168

Superior Courts: Queen's Bench.-Exchequer.

Withyham, Sussex, to sign a certificate under and therefore, where it could be of consequence the 3 & 4 Vict. c. 61, that the applicant was the sole occupier of a house of the yearly value of 117., for the purpose of obtaining a licence to keep a beer-shop.

By s. 5 it is enacted, that " every overseer of the poor who shall refuse to grant a certificate of the rating or assessment of any rated house and premises, when demanded, or of any person having claimed to be rated in respect of any newly erected house not yet rated," &c., "shall forfeit 201."

Foot showed cause against the rule, which was supported by Archbold.

The Court said, that the rule would be made absolute on the overseers to inquire and certify if the applicant was duly qualified.

Edwards v. Trevelly. June 23, 1854.

ACTION BY SEAMAN FOR WAGES.-DESER-
TION.-REPLICATION.

The replication to an action by a seaman to
recover wages due, and to which the de-
fendant pleaded the forfeiture of such
wages, under the 7 & 8 Vict. c. 112, s. 9,
for desertion, alleged that the captain had
flogged him with unnecessary and unreason-
able cruelty and severity, and a refusal to
desist therefrom on request, and that hav-
ing reasonable grounds to believe it would
be continued, he had left the ship: Held,
good, and that the plaintiff's departure
from the ship did not amount to a desertion.
A further replication, stating that the
plaintiff was an African negro, and a threat
by the captain to sell him, was held bad,
where it did not show that the place ut
which the desertion took place was one
where the threat could be carried into
effect.

or injury to the plaintiff. As to the other replication, it stated facts showing the plaintiff's departure from the ship was not what amounted in law to a desertion, and the plaintiff was therefore entitled to judgment.

Mayhew v. Suttle. June 23, 25, 1854. ACTION FOR EJECTING PLAINTIFF FROM BEER-SHOP WITHOUT NOTICE. CONSTRUCTION OF AGREEMENT.

The plaintiff was placed by the defendant, a brewer, in charge of a public-house, under un agreement that he should enter and carry on the business on the same terms as those on which the previous occupier carried it on, with a proviso for the determination of the agreement upon a month's notice, and the plaintiff agreed to take all his beer from the defendant at a certain price, and not to part with the occupation without the defendant's consent, and also to deliver up possession on the determination of the agreement: Held, that the plaintiff was only a servant of the defendant, and had no interest in the premises, and could not recover in an action against the defendant for breaking and entering into the house, although he was ejected without notice. the defendant for breaking into and entering THIS was an action to recover damages from the house of the plaintiff, who had been placed by the defendant, a brewer at Bury St. Edmunds, in charge of a public-house at Ipswich, dated Sept. 21, 1852, whereby the defendant upon the terms contained in an agreement agreed that the plaintiff should enter into and on the same terms as those on which the preupon the premises and carry on the business vious occupier carried it on, with a proviso for THIS was an action to recover the amount of the determination of the agreement upon a wages due to the plaintiff, as a seaman, to month's notice, and the plaintiff agreed to take which the defendant pleaded the forfeiture of all his beer at a certain price (which was cal such wages, under the 7 & 8 Vict. c. 112, s. 9, culated at a price more than usual) from the for desertion. The plaintiff replied, that while defendant, and not to part with the occupation on board the ship the captain had flogged him of the premises without the defendant's conwith unnecessary and unreasonable cruelty and sent, and also to deliver up the premises to the severity, that he had requested the captain on defendant on the determination of the agree the arrival at San Francisco to desist therefrom, ment by a month's notice. The defendant had but that the captain had refused, and that hav-ejected the plaintiff without notice. ing reasonable grounds to believe the flogging Field appeared in support of a demurrer to would be continued, he had, in order to escape the plaintiff's surrejoinder; D. D. Keane, therefrom, left the ship. He further replied, contrà. that he was an African negro, that negroes were bought and sold in divers of the United The Court said, that the plaintiff could only States of America, that the captain had threat- be regarded under the agreement as a servant, ened to sell him as a slave, that San Francisco and had therefore no interest in the premises was situated in one of such States, and that as against the defendant, who was accordingly having reasonable ground to believe that, on entitled to judgment. arriving at San Francisco, the captain would carry his threat into execution, he had left the ship to avoid being so sold.

Cur. ad. vult.

Court of Exchequer.

Willes appeared in support of a demurrer to Stevens v. Midland Railway Company and Lauthese replications; Prentice, contra.

der. June 22, 1854.

!

