60 60 Superior Courts: Lord Chancellor. case from the Court of Review. The peti-"the issuing" of the fiat; the words limiting tioner stated, among other things, that a fiat the time clearly applied to the "suing out was issued against him on the petition of of the fiat. The creditor here did all he could Frederick and Edmund Godsell, wine and do. The docket was struck within the due spirit brokers, and that he had presented a time. The date of the fiat was, as stated by petition to the Court of Review, praying that the special case, within the time. The fiat the fiat might be annulled with costs, but that was complete at the time of the date, for it is Court dismissed the petition on the 11th of never dated until it has received the applicaJune last. The petitioner then got a special tion of the Great Seal. Wydown's case b case settled by one of the Judges of the Court of Review, for the purpose of appealing to the Lord Chancellor. The special case stated that "this was the petition of the bankrupt to supersede a fiat issued against him. The act of bankruptcy was a declaration of insolvency duly filed, and inserted in the London Gazette, on the 5th of March last. The docket was struck on the 4th of May following, and the fiat bore date the same day. It was delivered on the 6th of May to the solicitor who struck the docket. The petitioner prayed that it might be superseded, on the ground that the fiat was not sued out within two calendar months next after the insertion of the declaration of insolvency in the Gazette, as required by the act 6 G. 4, c. 16, s. 6.a The Court of Review ordered and decreed that the petition be dismissed. The petitioner insists that the said order is erroneous in matter of law, and ought to be reversed." The petition of appeal prayed that that order be reversed and the fiat annulled. Mr. Swanston and Mr. Wigram, for the appellant. The question in this matter turned on the meaning of the words "issued" and "sued out," in the 6th section of the Bankruptcy Act. The " suing out of the commission," which was the obtaining of it, must, as well as the issuing of it, be within the two calendar months. But here the declaration of insolvency was advertised on the 5th of March, and the fiat bore date the 4th of May, but was not delivered to the party suing it out until the 6th of May. The issuing therefore of the fiat was not within the time required by the act. Mr. Swanston in reply.-It appeared from other sections of the act, 6 G. 4, c. 16, that there is a distinction between the date and issuing of the commission. The words "before the date and the issuiug of the commission" occur twice in the 82d section. They could not mean the same thing. In Wydown's case, Lord Eldon said the issuing of the commission is performed by the application of the Great Seal and delivery of the commission to the party suing it out. In Wydown's case evidence was admitted of a fraction of a day, to ascertain whether the act of bankruptcy was before the commission was issued, both being on the same day. Here the fiat was not delivered until the 6th of May-a full day beyond the two calendar months from the committing of the act of bankruptcy. The Lord Chancellor.-The special case stated that the fiat bore date the 4th of May. the declaration of insolvency having been inserted in the Gazette on the 5th of March, and the question was whether the Great Seal was applied to the fiat the day of its date. There was nothing in the special case to raise a doubt that the fiat was complete on that day. The docket had been struck that day, the date was of that day, and is was to be presumed the Great Seal was applied to the fiat the same day. The creditor, therefore, did all that he could do within the time required. But it appeared that the fiat was not delivered out of the office till the 6th of May. But whether the fiat was in the hands of the creditor or in the Bankruptcy Office, the property of the bankrupt was bound by it from Mr. Bethell, with whom was Mr. Follett, for the moment the Great Seal had been applied the respondent. The question was, whether to it. The petitioning creditor having done the fiat was sued out within the period limited all that he could, why should he lose the by the act. The 6th section required that the benefit of the fiat, because it was not delivered fiat or commission be "sued out" within two out to him by the proper officer on the day the calendar months. But there was a distinction | fiat was signed and sealed? The object of the between the meaning of the words " issuing "act of parliament was that there should be a and "suing out." There was no limit put to a By the 6th section it is enacted "that if any such trader shall file in the office of the Lord Chancellor's Secretary of Bankrupts a declaration in writing, &c. that he is insolvent, &c. the said Secretary, &c. shall sign a memorandum that such declaration hath been filed, which memorandum shall be authority for the printer of the London Gazette to insert an advertisement of such declaration therein, and every such declaration shall, after such advertisement inserted, be an act of bankruptcy by such trader at the time of declaration filed, but no commission shall issue thereupon unless it be sued out within two calendar months next after the insertion of such advertisement." limit to the time within which a party was to take proceedings against the bankrupt in order to have the benefit of them. There appeared to be no doubt on the special case that the terms of the act were complied with, and that the petitioner was within time. Petition dismissed. Mr. Bethell asked for costs. Mr. Swanston objected to the giving costs. This was the first time this question was raised. The Lord Chancellor.