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235

Selections from Correspondence.- Superior Courts : Lord Chancellor's Court.

DEVISR.-ALIEN.-RIGHT OF THE CROWN.

answer:

E.

some error.

LIABILITY FOR BROKEN WINDOWS.

SUPERIOR COURTS.
Sir,
A few days ago my attention was drawn to
the following case, which many gentlemen of

Lord Chancellor's Court. the legal profession have not been able to

'd person, whilst walking in a street, accidentally broke a very large square A devise of lands to English subjects, in of plate glass in a shop window, value twenty trust to sell and invest the proceeds in the guineas. He tendered 36. 6d., the price of an public funds, in trust for persons, some of ordinary sized square of common glass, which cohom were aliens : Hold upon a bill, io sum the shopkeeper refused to accept, and has which the Attorney General was a purty, threatened proceedings against the person to that the crown had no right as against the recover the full value.”

Can any of your

aliens over the lands or the proceeds of the readers inform me whether, under these cir. sale of them. cumstances, a person is obliged to pay more

Mrs. Elizabeth Sheldron, who died in 1829, than sufficient 10 replace an ordinary sized by her will, dated Oct. 1824, appointed real square of glass.

estate, over which she had power of appointment, to trustees for ever, upou trust to sell the saine absolutely; and she directed that

they should stand possessed of the monies to COURT OF REQUESTS. --SUGGESTION,

arise from such sale, upon trust, after payment Sir,

of expenses and mortgages affectiog the estare, I beg to call your attention to the report of to invest the residue in the public funds or real the case of Jackman v. Clother, pp. 78 & 79 of securities, and to stand possessed of such funds your work, in which I think there must be and securities, as to one sixth part thereof, in

The question in dispute was trust to pay the interest and annual produce whether a defendant was entitled to his costs thereof to the testatrix's daughter, Mrs. Caroon the plaintiff taking a less sun than 40s. line Weston, for her separate use, during her out of court, where the defendant resided life, remainder to her children then born, or within the jurisdiction of a court of requests; thereafter to be born by her then husband and Mr. Baron Alderson is made to say, "the John W. Weston, or any future husband, in defendant should therefore have pleaded thal such shares and at such times as in the will he resided within the City of Gloucester, and mentioned. The testatrix directed the trusthat he was not indebted to the plaintiff in the tees to stand possessed of the other five sixth amount of 408.

parts of the said funds for each of her other Now, it appears to me, that your reporter five daughters and their children in like manmust have mistaken the words of that learned ner. Four of the daughters were married to Judge, it having been decided in several cases aliens, and some had children, who were aliens. that the objection is not to be taken by plea, One of the daughters was unmarried. The will but by a suggestion; and therefore the proper further provided that in the event of any of course would have been for the defendant to the six daughters dying without leaving issue, have pleaded merely that be was not indebted; who should live to acquire vested interests, the and unless upon the trial the plaintiff had ob- husband of such daughter should enjoy a life tained a verdict for 40s. and upwards, a sugges- interest in his wife's share, with right of surtion might bave been entered to deprive the vivorship, and if all the daughters should die plaintiff of his costs.

W. S. without leaving such issue as aforesaid, there

was an ultimate trust for English subjects. The bill was filed in 1832, by the Count De Hourmelin, husband of one of the daughters,

and his wife and their child, and by the unLAW OF ATTORNEYS. Sir,

married daughter, against the trustees, for A. and B. are in partnership as attorneys; and by a decree made therein

in 1835, the es

carrying the trusts of the will into execution ; A. is admitted an attorney of the Common

tate was ordered to be sold. Lord Radnor bid Pleas, B. not. They were employed by a client to defend an action broughi against him 13,4001

. and he was declared the purchaser. in the Common Pleas in 1834. During the He paid the money into Court, and took excepprogress of the defence, B. was admitted an title could be made to the estate. The ground

tions to the master's report, finding that a good attorney of that Court. Can A. and B., in an action brought against to give interests in lands in this country to

of the exceptions was that the will attempted them by the client for money had and received, set off the whole of their bill of costs incurred, aliens, the husbands and children of the testa. when B. was not admitted an attorney of the trix's daughters ; and that such interests could Common Pleas, or only so much as was done not be held against the crown or transmitted after B. was admitted an attorney of that to a purchaser by the trustees under the will. Court? See Latham v. Hyde, 1 C. & M. 128 ; of the Rolls, and they were over-ruled by his

The exceptions were argued before the Master 1 Dowl, P. C. 594.

