Analytical Digest of Cases: Bankruptcy and Insolvency. Semble, per Rolfe, B., that, under the 12 & Vict. c. 106, s. 133, execution upon such an order is only invalid where the order given is by way of fraudulent preference. Andrews v. Diggs, 4 Exch. R. 827. 2. Judgment, when void, if not filed.-The 137th section of the 12 & 13 Vict. c. 106, which declares that a Judge's order, made by consent, given by a trader defendant in any personal action, unless filed as thereby required, and the judgment and execution thereon, shall be "null and void to all intents and purposes whatsoever," does not avoid such order, &c., as against the trader himself, but only as against his assignees if he afterwards become bankrupt. Bryan v. Child, 5 Exch. R. 368. LEASE. 305 Held, also, that the production of the supersedeas was sufficient proof of the issuing of the fiat against C., and of the fact of its having been superseded. But, held, that A. was entitled to recover back the 2501., as money paid upon a consideration which had failed. Wright v. Colls, 8 C. B. 150. LETTER OF LICENCE. Covenant not to molest or interfere with debtor for given period. Release. - A., a trader, entered into an arrangement, by deed, with his creditors, by which it was agreed that he should have a letter of licence for five years, during which period he should carry on the trade under the inspection of certain persons therein named; and it was provided, tinuance of the licence, molest or interfere with that, if any creditor should, during the con creditor, party to the deed, within the five Held, that the bringing of an action by a Proof of the supersedeas of the fiat.-Failure of consideration.-By agreement between A. and B.,-reciting that B. had, as he was ad-4., contrary to the true intent and meaning of vised and believed,-legally and effectually put lieved, exonerated, acquitted, and discharged the indenture, A. should thenceforth be rean 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, creditor by whom the letter of licence should &c., by entry thereon under a power therein be so contravened, and that the said indenture contained, by reason of the bankruptcy of C.; and that B. had agreed to grant a lease of the should or might be pleaded in bar to such refarm, &c., to A., for 21 years from the 29th of spective debts or demands accordingly. September, 1844, at the same rents, &c., as the same had been held by C.,-it was agreed that B. should grant and A. accept a lease, at a certain rent, payable quarterly, the said lease to commence on the said 29th of September, 1844, if the defendant could then legally make and execute the same, or so soon after as the defendant should be in a situation to grant the same; that such lease should contain the same covenants, &c., as the lease to C.; and that A. should pay to B., on possession being delivered to him, 500l. as a premium for the lease so to be granted. 4. was let into possession, and occupied the farm for about two years, paying the rent; and he also, within that time, paid B. 2507. in part of the 500l. premium; but, the fiat against C. having been superseded, B. was unable to grant the lease to 4. 66 with A., within the meaning of the proviso; years, was a molestation or interference and that the indenture operated as a defeasance, and was pleadable in bar as such. Gibbons v. Vouillon, 8 C. B. 483. Case cited in the judgment: Ayliffe v. Scrimshire, Carth. 63. MESSENGERS' FEES. Express contract.-The trade assignee of a petitioner under the Insolvent Debtors' Acts, 5 & 6 Vict. c. 116, s. 1, and 7 & 8 Vict. c. 96, S. 4, is not liable personally for the messengers' fees and expenses, in the absence of an express contract. Hamber v. Hall, 10 C. B. 780. MESSENGERS' LIABILITY. A. thereupon brought an action for the breach of contract, alleging in his declaration, Vict. c. 106, s. 107, where he seizes goods of a Not within the protection of the 12 & 13 that he had always been ready and willing to third party.-A messenger in bankruptcy, who, accept a lease, that the 29th of September, intending 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, had elapsed, and that B. was in a situa- goods belonging to B., is not within the protion to grant a lease. A. also sought to re-tection of the 12 & 13 Vict. c. 106, s. 107, and cover back the 250l. as money had and received, upon a failure of consideration: Held, that the recital in the agreement, and proof of declarations made by B. that C.'s lease was void and good for nothing, were prima facie evidence, as against B., that he had power to grant the lease; but that, it appearing also by the recitals in the agreement, that the lease to C. was supposed to be void by reason of C.'s bankruptcy, such prima facie case was rebutted by proof of the supersedeas of the fiat against C.; and, consequently, that B. was entitled to the verdict upon an issue as to his ability to grant the lease. therefore is liable in trespass at the suit of B., PRISONER. Removal to part appropriated to first class Custody of insolvent in Queen's Prison.prisoners.