-It is not usual to Superior Courts: Queen's Bench. Queen's Bench. [Before the Four Judges.j GUARDIAN IN SOCAGE. Ejectment to recover a house, garden, and orchard, situate at Bensington in Oxfordshire. The ejectment was brought in Easter Term, 1837. 61 if the estate came ex parte paterna, and vice versa, that person was the rightful guardian in socage. But Lord Coke said,b "if a stranger entereth into the lands of the infant within the ac Whoever enters on the land of an heir when age of fourteen and taketh the profits of the the heir is under fourteen years of age, same, the infant may charge him as guardian may be treated by the heir, at his election, in socage: and this doth well agree with the either as guardian in socage or as a tres-writ of account against a guardian in socage, passer; and when the heir, becoming of for the words be, "Idem B. præfato, A. full age, sues such person in ejectment, the rationabilem compotum suum de exitibus proJudge must, on the fucts being found, venientibus de terris et tenementis suis in N., direct the jury that such is the law, and quae tenentur in socagio et quorum custodiam cannot leave it to them to say in what cha- edem B., habuit dum proed, 4. infra ætatem racter the person entering on the land of ut dicitur." And true it is, that in law he hath the heir did so enter. the custody of the lands, and he is called tutor alienus, and the right guardian in socage tutor proprius; and it is no plea for him to deny that he is prochein amy, but he must answer to the taking of the profits, as Littleton saith. In Comyn's Digest it is laid down, that compt lies for the heir at the age of fourteen years against his guardian in socage; so it lies against a stranger as guardian, who enters and receives the profits of the land of an infant during his nonage.' It is, however, not essential that the person entering should enter with an intention of entering for the benefit of the heir, as it was laid down in Roll. Ab d that if one entered on lands as guardian in chivalry where the lands were held in socage, the heir might maintain an action of account against him. A guardian in chivalry was entitled to take the profits of the lands to his own use, as clearly appeared from Littleton's Tenures, tit. Knight's Service,e and also by sect, 25 of same work, and in the case of Mone v. Malhoni,f and in another case, the plaintiff sued the defendant in an action of assumpsit, seeking to charge him as guardian in socage; and the defendant in each case pleaded that the land was held of him in chivalry, and that he entered as guardian in chivalry; and the question in each of those cases was not whether the defendant entered for the benefit of the heir, but whether the land was held in socage or not. In the case of Ireland v. Coulter, Popham and Clinch, J. J., say "that where one enters asgu ardian who is not guardian, the infant may have trespass against him, or he may charge him as guardian, thus shewing it to be in the election of the heir whether he will treat the party as a guardian or not. [Mr. Justice Patteson.Mr. Carrington applied for a new trial, on Have you adverted to the 13th section of the the ground that every one who enters on the statute 3 & 4 W. 4, c. 27, which prevents the land of an heir who is under the age of four-receipt of the profits of land by any relation teen, may be charged as a guardian in socage, if the heir chooses to treat him as such, or may be treated as a trespasser; and further, that in this case, as the heir and the step-mother were both in the house at the same time, the law would adjudge the possession to be in the heir as being the person rightfully entitled to it. With respect to the first point, it appeared from Littleton's Tenures, that a rightful guardian in socage was the next friend to the heir, to whom the inheritance could not descend as the nearest maternal heir, This case was tried at Oxford, before Mr. Justice Williams, when a verdict was found for the defendant. It appeared at the trial that the father of the lessor of the plaintiff was seised of the property, and died in the house in the month of March 1816, and that the lessor of the plaintiff was born in the year 1804, and was therefore twelve years old when his father died. It was proved that on the death of the father, the widow, the defendant, who was the step-mother of the lessor of the plaintiff, had continued to live in the house and occupy the premises since her husband's death, and that