The Court said, that the second replication ACTION AGAINST RAILWAY COMPANY FOR

was insufficient, in not showing the place where the threat was to take effect was a slave State,

MALICIOUS PROSECUTION. LIABILITY OF
SERVANT.

Superior Courts: Court of Exchequer.

Held, that a railway company is not liable in
an action to recover damages for a malicious
prosecution of a plaintiff, on the charge of
feloniously receiving stolen goods.
The superintendent was also made a defend-
ant, and there was evidence of the presence
of express malice and the want of reason-
able and probable cause for the charge
made: Held, that he was liable, although
he was the servant of the railway com-

pany.

THIS was an action against the above railway company and their superintendent at Derby, to recover damages for a malicious prosecution of the plaintiff on the charge of having feloniously received a tarpaulin which had been stolen from them. On the trial before Mr. Russell Gurney, Q. C., at the last Gloucester Assizes, the plaintiff obtained verdict with 1007. damages, and this rule had been obtained on April 22 last, to enter it for the defendants or for a new trial, on the ground of misdirection, the only question left to the jury being, whether there was malice and want of reasonable and probable cause, and that the superintendent acted as the servant of the rail

a

The Court said, that the rule must be absolute to enter the verdict for the railway company, on the ground that as a corporation they could not be actuated by a malicious motive, and also that there was no evidence to connect them with the affair. The rule as to Lauder would be made absolute, as there was abundant evidence of the presence of express malice and the want of reasonable and probable cause for the charge.

Pierce v. Williams. June 23, 1854. ACTION BY PRINCIPAL AGAINST SURETY ON GUARANTEE TO RECOVER PAYMENTS THEREUNDER-COSTS.

The plaintiff with another person became surety for the defendant on his opening an account with a bank, and it appeared that the bank officer had frequently requested the defendant to reduce his account: Held, that the request was a sufficient demand on the principal to support an action against the surety on default.

169

fendant, upon his opening an account with the National and Provincial Bank of England. It appeared that the bank had issued a writ against the plaintiff, upon the defendant becoming their debtor, and going to reside elsewhere, and judgment passed by default, under which the plaintiff paid 50l. as his share of the guarantee, and 237. odd for costs. On the trial before Williams, J., at the last Beaumaris assizes, the bank officer proved that the defendant had been frequently requested to reduce his account, the plaintiff obtained a verIdict subject to this motion.

M'Intyre and Coxon showed cause against the rule, which was supported by Morgan Lloyd.

The Court said, that the question whether there had been a demand by the bank before they sued the surety was one for the jury, who had rightly found that the request to reduce the account amounted to a demand of payment. As, however, the plaintiff was bound to have satisfied his obligations to the bank at once, and would not have had to pay the costs of the judgment and execution, the damages must be reduced by their amount, but he was entitled to the costs of the writ, as until it issued he

was in ignorance of the amount to be paid on his guarantee. The rule would be absolute to reduce the damages.

Kirby v. Simpson. June 3, 26, 1854.

NOTICE OF

ACTION AGAINST MAGISTRATE.-QUASHING
ORDER OF COMMITMENT.
ACTION.

Held, that an action cannot be maintained
against a magistrate for committing the
plaintiff to prison on a charge under the
Masters and Servants' Act (26 Geo. 2, c.
14), without first quashing the commitment.
Held, also, that inasmuch as the trespass was
caused by the defendant in his capacity of
magistrate and in the execution of his
office, the defendant was entitled to notice
of action under the 11 & 12 Vict. c. 44,
and a rule was discharged to set aside a
nonsuit, where such notice had not been
given.

THIS was a rule nisi obtained on April 20 last, to set aside the nonsuit and for a new trial of this action, which was brought by the plaintiff, as next friend of his son, to recover damages from the defendant for assaulting his The plaintiff on being sued suffered judgment son and giving him into custody, and for mato go by default: held, that he was only liciously instigating his master to prefer a entitled to recover from the defendant charge against him under the 26 Geo. 2, c. 14 the costs of the writ, and not of the judg-(the Masters and Servants' Act), under which ment and execution ;" and à rule was made he was convicted, committed to Beverley gaol absolute to reduce the damages by their for three weeks, and whipped, It appeared amount, in an action to recover from the that the plaintiff's son was in the service of a defendant the payments made by the plain-person, and had accidentally killed one of the tiff under the guarantee.

