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charged upon Thomas Dewell's real estate, equal to Form of decree dirccting special inquiry is to damages the dividends on such a sum of consols as 6961. 19s. 8d. | under 21 d 22 Vict. c. 27, s. 2. would have purchased on the day of the memorandum.
The defendant agreed to let a public-house to the Minute, as subsequently settled by the VICE- plaintiff for ten years, from July 1st, 1862, on which CHANCELLOR. — Declare that the payment to Philip day possession was to be delivered, upon the condiHowe Daniel, in the pleadings named, of the sum
tions expressed in a written memorandum, one of of 6961. 198. 8d., in the pleadings mentioned, by which was in the following words :-"The lessor to Thomas Dewell the testator in the pleadings named, was make certain alterations now suggested, and—to make a breach of trust, in respect of which the estate of the and form a spirit vault, and put in plate-glass windows, plaintiff Harriette Daniel is entitled to be indemnified and do everything therewith necessary at his own out of the estate of the said Thomas Dewell, and that as
expense, and paint new the outside of all the woodtenant for life under the indenture of settlement, dated work, as well as put the slates, chimney-pots, and the 5th of January, 1831, in the pleadings mentioned, roofing in thorough repair.” she is entitled to have what is due to her in respect of her The defendant took no steps to complete this agreelife estate paid and secured out of the real estate of the ment, and refused to come to any arrangement with said testator, which, by the indenture of the 25th of the plaintiff as to the alterations and repairs to be made, July, 1859, in the pleadings mentioned, was conveyed and he alleged that as some of the alterations were to the defendant. And it is ordered that the following not specifically pointed out by the agreement, he account be taken—that is to say, an account of what is could not be compelled to perform it. due to the plaintiff in respect of her life estate under the
The plaintiff, by his bill, offered to waive the perabove declaration. And the Chief Clerk is to inquire formance of the agreement so far as regarded any and certify what sum ought to be invested in Bank alterations not specifically mentioned therein, and Three Pounds per Cent. Annuities to secure to the prayed specific performance of the agreement, except so plaintiff the future payment of the dividends and far as the performance thereof was waived, and for interest to which she is entitled in respect of her life damages in addition to or substitution for specific estate. And it is ordered that it be referred to the performance. Taxing Master to tax the plaintiffs their costs of this suit. And it is ordered that such costs, when taxed, be Freeling (Roll, Q.C., with him), for the plaintiff, paid by the defendant, Charles Goddard Dewell, to the referred to, plaintiffs, Thomas Estcourt Cresswell and Harriette Soames v. Edge, John. 673; Daniel, within after the date of the Taxing Master's Norris v. Jackson, 3 Giff. 396 ; certificate, or in default thereof, it is ordered that the and distinguished same be paid or raised out of the said real estate, together Norris v. Jackson, 1 J. & II. 319, with the amount which shall be certified to be due to where the plaintiff asked for specific performance withthe plaintiff under the above account. And it is out waiving a condition which had become incapable ordered that the money that shall be certified to be due of specific performance. to the plaintiff be invested in Bank Three Pounds per Cent. Annuities, as hereinbefore-mentioned, and it is
Daniel, Q.C., and Little, for the defendant. ordered that the plaintiffs be at liberty to apply to the Judge at Chambers as to the raising the said sums by ing minute :
Wood, V.-C., made a decree according to the followsale or mortgage of the said real estate, as to the payment and investment of the sum hereinbefore-men
Minute. -Decree specific performance, with costs, tioned when so raised, and as to the payment of costs and refer it to Chambers to settle the lease. Inquire of the suit out of the moneys to be raised by such under what circumstances delivery of possession was sale or mortgage, and any of the parties are to be at delayed beyond the 1st of July, 1862, and what liberty to apply as there shall be occasion.
damages ought to be paid to the plaintiff in respect of the non-performance of the agreement, either as regards the non-delivery of possession, or as regards
the making the spirit vault, &c. (as in agreement), in Wood, V.-C.
case the same shall not be done by the defendant."
Specific Performance — Waiver by Plaintiff of part of Agreement—Damages—21 d: 22 Vict.
Goulburn, Comr. c. 27, s. 2.
} Re W. P. WAUGH.
20, 23, 25 Nov. 1863. A defendant cannot avoid specific performance of an Discharge from Custody on writ of capias to
nent on the ground of the uncertainty of a nonessential condition which the plaintif' is willing to
hold to bail under 1 & 2 Vict. c. 110_Bankwaive.
rupt Law Consolidation Act, 1819, sect. 112.
