Selections from Correspondence.-Superior Courts: Lord Chancellor's Court. LIABILITY FOR BROKEN WINDOWS. Sir, A few days ago my attention was drawn to the following case, which many gentlemen of the legal profession have not been able to answer:-"A person, whilst walking in a street, accidentally broke a very large square of plate glass in a shop window, value twenty guineas. He tendered 36. 6d., the price of an ordinary sized of common glass, which square sum the shopkeeper refused to accept, and has threatened proceedings against the person to Can any of your recover the full value." readers inform me whether, under these circumstances, a person is obliged to pay more than sufficient to replace an ordinary sized square of glass. E. COURT OF REQUESTS.-SUGGESTION. SUPERIOR COURTS. Lord Chancellor's Court. 235 DEVISR. ALIEN.-RIGHT OF THE CROWN. A devise of lands to English subjects, in trust to sell and invest the proceeds in the public funds, in trust for persons, some of whom were aliens: Held upon a bill, to which the Attorney General was a party, that the crown had no right as against the aliens over the lands or the proceeds of the sale of them. Mrs. Elizabeth Sheldron, who died in 1829, by her will, dated Oct. 1824, appointed real estate, over which she had power of appointment, to trustees for ever, upou trust to sell the same absolutely; and she directed that they should stand possessed of the monies to arise from such sale, upon trust, after payinent of expenses and mortgages affecting the estate, 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 some error. 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 sum than 40s.line Weston, for her separate use, during her out of court, where the defendant resided within the jurisdiction of a court of requests; and Mr. Baron Alderson is made to say, "the defendant should therefore have pleaded that he resided within the City of Gloucester, and that he was not indebted to the plaintiff in the amount of 40s. life, remainder to her children then born, or thereafter to be born by her then husband John W. Weston, or any future husband, in such shares and at such times as in the will mentioned. The testatrix directed the trustees to stand possessed of the other five sixth 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 manFour of the daughters were married to must have mistaken the words of that learned ner. 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 he 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 have been entered to deprive the plaintiff of his costs. Sir, LAW OF ATTORNEYS. W. S. A. and B. are in partnership as attorneys A. is admitted an attorney of the Common Pleas, B. not. They were employed by a client to defend an action brought against him in the Common Pleas in 1834. During the progress of the defence, B. was admitted an attorney of that Court. Can A. and B., in an action brought against them by the client for money had and received, set off the whole of their bill of costs incurred, when B. was not admitted an attorney of the Common Pleas, or only so much as was done after B. was admitted an attorney of that Court? See Latham v. Hyde, 1 C. & M. 128; 1 Dowl. P. C. 594. T. P. vivorship, and if all the daughters should die 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 unmarried daughter, against the trustees, for carrying the trusts of the will into execution; and by a decree made therein in 1835, the estate was ordered to be sold. Lord Radnor bid 13,4004. and he was declared the purchaser. He paid the money into Court, and took exceptions to the master's report, finding that a good title could be made to the estate. The ground of the exceptions was that the will attempted to give interests in lands in this country to aliens, the husbands and children of the testatrix's daughters; and that such interests could not be held against the crown or transmitted to a purchaser by the trustees under the will. The exceptions were argued before the Master of the Rolls, and they were over-ruled by his Lordship.a Lord Radnor appealed. a Beavan, 79. 236 Superior Courts: Lord Chancellor's Court. The Solicitor General and Mr. Elderton for the appellant relied on Sir John Leach's decision in the case of Fourdrin v. Gowdey,b and on the construction which has been uniformly put on the statute of Mortman, viz. that all money to be raised by charging or by selling land for charitable uses is within the prohibition of that statute as much as the land itself. They submitted that the Attorney General ought to be made a party on behalf of the crown, so that the crown might be bound by any decree to be made. Mr. Wigram and several other counsel for the several parties to the suit.-None of the persons beneficially entitled under the devise took any interest in land; they were entitled only to certain shares of a fund constituted by the monies arising out of the absolute sale of the land. If it were true that an alien cou'd take no interest in the produce of land after a conversion out and out, as was contended on the other side, then no foreign creditor could enforce payment of his debt against the lands of a merchant in this country, and no merchant could effectually execute a deed of trust of his lands in England for the benefit of his creditors, if they or some of them should happen to be foreigners. Such a doctrine, if true, would put an end to all trade and commerce with foreigners. It would be very inconvenient to make the Attorney General a party, unless the Court required it. The principle of the Mortmain Acts did not apply to this case, neither did the decision in Fourdrin v. Gowdey, the circumstances of which case were widely different, for in that case there was no conversion out and out, and there was an option for the legatee to take the land or the proceeds of it. But here the trustees, English subjects, are to sell the land and give receipts for the price. The legatees take legacies in personalty only, and the aliens may never take any shares, the immediate legatees being all English subjects. The arguments on both sides went to a great length. They did not differ materially from these reported 1 Beavau, 82 to 89. The case of Roper v. Kadcliffe, not there mentioned, was cited for the appellant, to show that on the construction of the act 11 & 12 W. 3, disabling papists from taking lands by descent or purchase, the judges held that they would not take lands by devise, nor the residue of the proceeds of lands devised to be sold to pay debts. That was analogous to the construction of the 'Mortmain acts. The Lord Chancellor.