The Student's Corner.-Notes of the Vacation. The engrossment is subsequently altered, and the conveyance executed "to C. to the use of B." But the assignment of the term remains. Now the question is, whether C. has a sufficient estate to merge the term, so that the whole may pass under the limitation of use to B. The line of argument taken in favour of this proposition is, that the assignment of the terin being contained in the same deed with the conveyance to uses, C. though a simple conduit pipe, takes under the conveyance an estate, (though only for a moment) sufficient for the purpose of inerging the term. But, I rather incline to think myself that such is not the case, but that the legal estate in the term remains in C.; and the more so, by analogy to the case of an estate passing into a person, and out of him again immediately, under a fine or recovery, where it was held (under the old law), that the cognizee or recoveror did not take an estate sufficient to cause any alteration in the course of descent. In support too, of my view of the question, may be quoted, the express saving in the statute of uses in favour of termors for years. AN ARTICLED CLERK. LIEN ON CATTLE. Sir. KNOWING your kind attention to the youthful members of the legal profession, I feel confident you will permit me to obtain through the medium of your publication a replication to the question: Has an agister a lien upon the cattle for the amount of his hire or compensation? 315 depend for their distinction, from those quoted NOTES OF THE VACATION. CHANCERY REFORM. THE discussion of this subject arouses new laborers in the field of useful reform. Mr. Edwin Field has just published an excellent pamphlet, which we shall notice next week. It is full of important matter, and comprises, we think, a powerful, but fair statement of the defects in the Chancery Offices, the Practice, and the system of taxing costs. REMOVAL OF THE COURTS FROM WEST MINSTER. On examining the authorities I have found nothing exactly in point. Judging, however, from the cases of Blake v. Nicholas, 3 M. & S. 167; Chase v. Westmore, 5 M. & S. 180; Ex parte Deese, 1 Atk. 258; Rushford v. Headfield, 6 East R. 519; 7 East R. 224; Scarfe v. Morgan, 4 Mees. & W. 270; and many others that I will not now name; I should certainly incline to think he has. The rule, 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 locatio operis, our question is ansthe 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, however, 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, large. and Hoastler's Case, Yel. 76; wherein it is adjudged, that if an innkeeper receive horses, or cattle to pasturage upon an agreement for the payment of a weekly sum, he has no lien; and also that if an innkeeper agree with his guest for a fixed sum per day for the keep of his horse, the innkeeper has not a lien for the expences. But these cases, I should apprehend, NEW QUEEN'S COUNSEL AND SERJEANTS. Mr. Turner and Mr. Bethell, of the Chancery Bar, have been created Queen's Counsel; and Mr. Manning, Mr. Channell, Mr. Shee, and Mr. Halcomb, Serjeants. 316 Superior Courts: Vice Chancellor's Court. SUPERIOR COURTS. Vice Chancellor's Court. PLEADING-DEMURRER-SOLICITORS. DIOCESAN PROBATE. : 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 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 circumstances, being brought as a party to the suit to a hearing, has been ordered to pay costs. For this Lord Redesdale did give authority. His Honor said he could not suppose that a person of Lord Redesdale's experience would have declared in his book that attorneys 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 Margravine 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-agent is so involved in the fraud charged by expressed;b "Where an attorney or other A bill, filed for rectifying a deed, charged solicitors with fraud in preparing it, and prayed costs against them: Held, that they were properly made parties, although they had no interest in the subject, and might be witnesses for other defendants. bate or administration. 