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into the merits,
Finally, it was said that the delay which had Now, there were two classes of cases not falling taken place ought to debar the plaintiff from the relief within the statute of Will. 3, in which the Courts of asked. In cases falling under the statute of Will. 3, Law had set aside awards. One was, where, while application must be made to the Court before the last an action was pending, a consent rule was made day of the first Term after the award is published. for the reference of the matters in the cause. There In cases not falling under the statute, the Courts of the arbitrator was regarded as standing in the place of Common Law had adopted a similar rule, which was a jury; and if his decision was disputed, it must be only departed from under very special circumstances : dealt with in the same manner as the finding of a jury, the Court always insisting that any attempt to im- and application made to a Court of Law within the first peach the validity of an award ought to be made while four days of the term following the publication of the the facts were still fresh in the minds of the parties. award. The other class of cases was, where, in like A similar rule held in Equity,
circumstances, there was a reference of the cause, and Featherstone v. Cooper, 9 Ves. 67.
all matters in dispute between the parties. There the On the other hand, the plaintiff alleged that the Courts of Law adopted a rule analogous to that laid facts of the case did not come out till the trial, and down by the statute of Will. 3, and allowed the applithat under those circumstances the Court would look cation to be made any day before the last day of the
term after the publication. That rule was only Jarvis v. Chandler, Tum. & R. 319 ;
departed from in very peculiar circumstances; and Parquharson v. Pitcher, 2 Russ. 81 ;
the case of Sherry v. Oke (3 Dowl. 349) might be Bateman v. Willoe, 1 Sch. & Lef. 201 ;
cited as one in which the Courts had relaxed the rule Eads v. Williams, 4 De G. M. & G. 674.
as much as in any othér.
Thus, the award having been published in June, 7 Dec. 1863.
1859, the plaintiff might have made it a rule of a Court Wood, V.-C., said, that the arbitrators had clearly of Law, and moved to set it aside any time before the end miscarried in taking the opinion of the umpire in the of Michaelmas Term, 1859. That he neglected to do : absence of the plaintiff's solicitor after he had made and the action was brought in December, 1859. In an application to them to be allowed to go before the consequence of the appeals, the rights of the parties umpire ; and if the matter were fresh the award could could not be ascertained till December, 1861 : and in not stand.
March, 1862, the present bill was filed. There had thus It was argued that the Common Law Procedure been some, but not very great, delay in bringing the Act
, section 17, and the Bankruptcy Act, 1849, matter before the Court. The question now arose, Section 154, had, either alone or jointly, the effect of whether, under all those circumstances, the award introducing into the reference to arbitration in the could be set aside by the Court. present case an agreement that it should be made a Now, it was evidently the intention of the Legis
Thus the case would be brought | lature (an intention which had been followed up by within the statute of Will. 3, and the Court would the decisions of the Courts of Law), that an award hare no jurisdiction, as was now well settled by the should be final, and bring litigation to a speedy termicases. But his Honour could not hold that either of nation. Under these circumstances, the jurisdiction these statutes imported into submission to arbitra- of the Court ought to be exercised with the greatest tion all the consequences of the statute of Will. 3. caution : and, indeed, the greatest reluctauce had If such had been the intention of the Legislature it been shown to interfere with the ordinary course might have attained its object either, directly, by an of the law in matters relating to arbitration, and express reference to that statute, or, indirectly, by an where ample justice might have been done at Law enactment that every submission to arbitration should if application had been made in due time. His be deemed to include an agreement to make the award Honour then referred to the observations of Lord a rule of Court. The Legislature had not so enacted, Eldon in Peatherstone v. Cooper (9 Ves. 68), and and the case did not fall within the statute of Will. 3. Lord Cottenham in Chuck v. Cremer (2 Ph. 477),.