T.P.
Lordship. Lord Radnor appealed.

a ] Beavan, 79.

236

Superior Courts : Lord Chancellor's Court. The Solicitor General and Mr. Elderton for ther, and not decide anything on the expedie the appellant relied on Sir John Leach's deci- ency of making the Attorney General a party. sion in the case of Fourdrin v. Gowdey,b and on My judgment may be contioed to the rights of the construction which has been uniformly put the parties to the contract to a specific peron the statute of Mortman, viz. that all inoney formance of it. to be raised by charging or by selling land for The plaintiffs, ia consequence of these suycharitable uses is within the prohibition of that gestions, made the Attorney General a party stalute as much as the land itself. They sub- defendant by supplemental bill; and they intimitted that the Attorney General ought to be mated the same to the Lord Chancellor, but made a party on behalf of the crown, so that there was no further argument. the crown inight be bound by any decree to be His Lordship, after taking time to consider made.

the case, began his judgment by saying, the perMr. W'igram and several other counsel for sons claiming to be entitled to the legacies had the several parties to the suit. —None of the properly consented to make the Attorney persons beneficially entitled under the devise General a party to the suit. The question took any interest iu land; they were entitled now for hiin, was whether the crown bad any only to certain shares of a fund constituted by right over this property, and his opinion was the monies arising out of the absolute sale of that it had no right. Without giving any the land. If it were true that an alien cou'd opinion on the principle of Sir John Leach's lake no interest in the produce of land after a decision in Fourdrin v. Gorodey, he would state conversion out and out, as was contended on that case. His Lordsbip stated the main facts the other side, then no foreign creditor could en- of it, and the judgment, from the report, and force payment of his debt against the lands of said, whether the grounds of the decision there a merebant in this country, and no merchant were right or not, the circumstances were dif. could effectually execute a deed of trust of his ferent from the present case ; here the testalands in England for the benefit of his credi. trix directed a conversion of the estate out and tors, if they or some of them should happen to out, by the trustees. If the purchase was to be foreigners. Such a ductrine, if true, would be made from the trustees, as the will directed, put an end to all trade and commerce with the crown woulil be excluded. If the crowa foreigners. It would be very inconvenient to were to be held entitled to this money promake the Attorney General a party, uuless the duced by the sale of the land, by the trustees, Court required it. The principle of the Mort- it must be entitled to all legacies and debts main Acts did not apply to this case, neither due to foreigners; if the fund to satisfy theni did the decision in Fourdrin v. Gowdey, the is to be raised out of the produce of lands; circumstances of which case were widely dif- and it would follow as a necessary consequence, ferent, for in that case there was no conversion that no debitor, (whether trader or not,) could out and out, and there was an option for the secure payınent of bis debts out of his real eslegatee to take the land or the proceeds of it. tates, if any of his creditors should happen to But here the trustees, English subjects, are to be foreigners. And no foreigner could enforce sell the land and give receipts for the price. a claim against his English debtor if the latter The legatees take legacies in personalty only, had no other property ihan real estate. The and the aliens may never take any shares, the testatrix here gave no option to the legatees immediate legatees being all Englislı subjects. to take the land. If she had, the legatees, the

