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London; a certiorari from the Court of Q. B. issued and was returned; and common bail was filed. COLERIDGE, J., ordered that a procedendo should issue unless good bail were put in within six days. ERLE, J., discharged a summons for setting this order aside, but gave leave to apply to the full Court. Locke now moved accordingly. Ordinarily special bail is required on removal by certiorari; Day v. Paupierre (suprà); but not in the case of an administrator, who is exempt from special bail generally; 3 Bac. Abr. 542 (ed. 7), tit. Executors and Administrators (P) 5; and so where a cause is removed by habeas corpus; Lumley v. Quarry, 1 Salk. 101, Reg. K. B., Hil. 2 Ja. 2 Peacock's Rules, 73. In Ashley's Doctrine, &c., of Attachment, p. 26, it is said that, in the case of an executor or administrator the attachment may be dissolved by common bail. Lord CAMPBELL, C. J.-Generally, an administrator need not give special bail on removal by certiorari; but there must be an exception in the case of the custom if this applies to administrators at all; else the custom would be illusory. The authorities show the general rule only, except the dictum from Ashley, for the correctness of which Mr. Locke, an experienced practitioner in the Mayor's Court, does not himself vouch. There is no ground for the motion. COLERIDGE, J., concurred. ERLE, J.-Without answering for the Mayor's Court, I know that the practice has been not to remove by certiorari without perfecting special bail. I find no semblance of autho. rity for not applying that to an administrator where the custom applies to him, which would be thus quite evaded. CROMPTON, J.—The applicant must make out his exemption: the authorities show nothing as to the custom of London. Rule refused.
*The QUEEN v. The Lords and Steward of the Manor
of WEEDON BECK.
Testator surrendered copyholds to the use of his will, and devised them to trustees for a term
of years, on certain trusts, subject to which he devised them for life, with remainder in tail, and divers remainders over, with a provision for cesser of the term on the trusts being satisfied. On testator's death, the trustees were admitted tenants to hold for the term upon the trusts of the will; and a fine was duly paid upon such admission. Afterwards, and after the trusts of the term were satisfied, a private act (7 & 8 Vict. c. 24) was passed, by which it was enacted that certain new trustees therein named might sell the premises freed from the limitations of the will, and declare that the copyhold tenants of the premises should thenceforth be trustees of the legal estate thereof for the purchaser, and that such tenants should be such trustees accordingly, until the same should have been surrendered; with power for the new trustees, by any surrender according to the custom of the manor, and in the same manner as if they were copyhold tenants of the same, to surrender the copyhold hereditaments so to be sold to the use of the purchaser. The act contained a clause saving the rights of all persons except those interested under the will. The said trustees, having sold the premises, tendered a formal surrender to the steward, which he refused to accept. The grounds of refusal were, that the trustees were not tenants of the manor, and must themselves be admitted before they could surrender; that the estate tail was not barred, for this could only be done by a surrender for that purpose, on which, by the custom of the manor, a fine would be payable; and that
the lord was no party to the private act, and not bound by it. Held, That, as the tenant for life and remainder-man in tail had already been admitted by the admitstance of the original trustees, and as, under sect. 50 and other sections of stat. 3 & 4 W. 4, c. 74, the tenant for life and remainder-man in tail might (independently of the private act), by one surrender, have barred the entail and conveyed to the purchaser, the lord was not prejudiced by the private act, substituting the new trustees as surrenderors in lieu of the tenant for life and remainder-man in tail: and that he was bound to accept the surrender.
