Analytical Digest of Cases: Law relating to Sheriffs. REPORTED IN ALL THE COURTS. LAW RELATING TO SHERIFFS. ASSIGNEES OF BANKRUPT. commencement. 325 on the day and year aforesaid, took bail for H.'s putting in special bail to the said action. That on that occasion defendant, by bail bond, Right to recover back money paid.-Judgment became bound to the sheriff, under a condition debtor.—The defendant having recovered judg- reciting that H. was taken, on 2nd April, 1849, ment against H., on the 25th of April lodged by a capias bearing date the same day, in an with the plaintiff, who was the sheriff, a writ of action of debt at plaintiff's suit; and the conf. fa. The plaintiff neglected to execute the dition was for H.'s putting in special bail. writ until the 11th of May, when he seized the That H. did not put in special bail; and the goods of H. and assigned them to the de- bond became forfeited; and the sheriff afterfendant by bill of sale, which stated the con- wards, to wit on 17th April, 1849, assigned it sideration to be 2561. paid by the defendant to to plaintiff. On special demurrer, him. He then returned fieri feci. Before Held, by Patteson and Erle, JJ., that it apthe seizure the defendant had notice of an act peared conclusively against defendant, from of bankruptcy committed by H. before the the recited condition of the bond, that the 25th of April, upon which a fiat issued in Judge's order was made, H. arrested, and the August, and assignees were appointed, who bond given and assigned, in an action brought sued and recovered from the plaintiff the value by the present plaintiff against H., and after its of the goods seized, whereupon he brought the present action to recover back the money so paid: Held, first, that though no money in fact passed, the plaintiff and defendant were, as between themselves, in the same situation as if the plaintiff had sold the goods to the Held, also, that it was to be intended that defendant and received the money. Secondly, the bond was assigned before this action was That, though the money was not the plaintiff's, commenced; for the declaration showed that it still he was entitled to recover, since it was was assigned before the time of declaring, and money which he ought to have received as the Court would therefore intend that it was 800n as he had been compelled by the owner to pay for the goods seized. Thirdly, That in this action the plaintiff was not estopped by his return from saying that the then title of the debtor was defeated by matter subsequent. Lastly, That the money having been paid by the plaintiff in ignorance of the facts, he was entitled to recover it back, although the defendant could not in every respect be placed in statu quo.-Standish v. Ross, 3 Exch. R. 527. BAIL BOND. And, by Lord Campbell, C.J., Wightman and Erle, JJ., that, independently of the condition of the bond, the Judge's jurisdiction sufficiently appeared. assigned before the issuing of the writ, unless the contrary appeared, which was not the case here, the same day being named both for the issuing of the writ and for the assignment.— Barnes v. Keane, 15 Q. B. 75. Case cited in the judgment: Owen v. Waters 2 M. & W. 91. FALSE RETURN. 1. Estoppel by return.—If the sheriff return to a fi. fa. in an action by R. against W., that he has seized goods of W. under a fi. fa. upon a prior judgment recovered by L. against W., and R. then brings an action for a false return, and for not seizing the goods under R.'s writ, and the sheriff pleads Not Guilty, and other pleas in denial of the seizure of W.'s goods under R.'s writ, and of there having been goods of W. which might have been seized under R.'s writ, the sheriff is not estopped from showing, under such pleas, that the goods seized did not in fact belong to W. Remmett v. Lawrence, 15 Q. B. 1004. Action by the Sheriff's Assignee.—What is admitted on demurrer to declaration.-Intendment that fact occurred before action brought. -The assignee of a bond given to the sheriff on arrest of H. by a Judge's order under Stat. 1 & 2 Vict. c. 110, s. 3, declared in debt against the obligor, reciting that the writ in the present action issued 17th April, 1850, and stating that, to wit on 2nd April, 1349, H. had been arrested and was then in the sheriff's custody by virtue of a capias theretofore, to wit on the day and year last aforesaid, issued 2. Seizure under fi. fa. on prior judgment. out of the said Court by virtue of a Judge's -Per Erle, J., where a declaration by an exeorder theretofore, to wit on 31st March, 1849, cution creditor against the sheriff complains made; which writ was directed and delivered that goods of the execution debtor have been to the sheriff, indorsed for bail for 431., ac- seized under plaintiff's fi. fa. and a false recording to the form of the statute. The turn made, and the defendant denies such declaration recited the wit, commanding the seizure, the defendant supports his issue by sheriff to take H., and keep him till