460 Assignability of Government Pensions.—Superior Courts: Queen's Bench. The Vice Chancellor intimated, during the opening speech of the plaintiff's counsel, that there could not be any question raised as to the assignability of a mere expectancy; and from this he came to the conclusion that this compensation, being payable during pleasure, would not prevent assignability being supported in a Court of Equity. This may be very well as an abstract principle of law, but then comes this question-Can a compensation pension of this nature be practicably assignable against the will of the grantors, who pay it only during pleasure, and have entered a minute in their books that they will not recognize assignments of pensions? ingly. It seems rather anomalous that assignees for a body of creditors should be precluded from having the benefit of an assignment of such a pension without the consent of the grantors, and that an assignee by private deed should have the benefit of such an assignment, against the will and express dissent of the grantors. This, the decision of the Vice Chancellor plainly shews, he cannot practicably do, although he inay have decided that, as an abstract principle of law, as stated in the heading of the report, at p. 380, an assignment of a pension of this nature is valid in a Court of Equity. There is also a point in the report, as to notice As to this, the Vice Chancellor intimated an of the assignment at the Audit Office being sufopinion that he believed the pension to be ficient to take the pension out of the order and entirely under the controul of the Lords of the disposition of the insolvent: on this it may be Treasury and the Commissioners of the Cus-observed, that it is not clear whether the toms; and he declined on this ground, as well as on the ground of their not being parties to the suit, to make any order which would affect them, although much pressed by the plaintiff's counsel so to do; and he also refused to make any order for a receiver, but gave liberty to Sir W. B. to pay any monies then being in his hands into Court. From this, and on perusing the report as to the order made, to which is annexed the condition, unless the Lords of the Treasury or the Commissioners of Customs make order to the contrary, it will be perceived that the Lords of the Treasury or the Commissioners of Customs may order Sir W. Boothby to pay the compensation to the defendants, Asprey and Chart, notwithstanding the injunction; and as Sir W. Boothby has no authority to pay over the compensation without the order of the Commissioners of Customs, whose servant he is, the injunction is quite nugatory. The decision also that the Court had not power to make a compulsory order for payment of the compensation, by appointing a receiver, is also quite conclusive against the practicable assignability of a compensation allowance of this nature. In further illustration of this important feature in the case, it may be as well to state the nature of the orders of the Insolvent Debtors' Court, which are merely referred to in the report of the case,-as those orders are inade by virtue of an act of the legislature, which makes the consent of the grantors through the Commissioners of Customs, necessary before the assignees can claim any title to such a compensation allowance. The substance of the section of the act of parliament is, that the assignees shall not, by virtue of the act, be entitled to pensions under any department of the government; but it gives power to the Insolvent Court to recommend to the Commissioners of Customs that a portion of such pension should be paid to the assignees, and upon the commissioners assenting in writing thereto, the Insolvent Court has power to order the payment to be made to the assignees until further order of that Court. This consent had been obtained by the assignees in this case, and the orders made accord nature of the entry at the Audit Office was sufficiently explained to the Vice Chancellor. The entry is merely a private entry, made to assist the clerks at the Audit Office in checking the public accounts, as to payments made under powers of attorney or other documents recognized by government; and the entry is mostly required to be made there before the receiver-general makes a payment under any such document, to prevent delay when his accounts come to be passed, which might arise if the entry were not previously made; but such entry is wholly useless, unless payment be made under the document entered, and is never referred to. The proper notice should be to the department of the government service where the pension is payable, and where alone proper information can be obtained relating to it, or its liability to incumbrance. SUPERIOR COURTS. Qucen's Berch. MANDAMUS. Where a disputed right to an office can be conveniently tried on a return to a mandamus, the Court will direct that writ to be issued, though an action of money had and received would lie. The fact that such an action will lie is not of itself sufficient to prevent the isssuing of the writ. In this case a rule had been obtained for a mundumus to be issued to the defendants, commanding the commissioners to admit into the office of Clerk of the Small Debts Court at Boston, a person named Staniland. Mr. Hopkins had been elected under the old corporation, the members of which claimed to be trustees under the local act creating the Court. Mr. Staniland had been elected by the town council, who centended that in this, as in other matters, all the rights which had formerly been vested in the mayor and corporation had, Superior Courts: Queen's Bench. 