Page images

Analytical Digest of Cases : Bankruptcy and Insolvency.

305 Semble, per Rolfe, B., that, under the 12 & Held, also, that the production of the superVict. c. 106, s. 133, execution upon such an sedeas was sufficient proof of the issuing of order is only invalid where the order given is the fiat against C., and of the fact of its by way of fraudulent preference. Andrews y., having been superseded. Diggs, 4 Exch. R. 827.

But, held, that A. was entitled to recover 2. Judgment, when void, if not filed.-The back the 2501., as money paid upon a consi137th section of the 12 & 13 Vict. c. 106, deration which had failed. Wright v. Colls, 8 which declares that a Judge's order, made by C. B. 150. consent, given by a trader defendant in any personal action, unless filed as thereby re

LETTER OF LICENCE. quired, and the judgment and execution there Covenant not to molestor interfere with on, shall be “null and void to all intents and debtor for given period. Release. – A., a purposes whatsoever," does not avoid such trader, entered into an arrangement, hy deed, order, &c., as against the trader himself, but with his creditors, by which it was agreed that only as against his assignees if he afterwards he should have a letter of licence for five become bankrupt. Bryan v. Child, 5 Exch. years, during which period he should carry R. 368.

on the trade under the inspection of certain

persons therein named; and it was provided, LEASE. Proof of the supersedeas of the fiat.-Failure ti

that, if any creditor should, during the con

tinuance of the licence, molest or interfere with of consideration. -By agreement between A. 14 and B.,-reciting that B. had, as he was ad

: A., contrary to the true intent and meaning of vised and believed, -legally and effectually put lies

the indenture, A. should thenceforth be re

ypu lieved, exonerated, acquitted, and discharged an end to a certain lease granted to C., and

of and from all debts and demands of the dated the 18th of July, 1839, of a certain farm,

3 creditor by whom the letter of licence should &c., by entry thereon under a power therein contained, by reason of the bankruptcy of C.;

be so contravened, and that the said indenture

should or might be pleaded in bar to such reand that B. had agreed to grant a lease of the

spective debts or demands accordingly. farm, &c., to A., for 21 years from the 29th of

Held, that the bringing of an action by a September, 1844, at the same rents, &c., as the same had been held by C.,-it was agreed that

creditor, party to the deed, within the five B. should grant and A. accept a lease, at a cer

1 years, was a “molestation or interference”

with A., within the meaning of the proviso ; tain rent, payable quarterly,—the said lease to

and that the indenture operated as a decommence on the said 29th of September, 1844, if the defendant could then legally make Gibbons'v. Vouillon, 8 C. B. 483.

feasance, and was pleadable in bar as such. and execute the same, or so soon after as the defendant should be in a situation to grant the

Case cited in the judgment: Ayliffe v. Scrimsame; that such lease should contain the same

shire, Carth. 63. covenants, &c., as the lease to C.; and that A.

MESSENGERS' FEES. should pay to B., on possession being delivered to him, 5001. as a premium for the lease so to

Express contract. The trade assignee of a be granted.

I petitioner under the Insolvent Debtors' Acts, A. was let into possession, and occupied the

aths 5 & 6 Vict. c. 116, s. 1, and 7 & 8 Vict. c. 96, farın for about two years, paying the rent; and

nd s. 4, is not liable personally for the meshe also, within that time, paid B. 2501. in part |

sengers' fees and expenses, in the absence of of the 500l. premium ; but, the fiat against C.

c an express contract. Hamber v. Hall, 10 C. B. having been superseded, B. was unable to grant the lease to A.