THIS was a rule nisi to enter a nonsuit or to reduce the damages in this action, which was brought by the plaintiff, who had become surety with another person in 100%. for the de

defendant's ducks, and that the defendant had dismissed the boy with a reprimand, on his stating his belief the duck was a wild one, but had, about a week afterwards, proceeded under the above Statute on his master bringing the

170

Superior Courts: Exchequer.-Analytical Digest of Cases.

boy before him and saying he had told him not that the defendant had committed the plaintiff to kill the duck. The commitment directed to prison. In order to prove this it was neces the boy to be corrected, and on the governor sary to give in evidence the commitment, which of the gaol writing to the defendant whether it put the plaintiff out of Court, as until it was was to be carried into effect, he had replied in quashed no action could be brought. It also the affirmative as the boy was very bad, and showed on the face of it that the trespass was both his masters had complained to him that caused by the defendant in his capacity of a they could do nothing with him. The de- magistrate, which entitled him to notice. The fendant pleaded not guilty by Statute," and second count was for maliciously inciting the on the trial before Cresswell, J., at the last plaintiff's master to make a charge before the York Assizes, a nonsuit was directed on the defendant under the Masters and Servants' ground that the defendant was entitled to notice Act, and for maliciously and without reasonof action under the 11 & 12 Vict. c. 44. able and probable cause committing the plaintiff to prison on that charge. This was a count for an act done in execution of the office of a magistrate, inasmuch as it showed there was a charge before the defendant on which he acted, although it might be that he had incited it, but of which there was not sufficient evidence. The defendant was therefore entitled to notice, and the rule must be discharged.

B. Thompson showed cause against the rule, which was supported by Price on the ground that the question, whether the defendant had acted bona fide, should have been put to the jury, as if the defendant had acted malá fide he was not entitled to notice, citing Booth v. Clive, to C. B. 827; 2 L. M. & P. 283.

The Court said, that the first count of the declaration was in trespass and complained

ANALYTICAL DIGEST OF CASES,

SELECTED AND CLASSIFIED IN ALL THE COURTS.

House of Lords.

ANNULLING ADJUDICATION.

See Bankruptcy.

APPEAL.

Annulling adjudication.— Appeal.— Laches. A person adjudicated a bankrupt under the 12 & 13 Vict. c. 106, must, if he desires to annul the adjudication, proceed under the

104th section of that Statute. If he omits to

do so, he can then only proceed by petition of appeal before a Vice-Chancellor (to the Court of Appeal in Chancery under the 14 & 15 Vict. c. 83, s. 7).

www

that the party had no title to come before the Vice-Chancellor, except on appeal against the adjudication, and that for that purpose the petition was presented too late. Carter v. Dimmock, 4 H. of L. Cas. 337.

COSTS.

See Appeal; Practice.

EVIDENCE.

As to whether lands parcel of manor.-Entry by steward in book. In an action of ejectment the question was, whether certain lands, known as Kingston Pastures, were part of the manor of Hayling? The lands had been purchased An entry in a from the Duke of Norfolk. book found among the muniments of the Norfolk family was tendered in evidence, for the purpose of proving the affirmative of the issue. The entry, which was made by a steward of that family, spoke of an indenture which "recited a lease made by the Earl of Arundel,” and which, tracing the lands into the possession of R. H., went on to say that "R. H. demiseth unto, &c., all those pasture grounds lying in Kingston, in the parish of Portsea, parcel of the manor of Hayling."

On the 15th February, 1851, A. was adjudicated a bankrupt. On the 19th, a duplicate of the adjudication was served upon him, he did not appear to show cause against the adjudication, and on the 28th the notice of it was pubHeld, that this entry was a mere recital of lished in the Gazette. On the 19th of March, some document which the writer had seen or he presented a petition to the Commissioner to heard of, and was not admissible either as an annul the adjudication. The Commissioner pronounced his decision on the 14th of April, and on the 23rd the bankrupt appealed to the

Vice-Chancellor.

Held (affirming a decision of Lord Chancellor Truro), that the petition of the 19th March was a petition of appeal against the Commissioner's adjudication, and therefore could not be presented to the Commissioner, whose jurisdiction in such matters was then at an end;

entry made by a person in the discharge of his duty, or as an entry against the interest of the person who made it, nor was it evidence of reputation to prove that the lands were parcel of the manor. Doe d. Padwick v. Wittcomb, 4 H. of L. Cas. 425.

And see Leases.

INSURANCE.

Time-policy.-Implied warranty of seaworthiness.-By the Law of England, in a time-policy

Analytical Digest of Cases: House of Lords.