he should proof that, at the time of the seizure, he had have given bail or made deposit in an action of in his hands a fi. fa. under a prior judgment debt at the suit of plaintiff, or should by other obtained by another party against the same lawful means be discharged, and requiring H. debtor. For although the sheriff is, in strictto put in special bail. The declaration then ness, considered to seize goods under all the stated that the sheriff, after the arrest of H., writs in his hands at the time, he does not do delivered to him a copy of the writ, and, to wit so in the sense of such a declaration and tra 326 Analytical Digest of Cases: Law relating to Sheriffs. verse, which point to a seizure available under having authorised the unlawful act of his plaintiff's writ. Kemmett v. Lawrence, 15 partner, B. Q. B. 1,004. INSUFFICIENT LEVY. In such a case, the damages are peculiarly in the discretion of the jury, and they may include the sum paid for the withdrawal of the execution. Duke of Brunswick v. Slowman, 8 C. B. 317. 2. Trespass by officer to execute a writ of fi. fa.-Plea of justification.—Replication de injuria.-Where a plea justifies a trespass under a fi. fa., on the ground that the outer door was open at the time of the entry and seizure, that allegation is put in issue by the replication de injuria. Duke of Brunswick v. Ślorman, 8 C. B. 317. RETURN TO FI. FA. General form of declaration.—Case against sheriff by execution creditor. The count averred, that there were goods of the debtor within defendant's bailiwick, of which defendant had notice, and might have levied the money. Breach, that defendant would not Power of attorney to order sheriff to quit levy or cause to be made the moneys. Pleas, possession.-To a testatum fi. fa., the sheriff Not Guilty, and a traverse of the averment returned that he seized the defendant's goods, that there were goods of which defendant and kept possession until he received from "the might have levied, &c. Proof, that the sheriff attorney of the plaintiff an order to withdraw seized goods of the debtor and sold them, but from possession: Held, that the return was that the sale was improperly conducted, so good, for the attorney of the plaintiff meant that he did not make so much as ought to "the attorney in the action," and that he had have been made, and plaintiff received less power to order the sheriff to quit possession. than he otherwise would have done and not Levi v. Abbott, 4 Exch. R. 588. enough to satisfy the debt. Held, that this evidence supported the breach, and that it was not necessary that plaintiff, being the execution creditor, should declare more specially. Mullet v. Challis, 16 Q. B. 239. JURY ACT. 6 Geo. 4, c. 50.-Penalties under.—“"Acting under-sheriff.". Evidence of being. — A declaration for penalties under the Jury Act, 6 Geo. 4, c. 50, s. 46, described the defendant as "acting under-sheriff," and it was proved that he was the person who in the county performed the duties of under-sheriff; but that T., in London, was nominated under-sheriff pursuant to the 3 & 4 Wm. 4, c. 90, s. 5. On the occasion of receiving official documents from the late under-sheriff, the defendant, at the request of the latter, appended the word "under-sheriff" to his signature, at the same time saying, that he was not under-sheriff, but T. was. The defendant had described himself in an affidavit as "acting under-sheriff:" Held, that the defendant was not liable to the penalties as under-sheriff, and that the plaintiff was properly nonsuited. Williams v. Thomas, 4 Exch. R. 479. OUTER DOOR BROKEN. :9 TROVER. in Right of possession.—Interest in chattel.— Execution.-The plaintiffs, brewers in Dublin, supplied a customer in Wales with porter casks, on the terms that the empty casks were to be returned to Dublin, at his expense and risk, within six months from the date of the contract, or paid for at invoice price, at the option of the shippers: Held, that as soon as the casks were empty, the vendee of the porter was a mere bailee of the casks during pleasure, and that the vendors had such an immediate right of possession as entitled them to maintain trover against a sheriff who wrongfully took them in execution. Manders v. Williams, 4 Exch. R. 339. a Cases cited in the judgment: Gordon v. Harper, 7 T. R. 9; Bradley v. Copley, 1 C. B. 685. SEIZURE. Two writs.-First judgment fraudulent.—If sheriff has seized goods at a time when he the suit of two different parties, and the plainholds two writs of fi. fa. upon judgments at tiff obtaining the second judgment, brings an action against the sheriff for a false return: Quære, whether such plaintiff may, on proof that the first party's judgment was fraudu lent, insist that the seizure was under his writ only. Remmett v. Lawrence, 15 Q. B. 1004. WRIT OF INQUIRY. 1. Officer's trespass.-Co-trespassers.-Damages.-A., a sheriff's officer, to whom a writ of fi. fa. was directed, offered, for a pecuniary Return. When judgment may be signed.