.

PARTICULARS OF SET-OFF.- EVIDENCE.

ARBITRATION.

fitting up shop window with glass
case and linings, and sundry work,
nails, &c., &c.

. 20 12 6 "The amount due to the defendant for the

work so particularized, that is to say, for fitting up a shop in Anderson Street with one pair of glass doors and fanlight, lock and bolts and hinges to a partition to ditto, and mouldings all complete, and fitting up shop window with glass case and linings," is 97.

"The amount of other work done about the premises and included under the term "sundry work," is 101. 1s., making together 197. 1s.

"The plaintiff objected to any evidence being given under these particulars of set-off of more than the work specified, constituting the 9., and I received the evidence of the residue, subject to that objection. If the court shall be of opinion that the evidence of set-off under the words "sundry work," to the amount of A particular of set-off for 201. 12s. 6d., for 10l. 1s., ought not to have been received, then work done to a house and shop, specified I certify that a verdict for the plaintiff should certain items, and then concluded, "and be entered for 81. 15s. debt, and 1s. damages; sundry work, nails, &c." At the hearing but if the court should be of opinion that such of a reference of the cause before a legal evidence was properly received, then I certify arbitrator, it was proved that the value of that a verdict should be entered for the defendthe specified work was 91., but under the ant; and I further certify that in either case words "Sundry work" the arbitrator (sub- the costs of the reference and certificate are to ject to the opinion of this court) admitted be paid by the said parties in equal proportions. evidence of work on the premises to the As witness my hand this 3rd day of May, 1847. Arbitrator." amount of 107. 1s. Held, that this evidence was rightly received by the arbitrator, and that if the plaintiff was in any way misled by the form of the particular, it was for him either to have applied for further particulars, or, when before the arbitrator, have asked for an adjournment of the reference, if he wished time to answer the evidence as to the claim.

EARLY in the Term Mr. Chambers obtained a rule calling on the defendant to show cause why a verdict should not be entered for the plaintiff in this cause, pursuant to the certificate of the arbitrator, given herein.

In this case it appeared that a plea of set-off was pleaded by the defendant, who, in pursuance of an order of Mr. Justice Erle, made on the 8th of March, 1847, delivered a certain particular of set-off. Subsequently to this the cause was referred to a legal arbitrator by an order of reference, dated the 28th of April. The arbitrator proceeded with the reference, and examined witnesses on both sides, after which he gave a certificate in the following form :

The present rule having been obtained,

Miller now (June 11) showed cause, and contended, that the particulars were quite large enough to justify the arbitrator in admitting the evidence as to the 10/. 1s. If the plaintiff had thought the particulars too general, he might have applied for further and better particulars, or asked the arbitrator for an adjourn ment if he was in any way taken by surprise by the evidence when given; it was clear, however, that he could not have been in any way deceived, for the work was proved to have been done, and therefore the plaintiff must have been well aware of what was intended to be proved under the particular. It is always enough if a particular be intelligable to a reasonable extent and not calculated to mislead. Lines v. Rees, 1 Jurist, 593. Under all the circumstances, therefore, this rule must be discharged, and a verdict entered for the defendant.

M. Chambers, (Lush with him,) was heard in support of the rule. He contended, that the particular delivered by the defendant in this case was one clearly calculated to mislead. The "Having heard, examined, and considered object of the strictness required in particulars, the allegations and proofs of both the said is laid down in Archbold's Practice, vol. 2, p. parties, humbly states the following question 1216. "The object, however, of this strictness for the opinion of this honourable court. The defendant's particulars of set-off, delivered under an order of Mr. Justice Erle, dated the 8th of March, 1847, are as follows, viz ::

"March, 1846.-To fitting up a £. s. d. shop in Anderson Street with one pair of glass doors and fanlight, lock and bolts and hinges to a partition to ditto, and moulding all complete, and

is, that the opposite party may know what will be attempted to be proved against him at the trial, and prepare his evidence accordingly." Now, in this case the particulars given is clearly calculated to mislead, for the larger part of the defendant's claim of 20l. 12s. 6d. is attempted to be recovered under the words " sundry work, nails, &c. &c.," the larger part of the claim being thus put in as an accessory merely to

Superior Courts: Queen's Bench Practice Court.-Common Pleas.