The arguments on both sides went to a great aliens, could not enjoy it. The case of Roper length. "They did not diter ipaterially froin v. Radcliffe did not apply, although it came the these reported 1 Beavau, 82 to 89. The case nearest to this case. Being of opinion that of Roper v. Radcliffe, not there mentioned, the crown had no right or authority over this was cited for the appellant, to show that on the property, he did not conceive that there was construction of the act 11 & 12 W.3, disabling any occasion to refer to the judgment of the papists froin tiking, lands by descent or pur. Master of the Rolls. The question before chase, the judges held that they would not the Court raised by the supplemental bill was take lands hy devise, nor the residue of the whether the crown was entitled. That question proceeds of lands devised to be sold to pay debts. being disposed of, the supplemental suit was That was analogous to the construction of the at an end. The executors' costs in that suit Mortmain acts.

ought to be provided for out of the shares of The Lord Chancellor.-Lord Radvor is the aliens for whose protection the point was stated to be a willing purchaser, and to bave raised. The question being between them and no wish to get rid of the contract; the ven- the Attorney General, the general estate ought dees are willing to abide by it, and the devisees not to be subject to the costs by particular ledesire the performance of it. Under these cir- gatees. As it appeared that the Court below cumstances, would it not be easy to inake the objected to the sale of the estate until tlie Attorney General a defendant, to represent Attorney General was made a party, his costs and bind the rigbts of the crown? The point of the appearance in the supplemental suit for my consideration is whether the question ought to come out of the general estate. of title is so free from doubt that I will decree De Hourmelin v. Sheldon, at Westminster, specific performance. The result of my judg- May 28 and 29, and Nov. 6, 1839. ment inay be to rescined the contract altogeb 3 Myl. & R. 383.

c9 Mod. 167.

Superior Courts : Queen's Bench.

237 Queen's Bench.

in actual occupation of almshouses, paying no [Before the Four Judges.)

rent for the same, and removeable at the

pleasure of the patrons of the charity, were POOR-RATE,,-OCCUPATION.

rateable to the poor in respect of such occuA building erected under a local act of parlia- pation. It is clear from the well-known cases

ment was vested in the county justices, who of the occupation of barracks by an officer held sessions and transacted the county busi- that a public building may be rendered rateaness there. Some of the rooms were fitted ble from the use made of it by an individual. up as bed rooms. A certain quantity of So may the workhouse of one parisli, situate plate was bought by the county and kept in within the boundaries of another; Bristol this building for the use of the judges at Poor v. Waite.b Even the guardians of a the assizes. Some of the justices subscribed poor law union may be rateable in a particular for a quantity of wine, ichich was kept in parish, in respect of the union work house, the cellars of the building, and was used by though the parish in which they are rated is the justices when attending at sessions. A one of the parishes of the union.

The Queen person was always resident in the building, v. The Wallingford Union.c. The occupation and took care of the wine and plate. Held, of the cellarage here constitutes an occupathat these circumstances aid not constitute tion pervading the whole of the year, and that such an occupation by the county justices occupation by their servant and with their as to make the whole body liable to be rated property is an occupation for their private to the relief of the poor.

convenience. There is no difficulty in enIn this case the question intended to be sub- forcing a rate like the present. For such a mitted to the Court was, whether the justices purpose the local act of parliament under which of Worcestershire were liable to be rated in the building was erected, and which has vested respect of an alleged occupation of a building in them the legal estate in it, has made them in the city of Worcester. The building in a quasi corporation, for the purpose of holding question was that where the inagistrates met such estate. Though, therefore, all the magis. to hold the sessions for the county, and in trates may not in fact occupy the building, all which the judges' lodgings were situated. A are rateable, and there will be no more diffirate had been imposed on this building, and culy in enforcing the rate than there would be there was an appeal against it, on the ground in enforcing a rate upon a club-house where that the building was one which was occupied all the members were not in actual occupation solely for public purposes. In answer to this of the club. (Mr. Justice Coleridge.-By the objection, it was stated that there were beds in act of parliament they are only governors of some of the rooms, in which any of the ma- the building for a public purpose.] But as gistrates could sleep; that some of them occa- they do not want it for that purpose but at sionally did so; that there was a stock of wine stated intervals, they might let it for the interin the cellar, and that there was a quantity of vening periods, and if so, it would be clearly plate for the use of the magistrates when they rateable. So it is, though used by them for thought fit to dine in the house at the time of their private purposes, instead of being let to the sessions; that the plate had been bought

a third person. [Lord Deman, C. J - It is by the county, but that the wine was pur. not clear that the wine is paid for by all the chased by a subscription among the magis magistrates ; it is stated in the case that there is trates; and that there was a person resident a subscription among the magistrates.] That on the premises to take care of the plate and is, among all, not among some of them. the wine.

