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LIEN ON CATTLE.

The Student's Corner.- Notes of the Vacation.

315 The engrossment is subsequently altered, and depend for their distinction, from those quoted the conveyance executed " to C. to the use of already upon the fact that in them a specific B.But the assignment of the term remains. sum and a specific mode of payment is stipuNow the question is, whether C. has a sufficient lated for, and consequently a special agreeestate to merge the tern, so that the wbole ment set up discordant with the continuance may pass under the limitation of use to B. of the lien. Lord Ellenborough himself, in Chase The line of argument taken in favour of this v. Westmore, admitting that the mode and proposition is, that the assignment of the time of payment being agreed upon between terin being contained in the same deed with the parties, is sufficient io take any case out the conveyance to uses, C. though a siinple of the general rule, since the workınan would conduit pipe, takes under the conveyance an not be entitled to set up a right inconsistent estate, (ihough only for a moment) sufficient with his express agreeinent. If this be the for the purpose of inerging the term. But, I prin iple of the decisions, there is nothing rather incline to think myself that such is not conflicting between them and the cases estabthe case, but that the legal estate in the term lishing the above mentioned rule, being remains in C.; and the more so, by analogy to strictly in accordance with the maxim cessante the case of an estate passing into a person, and ratione legis, cessat ipsa lex. This is the reout of himn again immediately, under a fine or sult of my enquiry into this interesting portion recovery, where it was held (under the old of our law. If the cases I have quoted be irrelaw), that the cognizee or recoveror did not levant, the rule I have laid down imperfect, or take an estate sufficient to cause any alteration the reason for the adverse decisions Erroneous, in the course of descent. In support too, I have no doubt that amongst your numerous of my view of the question, may be quoted, correspondents there will be one, who by your the express saying in the statute of uses in fa- permission, will oblige me by proving to me vour of termors for years.

my error, and thus at the saine time furnish AN ARTICLED CLERK.

ipe with an answer to the enquiry with which I have set out-Can an agister detail: thie cattle that are bailed to him for the amount of his demand ?

C. C. C. Sir. Knowing your kind attention to the youthful members of the legal profession, I feel confi. NOTES OF THE VACATION. dent you will permit me to obtain through the medium of your publication a replication to the question : Has an agister a lien upou the caltle for the annount of his hire or compen- The discussion of this subject arouses new sation ?

laborers in the field of useful reform. Mr. On examining the authorities I have found Edwin Field has just published an excellent nothing exactly in point. Judging, however, from the cases of Bluke v. Nicholas 3 M. & S. pamphlet, which we shall notice next week. 167; Chase v. Westmore, 5 M. & S. 180; It is full of important matter, and comprises, Ex parte Deese, 1 Atk. 258;_ Rushford v.

we think, a powerful, but fair statement of Headfield, 6 East R. 619; 7 East Å. 224, the defects in the Chancery Offices, the Scurfe v. Morgan, 4 Mees. & W. 270; and Practice, and the system of taxing costs. many others that I will not now name; I should certainly incline to think he has. The

REMOVAL OF THE COURTS FROM WESTrole, as gathered from the cases, appears to be that every bailee of work is entitled to a lien upon the article for the amount of his charges A very able pamphlet has just been pubin respect to it. If then it be proved, as it lished, called “Westminster Hall Courts," clearly can, that a delivery of cattle to an containing an important collection of " facts agister to depasture is a bailment, and a bail- for the consideration of parliament, before ment belonging to that species entitled locatum, the final adoption of a plan perpetuating, and to that branch of it more particularly denominated locutio operis, our question is ans

the courts of law on a site injurious and wered; for it necessarily follows that the costly to the suitor." This subject has agister is a bailee of work, and consequently been often noticed in these pages, and we subject to the operation of the rule. The shall gladly lend our aid in effecting a generality of the rule would, lowever, at first change, which would be clearly beneficial sight appear to be somewhat impeached by the both to the public and the profession at decisions of Chapman v. Allen, Cro. Jac. 27, and Hoastler's Case, Yel. 76; wherein it is ad

large. judged, that if an innkeeper receive horses, or cattle to pasturage upon an agreement for NEW QUEEN'S COUNSEL AND SERJÉANTS. the payment of a weekly sum, he has no lien;

Mr. Turner and Mr. Bethell, of the and also that if an innkeeper agree with his guest for a fixed sum per day for the keep of Chancery Bar, have been created Queen's his horse, the innkeeper has not a lien for the Counsel; and Mr. Manning, Mr. Channell, expences. But these cases, I should apprebend, Mr. Shee, and Mr. Halcomb, Serjeants.