for more than two years immediately after the father's death, the lessor had also lived there; but that about two years ago the defendant said that she claimed the property under her husband's will. It was contended, on the part of the lessor of the plaintiff, that if the heir so elected, he might treat the defendant as a guardian in socage, and that if he did so, the ejectment had been brought in time, being brought within twenty years, reckoning from the year 1818, when he became fourteen years of age, at which time a guardianship in socage ended. The learned Judge left it to the jury to say whether the defendant had kept the possession intending to keep it for the benefit of the heir, or whether she had intended to keep possession for her own benefit, and to his exclusion. The jury found the latter, and the learned Judge directed a verdict for the defendant. a s. 123. a from being taken to be the possession of the heir?] That section only applies to relations, and this defendant is no relation, but merely a step-mother. In the case of Doe d. Barrett v. Keen, Lord Kenyon said, "nothing can be clearer than that an infant may consider whoever enters on his estate as entering to his b 1 Inst. 89 b, and 90a. d Roll. Ab. 117, line 50. e Sect. 103. i7 T. R 386. 62 Superior Courts: Q. B. Practice Court; Common Pleas. use." With respect to the second proposition, Lord Denman. Take a rule to shew cause. Queen's Bench Practice Court. EXAMINATION OF ATTORNEY.-ADMISSION OF ATTORNEY.-SPECIAL CIRCUMSTANCES. Under special circumstances the Court will allow an articled clerk to be examined be fore the expiration of his five years' service. This was an application by V. Lee to allow a gentleman named Twynam to be examined before the expiration of his term of five years service. He was desirous of proceeding to New Brunswick to practise, and therefore he found himself compelled to make the present application. His articles would not expire before the 11th April, 1840, which was a few days before the commencement of Easter Term, it beginning on the 15th. If he was compelled to wait until Easter Term before he was examined, he could not be admitted until Trinity Term and this would be after the usual vessels for New Brunswick had departed, and the applicant must proceed there by another vessel, which could not arrive before the winter had set in. By being allowed to undergo his examination now, he would be enabled to be admitted in Easter Term. Littledule, J.-He may, I think, be examined under the particular circumstances, forthwith. Application granted. Ex parte Twynam, M. T. 1839. Q. B. P. C. WRIT OF INQUIRY.-SHERIFF.-ENLARGING TIME FOR RETURN OF WRIT.-LIBEL.- The Court will not stay the execution of a writ of inquiry by the sheriff, on the ground that it is suggested that the sheriff may incur the consequences of a breach of privilege of the House of Commons. Kennedy applied for a rule to shew cause why the execution of the writ of inquiry in this case should not be stayed. The application was at the instance of the sheriff of Middlesex. It was an action of libel, brought by Mr. Stockdale against Mr. Hansard the bookseller. The libel was alleged by Mr. Stockdale to consist in a certain Report of a' Parliamentary Committee published by Mr. Hansard. Mr. Hansard suffered judgment by default, and a writ of inquiry was issued to the sheriff. The libel in question had already been the subject of legal decision before the full Court, and it had been determined that the statement alleged to be a libel was not a protected publication, although it appeared in a Parliamentary Report. The House of Commons had, however, resolved that the enforcing that judgment would be a breach of privilege. The sheriff was therefore placed in a most perilous situation by the present course adopted by the plaintiff. If the sheriff refused to execute the writ, he was liable to an attachment for not executing it; if, on the other hand, he did execute it, he would incur the consequence of a breach of privilege of the House of Commons. In this state of difficult circumstances, the humble application of the sheriff was that the execution of the writ of inquiry might be postponed. Littledale, J.-I am of opinion that there is no ground for interfering to stay the execution of the writ before the sheriff. Rule refused.-Stockdale v. Hansard, M. T. 1839. Q. B. P. C. Common Pleas. ACTION OF LIBEL.-PLEA OF ALIEN. In an action of libel the plaintiff declared, alleging the publication of a libel upon him in his character of dragomun or interpreter to the English Ambassador at Constantinople; the defendant pleaded that the plaintiff was an alien born, and was resident at Constantinople, and that he had never been naturalized or admitted a denizen in this kingdom: Held ill, on general demurrer. This was an action brought against the defendant, as publisher of a newspaper, for the publication of a libel. The declaration con Superior Courts: Common Pleas. 