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 them; if he is made a party, the plaintiff by the deed) to be engrossed 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 Redesdale had 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 whom as a solicitor did not bind him to assist his also they might be examined as witnesses. client in an act of injustice, &c. His zeal for Another demurrer was put in to the bill for his client has led him 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 ought 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 his 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 lived, and she was a plaintiff in this second suit. The ground of the second demurrer was, that Mrs. Robinson was not duly represented, and that a prerogative administration was necessary to constitute Mr. Robinson her proper legal representative. Mr. Wakefield and Mr. Koe for both de murrers. Mr. Knight Bruce, Mr. Girdlestone, and Mr. Foster, in support of the bill. The points of the arguments may be collected from the judgment. The Vice Chancallor having taken time to consider the case, said, in giving his judgment, that he had read the bill, and was of opinion such a case was stated as required an answer. It appeared to him, as to the first demurrer, that there could be no doubt of the propriety of filing such a bill, if what was stated by Lord Redesdale in his book on pleading was correct. "Where bills have been filed to impeach deeds on the ground of fraud, attornies who have prepared the deeds, and other persons concerned in obtaining them, have been frequently made defendants, as parties to the fraud com proceeding upon the footing of the statements contained in the bill; and that Messrs. A. B. would not suppose he had the least suspicion of the purity of their intentions in acting as they had done. He had known them too long to suppose they would be guilty of any impropriety of conduct. But from what was stated in the bill, he thought they had been properly made parties. and that what was prayed against them was properly prayed. The point stated by the second demurrer was more important. It appeared to his Honor a strong proposition that, in no case, was a person, who had obtained a diocesan probate or administration, capable of being a plaintiff in equity. He always thought it was a rule that such a party could bring what action he chose; and if he could bring any action, of course equity, which followed the law, would permit him to file a bill. There were several cases which clearly proved that a diocesan administrator could support an action at law. a Mitf. Pleadgs. 189, 4th ed. b 15 Ves. 164. c Sch. & Lef. 227. Superior Courts: Queen's Bench. 317 If, in the present case, it appeared on the facetion 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 administration 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 sum 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 to 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.] 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 promise 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 that part of the bill was, that it might very well stand that the diocesan administration granted to Mr. Robinson as administrator to Sarah Cole or Robinson, his wife, was properly granted. Then this demurrer also was bad, and must be overruled, with costs. Beadles v. Burch and others, at Westminster, November 27th, 1839. Queen's Bench. [Before the Four Judges.] PLEADING.-DEBT.-BILL OF EXCHANGE.- Debt will lie by the payee of a promissory contained in the instrument. This was an action of debt by the payee against the maker of a promissory note, which did not state that it was given for value received. The defendant demurred to the declaration, and the question raised on the demurrer was, whether debt was maintainable under such circumstances. Mr. Watson, in support of the demurrer.Debt will not lie in such a case. There are various instances of this given in Comyn's Digest. A promissory note or a bill of exchange is not necessarily given in payment of an existing debt; each is often given for the accommodation of a particular party, and often for collateral engagements, to meet some demand which is not a debt. It is only where the instrument is given for a positive debt, acknowledged upon the face of it, that such an action as the present can be maintained, and even then it must be between the immediate parties, Priddy v. Hendry. That a promissory note does not constitute a debt is shewn by Ruddy v. Price, where it was held that an ac C b a Com. Dig. Debt, A. and B. b 1 Barn. & Cres. 674. c 1 Hen. Bl. 547. Justice Coleridge.-Under the new rules the same forms are applicable both to debt and assumpsit. If that is so, it is difficult to say that debt will not lie.] The same words are to some extent used in both forms, but the two actions differ widely from each other. Mr. Butt, contrà. This is a good count in debt upon a general demurrer. It is not now necessary in any case to insert the words "value received" in a bill of exchange, either in assumpsit or in debt. It was formerly thought necessary, but it is now settled to be otherwise. Stratton v. Hilli was an action by the first indorsee against the first indorser of a bill, and the contract there was consequently a contract to pay if held to exist there. the acceptor did not. A direct privity was A covenant and a promise to pay both import consideration. In Rumball v. Bellk an action of debt was brought upon a note. The words there were, "I acknowledge myself indebted to" such a one. [Mr. Justice Littledale.