The Court has full discretion under the Bankrupt Law justified in keeping the bankrupt an hour longer in Consolidation Act, 1849, to order the release of a bankrupt, prison. who has been arrested under a writ of capias to hold to
Sargood, for the bankrupt, said, that, besides the bail
, in a case where the action had not been proceeded applications mentioned by His Honour to the Court of with, and the debt had not been admitted to proof. Queen's Bench and the Court of Chancery, there was a And the ground on which the Court will exercise such third, namely, to the Court of Appeal, and suggested discretion is the greater facility with which discovery that such an order should be made here as would may be obta ined from the bankrupt by his release from enable the bankrupt to avail himself of that last custody.
remedy. In this case the bankrupt had been arrested in the
Bagley, for the official managers of the London and month of March last on a writ of capias to hold to bail, Eastern Bank, opposed the bankrupt's release altoissued pursuant to a Judge's order at the suit of the offi
gether. cial managers of the London and Eastern Bank, for a sum of 50,0001., secured by his promissory note, and
His Honour said that the withdrawal of all oppoalleged to be due by him to them as such official sition by the assignees had so altered the aspect of the managers. Not being able to find the bail required, case that he would again postpone judgment until the he had been consigned to custody at Whitecross Street 25th of November, on which day he would state the Prison, in which prison he had ever since remained : order which he should be prepared to make. no steps had in the meantime been taken at law by
25 Nov. 1863. the official managers for the recovery of the alleged debt, which had not even been admitted to proof in
Accordingly, on this day, His Honour gave his final this Court. On the 20th of November, he applied for
An entirely new character, he judgment in the case.
said, had been given to the case by the withdrawal of release from custody, when his Honour postponed opposition by the assignces, and he had to consider judgnent. On the 23rd of Noveinber his Honour, in what the effect would be. To show that it had giving judgment, said that when this matter first came
varied the case it would be necessary to refer to the before him the question arose, whether in a caso where a bankrupt was in custody on a writ of capias to 112th section of the Consolidation Act of 1849, and the hold to bail, this Court had jurisdiction to order his primary object for which that Act had been passed. release, and thus vary the order of the Common Law Since the passing of the Act of 1861 the object of the
former Act seemed to have been altogether forgotten. Judge. The writ had been issued under the 1 & 2 Vict. c. 110, the Act for the abolition of arrest and It had been taken to be a mere gaol delivery statute, imprisonment on mesne process, on an affidavit that the under which any one might present his petition and defendant was about to leave the country. An appli
at once claim his discharge. As the law then stood cation for such a writ was, of course, made exparte,
petitions in bankruptcy were, as a rule, for the most and sometimes no doubt the practice operated hardly
part, filed by creditors, -for, to obtain adjudication and unjustly on the debtor. By the 6th section, available assets; and the object of the section he
against himself, the debtor must have possessed 1501. however, of the last-mentioned Act, the Court was em
had mentioned was—inasmuch as a debtor as long powered at any time after arrest, upon the application of the defendant, to vary or discharge the writ. Now
as he was in prison could not give that assistance no steps whatever had been taken since the issue of and make that discovery to his creditors which was the writ in respect of such debt, alleged to be due necessary-to enable the debtor to obtain his release,
and thereby be placed in a position to prepare his from the bankrupt, by the creditors detaining him in prison. He thought that the course for the bankrupt his creditors concerning his acts and his property.
accounts, and thus be enabled the more fully to inform to
pursue would be to apply for his release to a Judge The release was, in fact, ordered with a view to the of the Court out of which the writ had issued, bring- realisation of the bankrupt's estate. Since the law had ing that important fact to his notice. His brother been changed by the Act of 1861, that section had been Commissioner (Holroyd) was of opinion that an application might be made to the Court of Chancery, under continually resorted to by debtors in dificulties, or in the 60th section of the 11 & 12 Vict. c. 45, which prison, with or without assets, to obtain their release. might stay the proceedings of the official managers. he had never given a bankrupt release until the
In all cases of what he might call bankruptcy proper He would now ask the assignees whether, -it having been admitted that that claim could not be sustained,
assignces were chosen, who were the persons to say if a claim which indeed they themselves were disputing, In the present case, the assignees had consented to the
any and what discovery was required of the bankrupt. they were acting rightly in even indirectly lending bankrupt's release, and he thought they had done right, theinselves to the detention of the bankrupt in custody.