461 since the passing of the Municipal Reform | liability was vested. Here the plaintiff had Act, been vested in them. done all that was in that case deemed necessary. Sir W. Follett and Mr. Byles shewed cause against the rule, and after arguing upon the effect of the provisions of the Municipal Corporation Act, they insisted that the rule must be discharged, as the applicant here had another mode of trying the question he meant to raise; and that even if a mandamus would lie on a case like the present, it would not lie where there was another specific remedy. The King v. Wyndham; The King v. Chester. The question here was a disputed right to an office, and as the officer was in the receipt of fees, money had and received would lie. Sir F. Pollock, in support of the rule, was stopped. Lord Denman, C. J.-It used to be said that where money had and received would lie, a mandamus would not be granted; but that is not so now, and the question in this case may be conveniently tried on the return to a mandamus. Many of the grounds which formerly restrained the Courts in granting writs of mandamus, have, since the passing of Lord Tenterden's Act, (1 W. 4, c. 21) ceased to be of the same importance. Rule absolute.-The Queen v. Hopkins and the Commissioners of the Small Debts Court at Buston, H. T. 1840. Q. B. F. J. In this case an action had been commenced, and a verdict obtained, against the defendant, the treasurer of the Leamington Joint Stock Bank, under the provision of the 7 Geo. IV, c. xii, under which that Bank was formed. The plaintiff desired to enter a suggestion on the roll, stating the facts, and shewing that other persons were in fact the partners in that bank, and were as such really liable in the action, the secretary being merely a nominal defendant, and on this suggestion the plaintiff sought to be allowed to issue execution against certain of these alleged partners. Mr. Hayes, in support of the motion, cited the case of Bartlett v. Pentland. There the plaintiff had obtained judgment against the defendant, as secretary of the St. Patrick Assurance Company, and afterwards, without entering any suggestion on the record, issued execution against a third party, as a member of that company, and this Court set aside the execution as irregular, on the ground that the party sought to be charged ought to have had an opportunity given him to demur, should he object to the ground on whieh his supposed b 1 Term Rep. 396. v Cowp. 378. e 1 Barn. & Adol. 704. Mr. Chilton, for the defendant, answered, that that case only shewed that issuing execution without a suggestion was not sufficient, but did not shew that a suggestion alone would be enough, and he contended that where a party not already on the record was sought to be affected the proceeding ought to be by sci. fa. which alone afforded him a proper means of shewing that he was not legally liable to a demand of this sort. Penoyer v. Brace, where it was distinctly laid down that where there was an alteration of the record, or a new person made liable to the judgment, a scire fucias must issue, was in point, and must govern the Court in deciding on this application. Cur, adv. vult. Lord Denman now delivered judgment.After having stated the facts of the case, his Lordship observed:-The case of Bartlett v. Pentland was cited, where it was said that the entering a suggestion on the roll had been held to be sufficient for the purpose of issuing an execution against a member of a company, against whose secretary, on behalf of the company, a verdict had already been recovered. We adopt to the fullest extent the rule there laid down, that no execution could be issued without a suggestion or some proceeding of that sort being first adopted. But, further, we think that if a party means to charge any other defendant than the person who has nominally been the defendant on the record, he must have a scire facias for the purpose. be entered on the roll for the purpose of obare of opinion, that though a suggestion may taining in a manner different from the ordinary one, costs as against a party to the record, and it is to that point that the cases cited in Burtlett v. Pentlands are chiefly directed, yet whereever it is sought to enforce a judgment against a person who is not already by name a party to the record, we agree with the opinion distinctly expressed by Lord Holt in Penoyer v. Brace, that a scire facias is necessary. The rule, therefore in this case will be discharged. Rule discharged.