171 effected on a vessel then at sea, there is no im-changes in the lands a change was made in plied condition that the ship should be sea- the rent. The lease recited the indenture as a worthy on the day when the policy is intended demise to C. for three lives, and the longest to attach. liver of them, with a covenant to 68 renew the Per Lord Campbell.—There is not, in a time- same for ever, on payment of 117. 7s. 6d. for policy effected on a vessel then abroad, any im-renewing the same on the fall of every life, plied condition whatever as to seaworthiness; within six months next after the fall of each not even as to the time when the vessel sailed life." The habendum in the lease was for the on the voyage during which the policy attaches. same three lives; and S. covenanted that Quare, whether there is any such implied "upon the death or failure of the aforesaid life condition in a time-policy effected on an out- or lives, or any or either of them" (meaning ward bound ship lying in a British port where them), and upon C., his heirs, &c., paying the owner resides? 1 "the sum of 117. 78. 6d. above the annual rent, A policy of insurance was effected in London within the space of six calendar months, and on the 27th of November, 1843, on a ship then immediately after the death or failure of such abroad, lost or not lost, în port and at sea, in life," and on nomination, &c., "S., and his all trades and services whatsoever and where- heirs," &c., would add the life so nominated; soever, during the space of 12 calendar months," and so in like manner from time to time succommencing on the 25th September, 1843, and ending on the 24th September, 1844, both days included." To a declaration for a total loss on the 14th October, 1843, by perils of the sea, the defendant pleaded that the "ship was not, at the time of the commencement of the risk in the policy of insurance mentioned, nor at the making of the said insurance, nor on the said 25th September, 1843, in the declaration mentioned, seaworthy, or in a fit and proper condition to go to sea; but, on the contrary thereof, was wholly unseaworthy." It appeared in evidence, that on the 24th of September, 1843, the ship was at sea seriously damaged, and in that state it succeeded in making Madras in the course of the following day. The verdict found the plea to be proved in fact.

Held (affirming the judgment of the Court of Exchequer Chamber, which had reversed a previous judgment of the Court of Queen's Bench), that this plea did not afford a defence to the action, for that there was no implied condition that the ship should be seaworthy on the day when the policy was intended to attach. Gibson v. Small, 4 H. of L, Cas. 353.

LEASES.

cessively for ever thereafter on the failure of every other several life or lives in the said lease or thereafter to be nominated." Renewals had, from time to time, been made by the successors of S. in the estate, sometimes after proceedings in Chancery to compel the same, sometimes without such proceedings; but in 1845, G., the descendant of S., having absolutely refused to renew, a bill was filed against him by B., who had become possessed of C.'s lease. The bill prayed for a renewal according to the lease, which B. alleged to have been made in conformity with, and under the obligation of, the indenture of 1746. This indenture could not be produced, but the memorial was tendered and received in evidence. The defendant alleged, that the lease was ineffectual to bind the inheritance, as it was made by a person who was, at the moment of executing it, only tenant for life, and he contended, that there was no legal evidence of the indenture of 1746. He also relied on the difference between the terms of renewal contained in the indenture and those contained in the lease:

Held, affirming the judgment of the Court. below, that the plaintiff was entitled to the renewal as prayed; that the memorial was proRenewals-Registered memorial of deed.-perly admitted as secondary evidence of the inEvidence.-S., on the 5th January, 1746, being denture; that that indenture was to be treated tenant in fee simple of lands in Tipperary, exe- as an original lease, containing a covenant, cuted an indenture, which was two days after- under the obligation of which the lease of 1750 wards registered under the Irish Registration was executed; that the obligation entered into Acts. The memorial represented that S. had, in 1746 being by the tenant in fee simple, his by the indenture, demised or agreed to demise performance of it in 1750 was valid, although these lands to C. for three lives therein-named, he was then only tenant for life; and that the with "a clause of renewal after the expiration of said lives therein before-mentioned," provided that C., his heirs, &c., should, "within six months from the death of the last of said three lives, nominate such life or lives as he would have inserted," and pay all rent, and "the sum of 117.78. 6d, for adding or renewing such Upon one of the occasions of renewal, the life or lives for ever." The memorial was tenant for life against whom a bill had been signed by C. alone, and he registered it. In filed, was an infant. The Court of Chancery Feb. 1750, S. executed a settlement in contem-in Ireland ordered his guardian to execute a plation of marriage, by which he made himself lease in conformity with the covenant contenant for life only in the estate comprised in tained in the deed of January, 1746. the indenture of 1746. In March, 1750, he executed a lease to C., in which the indenture of 1746 was recited, and in consequence of some

acts of the successive tenants of the estate, although not evidence to prove the existence of the covenant, became, when the covenant had been otherwise proved, evidence of the construction which the parties interested had put upon it.