-Those words necessarily import consideration. There is nothing in the words "value received" to shew that there was a consideration moving between the two parties, but even if there were, no such words are used in the present instrument. Hatch v. Trayes. Mr. Bramwell appeared in support of the demurrer in another case, which depended on exactly the same point as the last. The instrument here was a bill of exchange, and the action was by the drawer against the acceptor. Compton v. Taylor, decided in the Court of Exchequer, determined two points. That may be collected from the report, though not apparent in the judgment of the Court. The marginal note there is incorrect. The first 318 Superior Courts: Queen's Bench Practice Court; Common Pleas. point was, that the word "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 may be collected from the arguments, plaintiff against the defendant to recover pethe cases cited, and the judgments. The other nalties for bribery alleged to have been comwas that the demurrer to the whole declara-mitted at the election for the borough of Ludtion, 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, debt would lie now, 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 family, was the lord lieutenant of had been admitted by the courts. [Mr. Justice the county, and his agent was the undersheriff, Coleridge assented.] Moreover, those rules and who, consequently, had the summoning of contemplated a difference in form, by merely jurors; and that there could not, such was providing that the counts should be of the same the family interest of the Clives, be a fair tria length. There are many authorities in Comyn's within the county. In support of the applical Digestm to shew debt will not lie in this case. tion, he c'ted the judgment of Lord MansfieldIt has been supposed that the general propo- in Petyt v. Berkeley. That was an action of sition there laid down, that debt would not slander, brought 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 hustings, at the cases. But in those cases of Priddy v. time of an election of a member for the county Hendry, and Bishop v. Young, the judges of Gloucester-Mr. Berkeley himself being not only did not dissent from the older autho- then one of the candidates. In arguing the rities, but quoted them, and founded their question at the bar, Mr. Serjt. Wilson had judgments on them. The authorities there-contended, that the whole county of Gloucester fore are not in conflict, but amount to this, that debt will not lie on a bill of exchange, but will for the consideration apparent on the face of it. Here that is not the case, for there is no consideration on the face of the instrument, there being nothing but a bare promise to, pay. Watson v. Keightley. Cur, adv. vult. was so agitated on the one side or the other, that it was impossible, at least highly improbable, a jury of that county would try the cause impartially and without prejudice; and in considering this part of the argument, Lord Mansfield said, "it was a very strong ground why the venue should be changed in this case. 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 ment. We have considered these cases, and it, and the circumstances 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 exchange or a promissory note,—even if the words "value received," are not found upon the instrument. And, in coming to this deci sion, we are happy to follow the authority of the Court of Exchequer, which we consider to have determined this question. Judgment for the plaintiff in each H. T. 1840. Q. B. F. J. Queen's Bench Practice Court. Patteson, J.-Why did the plaintiff lay his venue in Salop? Cockburn-He had no option by the statute 21 James 1, c. 4. Patteson, J.-The case of Petyt v. Berkeley is distinguishable from the present case, that the matter was in reference to a county, case—whereas here it refers to a borough; and I 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 likely that all the freeholders in Shropshire are so engaged in the Ludlow election that they could not decide impartially at the trial. CHANGE OF VENUE. PENAL ACTION.-PRE JUDICE. The Court will not change the venue in an action for penalties for election bribery, on the ground that the election took place in a borough, and that the brother of the suc cessful candidate is Lord Lieutenant of the county, and the undersheriff the agent of the brother. Cockburn, on the part of the plaintiff, moved for a rule to shew cause why the venue in this m Com. Dig. Action on Assumpsit, a. 2. Merchant, f. 12-14. Debt, 6. n 1 Barn. & Cres. 674. 