— Bosanquet v. Ransford, H. T. 1840.-Q. B. F. J. We Queen's Bench Practice Court. CHANGE OF VENUE.-BRIBERY.-PREJUDICE. In an indictment for bribery, where it appears that the conduct and character of the defendant have been made the subject of frequent severe comment in newspapers, generally circulcating in the county wherein the trial is to take place, the court will change the venue. This was an indictment against the defendant for bribery, at the late election for Cambridge. It charged the defendant with having b 1 Ld. Raym. 244. c Hickman v. Colley, 2 Stra. 1120; Barney Tubb, 2 H. Bla. 350; Rex v. Poland, 1 Str. 49. 462 Superior Courts: Queen's Bench Practice Court. REMPTORY UNDERTAKING. given a bribe to George Smith, in order to in- | JUDGMENT AS IN CASE OF A NONSUIT. —PER duce him to vote for Mr. Manners Sutton, one of the candidates for the borough of Cambridge. A plea of not guilty had been pleaded, and the indictment stood for trial at the Spring Assizes for the county of Cambridge. Kelly, moved for a rule to shew cause why the venue should not be changed from Cambridgeshire to Middlesex. He produced an affidavit, which stated that the election had created a very hostile feeling in the county, that many of the farmers expressed great opposition towards Mr. Gibson, the other candidate at the election, in consequence of the opinions he entertained on the subject of the repeal of the Corn Laws; that various publications in newspapers, and otherwise had been circulated, in order to bring George Smith, a principal witness for the prosecution, into discredit and disgrace; that in consequence of these articles, and of the prejudice thereby produced, it would be impossible to obtain a fair trial in Cambridge shire, or even in an adjoining county; and that the number of persons qualified to serve as jurors was very small. Applications of this kind were generally unsuccessful, but where, as in the present instance, the widely spread libels entered into the whole life of the witness Smith, and were in their effects subversive of justice, the court would be governed altogether by circumstances. Putteson, J.-1 am very unwilling to accede to applications of this nature, unless the strongest possible ground is laid for entertain. ing them; first, because such applications are very frequently made; and secondly, because much more than the truth warrants is too often imputed on both sides. The application recently made in this court, in the case of the borough of Ludlow, had relation to an action commenced for bribery, committed at the recent election for that borough. It was contended in that case at the bar, that because one of the candidates for the borough of Ludlow happened to be a member of a very distinguished and influential family in the county of Salop, there could not be a fair and impartial trial in the body of that large county. To suppose that because an action for bribery grew out of the election for the borough of Ludlow, therefore there could not be a fair trial within so large a county, was not only a grossly improbable imputation, but a libel on the county. In the present case, however, the circumstances are different. The grounds laid, are not only stronger in themselves, but additional matter has been presented to the court. Wherever it can be satisfactorily shewn to the court, that there exists such a degree of prejudice as shall interfere with a fair trial; when direct attacks have been made on the party or witnesses, in such cases, the court has granted the application to change the venue. And in this case, under the particular circumstances, it seems to me that sufficient grounds have been laid to accede to this application, and I am therefore of opinion that the rule must be granted. Rule granted. Regina v. Samuel Long, H. T. 1840. Q. B. P. C. Where a peremptory undertaking has been given to proceed to trial at a particular sittings in a term, and the plaintiff does not give notice for these sittings, judgment ab. solute as in case of a nonsuit may be moved for in the same term, after those sittings have passed. Archbold in this case moved for judgment as in case of a nonsuit. It appeared that a rule had been obtained, which was discharged sittings in the present term. on a peremptory undertaking to try at the first No notice of trial had been given during the sittings, nor has the cause been set down. Now the sittings had passed, and all the causes had been heard. Archbold now contended that the only question was, whether the motion could be made now, or not until Easter Term. He submitted that on principle, no objection could be made to the motion. Here there had been confessedly a default in not proceeding to trial pursuant to the terms of the undertaking, &c. the time for curing that default had now gone by. Patteson, J.