CHANCERY REFORM.

MINSTER.

PLEADING-DEJURRER-SOLICITORS.

DIOCESAN PROBATE.

316

Superior Courts : Vice Chancellor's Court. :
SUPERIOR COURTS.

plained of, for the purpose of obtaining a full
discovery: and no case appears in the books

of a demurrer by such a party, because he had Vice Chancellor's Court.

no claim of interest in the matter in question by the bill.” That was stated by Lord Redesdale without giving any authority. Then he went on: “Indeed, an attorney under such cir

cumstances, being brought as a party to the A bill, filed for rectifying a deed, charged suit to a hearing, has been ordered to pay

solicitors with fraud in preparing it, and costs.a for this Lord Redesdale did give auprayed costs against them : Held, that they thority. His Honor said he could not suppose were properly made purties, although they that a person of Lord Redesdale's experience had no interest in the subject, and might be would have declared in his book that attorneys witnesses for other defendants.

had been made parties to such bills, if there A prerogative probate or administration is could be any doubt such had been the case.

not necessary to enable a person to sue in In the case of Le Texier v. The Margrarine of equity as the representative of a testator or

Anspach, the opinion of Lord Eldon was thus intestate, if he has the proper diocesan pro- expressed ;. “Where an attorney or other bate or administration.

agent is so involved in the fraud charged by

the bill, that, though a reconveyance or other This was a bill to rectify a deed, the draft relief cannot be prayed against him, a Court of which, as settled by counsel, had been sent of Equity will, rather than that the plaintiff to the solicitors of a defendant in a former shall not have his costs, order that agent to suit (which was intended to be put an end to pay thein ; if he is made a party, the plaintiff by the deed) to be evgrossed by them. The must pray that he may pay the costs, otherbill charged the solicitors, who were defen. wise a demurrer will lie." It was clear from dants to it, with having, without plaintiff's this passage Lord Eldon took it for granted knowledge, introduced into the deed a passage the practice was as Lord Kedesdale bad laid it that was not in the draft, and it prayed costs down. In Bowles v. Stewart, Lord Redesdale against them. They demurred to the bill for himself acted on what he stated in his book, want of equity, as they had no interest in the for there he said, “as to Mr. Bowles's solisnbject-matter of the suit, having been ouly citor, he was acting for his client, but his duty solicitors for one of the defendants, for whoin as a solicitor did not bind him to assist his also they migbt be examined as witnesses. client in an act of injustice, &c. His zeal for Another den urrer was put in to the bill for his client has led hiin too far; he has properly want of parties. The original suit related to been made a party. He was an acting party the administration of the estate of an intes in the transaction, and properly brought to a tate named Knightley Adams, to whom a pre. hearing, and ouglit to be chargeable with the rogative administration had been taken out. costs, so far as they relate to the release, in Mrs. Robinson, one of bis next of kin, dying, case they cannot be recovered from Richard after executing the deed compromising that Bowles.”. Here was a judicial recognition of suit, her husband took out letters of adminis. the doctrine stated by Lord Redesdale. His tration to her in the diocesan Court of Peter- Honor wished it to be understood that he was borough, within which jurisdiction she had proceeding upon the footing of the stateinents lived, and she was a plaintiff in this second contained in the bill; and that Messrs. A. B. suit. The ground of the second demurrer would not suppose he had the least suspicion was, that Mrs. Robinson was not duly repre- of the purity of their intentions in acting as sented, and that a prerogative administration they had done. He had known them too long was necessary to coustitute Mr. Robinson her to suppose they would be guilty of any improproper legal representative.

priety of conduct. But from what was stated Mr. Wakefield and Mr. K'oe for both de- in the bill, he thought they had been properly

made parties, and that what was prayed against Mr. Knight Bruce, Mr. Girdlestone, and Mr. them was properly prayed. Foster, in support of the bill.