Per Lord St. Leonards, that order was authorised by the Irish Statute 11 Anne, c. 3. Sadlier v. Biggs, 4 H. of L. Cas. 435.

Analytical Digest of Cases: House of Lords.

PRACTICE.

Re-hearing. Costs. A judgment of this House given on an appeal cannot be reversed; but where such appeal and judgment have been obtained by suppression and misrepresentation, the House will afterwards discharge the order granting the leave to appeal and the order constituting the judgment thereon.

and intrusted the care and charge of her to his brother. In a codicil, executed five years afterwards, he said, "I add 3,000l. to the 2,000l. to which M. S. is entitled under my will, by which she becomes entitled to 5,0001," In about a year afterwards, and about 10 days before his death, he made a further codicil, in which he said, "Not having time to alter my will, and to guard against any risk, I hereby charge the whole of my estates and property in the funds with the sum of 20,000l., for my daughter, M. D.;" in this instance giving her his own name, as if she was a legitimate daughter.

Held, affirming the decree of the Court below, that there were circumstances here to rebut the prima facie presumption in favour of the last legacy being treated as additional, and that it was only in substitution for the sums previously given. Russell v. Dickson, 4 H. of L. Cas. 293.

A decree in Chancery was made in January, 1835, and enrolled in May of that year. A petition for leave to appeal against it (the proper time for appealing having gone by) was presented in February, 1839, and refused. The party who was dissatisfied with the decree filed a bill of review in 1844. A demurrer to that bill, for want of equity, was allowed. The order allowing the demurrer was appealed against in 1846, and in the appeal the original decree was expressly complained of. In July, 1847, there was a general dismissal of the appeal, and the order allowing the demurrer was specially mentioned in the order of dismissal; but the original decree was not mentioned. In 1848, there was a petition for leave to appeal against the original decree and certain other orders made in the course of the proceedings, but which had not then been enrolled, and in the petition it was stated, that "it appeared by the order of July, 1847, that the decree of January, 1835, had not been complained of, and therefore that their lordships had not made any declaration with respect to it," and that "the said decree had never been adjudicated upon by their lordships." On this petition, and after other pro-dition: "provided always, that if it shall hapceedings taken, leave was given to include in the appeal the decree of January, 1835. The appeal was heard exparte, and in June, 1850, the decree was reversed.

Held, that this reversal had been obtained by suppression and misrepresentation, and the parties affected by it having petitioned for relief, the House discharged the order giving leave to appeal against the decree of January, 1835, and the order which had reversed that decree.

No costs were given. Exparte White v. Tommey, 4 H. of L. Cas. 313.

RENEWAL OF LEASES.

See Leases.

WILL.

1. Legacy.-Substitutional or additional. Where a legacy is given in each of two different instruments, the testator must, prima facie, be understood to have meant to give two separate legacies; but there may be circumstances to rebut that proposition.

A testator gave by his will, "To my natural or reputed daughter, M. S., 2,000l., for her own sole and separate use, the interest thereof, at 5 per cent., to be expended on her education;"

2. Construction.-Proviso.-" Living at her death."-M. D., devised certain estates to his nephew, Sir J. E., Bart., for life, and after Sir J. E.'s decease, to his second son, and his heirs male; and in default to the third son, and his heirs male, and so on, with a proviso that if the baronetcy should come or descend to the second son of Sir J. E., the estates should go over to the next in succession. P. J., the father of Lady E., by a will made subsequently to that of M. D., devised his estates to his daughter, Lady E. for life, then to her eldest son for life, and his heirs, and for default, &c., to the se cond son of Lady E. for life, and to his heirs ("in case he shall not become, or shall not continue, seised of the real estates of M. D. by virtue of his will"), and to the third and every other son of Lady E., subject to the like con

pen that my said daughter shall have no issue male of her body living at her death, or no such issue male as shall be entitled, by the true meaning of this my will, to my real estates, hereby limited and settled as aforesaid, then, and in either of those cases, I devise all my said real estates, subject respectively as aforesaid, to all the daughters (if more than one) of the body of my said daughter, who shall be living at her death, as tenants in common, and their heirs, &c.," with cross remainders amongst them; "and if there should be but one such daughter living at my said daughter's decease, and no issue of any other such daughter then in being, then to such only surviving daughter and her heirs." At the time of the death of Lady E. there were two sons and several daughters living; both sons afterwards died without issue:

Held, that the daughters of Lady E. did not take any estate under the limitations of the will of P. J., for that the words "living at her death" applied to both branches of the proviso, and that the contingency on which the daughters were to become entitled determined at the death of their mother. Eden v. Wilson, 4 H. of L. Cas. 257.