-A., a prisoner, in the Queen's Prison, in execution for the costs of a nonsuit, was, by an order of the Insolvent Debtors' Court made before the passing of the 11 & 12 306 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 in bankruptcy having issued against F.: Held, that his assignees were entitled to recover from the defendant the sum so paid to him, as money received for their use. Groom v. Watts, 4 Exch. R. 727. RE-EXAMINATION OF INSOLVENT. Under Stat. 1 & 2 Vict. c. 110, s. 98, after the passing of Stat. 10 & 11 Vict. c. 102. Motion by an assignee for a mandamus to the Insolvent Debtors' Court in London, to reexamine an insolvent under Stat. 1 & 2 Vict. c. 110, s. 98. The insolvency had taken place, and the petition, &c., had been exhibited, in 1839, more than 20 miles from London, and within the district subsequently assigned to the Somerset County Court; the original adjudication had been made by a Commissioner on circuit; and Stat. 10 & 11 Vict. c. 102, had since passed, which abolishes circuits, and, prospectively, gives jurisdiction to the County Courts in cases arising within their respective districts at the distance of more than 20 miles from London. Held, that the Insolvent Debtors' Court in London was the proper jurisdiction. A rule nisi for a mandamus was granted, and no cause shown. In re Willcox, 13 Q. B. 666. SURETY. LAW OF LIBEL AND SLANDER. CRIMINAL INFORMATION. Costs under 6 & 7 Vict. c. 96, s. 8.—On a criminal information for libel, the defendant, if found Not Guilty, is entitled to costs under Stat. 6 & 7 Vict. c. 96, s. 8, though he has not pleaded the special plea allowed by sect. 6; and the Judge cannot deprive him of costs by a certificate, the provision of Stat. 4 & 5 W. & M., c. 18, s. 2, on this head being superseded by the later Act. Regina v. Latimer, 15 Q. B. 1,077. INNUENDO. When unnecessary.-." Frozen snake.”—In an action for writing and publishing of plaintiff, 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, if Stat. 7&8 Vict. c. 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. And the instalments of such annuity were not, be- it is no objection, in arrest of judgment, that fore default, debts within the operation of the Statute. Thompson v. Whatley, 16 Q. B. 189. Case cited in the judgment: Thompson v. Thompson, 2 New Ca. 168. TROVER. Assignee of insolvent.-Evidence to impeach bill of sale.-Costs.-In an action of trover for goods by the assignee of an insolvent, the plaintiff, in order to establish the insolvent's title to the goods in question at a certain time, gave in evidence a bill of sale, by which the insolvent, in consideration of the sum of 4937., sold absolutely the goods to the defendant and other persons, and the plaintiff then produced evidence to impeach the validity of the bill of sale, by showing that it was wholly void on the ground of fraud. The plaintiff having obtained a verdict, held, that he was entitled to the costs incurred in the production of that evidence. Hardy v. Tingey, 5 Exch. R. 294. VOLUNTARY PAYMENT. Money had and received.—The defendant's wife, whilst sole, made, as surety with F., a joint and several promissory note, payable to the words are not explained by innuendo; for the Court will notice that the words are commonly enough understood in this sense to warrant a jury in so applying them. Hoare v. Silverlock, 12 Q. B. 624. MASTER AND SERVANT. - Presence of third person. Malice, when question for the jury.-If a master, about to dis miss his servant for dishonesty, calls in a friend to hear what passes, the presence of such third person does not take away privilege from words which the master then uses, imputing the dishonesty. A master, having so dismissed his servant, refused to give him a character, alleging to those who asked the character, that he had discharged him for dishonesty. The servant's brother afterwards inquired of the master why he had treated the servant so, and was keeping him out of a situation. The master said, "He has robbed me; and I believe for years past;" adding, that he concluded so from the circumstances under which he had discharged the servant. Only one instance of actual robbing had been imputed. Analytical Digest of Cases: Held, that the answer did not go beyond the privilege afforded by the inquiry. And other of his servants, and, addressing them in 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. 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 associing, 1 Cro. M. & R. 181; 4 Tyr. 582; Wright v. Woodgate, 2 Cro. M. & R. 573; Tyr. & G. 12. PRIVILEGED COMMUNICATION. 