MANDAMUS. The writ recited that William Harris was seised in fee, at the will of the lords of the manor of Weedon Beck, in Northamptonshire, according to the custom of the manor, of certain customary tenements; that, in 1797, he surrendered them to the uses of his will; that by his will, in 1812, he devised the same to Earl Spencer and others, for a term of sixty years, upon certain trusts therein declared, with a proviso for the cesser of the term as soon as the trusts should be satisfied; and in the mean time, and subject to the *809]
said term, he devised the said premises to William Harris *the
younger for life, remainder to the said trustees to preserve, &c., remainder to the first and other sons of the said W. Harris, successively in tail general; with divers remainders over : That the testator died in 1813 without having revoked or altered his will: That, at a general Court Baron and customary Court held in the same year, it was found that the testator died seised; and one of the said trustees was admitted tenant of the said premises as joint devisee with the other trustees of the said term, to whom the lords of the manor granted seisin thereof, to hold the same premises unto the said trustees for the term of sixty years from the day of the death of the testator, upon the trusts in the will mentioned, at the will of the lords, according to the custom of the manor, by the rents, customs, and services therefore due and of right accustomed; and the fines and payments in respect of such admission were then duly paid and made: That on the 1st January, 1827, the trusts of the term were satisfied: That by stat. 7 & 8 Vict. c. 24, (Private), (a) intituled « An act for enabling trustees to sell the estates devised by and settled to the uses of the will of William Harris, Esquire, deceased, and for authorizing the laying out of the moneys arising therefrom in the purchase of other estates, to be settled to the same uses,” it was, amongst other things, enacted,(6) That it should and might be lawful for certain persons, named in the said act, to sell (amongst others) the said copyhold premises, and to declare that the copyhold tenant or tenants of the same premises should thenceforth be a trustee or trustees of the legal estate thereof for such purchaser, his heirs and assigns, or otherwise
*as he should direct, and such tenant or tenants should be such *810]
trustee or trustees accordingly until the same should have been surrendered to the use of the purchaser thereof, &c. ; with power for the trustees or trustee for the time being authorized to make sales under that act, by any surrender or surrenders, to be by them or him made into the hands of the lords of the said manor or their steward, according to the custom of the said manor, and in the same manner as if such trustees or trustee had been or were the copyhold tenants or tenant of the same, to surrender the copyhold hereditaments so to be sold to the use of the purchaser thereof, &c., as he should direct, and to be holden at the will of the lords of the manor, according to the custom thereof, by the rents, fines, suits, and services therefore due and of right accustomed ; such premises, when so bargained and sold, to be freed and discharged in equity, and, when surrendered, to be freed and discharged at law, from all the uses, estates, trusts, limitations, &c., charged, limited, and contained in the said will, of and concerning the premises. The writ then recited that, by indenture of the 29th May, 1845, the trustees under the act had bargained and sold the said premises in fee, and declared that the copyhold tenant or tenants of the premises should be a (a) Royal Assent, 6th August 1844.
(6) By sect. 1.
trustee or trustees of the legal estate for the purchaser; that the trustees under the act afterwards requested the steward to accept a surrender to be by them made, according to the custom of the manor, of the premises so bargained and sold, to the use of the purchaser in fee, to ha holden at the will of the lords of the manor by the rents, fines, suits, and services therefore due and of right accustomed, and tendered to the steward such surrender duly stamped; but that the steward refused to accept such *surrender. The writ then commanded the defendants to accept a surrender from the said trustees according to the custom, &c.,
[*811 to the use of the said purchasers, or that they should show cause, &c.
Return. That the trustees under the said act of parliament were not tenants of the said customary tenements : That the act was a private act to which the lords of the manor were not parties or privies: That the act, by an express clause,(a) saves to the Queen and every other person, except the said William Harris the younger, and other persons interested in the limitations of the said devise, all such estate, right, title, interest, use, trust, claim, and demand whatsoever, of, in, to, or out of the said hereditaments, as they or any of them had or might have had in case the act had not been passed : That, according to the custom of the manor, the lords are entitled to receive a fine on the admission of a new tenant to any of the copyhold tenements of the manor, and that, by permitting the said trustees to make a surrender without the trustees having become tenants of the said tenements and having been admitted as such tenants and having paid the said customary fine on such admission, the lords would be deprived of a fine which would have been justly due to them in respect of such admission : That the said W. Harris the younger had male issue, namely, &c., and that there was a valid and existing entail of the said tenements with divers remainders over: That, except by virtue of the act, no valid bargain and sale or conveyance of the said tenements to the said purchaser, to hold the same in fee, could be made without a previous surrender, and *admission of the surrenderor, in order to bar the entail : That, accord
[*812 ing to the custom of the manor, the lords are entitled to receive a certain reasonable fine on any such surrender and admission for the purpose of barring any entail, &c. : That no such surrender and admission has ever taken place; nor has any fine in respect thereof ever been paid or proffered to the lords of the manor. Wherefore, &c.
General demurrer and joinder. The case was argued in last Hilary term (6) by Karslake for the Crown and Creasy for the defendants. The arguments are sufficiently noticed in the judgment.
Cur. adv. vult. Lord Denman, C. J., in this vacation (July 5th), delivered the judg. ment of the Court.