-Lord Radnor is stated to be a willing purchaser, and to have no wish to get rid of the contract; the vendees are willing to abide by it, and the devisees desire the performance of it. Under these circumstances, would it not be easy to make the Attorney General a defendant, to represent and bind the rights of the crown? The point for my consideration is whether the question of title is so free from doubt that I will decree specific performance The result of my judgment may be to rescined the contract altogeb 3 Myl. & K. 383. c9 Mod. 167. |ther, and not decide anything on the expedi ency of making the Attorney General a party. My judgment may be contined to the rights of the parties to the contract to a specific performance of it. The plaintiffs, in consequence of these suggestions, made the Attorney General a party defendant by supplemental bill; and they intimated the same to the Lord Chancellor, but there was no further argument. His Lordship, after taking time to consider the case, began his judgment by saying, the persons claiming to be entitled to the legacies had properly consented to make the Attorney General a party to the suit. The question now for him, was whether the crown had any right over this property, and his opinion was that it had no right. Without giving any opinion on the principle of Sir John Leach's decision in Fourdrin v. Gowdey, he would state that case. His Lordship stated the main facts of it, and the judgment, from the report, and said, whether the grounds of the decision there were right or not, the circumstances were dif ferent from the present case; here the testatrix directed a conversion of the estate out and out, by the trustees. If the purchase was to be made from the trustees, as the will directed, the crown would be excluded. If the crown were to be held entitled to this money produced by the sale of the land, by the trustees, it must be entitled to all legacies and debts due to foreigners; if the fund to satisfy them is to be raised out of the produce of lands; and it would follow as a necessary consequence, that no debtor, (whether trader or not,) could secure payment of his debts out of his real estates, if any of his creditors should happen to be foreigners. And no foreigner could enforce a claim against his English debtor if the latter had no other property than real estate. The testatrix here gave no option to the legatees to take the land. If she had, the legatees, the aliens, could not enjoy it. The case of Roper v. Radcliffe did not apply, although it came the nearest to this case. Being of opinion that the crown had no right or authority over this property, he did not conceive that there was any occasion to refer to the judgment of the Master of the Rolls. The question before the Court raised by the supplemental bill was whether the crown was entitled. That question being disposed of, the supplemental suit was at an end. The executors' costs in that suit ought to be provided for out of the shares of the aliens for whose protection the point was raised. The question being between them and the Attorney General, the general estate ought not to be subject to the costs by particular legatees. As it appeared that the Court below objected to the sale of the estate until the Attorney General was made a party, his costs of the appearance in the supplemental suit ought to come out of the general estate. De Hourmelin v. Sheldon, at Westminster, May 28 and 29, and Nov. 6, 1839. Superior Courts: Queen's Bench. Queen's Bench. POOR-RATE.-OCCUPATION. 237 in actual occupation of almshouses, paying no rent for the same, and removeable at the pleasure of the patrons of the charity, were rateable to the poor in respect of such occu A 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 held sessions and transacted the county business there. Some of the rooms were fitted up as bed rooms. A certain quantity of plate was bought by the county and kept in this building for the use of the judges at the assizes. Some of the justices subscribed for a quantity of wine, which was kept in the cellars of the building, and was used by the justices when attending at sessions. A person was always resident in the building, and took care of the wine and plate. Held, that these circumstances aid not constitute such an occupation by the county justices as to make the whole body liable to be rated to the relief of the poor. of the occupation of barracks by an officer that a public building may be rendered rateable from the use made of it by an individual. So may the workhouse of one parish, situate within the boundaries of another; Bristol Poor v. Waite. Even the guardians of a poor law union may be rateable in a particular parish, in respect of the union workhouse, though the parish in which they are rated is one of the parishes of the union. The Queen v. The Wallingford Union. The occupation of the cellarage here constitutes an occupation pervading the whole of the