MESSENGERS' LIABILITY. A. thereupon brought an action for the Not within the protection of the 12 13 breach of contract, alleging in his declaration, Vict. c. 106, s. 107, where he seizes goods of a that he had always been ready and willing to third party.--A messenger in bankruptcy, who, accept a lease, that the 29th of September, lintending to act bona fide, under a warrant di1844, and a reasonable time for B. to grant the recting him to seize the goods of A., seizes lease, bad elapsed, and that B. was in a situa- goods belonging to B., is not within the pro. tion to grant a lease. A. also sought to re- 1 tection of the 12 & 13 Vict. c. 106, s. 107, and cover back the 2501. as money had and received, therefore is liable in trespass at the suit of B., upon a failure of consideration :

without a previous demand of the perusal and Held, that the recital in the agreement, and

copy of the warrant under which he professed proof of declarations made by B. that C.'s lease to be, and believed he was, acting. Munday was void and good for nothing, were prima v. Stubbs, 10 C. B. 432. facie evidence, as against B., that he had power to grant the lease; but that, it appear

PRISONER. ing also by the recitals in the agreement, that Custody of insolvent in Queen's Prison.the lease to C. was supposed to be void by Removal to part appropriated to first class reason of C.'s bankruptcy, such prima facie prisoners.-A., a prisoner, in the Queen's case was rebutted by proof of the supersedeas Prison, in execution for the costs of a nonsuit, of the fiat against C.; and, consequently, that was, by an order of the Insolvent Debtors' B. was entitled to the verdict upon an issue as Court made before the passing of the 11 & 12 to his ability to grant the lease.

306 Analytical Digest of Cases : Bankruptcy and Insolvency-Law of Libel and Slander. Vict. c. 7, directed to file a schedule of his pro-L. F. having become embarrassed, delivered perty, debts, &c., pursuant to the 36th section his effects to W. for the benefit of his creditors. of the 1 & 2 Vict. c. 110. After the 11 & 12 The defendant applied to F. for money to take Vict. c. 7, came into operation, the keeper of up the note, when F., voluntarily, and in conthe prison, pursuant to the directions for the templation of bankruptcy, gave him an order classification of prisoners under the 2nd section upon W. for the amount, which was paid to of that Act, removed d. to that part of the the defendant. L., in whose hands the note prison appropriated to first class prisoners: was, refused to receive the amount unless the Held, that such removal was proper. Stead v. whole of F.'s debt to him was paid, and the Anderson, 9 C. B. 262.

defendant retained it as an indemnity. A fiat RE-EXAMINATION OF INSOLVENT.

in bankruptcy having issued against F.: Held, Under Stat. 1 & 2 Vict. c. 110, s. 98, after the defendant the sum so paid to him, as money

that his assignees were entitled to recover from the passing of Stat. 10 & 11 Vict. c. 102.- I received for their use. Groom v. Watts, 4 Motion by an assignee for a mandamus to the Exch. R. 727. Insolvent Debtors' Court in London, to reexamine an insolvent under Stat. 1 & 2 Vict. c. 110, s. 98. The insolvency had taken place, | LAW OF LIBEL AND SLANDER. and the petition, &c., had been exhibited, in 1839, more than 20 miles from London, and

CRIMINAL INFORMATION. within the district subsequently assigned to

Costs under 6 & 7 Vict. c. 96, s. 8.-On a the Somerset County Court: the original ad- criminal information for libel, the defendant, 1 judication had been made by a Commissioner found Not Guilty, is entitled to costs under on circuit; and Stat. 10 & 11 Vict. c. 102, Stat. 6 & 7 Vict. c. 96, s. 8, though he has not had since passed, which abolishes circuits. I pleaded the special plea allowed by sect. 6; and, prospectively, gives jurisdiction to the and the Judge cannot deprive him of costs by County Courts in cases arising within their a certificate, the provision of Stat. 4 & 5 W.& respective districts at the distance of more than M., c. 18, s. 2, on this head being supersedel 20 miles from London.

| by the later Act. Regina v. Latimer, 15 Q. B. Held, that the Insolvent Debtors' Court in 1,077. London was the proper jurisdiction. A rule

nisi for a mandamus was granted, and no
cause shown.