The point stated by the second demurrer The puints of the arguments may be col was more important. It appeared to his Honor lected from the judgment.

a strong proposition that, in no case, was a The Vice Chancallor having taken time to person, who had obtained a diocesan probate consider the case, said, in giving his judgment, or adıninistration, capable of being a plaintiff that he had read the bill, and was of opivion in equity. He always thought it was a rule such a case was stated as required an aliswer. that such a party could bring what action he It appeared to him, aj to the first demurrer, chose ; and if he could bring any action, of that there could be no doubt of the propriety course equity, which followed the law, would of filing such a bill, if what was stated by Lord permit himn to file a bill. There were several Redesdale in his book on pleading was correct. cases which clearly proved that a diocesan ad“ Where bills have been filed to impeach deeds ministrator could support an action at law. on the ground of fraud, attornies who have prepared the deeds, and other persons concerned in obtaining thein, have been frequently a Mitf. Pleadgs. 189, 4th ed. made defendants, as parties to the fraud com- b 15 Ves. 164.

c) Sch: & Lef. 227.

murrers.

Superior Courts : Queen's Beach.

317

If, in the present case, it appeared on the face stion of debt would not lie on a promissory note, of the pleadings that there could not properly payable by instalments, until the last day of have been an adıninistration from the Court payment was past. In Randle v. Rigbyd it was of Peterborough, it would have been a ground held that a defendant could not be sued in debt of demurrer ; but the case stood differently. to pay a sum of money unless such sun was Knightly Adams died intestate, and, after some charged upon land, which shews that where a contest, prerogative administration was granted covenant is collateral, debt will not lie. In to Sarah Cole (afterwards Mrs. Robinson), Cresswell v. Crispe the Court would not set who was one of his next of kin, and had a aside, as frivolous, a demurrer a declaration right to sue for her portion of the clear residue, in which the ground of demurrer was, that in after all the property had been turned into debt on a promissory note it did not appear money, and the debts and funeral expenses of that the words “value received ” were in the the intestate satisfied. It was of very little note, and the same rule was acted on in Lyons v. importance to state whether the first intestate Cohen.. [Mr. Justice Littledale.-In Comyn's was possessed of property in different dioceses, Digest it is said that debt will lie in the city of as the right of the next of kin was not to the London) which shews that it will not lie elsespecific property, but to a share of the clear where. [Mr. Justice Coleridge mentioned surplus which would be produced by it after Compton v. Taylor.8] That case only shews payment of all the demands upon it. There that where a promise is spoken of, it does not was nothing on the face of the bill to shew necessarily mean a proinise in the shape of an that Sarah Cole was not residing in the diocese assumpsit. The same principle had long ago of Peterborough; or that she had bona nota- been recognised in a case in Strange.h [Mr. bilia out of that diocese ; and his opinion on Justice Coleridge.Under the new rules the that part of the bill was, that it might very same forms are applicable both to debt anid well stand that the diocesan administration assumpsit. If that is so, it is difficult to say granted to Mr. Robinson as administrator to that debt will not lie.] The same words are Sarah Cole or Robinson, his wife, was pro- to some extent used in both forms, but the perly granted. Then this demurrer also was two actions differ widely froin each other. bad, and must be overruled, with costs.

Mr. Butt, contrà.—This is a good count in Beadles y. Burch and others, at Westininster, debt upon a general demurrer. It is not now November 27th, 1839.

necessary in any case to insert the words “value received in a billof exchange, either in assump

sitorin debt. It was formerly thought necessary, Queen's Bench).

but it is now settled to be otherwise. Stratton v. (Before the Four Judges.]

Hilli was an action by the first indorsee against

the first indorser of a bill, and the contract PLEADING.-DEBT.-BILL OF EXCHANGE.

there was consequently a contract to pay if Debt will lie by the payee of a promissory held to exist there. A covenant and a promise

the acceptor did not. A direct privity was note against the maker, and by the drawer

to pay of a bill of exchunge against the acceptor, ball v. Bellk an action of debt was brought

both import consideration. In Rumwithout the words i value receivedbeing

upon a note.