Mr. Richards, and Mr. W. Alexander, Mr. Whateley and Mr. Whitmore, in support contrà. The rate is bad both in form and of the rate. The building here is occupied by substance; there is not a pretence for saying the justices. They have plate and wine within that there is any occupation but for public the house, and there are bed rooins fitted up purposes. In the first place, the rate is made for their use, so that there is in every respect upon the whole of the building ; now it is a beneficial occupation by them. [Lord Den- clear, that if the having the wine in the cellar, man, C. J.-And who are the parties sought to and some of the rooms fitted up as bed rooms, be charged with this liability; the justices of constituted a beneficial occupation, it would the county at large?] Yes; they reap the be- only be a beneficial occupation of part of the nefit, and they must bear the burden. (Mr. house. In form, therefore, the rate is clearly Justice Coleridge. What, the justices for the bad, and it is bad in substance, for the buildtime being ?] Yes; for all of them have the ing is vested in the magistrates for public purright to sleep in the building, and their com- poses only, and they have no other occupation mon stock of wine is there. The wine is paid of it. The wine is only kept there for the for by subscription among the magistrates

occasional refreshment of such magistrates as there is a sort of head money payable by each may come from a great distance to transact magistrate on his admission. The building is the county business. There is no mode by altogether under the control of the magistrates, which a rate could be properly imposed or who may use it, not only at sessions, but at the levied in this case, which does not in any way races and the music meetings. The King v. resemble the case of a club-house. A club is Greena decided that the objects of a charity,

b 2 Har. & Woll. 70; 2 Adol. & El. ). a 9 Barn. & Cress. 203.

C 2 Q. B. Trin. Term, 1839.

238

COUNSEL.

Superior Courts : Queen's Bench; Q B. Practice Court. rated through its secretary, and the property Queen's Bench Practice Court. in his possession would be liable to be taken

WRIT OF TRIAL.-SHERIFF'S NOTES, for the rate. But here the magistrates have no secretary; they have no occupation, and

Where counsel have been employed at the they have no property. The wine belongs to a

trial of an issue before the sheriff, on a few of the magistrates, not to the whole body, writ of trial, the Court will recetve from and the plate is the property of the county, him a statement of what took place at the provided by the county for the use of the

trial, without a derified copy of the

sheriff's judges at the assizes. If the magistrates can

notes, where a motion made for a new be rated at all, it must be as a corporation, trial. but the local act merely makes them a corpora- Bere applied for a rule te shew canse why a tion for public purposes, and for no other new trial should not be granted, and also the There is no doubt that if there is a beneficial | damages found be reduced. He had not a occupation, there must be a liability to rating; copy of the sheriff's notes, but was employed and that was the case with the Wallingford as counsel in the cause, which was tried as Union, but here there is no such occupation, Wells. The action was brought by a cominon and consequently no such liability.

farrier, the annount sued for being 91. 10s., Lord Denman.-In my opinion, this property charged for various iteins, soine of which were is not rateable. It cannot be said that the whole proved in Court, but others not; the jury body of justices holds a beneficial occupation found a verdict for the full amount charged on of these premises. The buildings were erected the various items. for certain public purposes, but it is said that

Palleson, J.-As you were counsel in the the inagistrates have a beneficial occupation of cause, I can take the facts from you, without the premises, such as brings them within the a verified copy of the sheriff's notes. liability to rating It appears that some of the Rule granted.-Flower V. Adams, H. T. magistrates do that which may give rise to 1840. Q. B. P. C. that argument; in their case, however, such an occupation is not clearly inade out; but at all