When unnecessary...“ Frozen
In re Willcox, 13 Q. B. 666.

snake.”—I. an action for writing and publishing of plainSURETY.

tiff, that her warmest friends, in giving up Liability of insolvent surety for arrears of their advocacy of her claims, stated that they annuity accruing after his discharge under had realised the fable of the frozen snake, I Stat. 7 & 8 Victc. 96.-Under Stat. 7 & 8 Not Guilty be pleaded, and a verdict of Guilty Vict. c. 96, an insolvent surety for the grantor | found, the plaintiff is entitled to judgment, of an annuity is not protected by the final since the jury may have understood that the order from liability for arrears accruing after words “ frozen snake” were meant to charge petition filed, and unpaid by the grantor. For the plaintiff' with ingratitude to friends. Am the instalments of such annuity were not, be it is no objection, in arrest of judgment, tha fore default, debts within the operation of the the words are not explained by innuendo; Statute. Thompson v. Whatley, 16 Q. B. 189. the Court will notice that the words are com Case cited in the judgment: Thompson ve monly enough understood in this sense to warThompson, 2 New Ca. 168.

rant a jury in so applying them. Hoare T.

Silverlock, 12 Q. B. 624.
Assignee of insolvent.--Evidence to impeach

MASTER AND SERVANT. bill of sale.-Costs.-In an action of trover

Presence of third person. — Malice, akan for goods by the assignee of an insolvent, the question for the jury.-If a master, about to use plaintiff, in order to establish the insolvent's miss his servant for dishonesty, calls in a friede title to the goods in question at a certain time. I to hear what passes, the presence of such tar gave in evidence a bill of sale, by which the person does not take away privilege from words insolvent, in consideration of the sum of 4991., which the master then uses, imputing the disa sold absolutely the goods to the defendant and honesty. other persons, and the plaintiff then produced A master, having so dismissed his serta evidence to impeach the validity of the bill of refused to give him a character, alleging_" sale, by showing that it was wholly void on those who asked the character, that he had als the ground of fraud. The plaintiff having ob- charged him for dishonesty. The servants tained a verdict, held, that he was entitled to brother afterwards inquired of the master of the costs incurred in the production of that he had treated the servant so, and was keeping evidence. Hardy v. Tingey, 5 Exch. R. 294. him out of a situation. The master said, “He

has robbed me; and I believe for years past ; VOLUNTARY PAYMENT.

adding, that he concluded so from the circumMoney had and received.--The defendant's stances under which he had discharged be wife, whilst sole, made, as surety with F., a servant. Only one instance of actual robbing joint and several promissory note, payable to had been imputed.



Analytical Digest of Cases : Law of Libel and Slander. Held, that the answer did not go beyond the other of his servants, and, addressing them in privilege afforded by the inquiry. And the presence of the plaintiff, said,-“ I have

Held, that, on trial of an action for speaking dismissed that man for robbing me: do not words, as above stated, in presence of a third speak to him any more, in public or in private, person, and in answer to inquiries by the or I shall think you as bad as him :" Held, a brother, no further proof being offered by the privileged communication; for, that it was the plaintiff to show malice, the Judge ought not duty of the defendant, and also his interest, to to have left the question of malice to the jury. I prevent his servants from associating with a Taylor v. Hawkins, 16 Q. B. 308.

person of such a character as the words imCases cited in the judgment : Toogood v. Spyr puted to the plaintiff, inasmuch as such associ

ing. i Cro. M. & R. 131 ; 4 Tyr. 582 ; Wright ation might reasonably be apprehended to be v. Woodgate, 2 Cro. M. & R. 573 ; Tyr. & G. likely to be followed by injurious consequences, 12.

both to the servants and to the defendant bimPRIVILEGED COMMUNICATION.