year, and that occupation by their servant and with their property is an occupation for their private convenience. There is no difficulty in enFor such a In this case the question intended to be sub-forcing a rate like the present. mitted to the Court was, whether the justices of Worcestershire were liable to be rated in respect of an alleged occupation of a building in the city of Worcester. The building in question was that where the magistrates met to hold the sessions for the county, and in which the judges' lodgings were situated. A rate had been imposed on this building, and there was an appeal against it, on the ground that the building was one which was occupied solely for public purposes. In answer to this objection, it was stated that there were beds in some of the rooms, in which any of the magistrates could sleep; that some of them occasionally did so; that there was a stock of wine in the cellar, and that there was a quantity of plate for the use of the magistrates when they thought fit to dine in the house at the time of the sessions; that the plate had been bought by the county, but that the wine was purchased by a subscription among the magis trates; and that there was a person resident on the premises to take care of the plate and the wine. purpose the local act of parliament under which 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 rooms 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 occasional refreshment of such magistrates as for by subscription among the magistratesthere is a sort of head money payable by each may come from a great distance to transact There is no mode by magistrate on his admission. The building is the county business. 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. Greena decided that the objects of a charity, a 9 Barn. & Cress. 203. resemble the case of a club-house. A club is b 2 Har. & Woll. 70; 2 Adol. & El. 1. 238 Superior Courts: Queen's Bench; Q B. Practice Court. rated through its secretary, and the property in his possession would be liable to be taken for the rate. But here the magistrates have no secretary; they have no occupation, and they have no property. The wine belongs to a few of the magistrates, not to the whole body, and the plate is the property of the county, provided by the county for the use of the judges at the assizes. If the magistrates can be rated at all, it must be as a corporation, but the local act merely makes them a corporation for public purposes, and for no other. There is no doubt that if there is a beneficial occupation, there must be a liability to rating, and that was the case with the Wallingford Union, but here there is no such occupation, and consequently no such liability. Lord Denman.-In my opinion, this property is not rateable. It cannot be said that the whole body of justices holds a beneficial occupation of these premises. The buildings were erected for certain public purposes, but it is said that the magistrates have a beneficial occupation of the premises, such as brings them within the liability to rating It appears that some of the magistrates do that which may give rise to that argument; in their case, however, such an occupation is not clearly made out; but at all events, that will not make the whole body of the magistrates liable. The building is a building for public purposes, and was not therefore rateable. Mr. Justice Patteson.-This building was erected under the authority of a local act of parliament, and by that alone do the magistrates hold it; so far as they pursue that act in dealing with the building, it cannot be rateable, for it is erected for public purposes only. If any individual held it for a private purpose, he would be rateable in respect of such holding. But how is that to make all the justices of the county rateable? Mr. Justice Williams.—I am of the same opinion. It is said here that there is something beyond the purpose of a public occupation, and cases have been referred to for the purpose of shewing, that when a building, erected for a public purpose, is converted to a private use, it is rateable. Of that there is no doubt, but on the other hand, such an occupation is not proved. The strongest statement of a beneficial occupation, is that of an occupation by a few magistrates, at intervals, when called thither by county business. How can that be said to be the act of the whole body, or to make all the magistrates of the county rateable? Mr. Justice Coleridge.-The legal estate in this building is no doubt in the magistrates of the county, for public purposes only. In respect of such an estate there can be no rating. But then it is said, there is a beneficial occupation by them. In what respect? The case only raises the appearance of such an occupation in certain individuals of the body. That cannot make the whole body rateable. Judgment for the appellant against the rate. The Queen v. The Justices of Worcestershire, M. T. 1839. Q. B. F. J. Queen's Bench Practice Court. WRIT OF TRIAL.-SHERIFF'S NOTES.- Where counsel have been employed at the Bere applied for a rule te shew cause why a new trial should not be granted, and also the damages found be reduced. He had not a copy of the sheriff's notes, but was employed as counsel in the cause, which was tried at Wells. The action was brought by a cominon farrier, the amount sued for being 9. 10s., charged for various items, some of which were proved in Court, but others not; the jury found a verdict for the full amount charged on the various items. Patteson, J.-As you were counsel in the cause, I can take the facts from you, without a verified copy of the sheriff's notes. Rule granted.-Flower v. Adams, H. T. 1840. Q. B. P. C. DISTRINGAS.-APPEARANCE.