DISTRINGAS.- APPEARANCE.-AFFIDAVIT. events, that will not make the whole body of the magistrates liable. The building is a

Where the affidavit is regular with respect building for public purposes, and was not

to attempts to serve a writ of summons, to therefore rateable.

which an appeurance has not been entered Mr. Justice Patteson.---This building was

by the defendunt in due time, and a search erected under the authority of a local act of

for an appearance has been made on Saturparliament, and by that alone do the magis

day, a rule for a distringas may be obtained

on the Monday following. trates hold it ; so far as they pursue that act in dealing with the building, it cannot be rate- This was an application for a distringas. able, for it is erected for public purposes only. The usual affidavit was produced, shewing that If any individual held it for a private purpose, three calls had been made; that the tivo last he would be rateable in respect of such holding bad been pursuant to appointments, stating the But how is that to make all the justices of the bour; that the copy of the writ of summons county rateable?

had been left at the third call; that the deMr. Justice Williams.—I am of the same fendant, it was believed, was keeping out of opinion. It is said here that there is some the way to avoid being served : that the time thing beyond the purpose of a public occupa- for appearance was out on Friday, and a search tion, and cases have been referred to for the made at the proper office on Saturday, when purpose of shewing, that when a building, no appearance had been entered by the deerected for a public purpose, is converted to a

fendant. private use, it is rateable. Of that there is no T'edall now (on Monday) moved for leave doubt, but on the other hand, such an occupa- to issue a distringas. Search had been made tion is not proved. The strongest statement on a day subsequent to the expiration of the of a beneficial occupation, is that of an occu. period limited for the defendant's appearance, pation by a few magistrates, at intervals, when and the fact of the motion not being made called thither by county business. How can until the Munılay afterwards could not be any that be said to be the act of the whole body, objection. or to make all the inagistrates of the county

Putteson, J.-You may take your rule. rateable?

Rule granted.-Spence v. Barker, H. T. Mr. Justice Coleridge.-The legal estate in 1840. Q. B. P. C. this building is no doubt in the magistrates of the county, for public purposes only. In re. spect of such an estate there can be no rating.

AFFIDAVIT. But then it is said, there is a beneficial occu- In order to ascertain whether a warrant of pation by them. In what respect? The case attorney can be considered as a charge of a only raises the appearance of such an occupa- benefice, within the 13 Elis. c. 20, s. 1, tion in certain individuals of the body. That the Court will not reud affidavits to sher the cannot make the whole body rateable.

intention of the parties independent of the Judgment for the appellant against the instrument. rate.- The Queen v. The

Justices of Worcester- This was a rule nisi obtained for setting shire, M. T. 1839. Q. B. F. J.

aside a warrant of attorney, and the judgment

CLERGYMAN.-CHARGING BENEFICE.

Superior Courts : Q. B. Practice Court,

239

JUDGMENT ON DEMURRER,

and sequestration signed and issued thereon, Coleridge, J. was of spinion that he had no on the ground that it operated as a charge power to examine affidavits, in order to dison a benefice contrary to the 13 Eliz. c. cover the real intentions of the parties, inde20, s. l. It appeared by affidavit that a pendent of what appears on the face of the inwarrant of attorney, dated 24th of June 1831, strument. was executed, on which was an indorsement of Rule discharged.-Bishop v. Hatch, M. T. a defeazance in the following terms: “ Be it 1839. Q. B. P. C. remembered, that the within warrant of attorney is given and executed, and judginent is intended to be entered up by virtue thereof, for further and better securing unto the within

Judgment having passed for the plaintif on named Saipuel Wreford, his executors, ad

a demurrer to one plea, and the cause being ministrators, and assigns, the due and punc

taken duren for trial upon another plea, when tual payment of 2,0001. with interest for the

a juror was withdrawn by consent, the Court saine after the rate of 51. for every 1001. for a

refused to give the pluintis" the costs of his

demurrer. year, which by an indenture of demnise, bearing even date with the said warrant of attorney,