To entitle the plaintiff in such a case to have 1. Where defendant invites the inquiry. Case for slanderous words. Plea, Not Guilty. Ten

- the question of malice left to the jury, it is not Plaintiff, a domestic servant, about to enter the presence of malice as well as with its ab

ilty enough that the facts proved are consistent with the service of B., referred B., for her character le to defendant, in whose service plaintiff had

ter sence; for, in cases of privileged communicabeen. Defendant being then unwell, her hus

tions malice must be proved, and therefore its band answered the application, and gave plain-given.

us absence must be presumed until such proof is

Somerville v. Hawkins, 10 C. B. 583. tiff a good character; and B. took plaintiff into service. Defendant recovered, and, in a

PUBLICATION TO AGENT. letter written to B. on other matters, said that Estimate of damages.-The first count, in an she, defendant, had lately been much imposed action for a libel, was in respect of a newspaper upon in her kitchen. B., in consequence, published more than 17 years before action made further inquiries of defendant'as to brought. The Statute of Limitations being plaintiff's character; and defendant, in an- pleaded, held, that the plea was negatived by swer, spoke the words she complained of, viz., proof that a single copy had been purchased that she suspected plaintiff of dishonesty. | from defendant for plaintiff, by plaintiff's

The jury, in answer to the Judge, found that agent, within the six years. defendant intended by her letter to induce in-/ Other counts were in respect of other hbels, quiries on B.'s part as to plaintiff; and they alleged to impute to plaintiff the libellous found a verdict for plaintiff, subject to leave to matter charged in the first count, which was move for a nonsuit. On motion to enter a set out by way of inducement in each count. nonsuit,

| The libels themselves, in these other counts, Held, that the defendant was bound to cor- did not refer to that in the first count. The rect any error, as to plaintiff's character, into Statute of Limitations was pleaded to so much which she supposed B. to have been led by the of these counts as related to the matter in the answer to B.'s former application; and that first count: Held, that the plea was negatived the words were spoken under such circum. as to these counts also ; and, further, that it stances as prima facie to be privileged. Held, was not necessary to tell the jury, in estimatalso, that the facts that defendant alluded to ing the damages as to such matter, to take plaintiff, and induced inquiries about her, were into consideration the fact that the only publi. not evidence of malice.' Rule absolute for a cation proved had been the sale to the agent. nonsuit. Gardner v. Slade, 13 Q. B. 796. Duke of Brunswick v. Harmer, 14 Q. B. 185.

2. In an action of slander, if the facts Reports OF PROCEEDINGS IN COURTS OF proved are such that the communication is, by

JUSTICE. the rules of law, privileged, the Judge ought

What put in issue by not guilty.—It is a not to leave any question to the jury as to malice, unless the plaintiff gives further evi

good defence to an action for a libel, that it dence showing a probability that the commu

consists of a fair and impartial (though not

| verbatim) report of a trial in a court of justice; nication was made maliciously rather than that

| and such defence is admissible under not it was made bona fide. Taylor v. Hawkins, 16

guilty, which puts in issue as well the lawfulQ. B. 308.

ness of the occasion of the publication, as the 3. Words spoken bona fide in pursuance of a

L“ | tendency of the alleged libel. Hoare v. Silver. duty, or to protect the interests of the speaker..

lock, 9 C. B. 20. -In slander or libel, the term “privileged

Case cited in the judgment: Cotton v. Browne, communication” comprehends all cases of communications made bona fide, in pursuance

3 A. & E. 312; 4 N. & M. 831. of a duty, or with a fair and reasonable pur

SENTENCE OF IMPRISONMENT. pose of protecting the interest of the party utter- 1. What words amount to. - Form of judging the defainatory matter.

ment by retraxit.--Several counts of indictment. Therefore, where the defendant had dis. — Amending record after error brought.-Inmissed the plaintiff from his service on sus-dictment for libel stated that defendant, inpicion of theft, and, upon the latter coming to tending to defame B., published a libel conhis counting-house for his wages, called in cwo taining divers false and scandalous matters of