His Honour then stated the proceedings at Law, as showing that the Court would be slow to assist remarking that the plaintiff had adopted the only mode a plaintiff who came here to obtain the same relief of defence there open to him, the award not having been which, if he had applied in the ordinary course of set aside. It was, however, finally decided that the proceeding, he might have obtained from another objections to the validity of the award could not be tribunal. In the present case the plaintiff could raised by plea; the Court of Exchequer observing certainly have obtained relief at Law: and, as observed ( H. & N. 509) that the objection, if well-founded, by Sir John Leach in Davis v. Getty (1 S. & S. 411), to was of a sort which ought to be raised while the matter allow him to obtain the same relief at a much later was fresh : within the time prescribed by the statute period than he could have got it in a Court of Law, of Will
. 3 in cases which fell within its provisions, would be to permit him to take advantage of his own and by the practice of the Courts of Law in other laches. The Court would therefore require a very
strong case of fraud or injustice to be made out before
rule of Court.
it would interfere in a case where the plaintiff's neglect WOOD, V.-C., held, that the suit was wrongly alone stood in his way at Law.
framed, inasmuch as the wife ought to be separately If the present case had stood as put by the plain- represented on one or the other side of the record. tiff, and he had lost a sum of about 60001., by the His Honour could not recall any case in which a suit improper decision of the arbitrators, then his Honour by husband and wife to redeem the wife's estate had thought that it would have been proper to interfere ; been allowed ; and now that it was settled that a suit but it seemed to him that the arbitrators hail taken by husband and wife was the husband's suit alone, it a correct view of the case, in following the mode of was clear that such a suit was defective for want of taking the accounts indicated by the letter of June, parties. 1857, and little or no injustice would be done to the As to the bankruptcy, the husband's beneficial inte. plaintiff. It had been urged on him that, following rest for the joint lives of himself and his wife, and the practice at Law, he might have sent the case his estate by curtesy, if any, were of course vested in back for reconsideration by the arbitrators. That his assignees ; but the legal estate remained in the could not be done without reopening the whole of the husband and wife in right of the wife. There was accounts, which would totally frustrate the design of therefore something in the husband which enabled him the parties, viz., to obtain a speedy settlement of to sue. the matters in dispute.
His Honour therefore would not at once dismiss the The bill must be dismissed with costs.
bill, but would let the cause stand over, with liberty to amend by adding a next friend to the wife, the
husband remaining as co-plaintiff. Wood, V.-C.
} SMITII v. ETCHES. 8 Dec. 1863.
Rolt observed that the next friend must adopt all the
proceedings in the suit, so as to render himself liable Practice-Parties-Husband and Wife--Re for the costs. . demption of Wife's Estate.
Wood, V.-C., said, that there was no doubt that if The wife ought to be separately represented in a suit the next friend came in, he would thereby become to redecni a mortgage of wife's estate.
liable for all the costs from the commencement of the In a suit by husband and wife to redeem the wife's suit. estate, where the husband was a bankrupt, leave was given at the hearing to amend the bill by adding a next friend to the wife, the husband remaining as coplaintif.
4 DEC. 1863. The bill in this cause was filed by a husband and his
Misdescription-Dismissal of Petition. wife to redeem a mortgage of the wife's real estate of inheritance. The husband had become a bankrupt, such petition had described himself as of a different
Petition for adjudication by a bankrupt, who sit and the defendants to the bill were the mortgagees, place from that of which he was described in a bill of the husband's assignee in bankruptcy, and the pur- sale exccuted by him shortly before his bankruptcy, chasers of the estate, which had been sold.
dismissed. On the cause being brought to a hearing, objections were taken to the frame of the suit, upon the ground In this case E. Reed prayed the Court to dismiss that the wife's interest, apart from her husband's, was à petition for adjudication, which had been prenot represented, and that the husband, being a bank- sented by the bankrupt himself
, on the ground of rupt, hal, in fact, no interest which could enable him insufficient description. In the petition the bankrupt
It was contended that a suit by husband and had described himself as of “Holywell Lane, Shorewife was the husband's suit alone, and the wife would ditch," although in a bill of sale which he had given not be bound by a decree in such a suit.
to certain creditors a short time before his bankruptcy, The following were the authorities cited :
Hie was described as of “Dove Row, Hackney." Hughes v. Evans, 1 S. & S. 185;
On examination the bankrupt swore that he had Reeve v. Dalby, 2 S. & S. 464 ;
never carried on business in Dove Row, that the stateWake v. Parker, 2 Keen, 59;
ment in the bill of sale was false, and that he had Gleaves v. Paine, 1 N. R. 249 ; 1 De G. J. & S. not previously seen such statement, inasmuch as he
could not read. (It appeared, however, that the Mitford on Pleading ;
bankrupt knew how to write, as the bill of sale was Hope v. Fox, 1 J. & H. 456.
signed by himself.)