— consideration, to delay its execution for a few Under Stat. 3 & 4 Wm. 4, c. 42, s. 18, which days. B., who exersised the office of bailiff to provides, that in causes tried before the sheriff, the sheriff, in partnership with A., afterwards judgment may be signed "at the return of illegally executed the writ by breaking open any su: writ of inquiry," judgment cannot an outer door: and 4. subsequently withdrew be signe fore the day on which the writ has his men from possession on payment of the been made returnable, though it has been actuamount indorsed on the writ, and of a bonus ally returned before that day. Holmes v. Into himself: Held, sufficient to warrant the don and South Western Railway Company, 13 jury in finding A. to be a co-trespasser, as Q. B. 211. Analytical Digest of Cases: Law relating to Sheriffs.-Public Companies. WRONGFUL SEIZURE. 327 Vict. c. 110, s. 2, and was therefore not enGoods of third party.-Right of owner.-titled to registration. Regina v. Whitmarsh, If a sheriff wrongfully seizes goods which are 15 Q. B. 600. afterwards taken from him by another wrong- 2. Suggestion on the record of the death of a doer, the owner of the goods may, in an action public officer.-A., who sued as public officer against the sheriff, recover as special damage the amount necessarily paid to the other wrongdoer, in order to get back the goods. Keene v. Dilke, 4 Exch. R. 388. PUBLIC COMPANIES. BANKING COMPANY. 1. Stat. 7 & 8 Vict. c. 110, s. 2.-What is a company established for a "commercial purpose."-Registration.-Mandamus to the registrar under Stat. 7 & 8 Vict. c. 110, to register the deed of a joint-stock company, and grant certificate of complete registration. The writ set out the deed, which provided, that it should not authorise or require anything to be done contrary to law; that the company's business should be purchasing land and erecting thereon dwellings to be allotted to the members, and raising a fund out of which sums should be paid to, or applied for the benefit of, the allottees, and raising money for the purposes aforesaid, by selling, &c., interests in, or charges on, the estates to be purchased; that the directors might recommend allotments of land, dividends of profits, and the setting aside money for a reserve fund; that the shareholders, from time to time selected by lot from those to whom no allotment had been made, should receive allotments of the land purchased; that, before a shareholder should receive his allotinent, a dwelling should be erected on it, and certain sums laid out in stocking it, by the directors; that the allotment should be charged with a rent-charge for the benefit of the company, at the rate of 5. for every 1007. expended by them; that the rent-charges might be retained for the benefit of the company, or sold, &c., as the directors should think fit; and that, when the funds of the company should exceed the amount necessary to provide allotments for all the shareholders, a dividend out of the profits should be declared among the shareholders. of a banking company under the Statutes 7 Geo. 4, c. 46, and 7 & 8 Vict. c. 113, died after issue joined. The Nisi Prius record was made up from the plea-roll, as though A. was alive. The venire had been awarded accordingly as between A. and the defendants, and no entry was made on the plea-roll of the death of A., or of the appointmer of another public officer. After the Nisi Prius record was so made up, a memorandum was entered upon it, stating the fact of the death of A., and that B., another public officer of the co-partnership, had been appointed to continue the proceedings; but this was not stated by way of suggestion to the Court, nor was it followed by any statement of confession by the defendants, or a nient dedire; and, after such entry had been made, the cause was entered for trial as "B. v. (the defendants)," and was tried by the jury returned on the venire in the cause of "A. v. (the defendants)." Three of the defendants appeared at the trial, under protest; the fourth had suffered judgment by default; and a verdict was found for the plaintiff. Held, that the entry so made upon the Nisi Prius record, was irregular, and did not authorise the trial in the name of B. as plaintiff. Quære, whether a formal suggestion of the death of A. would have been traversable. Barnewall v. Sutherland, 9 C. B. 380. 3. Married woman.