-AFFIDAVIT. Where the affidavit is regular with respect to attempts to serve a writ of summons, to which an appearance has not been entered by the defendant in due time, and a seuṛch for an appearance has been made on Saturday, a rule for a distringas may be obtained on the Monday following. This was an application for a distringas. The usual affidavit was produced, shewing that three calls had been made; that the two last had been pursuant to appointments, stating the hour; that the copy of the writ of summons had been left at the third call; that the defendant, it was believed, was keeping out of the way to avoid being served that the time for appearance was out on Friday, and a search made at the proper office on Saturday, when no appearance had been entered by the de fendant. : Tedall now (on Monday) moved for leave to issue a distringas. Search had been made on a day subsequent to the expiration of the period limited for the defendant's appearance, and the fact of the motion not being made until the Monday afterwards could not be any objection. Patteson, J.-You may take your rule. Rule granted.-Spence v. Barker, H. T. 1840. Q. B. P. C. CLERGYMAN.-CHARGING BENEFICE. AFFIDAVIT. In order to ascertain whether a warrant of attorney can be considered as a charge of a benefice, within the 13 Eliz. c. 20, s. 1, the Court will not read affidavits to shew the intention of the parties independent of the instrument. This was a rule nisi obtained for setting aside a warrant of attorney, and the judgment Superior Courts: Q. B. Practice Court, 239 Coleridge, J. was of opinion that he had no power to examine affidavits, in order to discover the real intentions of the parties, independent of what appears on the face of the instrument. Rule discharged.-Bishop v. Hatch, M. T. 1839. Q. B. P. C. JUDGMENT ON DEMURRER. Judgment having passed for the plaintiff on a demurrer to one plea, and the cause being taken down for trial upon another plea, when a juror was withdrawn by consent, the Court refused to give the plaintiff the costs of his demurrer. and sequestration signed and issued thereon, on the ground that it operated as a charge on a benefice contrary to the 13 Eliz. c. 20, s. 1. It appeared by affidavit that a warrant of attorney, dated 24th of June 1831, was executed, on which was an indorsement of a defeazance in the following terms: "Be it remembered, that the within warrant of attorney is given and executed, and judgment is intended to be entered up by virtue thereof, for further and better securing unto the within named Samuel Wreford, his executors, administrators, and assigns, the due and punctual payment of 2,000l. with interest for the same after the rate of 51. for every 1001. for a year, which by an indenture of demise, bearing even date with the said warrant of attorney, Bingham 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 Weymouth, 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 that 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 2,0007., 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 trespreiniuin, and expences, due and owing from 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 plaintiff demurred, and upon arguproduction of these presents by the said inent the demurrer was allowed. The pleadSamuel Wreford, bis executors, administrators, ings and proceedings were similar in all these or assigns, shall be full and conclusive evidence actions. 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 named parties, the day and year within written. “Henry Hatch, Samuel Wreford. "Witness, G. Tanner, William B. Moore." The indenture referred to in the warrant of attorney, recited that Henry Hatch then stood indebted to Samuel Wreford in the principal sum of 1,400., and having occasion to borrow the further sum of 6007., he applied to the said Samuel Wreford to lend him the same, which the latter consented to do upon having the repayment of the said sums of 1,400%, and 6007., making together the sum of 2,000l., secured with interest for the same, after the rate of 51. for every 100%. for a year, in manner therein mentioned; and also by the said Henry Hatch entering into a covenant for insuring his life in the sum of 2,000/. in manner therein mentioned. Kelly and Lee obtained the rule. Butt shewed cause against the rule, and submitted that no charge on the benefice could be created by anything that appeared on the face of the warrant of attorney and defeazance; and the opposite party is precluded from resorting to affidavits to prove in fact that a charge was intended to have been created by the parties. and when the first cause had been partly heard, as it appeared there was no answer on the merits, the jury found for the plaintiff with 408. damages. The learned judge thought that one action was enough for such a cause, and recommended that in the other cases a juror should be withdrawn. This was accordingly done, but nothing was said on the subject of the costs of the demurrers. It was submitted that the plaintiff was entitled to those costs, and that a remittitur damna might be entered or a special nolle prosequi. Burstow showed cause in the first instance, and urged that the course suggested was unwarranted by the rule of law and the practice of the Court. When a juror was withdrawn, the cause was not terminated, and it might be again taken down for trial. The merits of the present case had not been decided, and as the judgment on demurrer was only interlocutory, it was not even proved that the plaintiff had any cause of action. Cur, adv. vult. Coleridge, J.-The application in this case was to enter up judgment, so as to enable the plaintiff to obtain his costs of the demurrers in this and two other actions. It appears that three actions were brought against the defendant and two other persons, for taking some |