In contradiction a creditor swore that the bankrupt Daniel, Q.C., and Cadman Jones, for the plai
had told him that he (bankrupt) was carrying on Rolt, Q.C., W. Morris, Cracknall, and Horton business in Dove Row, and was doing well in such Smith, for the various defendants.
business ; this witness also swore that he had seen
Fane, Comar.} Re SANDERS.
the bankrupt in his shop at the last-mentioned | Court by order of his Honour, made in November, place.
Whereupon Reed submitted that the petition was The facts were shortly as follows :-In November, fraudulent, and that the bankrupt had no locus standi 1862, the Bjornborg Tandstichs Lucifer Match Factory in this Court.
Association, a company incorporated according to the His Honour, after looking at the bill of sale, dis- law of Finland, and carrying on business in that missed the bankrupt's petition.
country, made a consignment of lucifer-matches to the bankrupt as their factor, or commission agent, for sale on their account. This consignment was made to
Germany, but, with the approval of the association, Goulburn, Comr. } Re
the goods were forwarded to England for sale by the 7 Dec. 1863.
bankrupt. By terms made with the association, the Substituted Service of Judgment-Debtor Sum- bankrupt was not required to accept bills on account mons — Bankruptcy Act, 1861, s. 79
of consignments, or to pay insurance or other charges on Consolidation Act, 1849, s. 121.
the goods consigned. The bankrupt debited the associa
tion in his books with moneys paid for insurance against Rule granted under section 79 of the Bankruptcy Act, fire and other charges, but no sale of the goods was 1861, and section 121 of the Consolidation Act, 1849, effected by him before his bankruptcy. The association against a judgment-debtor, to show cause why substituted drew bills of exchange for the value of the goods consorrice of a judgment-debtor summons should not be signed, and such bills were still outstanding. Since made,
the bankruptcy the goods had been sold, and the proRobertson Griffilhs, on behalf of a judgment-creditor, ceeds of such sale
, amounting to the sum of 2641. 148. 5d., applied, under section 79 of the Bankruptcy Act, and had been paid by them into the bank to the credit
had come into the hands of the bankrupt's assignees, 1861, for leave to effect substituted service of a judg. ment-debtor summons. He read an affidavit, by which of the Accountant-General in Bankruptcy. it appeared that all attempts that had been made to
Sargood, on behalf of the association, now claimed serve the judgment-debtor in this case had failed, the above-mentioned sum of 2641. 148. 5d., at the by his keeping himself out of the way, and by the
same time undertaking that any bills of exchange connivance of his servant. He submitted that, this drawn by the association and accepted by the bankrupt being a peculiar case, his Honour would be justified, in respect of the goods, should be cancelled and given under sections 76 and 79 of the Act of 1861, in order- up to the assignees, and that such sums as had been ing the service to be made on the debtor's servant, or paid by the bankrupt for insurance or other charges in such other way as the Court might direct. He should be deducted. He submitted that the bankrupt als) cited the 121st section of the Consolidation Act, being a mere agent or factor, these goods, though in 1849, and the 8th General Order made on the Bank. his hands at the time of bankruptcy, might be claimed luptcy Act, 1861.
by their original owners, and, if sold by the assignees, His Honour said, he thought he could so construe that the original owner was entitled to the purchase the 79th section of the new Act, by analogy to the money. Such goods were not in fact in the order and 121st section of the Consolidation Act of 1849, as to disposition of the bankrupt at all. He cited, enable him to make an order for substituted service in Whitfield v. Brand, 16 L. J. Ex. 103 :
The best course, however, to be adopted Ex parte Greenwood, 6 L. T. (N. S.) 558. would be in the first instance to take a rule, founded on an affidavit of the facts, calling on the debtor to show
Roed, for the assignees, who simply desired the procause why such substituted service as was here asked tection of the Court in dealing with the bankrupt’s should not be made. Minute:-Ordered accordingly,
His Honour said, that had this been the case of a
mere agent, he should have had some difficulty in the Re KULBERG.
matter, there being, in his opinion, a decided distinc7 Dec. 1863.
tion in Law between the characters of agent and factor. Factorship-AgencyGoods in the order and As, however, the bankrupt here had been undoubtedly Disposition of Bankrupt.