-The plaintiff has not given notice of trial, and the time is passed when he ought to have tried. I see therefore no objection to the application; it is plain there has. been a default, and therefore you may take your rule. Rule absolute.-Ashton y. Johnson and others, H. T. 1840. Q. B. P. C. INFORMATION.-PAWNBROKER.—MANDAMUS, -ACT OF PARLIAMENT. An information founded on an act of parlia ment must describe it as an act passed" in a session" holden in a particular year, and not merely in the year itself. In this case an application was made to the Court in person, for a mandamus, directed to two justices of the names of White and Fairbrother, Aldermen of the City of London, commanding them to hear the information of the applicant against George Gray, a pawnbroker. From the affidavit in support of the motion, it appeared that the information was laid before the said justices under the 39 & 40 Geo. 3, c 99; a preliminary objection was taken by Mr. Humphreys, an attorney, who appeared for Gray, to the effect that the information was laid under an act set forth to have been passed in the 39th & 40th years of the reign of Geo. 3, whereas it ought to have been set out as an act passed in a session holden in the 39th & 40th year of his Majesty. Littledale, J-I cannot grant this applica tion. There is no doubt that this form of allegation was bad, and that the justices were right in dismissing the information on this ground. Motion refused.—Ex parte Williams, H. T. 1829. Q. B. P. C. Superior Courts: Common Pleas. Common Pleas. PLEADING.—SPECIAL DEMURRER.-CASE. ASSUMPSIT. A count in a declaration alleged that the plaintiff had placed certain paper in the hands of the defendant for the purpose of printing a certain work for the plaintiff, but that the defendant wrongfully pawned the paper: Held, that the count was properly framed in case. In this case the first count of the declaration stated, that the plaintiff was desirous of publishing a work to be called "The Catholic Directory and Annual Register," whereof the defendant had notice; and in consideration of the premises, the plaintiff retained the defendant, for a certain reward, to print the said work, and delivered to the defendant divers, to wit, sixty reams of paper, to be by the defendant used in and about the printing of the said work, and on which the said work was to be printed; and the defendant accepted such employment, and retained and received the paper for the purpose aforesaid; yet the defendant wrongfully intending to prejudice the plaintiff, disregarded his duty and retainer in this, to wit, that he did not use the paper and print the work thereon, but wholly refused so to do; and afterwards, to wit, &c. without the licence of the plaintiff, used part of the paper for his own private purpose, and wrongfully pawned the remainder to raise money for hinself, whereby the plaintiff was deprived of all use and benefit of the paper. Special demurrer and joinder. 463 breach of contract? Now the goods are de posited with the defendant for a specific purpose; certainly, that is under a contract, and the possession of the defendant is a lawful possession. The defendant pledges them. That seems to me to amount to a tort. The substantial breach is a misappropriation in a wrongful manner. Ershine, J.-Though some of the allegations in the declaration may be considered as matters of omission, yet the substantive allegation is of an act done by the defendant amounting to a tort. He pawns, and thereby tortiously deals with articles entrusted to him. This, though connected with a breach of contract, appears to me to be something beyond it. Maule, B.-The question is, whether this is exclusively a breach of contract? It appears to me that this is an act done by the defendant, for which an action would lie, though no contract was stated as an inducement. It might be said that a declaration merely stating an unlawful pawning would be a round-about count in trover, but that objection would be answered by the statement in the declaration, shewing that the plaintiff is not entitled to the possession of the article pawned. It is enough, however, to say that there is some matter in the declaration which is by law the subject of an action on the case, which being so, the demurrer cannot be supported. Judgment for the plaintiff.-Smith v. White, H. T. 1840. C. P. UNDEFENDED CAUSE. NEW TRIAL.