63 tained two counts. The first count stated kingdom, however, was not material, because that the Queen of this realm, and his late the only consequence of his being so resident Majesty King William 4th, were, and had been abroad was, that of his being called upon at peace with the Government of Turkey, and to give security for costs. The authority of had appointed Lord Ponsonby ambassador Chief Baron Comyn was not confined to from Great Britain to that state; that five traders, but he laid down the proposition gedragomans, or interpreters, were employed by nerally; but surely if a merchant was entitled Lord Ponsonby in the service of the British to such protection, the plaintiff, who held Government; that the office of dragoman or a confidential situation under the English eminterpreter was one of great trust and confi- bassy, had an equal right to recover for dence, as communications of delicacy and injuries done to him. The plea, however, importance were frequently made through him even assuming that its effect might be a good from one Government to the other; that the answer, was here pleaded improperly. Accordplaintiff was one of the five dragomans so ing to the authorities it was a plea in abateemployed, and that the libel complained of ment, but being pleaded in bar, it was bad on had been published of and concerning him in general demurrer. Bac. Abr. tit. Alien, E.; his office and character of such dragoman. Com. Dig. tit. Abatement, I.; Co. Litt. 1296.; The second count alleged that the plaintiff Gilbert's Hist. of the Com. Pleas, 206. The was the chief acting dragoman in the employ-plea, besides, did not contain sufficient averment of Lord Ponsonby and the British Go-ments. The defendant was bound to exclude vernment at Constantinople, and that the libel every circumstance under which the plaintiff in question was published of and concerning might maintain his suit. Casseres v. Bell, him in his office and character of such chief dragoman. The defendant, besides other pleas, pleaded that the plaintiff, at the time of the committing of the alleged grievances in the declaration mentioned, was, and was still, an alien born out of this realm-to wit, at Constantinople, and that he was then, and had been since, and still was residing and living out of this kingdom and the territories thereunto belonging, and that he had never been domiciled or naturalized, or admitted a de- Platt and Humfrey, in support of the plea.nizen in this kingdom, or any of the said None of the authorities cited applied to interritorities, and had never owed any alle- stances of the present description, but to cases giance to the Sovereign of this country, or only of merchant strangers, who it was adbeen subject to any of the laws of the king-mitted were entitled to sue. Their right to dom of Great Britain and Ireland, or of any of its said territories; nor did he carry on any trade as a merchant with this country, or any of the territories belonging thereto. To this plea the plaintiff demurred. Smyth, in support of the demurrer, contended that the plaintiff was fully entitled to obtain that remedy for the injury inflicted upon him, which he sought by this action; and that his right to maintain the suit was supported by the old authorities. Bro. Abr tit. Nonability, pl. 62; ib. tit. Denizen, pl. 10; Vin. Abr. tit. Alien, H. All established the principle that an alien born, living out of the kingdom, was not prevented from suing in an action personal; and as a plea of the nature of that put on the record in this case was always looked upon as odious, the Court would, unless direct authorities to the contrary should be produced, give the plaintiff the benefit of the general words used by the old writers, to whose books he had referred. In Com. Dig. tit. Alien, No. 6, it was laid down that an alien friend might maintain an action of slander, and from the case on which that proposition was maintained, and which was reported in Bulstrode, 134, it appeared that the authority was founded on a decision that a foreign merchant might have an action against a person for slandering him in his character of merchant, by saying that he was a bankrupt. The question of the party residing out of the 8 T. R. 166. There was here no allegation that the plaintiff was not in this country at the time of the commencement of the action. His place of residence, it was true, was alleged to be Constantinople, but that did not exclude the possibility of his having been in England. He also referred to Fearn v. Ladd, 2 W. Bl. 1326, Fiat v. Young, 2 Bos. & P. 72; Angustein v. Vaughan, 1 Bos. & P. 222; Sharlock v. Delacour, 10 East, 326. maintain actions was established by Magna Charta, cap. 30, and had been recognised by Co. 2d Inst. 57; the statutes de mercatoribus, 11 Edw. 1, and 13 Edw. 1; and by Camden's case, in 7 Co. Rep. p. 17. The plaintiff had done nothing to entitle him to claim the protection of the English Courts. There was nothing to shew that he had ever been in England, and he had no privity with the laws of our country. Allegiance and protection were mutual, but without owing the one, it was not in his power to claim the other. It was admitted that alien merchants might maintain suits for debts, but a distinction existed