Analytical Digest of Cases : Law of Libel and Slander. and concerning the said B., that is to say : removing the same objection; and they perNo lady would admit to her society such a mitted him, at the same time, in the entry of crack-brained scamp as B. (meaning the said the retraxit, to substitute a direct averment that B.): Held, by the Exchequer Chamber on the defendant below “withdrew” his plea, error, that these averments showed sufficiently, whereby our Lady the Queen remaineth, &c., without more formal introduction, that the for an averment that, the defendant “ having libel was of and concerning B.

withdrawn," &c., our Lady the Queen reThe following words were held by the same maineth, &c. Court, on error, sufficient to maintain an indict. Although each motion was opposed, and all ment for libel: Why should T. be surprised at the objections met by the amendments were anything Mrs. W. does ? if she chooses to enter- raised by the original assignment of errors. tain B., she does what very few will do; and Gregory v. Reginam, 15 Q. B. 957. she is of course at liberty to follow the bent of Coco sitod. oiconnell v. Ravinam. 11 CI. & her own inclining, by inviting all the expa- | 1551 triated foreigners who crowd our streets to her table, if she thinks fit.

1 2. Imprisonment on several counts of indictOn indictment for libel, the defendant suf. ment.-Judgment was given that on each of fered judgment by retraxit. The record of the four counts of an information the defendant judgment stated that the prosecutor and de- be imprisoned ; on the first count, “ for the fendant came, &c., and defendant “ withdrew space of two months now next ensuing ;" on his plea by him above pleaded in manner and the 2nd count, “ for the further space of two form aforesaid,” “whereby our said Lady the months, to be computed from and after the Queen remaineth against him without defence end and expiration of his imprisonment” for in this behalf. Whereupon” it was adjudged the offence mentioned in the 1st count; on the that he be convicted, &c.: Held, by the Ex- 3rd count, for the further space of two months, chequier Chamber, on error, sufficient ground to be computed in like manner from the end for a judgment, though it was not expressly of the imprisonment on the 2nd count; and alleged that the defendant confessed the in. on the 4th count, for the further space of two dictment.

months, to be computed in like manner from The judgment, as entered on the record, the end of the imprisonment on the 3rd count. being that, for the offences charged upon The 3rd count was adjudged on error to be him in each and every count of the indictment, insufficient. Held, that the sentence on the the defendant be imprisoned in the Queen's 4th count was not thereby invalidated, and that Prison for six months now next ensuing :'the imprisonment on it was to be computed Semble, by the Court of Excb:quer Chamber, from the end of the imprisonment on the 2nd on error, that the judgment was, in form, a count. Gregory v. Reginam, 15 Q. B. 974. sentence of one term of six months' imprison

SPECIAL DAMAGE. ment upon the whole indictment, and would therefore be erroneous if any count was bad.

" ). Put in issue by not guilty. In case for To the judgment of imprisonment as above,

words not actionable per se, averring special was added : “ And that he" (defendant) “ be:

damage, “ not guilty," puts in issue not only placed in the first division of the fourth class

the speaking of the words, but also the special of prisoners in the Queen's Prison :” Semble,

damage alleged.-Wilby v. Elston, s C. B. by the Court of Exchequer Chamber, on error, that, if this direction was not warranted

2. Words charying prostitution or swindling by an order of the Secretary of State under

!not actionable. The words, “ You are living Stat. 5 & 6 Vict. C; 22, it still did not vitiate

by imposture: you used to walk St. Paul's the judgment. And held by the Court of.