-COSTS. A cause was tried as an undefended cause, no notice of the plaintiff's intention to do so having been given to the defendant; but the cause being in the written list of the day, the Court allowed the cause to be placed at the head of the list at the next sittings, the costs of the day to abide the event. Channell, in support of the demurrer. The objection to this count is, that it states in substance, a contract inade by the defendant, and then sets out a breach for not performing his promise. Such a breach of contract, it is submitted, cannot be made the subject of an action of tort, it should have been brought in assumpsit. It is true that in Samuel v. Judin,a the Court was inclined to think, that although Bramwell shewed cause against a rule nisi there was an inducement of a contract, yet if the breach were in the nature of a tort, the obtained by Bumpas, Serjt. in this case, for a plaintiffs might declare in case. new trial. There howIt appeared that the cause was ever, there was a general demurrer to the whole Michaelmas Term. The plaintiff declared on as an undefended one, at the sittings after declaration, which contained other counts; here, the objection is taken by special demura bill of exchange against the defendant as rer to the form of this particular count. It is acceptor, to which the latter pleaded that he did not accept. The affidavits stated, that the important that the distinction between actions ex contractu and ex delicto should be observed. cause being in the written list for the day, the In Mart v. Goodson, and Brown v. Dizon,c plaintiff's counsel told the judge it was undefended, and consequently, it was taken before the question turned on the misjoinder. its turn. It was also sworn on behalf of the Martin, contrà.-Though the goods were delivered under a contract, ease clearly lies for an unlawful pawning. This is not simply a nonfeazance; the declaration shews a misfeazance, and goes on to allege that the plaintiff was deprived of all use and benefit of the paper. [He was here stopped by the Court.] Bosanquet, J.-This is a special demurrer, on the ground that according to the precise form in which the breach is laid in the decla ration, no matter is suggested which can be made the subject of an action on the case. The question then is, whether this is simply a a 6 East, 333. b 3 Wils. 348. IT. R. 276, tried defendant, that he had a good defence on the merits, and that on the day before the cause was tried, a brief had been delivered to counsel on his behalf. Bramwell now submitted that the defendant was not entitled to notice, as that is only necessary where the cause does not appear in the list of the day. Bland v. Warren. The cases of Fourdrinier v. Bradbury Blockhurst the defendant must be prepared to try at any v. Bulmer, and Aust v. Fenwick,d shew, that time in the course of the day,-at all events, a a 7 Ad. & El. 11. b 3 B. & A. 328. e 5 B. & A. 907. d 2 D. P. C. 246. 464 Common Law Sittings.-Easter Term Examination.- Editor's Letter Box. new trial can only be granted on payment of costs. Bompas, Serjt. contrà.-The objection is, that the judge tried the cause under the impression that it was undefended, when in fact, instructions had been delivered to counsel. Maule, J.-Suppose it had been tried upon a representation to the judge that it was a short cause: could you then have got rid of the verdict? Bompas, Serjt.-Such a statement would not be made ex parte. Per Curiam.-The rule undoubtedly is as stated by the plaintiff's counsel. We think, however, that this cause may take its place at the head of the paper at the next sittings, the costs to abide the event. Rule accordingly.-Dorrien and others v. Howell, H. T. 1840. C. P. COMMON LAW SITTINGS. In and after Easter Term, 1840. Queen's Bench. IN TERM. LONDON. MIDDLESEX. Wednesday Apr.22 24 Saturday 25 { Monday May 4 Friday LONDON. 678 Wednesday Apr.29 12 AFTER TERM. MIDDLESEX. May 14 The Court will sit at eleven o'clock in term, in Middlesex; at twelve in London; and in both at half-past nine after term. Long causes will probably be postponed from the 22d and 25th of April to the 14th of May; and all other causes on the lists for the 22d and 25th of April, will be taken from day to day until they are tried. Undefended causes only will be taken on the 11th of May. Short defended as well as undefended causes entered for the sitting on May 12th, will be tried on that day, if the plaintiffs wish it, unless there be a satisfactory affidavit of merits. The Court will sit during term at ten o'clock. EASTER TERM EXAMINATION. THE Examiners have fixed Wednesday the The testimonials of due qualification must out and remedied. THE EDITOR'S LETTER BOX. The List of Law Bills in Parliament remains in the same state as last week, except that the Admiralty Court Bill has been read a first time, and the Bolton Small Debts Court Bill has passed the Lords. The question arising on a very singular caption shall be inserted. We think X. should address himself to the Committee of the Law Society It is not within our province to discuss all the arrangements of that society, or the due observance of its regulations. The matter in question is not of a public nature. We are aware that H. H. is interested for the exemption of medical men on Coroner's Juries. Our present concern is for the lawyers. We will find room for the letters on the Middlesex Registry of Deeds; the Privilege of Attorneys; the Teste of Subpoenas; and the Construction of the Statute against Gaming. |