inasmuch as they stood a chance, by the course they
had thus taken, of gaining more information from the Linklater, (solicitor), for the assignees, said that, bankrupt as to his accounts than they otherwise could aeceding to his Honour's opinion, he would not feel have done. He had before him an affidavit of an accountant who was assisting the bankrupt in prison, had the bankrupt remained in England. Under what which would show that even his (the accountant's) circumstances was he arrested ? He was arrested upon services could not be as well rendered as if the bankrupt an affidavit made behind his back by one of the official were at liberty ; for it could hardly be supposed that managers, that “the defendant was truly and justly the accountant could be all day at the prison or con- indebted to them.” When, on the alteration of the tinually be wasting his time in going to and fro. Even law, it was asked what security you would henceforth in the matter of the 50,0001., which the bankrupt was have on the arrest on mesne process ? the answer was, supposed to owe, there were no hopes of anything being that you had the oath of the creditor; but here, at done as long as he remained in prison.
least, that security had failed, for the creditor could not That consideration would form a main ingredient be indicted for perjury. As to bail, too, would it not in the exercise of the discretion which, under the be absurd to suppose that the bankrupt could find two 112th section of the Consolidation Act of 1849, the securities for 50,0001. each ; and if he could not, the Court most certainly possessed. In saying, as had case differed in no way from one of perpetual imprison. been said, that the Court had no jurisdiction in this ment. Moreover, in the action for that debt, no one case, because otherwise there might be a conflict single step had been taken since the bankrupt’s arrest between it and the Court of Queen's Bench, there by the plaintiffs, his creditors. It might be said, that was a mistake in terms. There was abundant juris- | it was the duty of the debtor to force such creditors to diction in the Court, as was plain from the words of go on with their prosecution ; but he by no means the section mentioned, -viz., “when any person who thought that the debtor was in any way bound to assume has been adjudged bankrupt, and has surrendered and the initiative. That, he held, lay entirely with the obtained his protection from arrest, is in prison or creditor ; and here the conduct of the creditor, in his in custody for debt at the time of his obtaining such opinion, rendered the case the same as if a stet proprotection, the Court may, except in the cases herein- cessus had been entered. The single answer to that was, after mentioned, order his immediate release, either that the debtor might apply to the Court of Queen's absolutely or upon such conditions as it shall think Bench, or perhaps to the Court of Chancery, but that fit." Now, here, all the conditions required by the sec- he (his Honour) thought he could not be called on to tion had been performed, and the only question was,- do. The main ingredient, however, in the opinion whether the Court would be exercising their discretion which he had formed in this case, was the fact that the rightly in the present case, for more absolute discretion assignees, who had acted most wisely and properly, there could not be. It was a question of bankruptcy would, if the bankrupt were released, have an opporbetween a trader and his assignees. That the debtor tunity of obtaining a more full discovery from him. was kept in prison formed an element, though not a Therefore, under all those circumstances, and in the principal one, in his consideration of the matter. He exercise of that discretion which he had mentioned, he thought that the bankrupt was wrongfully detained in should order the release of the bankrupt. But inasprison. He was detained on a capias ad respondendum, much as (and on this head he expressed no opinion) thie which was a very different thing from a capias ad detaining creditor might be advised that he had a satisfaciendum.
right of appeal, he would give an opportunity of As to the debt itself, though an attempt to appealing, by directing the order of release to remain prove it had been made, that attempt had failed, nor with the registrar for fourteen days; and at the expihad any one appealed in the matter. The debt would ration of those fourteen days, if no appeal were made, clearly have been barred by the Statute of Limitations, I the order would take effect.
action into a Superior Court by writ of certiorari in the 23 Nov. 1863.
manner prescribed by 19 & 20 Vict. c. 108, s. 67. Replevin-County Court-Jurisdiction--Ques- Philbrick had obtained a rule calling on the County tion of Title to an Incorporeal Iereditament.
Court Judge for Essex to show cause why a writ in the
nature of a mandamus should not issue to compel him The Judge of a County Court has jurisdiction to try to hear the suit of Fordham v. Acres then pending in all actions of replevin commenced in such Court, even his Court. though a question of title to a corporeal or incorporcal From the affidavits it appeared that the abovehereditament should arise in the course of the trial ; named suit was an action of replevin, brought under subject only to the right of the defendant to remove the the following circumstances :
The defendant's land adjoined certain Lammas land ments shall incidentally come in question.” Section 65 over which the plaintiff claimed a right of conimon of enables the replevisor to commence his action in a supepasturage. Some cattle of the plaintiff's, which had rior Court upon giving certain securities. Section 66 prebeen placed by him upon the Lammas land, in the scribes the nature of the security to be given when the exercise of his alleged right of common, strayed on action of replevin is commenced in the County Court; to the defendant's land through a gap in the defen- and lastly, by section 67, it is provided that "any action dant's fence. The defendant thereupon distrained the of replevin brought in a County Court shall be removed cattle damage feasant upon his land, and it was in into any superior Court by writ of certiorari, if the respect of such distress that the plaintiff brought his defendant shall apply to such superior Court or to a action of replevin.