1. Where defendant invites the inquiry. Case for slanderous words. Plea, Not Guilty. Plaintiff, a domestic servant, about to enter the service of B., referred B., for her character to defendant, in whose service plaintiff had been. Defendant being then unwell, her husband answered the application, and gave plaintiff a good character; and B. took plaintiff into service. Defendant recovered, and, in a letter written to B. on other matters, said that she, defendant, had lately been much imposed upon in her kitchen. B., in consequence, made further inquiries of defendant as to plaintiff's character; and defendant, in answer, spoke the words she complained of, viz., that she suspected plaintiff of dishonesty. The jury, in answer to the Judge, found that defendant intended by her letter to induce inquiries on B.'s part as to plaintiff; and they found a verdict for plaintiff, subject to leave to move for a nonsuit. On motion to enter a nonsuit, Held, that the defendant was bound to correct any error, as to plaintiff's character, into which she supposed B. to have been led by the answer to B.'s former application; and that the words were spoken under such circumstances as prima facie to be privileged. Held, also, that the facts that defendant alluded to plaintiff, and induced inquiries about her, were not evidence of malice. Rule absolute for a nonsuit. Gardner v. Slade, 13 Q. B. 796. 2. In an action of slander, if the facts proved are such that the communication is, by the rules of law, privileged, the Judge ought not to leave any question to the jury as to malice, unless the plaintiff gives further evidence showing a probability that the communication was made maliciously rather than that it was made bona fide. Taylor v. Hawkins, 16 Q. B. 308. 66 3. Words spoken bona fide in pursuance of a duty, or to protect the interests of the speaker: -In slander or libel, the term privileged communication " comprehends all cases of communications made bona fide, in pursuance of a duty, or with a fair and reasonable purpose of protecting the interest of the party uttering the defamatory matter. ation might reasonably be apprehended to be likely to be followed by injurious consequences, both to the servants and to the defendant himself. To entitle the plaintiff in such a case to have the question of malice left to the jury, it is not enough that the facts proved are consistent with the presence of malice as well as with its absence; for, in cases of privileged communications malice must be proved, and therefore its absence must be presumed until such proof is given. Somerville v. Hawkins, 10 C. B. 583. PUBLICATION TO AGENT. Estimate of damages.-The first count, in an action for a libel, was in respect of a newspaper published more than 17 years before action brought. The Statute of Limitations being pleaded, held, that the plea was negatived by proof that a single copy had been purchased from defendant for plaintiff, by plaintiff's agent, within the six years. Other counts were in respect of other libels, alleged to impute to plaintiff the libellous matter charged in the first count, which was set out by way of inducement in each count. The libels themselves, in these other counts, did not refer to that in the first count. The Statute of Limitations was pleaded to so much of these counts as related to the matter in the first count: Held, that the plea was negatived as to these counts also; and, further, that it was not necessary to tell the jury, in estimating the damages as to such matter, to take into consideration the fact that the only publication proved had been the sale to the agent. Duke of Brunswick v. Harmer, 14 Q. B. 185. REPORTS OF PROCEEDINGS IN COURTS OF JUSTICE. What put in issue by “not guilty."—It is a good defence to an action for a libel, that it consists of a fair and impartial (though not verbatim) report of a trial in a court of justice; and such defence is admissible under not guilty, which puts in issue as well the lawfulness of the occasion of the publication, as the tendency of the alleged libel. Hoare v. Silverlock, 9 C. B. 20. Case cited in the judgment: Cotton v. Browne, 3 A. & E. 312; 4 N. & M. 831. SENTENCE OF IMPRISONMENT. 1. What words amount to.