between actions of that character and those of the nature of the present. The old form of declaration in cases of this description was that the plaintiff was a "true and loyal subject" of the King, and although, if a foreigner came over here, he would be entitled to protection, yet otherwise he could claim no right to bring such an action as the present. Smyth, in reply, was stopped by the Court. Tindal, C. J., said, that he was of opinion that the present action was maintainable, although brought by an alien not residing in this realm. With respect to real actions, it had always been held that no alien could sustain one, because he was disqualified by the law to hold land. But with respect to personal actions, it had been decided in this very Court so long ago as the 6th of Henry 4., in a case reported 64 Superior Courts: Common Pleas; Exchequer of Pleas.--The Editor's Letter Box. in Dyer, p. 2, where an alien living in Maule, J., concurred. France brought a writ of debit, and the defend Judgment for the plaintiff.-Pisani v. Law ant demanded judgment if he was bound to an-son, M. T. 1839. C.P. Grchequer of Pleas. -COSTS. the case in Bulstrode, where an alien brought RULE OF COURT.-JUDGMENT.-EXECUTION. an action for scandalous words-namely, for saying of him that he was a bankrupt. It was answered that the plaintiff was an alien born, he being a stranger merchant, and residing out of the kingdom. Mr. Justice Williams thought the action would not lie; but the other three judges of the court held that it did, and that an alien friend might well maintain all actions personal, such as assault and battery, &c. So that in that case there was no distinction taken as to the injury having been inflicted upon him in his character of merchant. If the Court were to hold a contrary doctrine in this case, some of the consequences likely to flow from it were very striking; and it would present our laws in a very unfavourable light to strangers if they were to be told that they could obtain no redress for an injury inflicted on them in this country, and more especially when it was adinitted, that if they came here even for one hour, they would obtain a right to sue. Bosanquet, J., was of the same opinion. It was said by this plea that the plaintiff was under a personal disability: that he was an alien, and had never been in this country, and that therefore he could maintain no action here, protection and allegiance being mutual. Now it was clear, from the cases cited, that that proposition was not universally true; because it had been decided in one case that an alien merchant might maintain an action for slander, although not living in the King's dominions; and, in another, that a native of France might maintain an action of debt. It had been admitted that if he had come to this country, he would be entitled to protection. Now, if merely coming here for one hour, an alien would be entitled to maintain such an action, it would be strange indeed if the present plaintiff could not maintain it; for, what did the declaration state? That the plaintiff was in the confidential service of Lord Ponsonby and the British Government at the time, and that the libel was published of him in that character. If the courts of this country would not protect a party in that situation, he knew no case in which any person, not a natural-born subject of the realm, could expect protection. Coltman, J., said that he considered that it would be disgraceful to the laws of this country if the plaintiff could not maintain this action. As it stood on this record at present, the plaintiff was libelled by a person in this country; and it was said that because he was an alien he could maintain no action for it. But no authority was cited, not even a single dictum in support of that doctrine; whilst the case of the alien merchant showed the contrary. This was not the time of day when he for one would feel disposed to narrow the free intercourse which ought to subsist between friendly nations. Where a judge's order for payment of costs is made should be made a rule of Court, but the 1839. THE EDITOR'S LETTER BOX. We believe our original statement as to Mr. Serjeant Wilde being appointed Solicitor General to be correct. is liable to serve as a juryman on coroners' A correspondent asks whether an attorney inquests. One of the coroners for Middlesex holds they are liable; but when he summoned our correspondent as a juryman, he claimed the exemption as an attorney, which letter the coroner read in his court, but stated matter rested. If, however, the coroner should he considered attorneys liable, and here the not happen to have sufficient jurymen, he may, perhaps, exercise his power of fining them, unless the point be settled. Some orders have been granted to receive applications nunc pro tunc for Re-admission the last day of Term. This is an inconvenient practice, as the names do not appear in the published Lists, and there may be no opportunity of bringing forward an intended opposi tion. The List of Barristers called and Candidate. passed this Term, will be given in our next Number. |