— - Sci. fa. A married woman, with the consent of her husband, the defendant, purchased, with the proceeds of her separate estate, shares in a joint-stock banking company, and was registered as owner. Her husband received some dividends, and signed receipts as the agent of his wife; he also attended a meeting of the company, at which none but shareholders were entitled to be present. The company's deed of settlement provided, that the husband of any female shareholder should not be a member in respect of such shares, but should be at liberty to sell them, or at his option to become a Return, That the company was not a joint- member on complying with certain requisistock company established for any commercial tions, which the defendant in this case did not purpose or purpose of profit, within Stat. 7 & do: Held, that the defendant was not a mem8 Vict. c. 110 (sect. 2); and that it consisted ber, for the purpose of execution by scire of more than six persons, and was a banking facias on a judgment against the public company carrying on business within 65 miles officer, under the 7 Geo. 4, c. 46, s. 13. Ness of London; that the shares were of less v. Angas, 3 Exch. R. 805. amount than 100l.; and that the company carried on the business of bankers otherwise than by letters patent granted according to Stat. 7 & 8 Vict. c. 113. On demurrer to the return, held, 1. That, as the deed itself did not disclose that the company was a banking company, the latter part of the return showed no legal cause for not registering. 2. But that the company appeared, by the deed, not to be established for any commercial purpose or purpose of profit, within Stat. 7 & 4. Executor of deceased partner.-Liability of for calls.-Extraordinary meeting.-Notice. -A declaration by the public officer of a jointstock company against the executrix of a shareholder for calls, stated that, by the deed of settlement, it was provided that the shareholders, while holding shares, should be partners in the company; and that, in addition to 51. required to be paid by each shareholder before the execution of the deed, the directors should have power to call for the further payment by each shareholder, or his executors, of 328 Analytical Digest of Cases: Public Companies. an action against a shareholder for the recovery of a debt, or for enforcing any claim or demand due to the co-partnership, are bound to sue in the name of one of their public officers, and are not at liberty to sue in the names of the covenantees named in the deed of copartnership. The words in the 9th section of the Act, "shall and may," are obligatory, and not merely permissive. Chapman v. Milvain, 5 Exch. R. 61. it 451. on every share held by him. It then averred, that, after the testator's death, and whilst the defendant was a shareholder as such executrix, the directors made a call. Breach, non-payment by the defendant as such executrix. Pleas, non est factum, and a denial that the call was made whilst the defendant was a shareholder as executrix : Held, first, that the covenant by the shareholders to pay calls bound their executors, in case a call was made on them, although the covenant did not con- 6. Sci. fa.-Execution against husband of tain the words "or their executors," and con- shareholder as member for time being.-7 Geo. sequently, there was no variance in the state-4, c. 46, s. 13.—By a deed of settlement conment of the contract; secondly, that the plain- stituting a joint-stock banking company, tiff was entitled to succeed on the other issue, was provided, that before the husband of a inasmuch as the defendant was in one sense a shareholder became a member of the company, shareholder as executrix, notwithstanding the he should take certain steps therein specified. deed provided that no executor should become A woman, who was a shareholder of the coma shareholder without the consent of the di- pany before her marriage, continued after her rectors, and until he had done certain specified marriage, and without her husband's knowacts, which requisites were not in this case ledge, to receive dividends and pay calls in her complied with. maiden name upon her shares, which remained registered in that name; and she was so de scribed in the list of shareholders returned to the Stamp Office. Her husband knew that she was a shareholder, but did not take the steps required by the deed of settlement to become a shareholder in respect of her shares, or do any other act respecting them. The deed of settlement further provided, that the directors should meet weekly, on a day to be named by them, and on such other days as they should think fit; but that the secretary, or any director, might call an extraordinary board, by sending a notice at least one clear day before the time of meeting, and specifying the day and hour fixed for the meeting, and the purpose thereof; and that the business transacted by the directors, being at least five in number, should bind the company. The directors appointed Wednesday as their ordinary day of meeting; and a board having been held on Wednesday, the 7th of March, was adjourned. A letter was afterwards sent to the directors by the secretary, stating that he was directed to inform them that a special board was summoned for Tuesday, the 11th of April, on special business. At this meeting the call in question was made. Held, that the call was duly made; for this was not an extraordinary board, and therefore did not require notice of its special purposes. The statute enabling the company to sue and be sued by their public officer, required a memorial to be enrolled of the names, residences, and descriptions of the shareholders, and declared that, until such memorial was enrolled, no action should be commenced under the authority of that Act. One of the shareholders was described thus :-" A. R., director of the Honourable East India Company, and Major-General in the East India Company's service, shareholder:" Held, sufficient, within the meaning of the Act of Parliament, as it corresponded with the register. Wills v. Murray, 4 Exch. R. 843. Held, that execution could not be sued out against the husband upon a sci. fa. under the 7 Geo. 4, c. 46, s. 13, as a member for the time being. Dodgson v. Bell, 1 L. M. & P. 812. Case cited in the judgment: Ness v. Angas, S BUILDING SOCIETY. 