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the allegations, and that whether they relate to something to be found in the document itself, or to something to be inferred from the silence of the document. Therefore, in this case, when the plaintiff charges that in none of the charters from the crown to the corporation of London, is there any grant of the soil or bed of the river, he has clearly a right to discovery, whether it is not true that no charter contains any such grant, in order that when the matter comes to a hearing he may have an admission from the defendants themselves, that no charter contains any such grant. The other part of the interrogatory, requiring the defendants to discover and set forth under or by what charter, or letters-patent, or other grant they claim to be entitled to the freehold of the soil, looks like an investigation of the defendant's title, but it is not an investigation of the proof of that title, except as to that which constitutes the foundation of it; and that comes exactly within what Lord Redesdale says, and in which Sir James Wigram concurs, that the plaintiff is entitled to a discovery of the case upon which the defendant relies. Lord Redesdale goes further, adding, “and how he means to support it.” If by these words it is intended to say that the plaintiff in the present case might ask to see the charters, and then to investigate the evidence on which the defendants rely, that would clearly be going beyond what the rule of the court would permit, and Lord Redesdale would have expressed himself too largely; but taking the words in a restricted sense, they simply enable the plaintiff to ask under what title the defendants claim the property which the plaintiff asserts to be still vested in the crown. His lordship, therefore, although he admitted that the latter part of the interrogatory was apparently open to some doubt, held, that the plaintiff was clearly entitled to an answer to the whole of the interrogatory embraced in the first exeeption. The remaining exceptions were allowed, upon the ground that they fell within the same principle as that already observed upon with reference to the first.
In a later part of his Treatise, Lord Redesdale expressly says, “ In general, where the title of the defendant is not in privity, but inconsistent with the title made by the plaintiff, the defendant is not bound to discover the evidence of the title under which he claims.” (Mitf. Pl. 190.) It is clear, therefore, that in the passage quoted at the commencement of this article, he did not intend to assert that a plaintiff is entitled to have a discovery of the documents or other evidence, by which the defendant intends to prove his case. Thus interpreted, the rule that a plaintiff is entitled to a discovery of the case on which
the defendant relies, and of the manner in which he intends to support it, is consistent with the authorities. The defendant must show that he has a title, which, if proved, would displace that of the plaintiff.
Costs, WHERE THE ATTORNEY-GENERAL IS A PARTY.
S.C. 2 M‘N. & G. 269. The last preceding case decides an important question, as to the course of proceeding with regard to costs, where the Attorney-General is a party.
The saying that the Attorney-General neither pays nor receives costs had passed into an axiom, which, in the words of Lord Cottenham,“ too often gave encouragement to parties to carry on an unnecessary and improper litigation." It had been acted upon by the House of Lords in Smith v. The Earl of Stair and others (6 Bell's App. C. 487), and by the same House in affirming the judgment of Lord Langdale, M. R., overruling the demurrer to this information, when the House, acting upon Lord Cottenham's advice, had refused costs. On the other hand, there were cases in which the House of Lords had given the Attorney-General costs, particularly in The Skinners' Company v. The Irish Society (12 Cl. & Fin. 425), where the Attorney-General was a defendant, but the bill having been dismissed at the Rolls with costs, the House of Lords, on appeal, affirmed the whole of that decree. The authorities were conflicting, and it was most important that the rule should be clearly understood.
The question was again raised in the case before us. In overruling the defendant's exceptions to the Master's report, Lord Langdale, M. R., had dealt with the parties as private indivi. duals, and gave costs accordingly. On the appeal to Lord Cottenham, the defendants contended that costs ought not to have been given, relying upon the rule that the crown, when suing in respect of its private revenue, neither pays nor receives costs; and they cited, amongst other authorities, the judgment of the House of Lords on the demurrer in the present case, pronounced upon the advice of Lord Cottenham himself. The question having stood over for the court to make inquiries as to the course of proceeding, Lord Cottenham, upon a subsequent day, admitted that there was an error in the advice which he had formerly given to the House of Lords. That advice was given without time for consideration; there was no argument, and he thought there was an error in that advice. His lordship then proceeded to deliver the judgment he had formed after consulting the best authorities. To a certain extent the rule that the Attorney-General could receive no costs was necessary, in order to protect parties opposed to him as a suitor from injustice. In a suit in which the Attorney-General, if he had been a private individual, would have been compelled to pay costs, nothing would be more unjust than that he should, under any circumstarices, be entitled to receive costs. In such a case, therefore, and to such an extent, the court adopted the rule. This, however, was not a case of that description, and did not fall within the rule so adopted. The party in possession of a judgment was never made to pay costs. Having got the judgment, he was entitled to defend it; and although the court upon rehearing, or upon hearing exceptions to the Master's report, which was the same thing, might be of opinion that the judgment was not right, and therefore alter it, the party who merely supported what a court of competent jurisdiction had already determined, was never made to pay costs in that contest. Here the Attorney-General was in possession of the Master's report. The defendants complained of that report. The Master of the Rolls was of opinion that there was no ground for that complaint, and gave the costs of upholding the judgment. The Attorney-General could not have been made to pay costs, and therefore his position as to costs was no grievance to the defendant upon appeal. The appeal was therefore dismissed generally, including the question of costs.