a) Sect. 11. (6) January 17th. Before Lord Denman, C. J., PATTESON, COLERIDGE, and ERLE, Js. VOL. XIII.—61
The facts of this case appear by the writ of mandamus and return to be as follows. William Harris, having surrendered his copyholds to the use of his will, devised them to trustees for sixty years on certain trusts, subject to which he devised to another William Harris for life, remainder to his first son in tail, with divers remainders over, with a provision for cesser of the term on the trusts thereof being satisfied. On the death of the testator the trustees were admitted, but it is not stated whether they paid a full fine or not. The trusts of the term were satisfied. Long afterwards, a private act of parliament, 7 & 8 Vict. c. 24, was passed, by which it was enacted that certain new trustees therein named might sell the copyholds, among other estates, freed and dis
charged from the limitations *of the will, with power for them (a) *813]
" by any surrender or surrenders to be by them or him made into the hands of the lord,” or steward, “according to the custom of the said manor, and in the same manner as if such trustees or trustee were or was the copyhold tenants or tenant of the same, to surrender the copyhold hereditaments so to be sold,” “ to the use of the purchaser,” his heirs and assigns. No estate was given to the new trustees by this act; and there is a clause saving the rights of all persons except those interested under the will. The new trustees have sold the copyholds, and have tendered a formal surrender to the steward, which has been refused. The grounds of refusal are, in substance, that the new trustees are not tenants of the manor, and must themselves be admitted before they can surrender : That the estate-tail is not barred, which can only be done by surrender for that purpose, on which by the custom of the manor a fine would be due to the lord: That the lord is no party to the private act, and not bound by it.
It is clear that the admission of the original trustees operated as an admission of the tenant for life and the remainder-man in tail ; indeed, no point was made of that sort upon the argument. It is equally clear, that, under the provisions of the act, the surrender by the new trustees and admittance of the purchaser, if they had taken place, would bar the entail, and the remainders in the will, as against the parties entitled under that will. But the question is, whether the act is binding on the lord to accept the surrender. For the lord it is contended that, but for
the act of parliament, *two surrenders would be necessary and *814]
two admittances, and, of course, two fines; the one to bar the entail, the other to pass the estate to the purchaser; and that he, being no party to the act, is not bound to accept one surrender only and lose one fine. Now the custom of the manor, as set forth in this return, by no means shows the necessity of two surrenders; and, when we advert to the provisions of stat. 3 & 4 W.4, c. 74,(8) ss. 15, 22, 40, 42, 50, 52, it seems clear that the tenant for life and remainder-man in tail might (independently of the private act) by one surrender have barred the
(a) Sect. 1.
(0) “ For the abolition of fines and recyveries, anå for the substitution of more simple modes of assurance."
entail and conveyed to the purchaser, and that only one fine would in such case have been payable ; it being always recollected that the tenant for life and remainder-man in tail had already been admitted by the operation of the admittance of the original trustees. A form of such surrender is given in Scriven on Copyholds, vol. ii. p. 770 (4th ed.), together with the admittance of the purchaser. This being so, the lord of the manor is in no way prejudiced by the private act substituting the new trustees as surrenderors in lieu of the tenant for life and remainder-man in tail, and is in our opinion bound to accept their surrender. And a peremptory mandamus must be awarded.
Judgment for the Crown.(a) (u) Reported by H. Davison, Esq.
*BAILEY and Another v. MACAULAY.
BAILEY and Another v. PEARSON.
BAILEY and Another v. HAINES.
BAILEY and Another v. BRACEBRIDGE.
DAWSON v. HAY.
WILSON v. HOLDEN.
In an action against a member of the committee of a projected Railway Company for work and
labour, goods supplied, and money paid, the jury are to consider whether the defendant, by taking upon him the character of a committee-man, and afterwards acting in the affairs of the Company, has authorized the Company's solicitor or secretary, or any member of the Committee, to hold him out to the world as personally responsible for the reasonable and necessary expenses incurred in forming such a Company, and on its behalf; and, then, whether the
credit was given on the faith of his being so personally responsible. A committee-man by merely allowing his name to appear in that character in the ordinary form
of prospectus issued by railway companies incurs no liability to a tradesman who supplies goods to the Company ; but the consent of a person to his name so appearing may be a fact of importance on a question of such liability, as showing that he took an interest in the proposed concern, whether merely as a patron and well-wisher, or as co-operating in the measures preparatory to its formation. It becomes, therefore, material to know what the committee was doing when he joined it, and whether he knew what it was doing, and concurred therein. If advertising, printing, and stationery are necessary to the working of the committee, and no fund has been raised to pay for such necessaries, the tradesman may justly suppose that all who act on the committee have authorized him to supply them on their credit, although the individual committee-man has not specifically given such authority, and though the tradesman may know nothing more of the committee-men than that they are probably men of character and substance. The absence of the committee-man's intention to pledge his credit is immaterial, if he have given the authority beforehand. If, however, the tradesman looked solely to the deposits on shares as the fund from which
payment was to be made to him, he has no cause of action against the committee-man. As the liability of the committee-man arises, not from his filling that character, but from his
authorizing the orders for goods or services, his admission of general liability may be evidence of his having authorized such orders before his name appeared on the committee. The jury are to consider whether such an admission was made because the actual liability in
law was questionable, and for the purpose of preventing litigation, or whether the admission is referable to his conscientious conviction that his acts have made him personally liable. In the latter case thoy may infer his general liability,