The words there were, “I accontained in the instrument.

knowledge myself indebted to " such a one. This was an action of debt by the payee (Mr. Justice Littledale.--Those words necesagainst the maker of a promissory note, which sarily import consideration. There is nothing in did not state that it was given for value re- the words“ value received” to shew that there ceived. The defendant demurred to the decla- was a consideration moving between the two ration, and the question raised on the demurrer parties, but even if there were, no such words was, whether debt was maintainable under are used in the present instrument. Hatch v. such circumstances.

Trayes.
Mr. Watson, in support of the demurrer.-
Debt will not lie in such a case.

There are Mr. Bramwell appeared in support of the various instances of this given in Comyn's demurrer in another case, which depended on Digest.a A prounissory note or a bill of ex. exactly the same point as the last. The instruchange is not necessarily given in payment of ment here was a bill of exchange, and the an existing debt; each is often given for the action was by the drawer against the acceptor. accommodation of a particular party, and often Compton v. Taylor, decided in the Court of for collateral engagements, to meet some de- Exchequer, determined two points. That may wand which is not a debt. It is only where be collected from the report, though not apthe instrument is given for a positive debt, parent in the judgment of the Court. The acknowledged upon the face of it, that such an marginal note there is incorrect. The first action as the present can be maintained, and even then it must be between the immediate d 4 Mee. & Wels. 130. e 2 Dowl. P. C.635. parties, Priddy v. Hendry.b That a promissory f3 Dowl. P. C. 243. & 4 Mee. & Wels. 138. note does not constitute a debt is shewn by h Welsh v. Craig, 1 Str. 680. Ruddy v. Price, where it was held that an ac- i 3 Price, 253.

i Com. Dig. Debt, pl. 1. Bayley on Bills, a Com. Dig. Debt, A. and B.

4 Ed. p. 40. b 1 Barn. & Cres. 674. ci Hen. Bl. 517.

Be 10 Mod. 38. .] 4 Mee. & Wels. 138.

PROMISSORY NOTE.

318

Superior Courts : Queen's Bench Practice Court; Common Pleas.

cases.

point was, that the woril "promised” does not case should not be removed from Salop to prevent a count from being a count in debt. Middlesex. It was an action brought by the That inay be collected from the arguments, plaintiff against the defendant to recover pethe cases citeil, and the judgments. The other nalties for bribery alleged to have been comway that the demurrer to the whole declara-initted at the election for the borough of Lud. tion, was too large; and bad, even on the as low. The plaintiff originally laid his venue sumption that debt would not lie on the bills in the county in which the offence was coinin question. Then that case does not bear on the mitted, pursuant to the provisions of 21 James present. But if it decided that on the authority 1. The present application was founded on of the rule T. T. Wm. 4, vlebt would lie pow, an affidavit of the attorney for the plaintiff, where it would not before those rules, then it which stated that the Hon. Mr. Clive was a was decided on an untenable ground. For it candidate at the late election for the borough was clear, that when those rules were made, of Ludlow; that his brother, Lord Clive, the the judges had no power to alter the law that head of the fainily, was the lord lieutenant of had been adınitted liy the courts. (Mr. Justice the county, and his agent was the undersheriff, Coleridye assented.] Moreover, those rules and who, consequently, had the summoning of contemplated a differeuce in form, by inerely jurors; and that there could not, such was providing that the counts should be of the same the fainily interest of the Clives, be a fair tria length. There are many authorities in Coinyn's within the county. In support of the applical Digestm to shew debt will not lie in this case. tion, he c'ted the judyment of Lord Mansfield. It has been supposed that the general propo- in Petyt v. Berkeley.a That was an action of sition there laid down, that debt would not slander, bruught by a Gloucestershire justice lie on a bill, could not be relied on as law, of the peace, for words spoken by the defend. having been at least qualified by subsequent ant, Mr. Berkeley, upon the bustings, at the