The practical conclusion from this judgment will be best expressed in the words with which Lord Cottenham concluded :
I have consulted with the best authorities upon the subject, and we are all of opinion that it would be well to consider, not as a rule without exception (because it is always matter of discussion to a certain extent), but as a general rule, that the principle that the Attorney-General never receives nor pays costs, may be modified in this way, namely, that the Attorney-General never receives costs in a contest in which he could have been called upon to pay them, had he been a private individual. That would give all the protection to the suitor opposed to the Attorney-General, which is in justice due to him, and at the same time discourage what, I think, is too often the case, namely, carrying on an unnecessary litigation in consequence of the rule.”
COMMON LAW. STATUTE OF LIMITATIONS-PART PAYMENT_PROOF OF BY
ADMISSION OF DEBTOR-9 Geo. 4, c. 14.
Cleave v. Jones (in error), 20 Law Journ. Exch. 238. From the passing of the Statute of Frauds until the 9 Geo. IV. c. 14, a debt, of what magnitude soever, might have been taken out of the operation of the Statute of Limitations, by evidence of a nature wholly insufficient to fix a defendant with it originally if above a certain sum. A mere verbal acknowledgment or promise given in evidence as having been made by the debtor, was enough to make him liable for a debt, the recovery of which was barred by the lapse of time; and thereby in those very cases in which the Statute of Limitations was most likely to be an honest defence, its beneficial effects were liable to be defeated by false swearing, of a class the most difficult to expose or punish, and the most impossible to rebut. Lord Tenterden's Act, however, rendered it necessary that the promise or acknowledgment should be in writing and signed by the debtor, and so remedied the evil; at the same time it expressly professed to leave untouched the third way of defeating the effect of the Statute of Limitations on a debt, viz. by proving a payment on account.
Now it never was doubtful on the construction of this statute, but that independent proof of a payment by the debtor on account within six years would revive a debt; but where the only evidence of the payment on account was a verbal acknowledgment of that fact by the debtor, it was held, in Willis v. Newham (3 You. & J. 518), that such evidence was excluded by the statute; and this decision has hitherto been followed, doubtingly, indeed, and sometimes with great reluctance. At length a prediction in Mr. Smith's Leading Cases (vol. i. 321b), that its doctrine would not stand the test of a writ of error has been verified by the present case, in which a memorandum of payment of interest within six years in the debtor's handwriting (unsigned, and therefore a mere parol acknowledgment) has been held to be clearly evidence of the fact of payment. Lord Campbell, C. J., after observing that the preamble of the 9 Geo. IV. c. 14, points to the proof and effect of acknowledgments and promises, states the three methods of reviving a debt, and also the express enactment as to two of them, and the express exception of the third, and forcibly deduces from thence that “the effect and proof of payment on account is left exactly
as it was before the statute passed.” Willis v. Newham seems to have been founded on the notion that the word “ acknowledgment” in the statute was applicable to an acknowledgment by a debtor of a payment by himself on account, which, however, as remarked by Maule, J., would be rather in the nature of a boast than in that of an admission.
MERCANTILE LAW-BILL OF LADING — ITS EFFECT WHEN SIGNED BY MASTER FOR GOODS NEVER SHIPPED.
Grant v. Norway, 20 Law J. C. P. 93. A Point of some importance with respect to the nature of a bill of lading was decided for the first time in the present case. It had been mooted, indeed, in the case of Berkeley v. Watling (7 Ad. & Ell. 29), but not settled, although Mr. Justice Littledale expressed an opinion in conformity with the present decision. In some respects similar in its nature to a bill of exchange, especially in its sometimes transferring to a bonâ fide indorsee a better right than his indorser himself had, as the law has been ever since Lickbarrow v. Mason, yet is a bill of lading in others very different. Both, indeed, represent property, and pass it by indorsenient, but one transfers the contract itself, the other does not. A person who takes a bill of exchange bona fide, takes it with the assurance that the acceptor is bound by the sum it is expressed to be drawn for; but for the indorsee of a bill of lading, it will be necessary to ascertain that the goods in respect of which it is given are actually shipped, in order to give him a remedy against the owners of the ship.
The facts here stand thus: the master of a ship belonging to the defendants signed a bill of lading in the usual form, for goods which were to be shipped in pursuance of a charterparty between B. & Co. and the defendants, but which in fact never were shipped. B. & Co. deposited the bill of lading with the plaintiffs as security for the payment of a bill of exchange, which they thereby persuaded the plaintiffs to give cash for, and which was afterwards dishonoured; and thereupon the question
arose, whether the master was the agent of the defendants, authorized to sign a bill of lading under such circumstances. It was held that, with respect to goods put on board, the master of a ship had a general authority to sign a bill of lading, conclusive upon the owners, as to the nature, quality and condition of the goods, which general authority could not be so restricted in particular instances as to affect third parties having no notice