-Form of judgment 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 two taining divers false and scandalous matters of 308 Analytical Digest of Cases: Law of Libel and Slander. and concerning the said B., that is to say: No lady would admit to her society such a crack-brained scamp as B. (meaning the said B.): Held, by the Exchequer Chamber on error, that these averments showed sufficiently, without more formal introduction, that the libel was of and concerning B. The following words were held by the same Court, on error, sufficient to maintain an indictment for libel: Why should T. be surprised at anything Mrs. W. does? if she chooses to entertain B., she does what very few will do; and she is of course at liberty to follow the bent of her own inclining, by inviting all the expatriated foreigners who crowd our streets to her table, if she thinks fit. On indictment for libel, the defendant suffered judgment by retraxit. The record of the judgment stated that the prosecutor and defendant came, &c., and defendant" withdrew his plea by him above pleaded in manner and form aforesaid," "whereby our said Lady the Queen remaineth against him without defence in this behalf. Whereupon" it was adjudged that he be convicted, &c.: Held, by the Exchequer Chamber, on error, sufficient ground for a judgment, though it was not expressly alleged that the defendant confessed the indictment. The judgment, as entered on the record, being that, for the offences charged upon him in each and every count of the indictment, the defendant be imprisoned in the Queen's Prison for six months now next ensuing Semble, by the Court of Exchequer Chamber, on error, that the judgment was, in form, a sentence of one term of six months' imprisonment upon the whole indictment, and would therefore be erroneous if any count was bad. To the judgment of imprisonment as above, was added: "And that he" (defendant) "be placed in the first division of the fourth class of prisoners in the Queen's Prison:" Semble, by the Court of Exchequer Chamber, on error, that, if this direction was not warranted by an order of the Secretary of State under Stat. 5 & 6 Vict. c. 22, it still did not vitiate the judgment. And held by the Court of Queen's Bench, that such direction, when warranted, is no part of the judgment of the Court, but a mere order. removing the same objection; and they permitted him, at the same time, in the entry of the retraxit, to substitute a direct averment that the defendant below" withdrew" his plea, whereby our Lady the Queen remaineth, &c., for an averment that, the defendant “ having withdrawn," &c., our Lady the Queen remaineth, &c. Although each motion was opposed, and all the objections met by the amendments were raised by the original assignment of errors. Gregory v. Reginam, 15 Q. B. 957. Case cited: O'Connell v. Reginam, 11 Cl. & 2. Imprisonment on several counts of indict- SPECIAL DAMAGE. 1. Put in issue by not guilty.-In case for words not actionable per se, averring special damage," not guilty," puts in issue not only the speaking of the words, but also the special damage alleged.-Wilby v. Elston, 8 Č. B. 142. 2. Words charging prostitution or swindling not actionable.-The words, "You are living by imposture: you used to walk St. Paul's Churchyard for a living;"-spoken of a woman with the intention of imputing that she was a swindler and a prostitute,-are not actionable, without special damage.—Wilby v. Elston, 8 C. B. 142. Case cited in the judgment: Norton v. Schole field, 8 C. B. 149. After error brought, and when the case was in the paper for argument, the Court below permitted the prosecutor (defendant in error) to amend the record as to the venire and continuances. The writ of error was then argued. Before judgment in the Exchequer Chamber, the Court below, on motion, permitted the prosecutor, on payment of costs, to amend the record again by the rule of sentence, as entered in the Master's book, for the purpose of removing the objection that one term of imprisonment appeared to be awarded for all the offences. Afterwards, the case again standing for argument in error, the Court below, on motion, permitted the prosecutor, on payment of costs, to amend again (there being sufficient materials), for the purpose of more completely Exch. R. 521. 3. Malice. In an action for slander of title, by saying at the sale of a lease and assignment of premises, whereof the defendant was the ori ginal lessor, the false and malicious words, viz., " that the whole of the covenants of this lease are broken, and I have served notice of ejectment; the premises will cost 70l. to put them in repair;" by reason of which false and malicious words the property fetched less than it otherwise would have done; the true question for the jury is, whether the words are false and malicious, and whether the special damage arose therefrom. Brook v. Rawl, 4 The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, FEBRUARY 19, 1853. PROSPECTS OF LAW AMENDMENT. last of the bills, however, called forth BILLS BEFORE PARLIAMENT. some observations from the Lord Chancellor and Lord Campbell, not undeserving of notice. In reference to the Bill for the THE most enthusiastic Law Reformers further relief of Suitors in Equity, by dimust 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 our 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, first 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. R ap |