2 Bos. & Pul. 78. Rule refused.-Hall v. Coleman, H. T. 1840. Q. B. P. C. Common Pleas. BANKRUPT.-ACT OF BANKRUPTCY.-FRAUDU- A fraudulent sale of goods by a trader, a Cowp. 510. Superior Courts: Common Pleas; Exchequer. 319 shall make or cause to be under 6 G. 4, c. 16, s. 3, although the pro- | 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 deIt was an action of trover for grocery goods, scriptive of an act of bankruptcy, in 6 G. 4, brought by the assignees of a bankrupt. The c. 16, s. 3, are, declaration contained eight counts, to which made, any fraudulent gift, delivery, or transfer the defendant pleaded amongst other pleas, of any of his goods, with intent to defeat or that the plaintiff was not possessed as assignee. delay his creditors." In this case, there ap The cause was tried before Maule, B., at the pears to have been a fraudulent intent on the Somersetshire Spring Assizes, and it appeared part of Creed, to defeat his creditors, for the that the defendant, who was a traveller, had 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 circumstances, appears that the goods remained under the and both he and the defendant being aware of control of the bankrupt himself, until they that fact, and Creed being also indebted to the were delivered to the purchasers; and as to defendant in 2004, it was arranged between them, there was no delivery to them 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 prime buyer was a necessary ingredient in the art of cost, the real name of the vendor being con- bankruptcy contemplated by the statute, came cealed. Accordingly, the defendant effected under consideration in Baxter v. Pritchard, in various sales to different purchasers, to each which case the Court of Queen's Bench, after of whom 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 not appear that in any instance the purchaser pays a fair price for it, in ignorance of any was privy to the fraudulent arrangement fraudulent intention of the seller, is not on between the bankrupt and the defendant. act of bankruptcy. That judgment was proThe learned judge told the jury, that unless the nounced by Lord Denman, who had enterpurchaser of any of the goods in question, was tained a different opinion at the trial. a party to the fraud, none of the sales consti- delivering the judgment, Rose v. Haycock,e tuted an act of bankruptcy; and the jury and Cook v. Caldecott,f 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, unless it takes place under circumstances which ought to induce a buyer of ord-nary understanding to believe that the seller means to get money for himself in fraud of his creditors, and that the sale is effected for that purpose. On the ground, therefore, that there was no delivery at all of any goods to the defendant, and that there was no sale that was fraudulent on the part of the buyers, we think that the learned judge's direction was correct, and that this rule must be discharged. for the defendant. Bompas, Serjt. shewed cause, and cited Baxter v. Pritchard.a Erle and Butt supported the rule, and contended, that assuming the ultimate purchaser in every instance was ignorant of the fraud, still the arrangement between the defendant and Creed amounted to a transfer of goods to the defendant within 6 G. 4, c. 16, s. 3, and was therefore an act of bankruptcy. The action is not brought against the purchaser, who might have acted bond fide, and is therefore not sought to be fixed with the loss. It is not disputed that the defendant was a party to, and indeed, the main actor in, the fraud. The debt owing to the defendant was to be satisfied out of the proceeds of the goods; it was therefore a delivery for his benefit in each case. But, secondly, in order to constitute an act of bankruptcy by a fraudulent sale, it is not in all cases necessary to prove a guilty knowledge on the part of the buyer. Cumming v. Bailey,Þ Beavan v. Nunn,ċ Pearson v. Graham.c Cur. adv. vult. Tindal, C. J.-The only question is, whether, assuming the sale of the bankrupt's goods to a 1 Ad. & El. 456, 9 Bing. 107. In Rule discharged. Howard, assignee of Creed, a bankrupt v. Bartlett, H. T. 1840. C. P. Exchequer of Pleas. JUDGE'S POWER-INSPECTION OF PREMISES. -ATTACHMENT. A Judge has no power without consent to order a defendant to allow the plaintiff to enter and inspect the work done by the latter on the premises of the former, for the purposes of an action then pending between the parties. Cresswell shewed cause against a rule obtained by Adums, Serjt. for setting aside a judge's order. It was an action brought by b 6 Bing. 363. d 6 Ad. & El. 899. e 6 Ad. & El. n. f 1 M. & W. 522. |