329

the enumerated specific things; the larger the time appointed, walked over the course, claim being comprehended in the generality: and that he had, thereupon, paid over the this was clearly calculated to mislead the plain-amount of the deposit to Isaacs. The jury, tiff, and therefore the arbitrator ought not to have admitted the evidence. The rule must therefore, it is submitted, be made absolute, and a verdict entered for the plaintiff.

under the direction of the learned judge, at the trial, found a verdict for the plaintiff for the sum of 201., and a rule nisi having been obtained to set aside that verdict and for a new trial on the ground of misdirection,

Wightman, J. If I were satisfied that injustice would be done by the defendant's suc- Talfourd, Serjt., and Phinn now showed ceeding in this case, I should pause before I cause. The first point raised here by the dedischarged the present rule, but I am of opinion fendant, is that under the provision of the 8 & that there is no hardship at all done to the 9 Vict. cap. 109 sec. 18, the plaintiff cannot replaintiff by the evidence being admitted by the cover in the present action. That section arbitrator under the particular as it stands. enacts, "that all contracts or agreements, If the plaintiff was not quite satisfied with it, whether by parol or in writing, by way of he should have taken out a summons for gaming or wagering, shall be null and void, further and better particulars. He knew that and that no suit shall be brought or maintained something more was intended than the 9. He in any court of law or equity, for recovering any must have known that he owed the defendant sum of money or valuable thing alleged to be as much money as the defendant owed him, yet he goes on with the action and lies by, thinking he could take advantage of what he thought was a defect in the particular. If he had been misled in any way, he might have asked for an adjournment, which the arbitrator would have granted as a matter of course. As it is, I think the evidence was rightly admitted, and that the verdict ought to be entered for the defendant. The present rule will therefore be discharged. Rule discharged.

Common Pleas.

Varney v. Hickman. Sittings after Michaelmas
Term, Dec. 8th, 1847.

GAMES AND WAGERS ACT, 8 & 9 VICT. CAP.
109.-CONSTRUCTION OF 18TH SECTION.

RIGHT TO RECOVER BACK STAKE DE-
POSITED.

won upon any wager, or which shall have been
deposited in the hands of any person to abide
the event on which any wager, shall have been
made." Looking at the preamble of the act,
and the whole of the section together, it is sub-
mitted that the intention of the act is to pre-
vent the recovery of a sum deposited to abide
the event of a wager, by a winner, either from
his adversary or the person who acts as stake-
holder, and not to prevent a party from recover-
ing, after he had, as here, abandoned the illegal
purpose for which the money had been de-
posited. To give a contrary construction to
the act would have the effect of destroying the
locus penitentiæ of the parties making the
wager, which could never have been intended.
The latter provisions of the section might be
unnecessary, but they must be construed with
reference to the first part of the section, of
which they are nothing more than an extension
in terms. The court, even if any doubt ex-
isted, would not carry the interpretation further
than what appeared to be the intention of the
legislature. Dwarris on Statutes, 584; Salkeld
v. Johnson, 1 Hare, 207; Green v. Wood, 7 Q.
B. 178; Crespigny v. Wittenroon, 4 T. R. 790;
Bac. Abr. tit. Statutes. But assuming that the
section in question was a bar to the right of
action, it can only be made available as a de-
fence when specially pleaded, and cannot be
given in evidence under the plea (as here) of
the general issue. The cases of a plea of the
statute of limitations, and the non-delivery of
an attorney's signed bill, under the 6 & 7 Vict.
cap. 93, where a special plea is required, are
not distinguishable from the present.
cases of Martin v. Smith, 4 Bing. N. C. 436,
and Potts v. Sparrow, 1 Bing. N. C. 594, were
referred to on this point.