Judge thereof for such writ, and shall give security to When the suit came on for trial before the County be approved,” &c., "conditioned to defend such action Court Judge, the defendant stated that he disputed with effect, and, unless the replevisor shall discontinue the plaintiff's right to put his cattle upon the or shall not prosecute such action, or become nonsuit Lammas land, and he declined to give his consent in therein, to prove before such superior Court that the writing (under 19 & 20 Viet. c. 108, s. 25), that the defendant had good ground for believing, either that County Court Judge should, notwithstanding such the title to some corporeal or incorporeal hereditament, dispute of title, proceed to try the cause. The Judge &c., was in question, or that the rent or damage in thereupon refused to try the cause, on the ground respect of which the distress shall have been taken, that the plaintiff's title to an incorporeal heredita- exceeded twenty pounds; and every such superior ment, namely, a right of common, was denied by the Court shall have power to determine the same action." defendant.
It is submitted that these sections leave section 58
of the first Act in force, and that the Judge had thereBulwer now showed cause.
fore no jurisdiction to proceed. Previously to the establishment of the modern County Courts, all actions of replevin were
Philbrick, in support of the rule, cited, menced in the sheriff's County Court, and if any and contended that section 58 of 9 & 10 Vict. c. 95, does
Tummons v. Ogle, 6 El. & Bl. 582, question there arose concerning the title to a freehold not apply to action of replevin, and that sections 65, 66, the sheriff was at once ousted from his jurisdiction, 3 Blackstone's Com. 149.
67 of the 19 & 20 Vict. c. 108, are a separate and comBy section 58 of 9 & 10 Vict. c. 95, it is provided plete legislation upon the proceedings in that action. that the County Court “shall not have cognisance of COCKBURN, C.J.-The rule must be made absolute. any action of ejectment, or in which the title to any The 58th section of the first Act applies to one set of corporeal or incorporeal hereditaments shall be in actions, and there is a distinct series of sections relatquestion."
ing to replevin. The last Act contains provisions on Then section 119 enacts “that all actions of replevin the one hand enabling the replevisor to bring his action in cases of distress for rent or damage feasant which in the superior Courts upon certain terms, and, on the shall be brought in the County Court shall be brought other hand, enabling the defendant to remove the without writ in a Court held under this Act”; and by action into a superior Court upon complying with section 121 it is provided that, "in case either party to certain conditions there set out. Here the question! any such action of replevin shall declare to the Court of jurisdiction did not really arise. in which such action shall be brought, that the title to any corporeal or incorporeal hereditament is in question,
WIGHTMAN and MELLOR, JJ., concurred.
Rule absolute.and shall become bound with two sufficient sureties to prosecute," &c., "and to prove," &c., “then, and not otherwise, the action may be removed before any Court
THE QUEEN ON THE PROSECUcompetent to try the same in such manner as hath
THE PARISH OF
Q. B. been accustomed.”
Sr. OLAVE's, SILVER STREET
11, 25 Nov. 1863. The decision given by this Court in
v. The PARISH OF ST. GILES, Regina v. Raincs, 1 El. & Bl. 855,
, no doubt, that section 119 gave jurisdiction to Pauper-Settlement — Yearly Hiring of a Tenethe County Court to entertain all actions of replevin, whether title came in question or not, subject only to
ment—6 Geo. 4, c. 57, s. 2. temoval into a superior Court in the manner and form In March, 1858, W hired a house, situate in the required by section 121.