But in those cases of Priddy v. time of an election of a member for the county Hen.lry and Bishop v. Young," the judges of Gloucester - Mr. Berkeley himself being not only did not dissent from the olier au: ho- then one of the candidates. In arguing the rities, but quoted them, and founded their question at the bar, Mr. Serjt. W’ilson had judginents on them. The authorities there. contended, that the whole county of Gloucester fore are not in conflict, but amount to this, was so agitated on the one side or the other, that deht will not lie on a bill of exchange, that it was it possible, at least highly improbut will for the consideration apparent on the balle, a jury of that county would try the face of it. Here that is not tlie case, for there cause impartially and without prejudice; and is no consideration on the face of the instru- in considering this part of the argument, Lord inent, there being nothing but a bare promise Mansfield said, “it was a very strong ground to pay. Watson v. Keightley.

why the venue should be changed in this case.

C'uradv. vult. In all cases, one would wish not only a fair, Lord Denman.-On the first day of the but an unsuspected trial. Here, the very naSittings in Banco after Term, delivered judg: ture of the action, the event which gave rise to meni.-We have considered these cases, and it, and the circunstances of the parties, shew think that an action of debt may be maintained there cannot be a satisfactory trial.” between the immediate parties to a bill of ex. Patteson, J.-Why did the plaintiff lay his charge or a promissory nore,—even if the venue in Salop ? words “ value received," are not found upon Cockburn. -He had no option by the statute the instrument. Ani, in coming to this deci. 21 James 1, c. 4. sion, we are happy to follow the authority of Patteson, J.-The case of Petyt v. Berkeley the Court of Exchequer, which we consider is distinguishable froin the present case, that to liave determined this question.

the inaiter was in reference to a county, Judgment for the plaintiff in each case. - whereas here it refers to a borough ; and I H. T. 1810. Q. B. F.J.

cannot say, that amongst all the freeholders of a very large county, the plaintiff would not

have a fair trial; for it does not appear to me Queen's Bench Practice Court. likely that all the freeholders in Shropshire are

80 engaged in the Ludlow election that they could not decide impartially at the trial.

Rule refused.Hall v. Coleman, H. T. 1840. The Court will not change the venue in an

Q. B. P. C. action for penalties for election bribery, on the ground that the election took place in a borough, and that the brother of the suc

Common Pleas. cessful candidate is Lord Lieutenant of the

BANKRUPT.-ACT OF BANKRUPTCY.-FRAUDU. county, and the undersherif the agent of the

brother. Cockburn, on the part of the plaintiff, moved

A fraudulent sale of goods by a 'trader,

through the agency of one of his creditors, for a rule to shew cause why the venue in this

the purchasers being unaware of the fraud, m Com. Dig. Action on Assumpsit, a. 2.

does not constitute an act of bankruptcy Merchant, f. 12–14. Debt, b. n 1 Barn. & Cres. 674, 02 Bos. & Pul. 78.

& Cowp. 510.

CHANGE OF VENUE.PENAL ACTION. -PRE

JUDICE.

LENT TRANSFER OF PROPERTY.

Superior Courts : Common Pleas; Exchequer.

319 under 6 G. 4, c. 16, s. 3, although the pro- I have been made by him with the fraudulent ceeds of the sale were to be applied in liqui- purpose of delaying his creditors, for his own dation of the creditor's debt,

benefit or that of the defendant, such sale Bompas, Serjt., shewed cause against a rule amounted to an act of bankruptcy, when the obtained by Crowder for a new trial, on the purchaser acted bona fide, and in ignorance ground of misdirection of the learned judge.

of the bankrupt's purpose. The words de. It was an action of trover for grocery goods, scriptive of an act of bankrnptey, in 6 G. 4, brought by the assignees of a bankrupt." The c. 16, s. 3, are,