Where a sum of money was deposited in the hands of a stakeholder to abide the event of an illegal wager; but before the determina tion of such wager, one of the parties gave a notice of his abandonment of the wager, and requiring the stakeholder to repay his deposit: Held, that an action for money had and received to the use of the party giving the notice, lay to recover from the stakeholder the amount of such deposit, notwithstanding the provision of the 8 & 9 Vict. cap, 109, sec. 18: Held also, that if the statute had been a good answer in bar it must have been specially pleaded. DEBT for money had and received. Plea nunquam indebitatus. At the trial before Wilde, C. J., at the sittings in London after Michaelmas Term, 1846, it was proved that a bet of 201. aside had been made on a trotting Serjeant Byles, Parry, and Joyce, in supmatch to come off on the Uxbridge-road, be- port of the rule. Before the statute in questween the plaintiff's horse and that of one tion, even a deposit upon a legal wager, Isaacs. The plaintiff had deposited his 201. where notice had been given before the amount with the defendant as a stakeholder, but before was paid over, could be recovered back. the time appointed for deciding the match he Eltham v. Kingsman, 1 Barn. & Ald. 683; determined not to let his horse trot, and gave Egerton v. Furzman. 1 Ry. & M. 214. And as the defendant notice, requiring him to return to the case of an illegal wager, the right to rethe amount of his deposit. This the defendant cover was quite clear. Then the statute in failed to do, alleging that Isaacs' horse had, atquestion was passed, and for the very purpose,

The

330

Superior Courts: Common Pleas.-Exchequer.

it was submitted, of taking away any such right the act in question. Then, with respect to the of action. The words are express, not only third clause, it was said that provision would that "no suit shall be brought or maintained be idle, inasmuch as it would be no more in any court of law or equity for recovering any than the legal consequence of the first, unless sum of money, &c., alleged to be won upon there was given to it the further effect of deany wager, but also any sum "which shall priving a party of his right to recover a deposit have been deposited in the hands of any person under a repudiated wagering contract. This to abide the event on which any wager shall construction, it was true, would give an operahave been made." This last enactment is con- tion to the clause beyond that which was clusive on the point. Then, if that be the true merely the consequence of, and incidental to, construction of the act, it is just as if it had the previous parts of the section. But I think, said that no promise shall be implied from any if the second portion of the section be looked such deposit, and therefore no special plea was at, it is more conformable that the third part necessary in order to render the section avail- should be considered no more than an exposiable as a defence in bar. It resembles the case tion of the legal consequence of the first. The of an action by an apothecary, where there is second clause related to a case where a winner no proof of his certificate, and non assumpsit brings an action seeking to recover against a the only plea on the record. Shearwood v. loser; and although the third clause might have Hay, 5 Ad. & G. 383. The inability to recover been omitted, yet, if the second were inserted, back the deposit from a stakeholder was in- then the third became necessary. I think, tended by the legislature as a kind of penalty therefore, on looking closely at the section, and on the party to the illegal wager. treating it as a matter of grammatical construcMaule, J. This is an action of debt for tion, that it does not apply to a case of a remoney had and received, brought by the plain- pudiated contract such as this. This constructiff against the defendant, on the ground that tion, however, can, I think, be supported on the defendant had received 201. of the plaintiff's higher ground. It seems to me that the premoney, which he held to his, the plaintiff's, use, sent action cannot be considered as an action the plaintiff having, before the day on which brought to recover a sum of money or valuable the race was to be run, given notice to the de- thing which had been deposited in the hands fendant that he would not run the race, and of any person to abide the event of any wager. thereby desired that he would return his (the Such an action would be one in which the plaintiff's) deposit. The first point raised is, plaintiff would claim the money because it had that the 8 & 9 Vict. cap. 169, sec. 18, prevents been deposited in the defendant's hands to the bringing of an action like the present; and abide the event of a wager, and here it is quite secondly, supposing that to be so, then, in the contrary, the money being claimed because order to avail himself of that section, the de- it was money which belonged to the plaintiff, fendant ought to have pleaded it specially. I and which the defendant held for him, and was am of opinion that the plaintiff is entitled to under no obligation to pay it to anybody else. sustain the verdict notwithstanding the objec- After the notice of repudiation it ceased to be tion involved in the first point. But that if money in the defendant's hands to abide the that objection had been a good one, the defend- event of a wager, and became money in bis ant could not render it available as a defence hands which he has no good reason for retainwithout its being specially pleaded. With ing. Upon these grounds I think the case respect to the first point, the question is ought to be determined in the plaintiff's whether, as a wager is rendered void by the favour. It was said that the scope of the act first clause in the 1st section of the act, a stake- was to prevent gaming, and that, therefore, the holder can be made liable at the suit of one construction contended for by the defendant, party who has repudiated the wagering contract. as it would have the effect of discouraging Now the 1st section provides that all contracts gaming, ought to be upheld. But I do not or agreements, by way of gaming or wagering, shall be null and void; nor did it stop there, but further enacts that "no suit shall be maintained for recovering any sum of money alleged to be won upon any wager," and also, that "no suit shall be maintained for recovering any sum which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." Now the second provision was certainly comprehended in, and would have been the legal consequence of, the first. But as there was nothing unusual in an act of parliament stating in terms, that which would otherwise have been inferred, I do not think that fact ought to have any great weight in construing