Binghain moved for a rule calling upon the and made, or expressed to be made, between defendant to shew cause why the plaintiff the within named Henry Hatch of the one part should not be at liberty to enter up judgment and the said Samuel Wreford of the other part, in the action so as to obtain the costs of a deis secured to be paid by the said Henry murrer decided in his favor. The action was Hatch, his heirs, executors, and administra- brought with two others of similar character tors, to me the said Samuel Wreford, my against the defendant, who was a commissioner executors, administrators, an: assigns, at of the town of Weyinouth, under these circumthe time and in the manner therein agreed stances : A contract was entered into by the upon, but no execution is to be taken out upon plaintiff with the defendant for

the supply of the said judgment until the 24th June, which gas to the town of Weymouth. The defendant will be in the year 1832, or unless the said was dissatisfied with the quantity of gas supHenry Hatch shall, before tbat time, inake de- plied, and he therefore turned the cocks of the fault in payment of the interest of the said sum pipes, by means of which an increased quanof 2,0001., or shall then make default in pay- tity was consumed. Actions were on this ment of the said principal money, interest, brought by the plaintiff, who declared in irespremiuin, and expences, due and owing frou pass for seizing the pipes and turning on the the said Henry Hatch to the said Samuel Wre- gas. The defendant pleaded first, not guilty, ford, bis executors, administrators, or assigns and secondly, a justification.

To the latter or some part thereof: of which default, the plea the plaiutiff demurred, and upon arguproduction of these presents by the said inent the demurrer was allowed. The plead. Samuel Wreford, bis executors, administrators, ings and proceedings were similar in all these or assigns, shall be full and conclusive evidence acrions. The plaintiff took down all the actions to all persons whom it may concern; as wit. to the assizes for the purpose of trying them, ness the hands of the within nained parties, the and when the first cause had been partly heard, day and year within written.

as it appeared there was no answer on the Henry Hatch, Samuel Wreford. merits, the jury found for the plaintiff with “Witness, G. Tanner, William B. 40)8. damages. The learned judge thought that Moore.”

one action was enough for such a cause, and The indenture referred to in the warrant of recominended that in the other cases a juror attorney, recited that Henry Hatch then stood should be withdrawn. This was accordingly indebted to Samuel Wreford in the principal done, but nothing was said on the subject of the suin of 1,4001., and having occasion tú borrow costs of the deinurrers. It was submitted that the the further sum of 6001., he applied to the said plaintiff was entitled to those costs, and that a Samuel Wreford to lend him the same, which remittitur dumna might be entered or a special the latter consented to do upon having the re- solle prosequi. paymeat of the said sums of 1,4001, and 6001., Burstow showed cause in the first instance, making together the sum of 2,0001., secured and urged that the course suggested was unwitb interest for the same, after the rate of 51. warranted by the rule of law and the practice for every 1001. for a year, in manner therein of the Court. When a juror was withdrawn, mentioned ; and also by the said Henry Hatch the cause was not terminated, and it might be entering into a covenant for insuring his life in again taken down for trial. The inerits of the the suin of 2,0001. in manner therein men- present case had not been decided, and as the tioned.

judgment on demurrer was only interlocutory, Kelly and Lee obtained the rule.

it was not even proved that the plaintiff had Buti shewed cause against the rule, and sub-any cause of activn. mitted that no charge on the benefice could be

Cur. anv. vult. created by anything that appeared on the face Coleridge, J.-The application in this case of the warrant of attorney and defea zance; was tu enter up judgment, so as to enable the and the opposite party is precluded from re- plaintiff to obtain his costs of the demurrers in sorting to affidavits to prove in fact that a this and two other actions. It appears that charge was intended to have been created by three actions were brought against the defenthe parties.

dart and two other persons, for taking some

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