“ shall inake or cause to be declaration contained eight counts, to which made, any fraudulent gift, delivery, or transfer the defendaut pleaded amongst other pleas,

of

any of his goods, with intent to defeat or that the plaintid' was not possessed as assignee. delay his creditors.” In this case, there ap. The cause was tried before Muule, B., at the pears to have been a fraudulent intent on the Sorcersetshire Spring Assizes, and it appeared part of Creed, to defeat his creditors, for the that the defendant, wbo was a traveller, bad defendant's benefit ; but there was no gift, formerly been a partner with Creed, the bank- / delivery, or transfer of goods to the defendant, rupt, who was a grocer at Bridgewater, and he being only the agent of the seller. And it that Creed, being in insolvent circunstances, appears that the goods remained under the and bo h he and the defendant being aware of control of the baukrupt himself, until they that fact, and Creed being also indebted to the were delivered to the purchasers; and as to defendant in 2001, it was arrarged between them, there was no delivery to thrin which was them, that the defendant should procure pur.

on their part fraudulent. Now the precise chasers for the goods in question at various question whether fraud on the part of the towns, the sale to be effected under priine buyer was a necessary ingredieut in the act of cost, the real naine of the vendor being con.

bankruptcy contemplated by the stitute, came cealed. Accordingly, the defendant effected under consideration in Barier v. Pritchard, in various sales to different purchasers, to each which case the Court of Queen's Bench, after of whoin the goods were subsequently de- full discussion, and taking time to consider, livered, the goods remaining until such de- decided that the sale of the whole of the Jivery in the possession of Creed; but it did trader's stock to a bona fide purchaser, who Dut appear that in al.y justance the purchaser pays a fair price for it, in ignorance of any was privy to the fraudulent arrangement

fraudulent intention of the se:ler, is not on between the bankrupt and the defendant. act of bankruptcy. That judgınent was proThe learned judge told the jury, that unless the pounced by Lord Denmun, who had enterpurchaser of ally of the goods in question, was

tained a different opinion at the trial. In a pariy to the fraud, none of the sales consti. delivering the judgment, Rose v. Haycock, e tuted an act of bankruptcy; anil the jury and Cook v. Caldecott, I were referred to, in having found that in no instance the purchaser which latter case Lord Tenterden held, that a was a party to the fraud, a verdict was found sale cannot be considered a fraudulent transfer, for the defendant.

unless it takes place under circumstances Bompas, Serjt. shewed cause, and cited which ought to induce a buyer of ordinary Baxter y. Pritchard.a

understanding to believe that ihe seller meanig Erle anıl Butt supported the rule, and con. to get moner for himself in fraud of bis creditended, that assuming the ultimate purchaser tors, and that the sale is effe«ted for that pur. in every instance was ignorant of the fraud, pose. On the ground, therefore, that there still the arrangement between the defendant was no delivery at all of any goods to the deand Creel amounted 10 a transícr of gooils to fendant, and that there was no sale that was the defendant within 6 G. 4, c. 16, s. 3, and fraudulent on the part of the buyers, we think was therefore an act of bankruptcy. The that the learned judge's direction was correct, action is not brought against the purchaser, and that this rule must be discharged. who might have acted bund fide, and is there

Rule discharged. Howard, assignee of fore poi sought to be fixed with the loss. InCreed, a bankrupt v. Bartlett, H. 9. 1840. is not disputed that the defendant was a party C. P. w), and indeed, the main actor in, the fraud. The debt owing to the defendant was to be

Erchequer of Pleas. satisfied out of the proceeds of the goods ; it was therefore a delivery for his benefit in each JUDGE's Power --INSPECTION OF PREMISES. case. But, secondly, order to constitute an act of bankruptcy by a fraudulent sale, it is A Judge has no power without consent to not in all cases necessary to prove a guilty order a defendant to alloun the plaintiff 10 knowledge on the part of the buyer. "Cum- enter and inspect the work done by the lutming v. Bailey,b Beuran v. Nunn, Pearson y. ter on the premises of the former, for the Graham.c

purposes of an action then pending between

Cur. adv. vult. the parties. Tindal, C.J.--The only question is, whether, Cressuell shewed cause against a rule ohassuming the sale of the bankrupt's goods to taised by Adums, Serjt. for setting aside a

judge's order. It was an action brought by a 1 Ad. & EI. 456.

b 6 Bing. 363. & 9 Bing. 107. d 6 Ad. & El. 899. e 6 ad. & El. n. A1 M. & W. 522.

-ATTACHMENT.

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