Wilde, C. J., was sitting at nisi prius, and Coltman, J., had left the court.

think that it is at all reasonable to suppose that
the act was intended to impose so penal a for-
feiture as that. Supposing, however, that the
true construction were, that this section did de-
prive the party here of the right to recover
back his stake, then I think it is necessary
that, as a defence, it should be specially
pleaded, although in the present case it is un-
necessary to give any decision on that point,

Cresswell, J., and Williams, J., concurred.
Rule discharged.

Exchequer.

Graham v. Ingoldby. Jan. 11, 1848..

PRACTICE.-SIGNING JUDGMENT.-APPI-
DAVIT, WAIVER OF.

If in the jurat of an affidavit accompanying

Superior Courts: Exchequer.

In this case a rule had been obtained calling upon the defendant to show cause why an order of Mr. Baron Platt should not be rescinded, and why the interlocutory judgment thereby ordered to be set aside, with costs, should not be restored.

331

plea in abatement sworn before a commis-Anne for the protection of the plaintiff against sioner, the words "sworn before me" be a dilatory plea, the plaintiff may waive or insist omitted, and the plaintiff take further pro- upon it as he pleases. We must treat this as ceedings, he thereby waives his right to a case in which there has been no affidavit, bejudgment as for want of a plea. cause the affidavit is decidedly bad. This case is not like that of a service on a Sunday, as the statute relating to that subject is for the benefit of the public at large, and cannot be waived, whereas this is for the benefit of a private individual. Here the protection of the statute being for the benefit of the plaintiff, and he having An action had been brought against the de- by subsequent proceedings, as he well might, fendant in this court, to which he pleaded inter waived the objection to the plea for want of an alia that he was an attorney of the Queen's affidavit, he could not afterwards treat it as not Bench, and not of the Exchequer, and there- subsisting, and sign judgment as for want of a fore not liable to be sued in the said Court of plea. Exchequer, &c., concluding to the country, and adding the similiter. An affidavit accompanied the plea the jurat of which was informal, being "sworn at Manchester," &c., omitting the words "before me." The plaintiff then struck out the similiter and took other steps in the cause: there was subsequently a demurrer and a five-days' rule for the defendant to join in demurrer. Before the expiration of the five days, plaintiff signed judgment as for want of a plea, upon the ground that the jurat of the affidavit accompanying the plea in abatement was defective.

Martin, for the defendant, contended that the omission was a mere irregularity, and did not render the plea a nullity; that the affidavit, though not made according to the rule of court, was notwithstanding good as an affidavit; and that a deponent might be indicted upon it for perjury. The words "before me were unnecessary in an affidavit sworn before a judge at chambers, and there could be no real distinction between an affidavit so sworn and one

Rule discharged with costs.

Hills v. Silcock. Jan. 12, 1848. PRACTICE.-WAIVER OF OBJECTION TO

JUDGMENT AND EXECUTION.

Where a plaintiff in an action holds a collateral security for the payment of the money sought to be recovered, and a judgment in such action is irregularly signed, execution issued, and the money levied; a subsequent demand by the defendant and acceptance of such collateral security is a waiver of the irregularity in the judgment. IN this case the plaintiff had before action brought received from the defendant wine warrants as a collateral security for the payment of the debt recovered. Judgment had been irregularly signed, execution issued, and judgment satisfied. After execution the defendant applied to the plaintiff to have the warrants returned, and threatened proceedings if they were not, and thereupon received them. sworn before a commissioner. [Purke, B. Having subsequently obtained a rule calling on When sworn at chambers the judge is supposed the plaintiff to show cause why an order of Mr. to be present, but the commissioner is not Baron Platt should not be rescinded, and why supposed to be present at Manchester.] The the judgment and execution in pursuance of plaintiff, by having received the plea and taken subsequent proceedings in the cause, had waived all right to object to the plea on the ground of any irregularity in the affidavit. He cited 13 G. 2, c. 18, s. 5; 4 Anne, c. 16, s. 11; Emfrey v. King, 2 D. & L. 375; Horsfall v. Matthewman, 3 M. & S. 154; Mellor v. Walker, 2 Saund. c. 2; Garratt v. Hooper, 1 Dow. P. C. 28. [Parke, B., referred to R. v. Bloxam, 1 Ad. & E. 386.]