Churchyard for a living ;"-spoken of a Queen's Bench, that such direction, when war

woman with the intention of imputing that she ranted, is no part of the judgment of the

was a swindler and a prostitute,-are not acCourt, but a mere order.

tionable, without special damage.-Wilby v. After error brought, and when the case was

Elston, 8 C. B. 142. in the paper for argument, the Court below

Case cited in the judgment: Norton v. Schole. permitted the prosecutor (defendant in error)

field, 8 C. B. 149. to amend the record as to the venire and con- 3. Yalice.--In an action for slander of title, tinuances. The writ of error was then argued, by saying at the sale of a lease and assignment Before judgment in the Exchequer Chamber, of premises, whereof the defendant was the orithe Court below, on motion, permitted the ginal lessor, the false and malicious words, prosecutor, on payment of costs, to amend the viz., " that the whole of the covenants of this record again by the rule of sentence, as en- lease are broken, and I have served notice of tered in the Master's book, for the purpose of ejectment; the premises will cost removing the objection that one term of im- put them in repair;" by reason of which false prisonment appeared to be awarded for all the and malicious words the property fetched less offences. Afterwards, the case again standing than it otherwise would have done; the true for argument in error, the Court below, on mo- question for the jury is, whether the words are tion, permitted the prosecutor, on payment of false and malicious, and whether the special costs, to amend again (there being sufficient damage arose therefrom. Brook v. Rawl, 4 materials), for the purpose of more completely Exch. R. 521.


The Legal Observer,



PROSPECTS OF LAW AMENDMENT. last of the bills, however, called forth

some observations from the Lord Chancellor

and Lord Campbell, not undeserving of BILLS BEFORE PARLIAMENT.

notice. In reference to the Bill for the The most enthusiastic Law Reformers further relief of Suitors in Equity, by die must now be satisfied that there is a sincere minishing the expenses consequent upon desire on the part of those in and out of the administration of property by the Court power, . to amend onr legal institutions. of Chancery, the Lord Chancellor, whilst exEnergy, ability, and experience, are com- pressing his unqualified approval of the bined with parliamentary influence and principle of the measure, reminded their personal authority, and by general consent Lordships, that its value depended altothe question of Law Reform is regarded as gether upon matters of detail, which he had a species of neutral ground, and dissociated not sufficient time to master, and, therefore, from the struggles of party.

reserved to himself the right of forming and Although much has been done, it seems stating his opinion hereafter. The Bill, his to be universally conceded, that much more Lordship observed, was to be regarded as a remains to be done. The regular parlia- financial no less than a legal measure, as it mentary session has opened under circum- 'proposed to deal with 40 millions of money. stances peculiarly auspicious, and it is These observations of the Chancellor indiearnestly to be hoped that the spirit of can-cate that his Lordship entertains a just dour, moderation, and concession, which sense of the responsibility which devolves prevaded the discussions that have taken upon the individual placed at the head of place in both Houses on legal topics, may the law, to form his own judgment upon be sustained in unabated vigour during the every legal measure of importance submitted debates which are to be anticipated.

to Parliament. Lord St. Leonards lost no time in re. With regard to the “ Criminal Law deeming the promise made by him at the Amendment Bill,” Lord Campbell offered commencement of the Session, by introduc- a suggestion, which did not meet with the ing on the first day after Parliament re- approval of the noble and learned Lord by assembled no less than six bills, all of which whom the Bill was introduced, and we had been previously announced. One of venture to think, will not meet with general Lord St. Leonards' bills is for “the further concurrence. As already intimated, the relief of Suitors in Chancery,a second Bill is the first instalment of a Criminal relates to the administration of the Law of Code or Digest, and the Lord Chief Justice Bankruptcy, three others refer to Lunatics, thought it expedient to introduce a clause and the last, which is described as a which would prevent this Bill from coming Criminal Law Amendment Bill, is in fact into operation until the whole code was the commencement of a Criminal Code, complete. The arrangement now proposed containing a Digest of the Law upon Offences by Lord St. Leonards to codify one branch against the person, together with a prelimi- of the criminal law, and make it the subnary chapter relating to all offences. Lord ject of a separate Act, is that suggested by St. Leonards' Bills were respectively read a the Criminal Law Commissioners, – apfirst time, and the second readings were proved by Lords Lyndhurst and Brongham, fixed for the 24th instant. The first and and it has the obvious advantage of trying

Vol. xlv. No. 1,302.


« EelmineJätka »