parish of 0, from Lady-Day 1858, at the monthly rent But section 2 of 19 & 20 Vict. c. 108, repeals section of 11. 168. 8d., the tenancy to be determined by one 121 of the first Act; and by section 25 of the later Act, month's notice, expiring on any one of the four usual power is given to the Judge of the County Court only quarter-days. W occupied the house, and paid the ou consent in writing of the parties, to try "any action stipulated rent during a period of more than a year:in which the title to corporeal or incorporeal heredita- Held, that he had rented the house for the term of one
whole year, within the meaning of the statute, 6 Geo. 4, Sessions was to be quashed, and the order of removal c. 57, s. 2, and had thereby gained a setllement in 0. confirmed ; if in the negative, then the order of the
Sessions was to be confirmed. In an appeal by the parish of St. Olave, Silver
By section 2 of 6 Geo. 4, c. 57, it is enacted, “that Street, in the city of London, to the Court of Quarter
no person shall acquire a settlement by, or by reason Sessions, held by the Recorder of London, at Guildhall
, against an order, dated 24th January, 1863, and of settling upon, renting or paying parochial rates for made by two Justices of the city of London, for the any tenement, not being his or her own property,
unless such tenement shall consist of a separate and removal of Thomas Wiltshire, his wife, and five children, from the parish of St. Giles, Cripplegate, to the distinct dwelling-house or building, or of land, or of parish of St. Olave; the Court of Quarter Sessions both, bona fide rented by such person in such parish quashed the said order, subject to the opinion of the least for the term of one whole year, nor unless such
or township at and for the sum of 101. a-year at the Court of Queen's Bench, upon the following case :The only ground of removal was, that in March, house
, or building, or land, shall be occupied under
such yearly hiring,” &c. 1858, the said T. Wiltshire hired for the term of one whole year, a separate and distinct dwelling, situate
Giffard and G. Tayler, in support of the order of at No. 6, Windsor Court, in the parish of St. Olave, Quarter Sessions. In order to create a settlement by at a yearly rent of 221. ; and he immediately entered the yearly hiring of a tenement, the tenant must be into the occupation thereof, and continued to rent and actually seised of an estate for one whole year at least, occupy the same thenceforward, for one year and Regina v. Recorder of Pontefract, 2 Q. B. 548; upwards, viz., for about 21 years, and he actually Regina v. Bothwick, 4 D. & Ryl. 335. paid upwards of 101. rent for the same in respect of Here there was only the contemplation of the possione whole year.
The said T. Wiltshire entered upon, bility of an occupation for a year, and not an actual and always occupied the said premises, under the fol- agreement for a year. In the absence of any express lowing agreement :
stipulation, the term of the tenancy is ascertained by “Memorandum of agreement entered into 20th day of the nature of the rent. Looking at the nature of the March, 1858, between H. Piper, as agent for the trus. rent and at the quarter-day notice required, this is a tees of Mrs. Henley, and T. Wiltshire of Dobie Court. quarterly hiring, H. Piper agrees to let, and T. Wiltshire agrees to take
Kemp v. Derrett, 3 Campb. 508 ; the house, No. 6, Windsor Court, from 25th of March,
Regina v. Chawton, 1 Q. B. 247. 1858, at the monthly rent of 11. 16s. 8d. H. Piper
W. Payne, in support of the order of removal.—The agrees to pay all landlord's rates, and taxes, and T. agreement created an estate for a year, subject to Wiltshire agrees to pay all tenant's rates and taxes, certain conditions. These conditions never having to keep the house in quiet and tenantable order, and
come into operation, there has been a bona fide yearly to amend all squares of glass broken during his occu
Regina v. Herstmonceaux, 7 B. & C. 551 ; “It is, lastly, agreed, that one month's notice, to
Paddington v. Willesden, 32 L. J. M. C. 109. expire at either the 25th day of March, 25th June, 25th September, or 25th December, shall be a good rent of 181." were decisive.]
[MELLOR, J.-In that case the words “at the yearly and sufficient notice on either side for T. Wiltshire to
The cases of a yearly hiring for service are analogous quit and deliver up possession of the house to H. to the present case, and show that there has been 3 Piper or other agent for the time being of Mrs. yearly hiring of the tenement, Henley's trustees.
Regina v. Byker, 2 B. & C. 114; “As witness our hands the day and year above
Regina v. Pershore, 8 B. & C. 679; mentioned, “ HENRY PIPER, Wandsworth v. Putney, 2 Poor Law Rep. 191.
Cur. adv. vult. “ THOMAS WILTSHIRE."
25 Nov. 1863. It was conceded by the appellants that all other MELLOR, J., delivered the judgment of the Court conditions of obtaining a settlement had been fulfilled (Cockburn, C.J., Wightman and Mellor, JJ.) by the said T. Wiltshire, and that he had gained a If we had been required for the first time to put a settlement in the said appellants' parish, if the above construction upon the 6 Geo. 4, c. 57, s. 2, and the written agreement constituted a yearly hiring or previous statute 59 Geo. 3, c. 50, we might have renting for the term of one whole year of the said hesitated to decide that, in the present case, a settledwelling-house, within statute 6 Geo. 4, c. 57.
ment had been gained. In other words, we should The question for the opinion of the Court was, have doubted whether the pauper had bona fide rented whether such written agreement constituted such a tenement for one whole year, or occupied under such yearly hiring or renting for the term of one whole yearly hiring. The case of Regina v. Herstmonceaux year of the said dwelling-house. If the answer of the (7 B. & C. 551) is, however, a decisive anthority that Court was in the affirmative, then the order of the these statutes do not require any other hiring or rent