The Attorney-General, for the plaintiff. The ease of Horsfall v. Matthewman, 3 M. & S. 154, was one of a mere regulation of the court; this depends upon a statutory enactment which must be complied with. Duvidson v. Chilman, 1 N. C. 297; Bill v. Bament, 8 M. & W. 317; Goodwin v. Parry, 4 T. R. 577; R. v. Smith, 4 T. R. 414; Roberts v. Spurr, 3 Dow. P. C. 551; Taylor v. Phillips, 3 East, 155.

Per Curiam. This rule must be discharged. As the affidavit is required by the Statute of

See Hackin v. Hussels, 1 Dow. & L. 1006; and Charlesworth v. Ellis, 7 Q. B. 678.-Reporter.

the said order should not be set aside, and why the money had in execution should not be returned to the defendant's attorney,

Montague Chambers, on behalf of plaintiff, contended that any irregularity in the proceedings had been waived by the defendant's de manding the wine warrants from the plaintiff as a right, and receiving them accordingly. De Wolf v. Bevan, 13 M. & W. 160; Smith v. Clinch, 8 Dow. P. C. 337.

Peacock, contrà. This could not be treated as a waiver by the defendant, as he had always protested against the order, and had a good defence to the action.

Per Curiam. This was in effect an under

taking not to take advantage of any irregularity in the execution. It was saying to the plaintiff, you have got your irregular judgment and obtained the money under it, and you are not now entitled to the warrants, therefore give me them up. This rule must be discharged. The case of De Wolf v. Bevan is decisive that this is a waiver.

Rule discharged:

332

in

Superior Courts: Bankruptcy-Common Law Sittings.
Court of Bankruptcy.

In re Grylls and others. Jan. 24, 1848.
INSPECTION OF BANKRUPT'S BOOKS.-

PRACTICE.

The court will not permit the solicitor for a creditor, who, has not proved his debt, to inspect the bankrupt's books, unless it be clearly for the benefit of the estate. THE choice of assignees having been stayed, consequence of a petition to Vice-Chancellor Knight Bruce, to direct the fiat to be proceeded with in the district court of Bristol, Mr. Commissioner Shepherd, to whom the fiat was balloted in this court, refused to admit a creditor to prove his debt, and subsequently refused to allow the solicitor of such creditor to inspect the bankrupt's books, upon the ground, that the order of the Vice-Chancellor operated as a stay of all proceedings.

any manner affecting the exercise of such discretion. He therefore repeated the application already made, to be allowed to inspect the bankrupt's books in the hands of the official assignee, as the creditors for whom he appeared were anxious to know the state of the bankrupt's affairs.

Mr. Williams, as solicitor for the fiat, opposed the application. Mr. Linklater's client had not proved, and the real object in looking over the books of the bankrupt was, to obtain materials for a canvass to vote for certain assignees. It was not usual, he submitted, to allow a creditor who had not proved to inspect the bankrupt's books; and there was no ground shown for making this case an exception to the general rule.

Mr. Commissioner Shepherd said, the general rule undoubtedly was, that a creditor who had not proved could not be allowed to look into Mr. Linklater, on the part of the creditor, the bankrupt's books. He did not say that now stated, that an application was afterwards rule might not be subject to exceptions, but in made to the Vice-Chancellor, who directed that this case it was tolerably clear the object was a the commissioner should exercise his own dis- struggle for the assigneeship, and the court cretion as to allowing an inspection of the could not interfere to promote such an object, bankrupt's books, without considering the by departing from the ordinary rule. The ap order made by him, the Vice-Chancellor, as in plication must therefore be refused.