1. Action by trustees. Arbitration under society's rules.-By a rule of a building seciety, actions relating to their property were to be brought by the trustees, who were to be indemnified out of the funds; but they were not to commence any action without consent of the directors: Held, that, on the trial of an action brought by them, the defendant (though a member of the society), could not allege that they were suing without the requisite consent. By another rule, disputes between the asso- Case cited in the judgment: Morrison v. To be continued.] The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, FEBRUARY 26, 1853. LAW BILLS BEFORE PARLIAMENT. | diency of substituting a Judge for a jury TRIAL BY JURY. upon the trial of civil actions, is about to be brought under the consideration of the LeIN the days of Fox and Erskine, the gislature in the bill presented by Lord statesman would, indeed, have been bold Brougham to the House of Lords shortly who ventured to propose that the trial by after the meeting of Parliament, “ for furjury should be dispensed with in civil ac- ther amending the Law of Evidence and The clauses by which this tions, with or without the consent of the Procedure." litigants. The question, however, is now important change is proposed to be introseriously discussed, and the noble and duced in the procedure of the Common Law learned Lord who is placed at the head of Courts are as follow : the administration of the Law, has taken "In every civil action or other proceeding great pains to make it known that he has which is henceforth either instituted in, or repronounced no opinion against giving the moved into, any of the Superior Courts of option to suitors between trial by a jury Common Law, and is to be tried at Nisi Prius, and trial by a Judge. All he has ventured the Judge at Nisi Prius shall, except as hereinafter excepted, decide the issues of fact without yet to state upon the subject is, that the the intervention of a jury; and such decision question is one of great delicacy and im-shall be entered on record, and shall operate portance, and that his mind is not made up in every respect as if it were the finding of a jury at Nisi Prius;" s. 22. upon it. As may be supposed, it is not proposed, "In every such action or proceeding as is in the first instance, to shock the prejudices referred to in the last section, either party thereto may insert in the margin of any pleadof our fellow-countrymen, by a legal pro-ing delivered or filed by him, or if there be no hibition against trial by jury. We are not yet so advanced in intelligence that it is desirable to declare that the Cadi should not only make the law but determine all the facts. It is only proposed to provide, that in case neither party requires a jury, the Judge shall decide all issues of facts without the intervention of a jury. In this manner we are to be gradually accustomed If we inquire the grounds upon which a to see the Judge discharge the functions of change so startling is proposed in our legal a jury, but those who, in the slang of the institutions, we are referred to the experiday, "take their stand upon progress,' ence of the County Courts, which seem regard the option to be given as a tempo- destined, for good or evil, to exercise an inrary concession to absurd prejudice, and fluence which no one at the period of their look forward confidently to the speedy ad- establishment could have predicted. Upon vent of that day when "jury trial," and all every question of legal amendment involvsuch antiquated rubbish, is to share the ing any doubtful element, the supposed exfate of fines and recoveries and trial by perience of the Judges of the County battle! As our readers are already aware (see te, p. 107), the question as to the expeVOL. XLV. No. 1,303. formal pleadings, in the margin of the issue stated by agreement, the words "by jury," and whenever such a memorandum is made by either party, it shall be inserted also in the margin of the Nisi Prius Record, and a jury shall be summoned, and shall try the issues of fact in like manner as before the passing of this Act;" s. 23. Courts is appealed to, as affording an unerring test of the soundness of the principles upon which they administer justice, |