employed as factor, he should make the order asked Goods in the possession of a mere factor at the time of tion of any moneys paid by the bankrupt for insurance
for in favour of the claimants, subject to the deduchis bankruptcy are not in his order and disposition so as to pass to his assignees,
or other charges in respect of the goods consigned,
and also subject to the claimants' surrendering to the Quære,- Whether the same rule would hold good in the case of an agent ?
assignees the bills of exchange. This was a special case, stated for the opinion of the
Minute.- Ordered accordingly.
tion and that the locus in quo formed no part of it,
RICHARDS v. MORGAN. 16 APRIL, 23 Nov. 1863.
put in evidence the answer of William Meyrick
in a suit in Chancery, instituted against him by one Evidence-Admissions by Conduct — Depositions Lewis Edwards, in the year 1842, and also, the bill of
in Chancery-Admissibility of, in Subsequent complaint in the suit, to which such answer referred. Action.
This suit was instituted for the purpose of setting
aside the purchase by William Meyrick from Lewis In an action of replevin, where the question in dis Edwards, of the estate of which it was now alleged pute was, whether a certain tract of land was part of that the locus in quo formed part, on the ground that the frechold of the plaintifï, or of W M, under whom Meyrick had taken advantage of his position as the defendant held, and who was the real defendant in Edwards’ attorney, to obtain it for 2,1001., which was the action, the plaintiff tendered in evidence the deposi- much less than its real value. William Meyrick in tions of two witnesses taken in a Chancery suit, insti. his answer, detailed the circumstances connected with tuted some years previously, by one E, against the Edwards’ proposal, that he should become the pursaid WM. The object of such suit was, to set aside a
chaser of the estate, and averred that immediately sale to W M of the estate of which (according to his after such proposal, “the defendant sent to Henry contention in the action of replevin) the locus in quo Harries, who, recently, had been the tenant of the said formed part, on the ground that W M had fraudulently two farms (Tyr Twppa and Ysgwyddgwyn), and had obtained the estate from E, at less than its real value. occupied the same as such tenant for some years then The depositions which the plaintiff thus sought to put in, last past, together with the lands of the said Marquis contained statements respecting the value and extent of of Bute intermixed therewith, which he held under the estate, tending to prove that full value had been
one taking at a gross rent, and inquired from hina given for it, and shoving, if accurate, that the locus what was the value of the said two farms, and the said in quo formed no part of it. They were taken, Henry Harries informed the defendant that he conunder the system then in operation in the Court of sidered the yearly value thereof under his taking from Chancery, before Commissioners sworn to secresy, but the plaintiff amounted to the sum of 651., and that
, were published a month before the hearing of the cause, in his judgment, that sum was the full and fair value and after publication both parties had access to them, of the said two farms.” The answer then went on to and it was at the option of either party to use or refrain state, that 2,1001. was a large and ample price for the from using in the suit the depositions taken on his value of the said farms and lands at the time of such behalf. At the hearing of the said suit of E v. M, the purchase ; and that the defendant agreed to buy the defendant's counsel read and used the depositions in said two farms, lands, and hereditaments, solely at the question for the purposes of his case :-
instance and request of the plaintiff. Held (by COCKBURN, C.J., and CROMPTON, J.,
In addition to this bill and answer, the plaintiff's BLACKBURN, J., dissentiente), that these depositions counsel tendered in evidence on the present trial, the were properly received in evidence in the action of depositions of two persons, named Henry Harties and replevin.
Francis Morgan, which were taken in the suit above This was an action of replevin for taking the plain- referred to. It was admitted, on behalf of the detiff's sheep, tried before Wilde, B., at the Glamorgan- fendant, that these depositions were taken under the shire Spring Assizes, 1862. The defendant, by his old system in Chancery, by Commissioners sworn to avowry, alleged that he took the sheep damage feasant secresy. It was proved that publication passed a on the locus in quo, which he held as tenant to one month before the hearing of the cause, and that after William Meyrick, in whom the fee was vested. On publication, both parties had access to the depositions, this avowry issue was joined. The question in dispute and that a party was not bound to use at the hearing at the trial was, whether the locus in quo, a mountain the evidence of any witness, unless he pleased. It tract called Ysgwyddgwyn, was the freehold of William was also proved that Meyrick's counsel, at the hearing Meyrick, who was the real defendant in the action, or of the cause of Edwards v. Meyrick, read and used as was the property of the Marquis of Bute, who is lord evidence for him, the two depositions which were now of the manor in which the locus in quo is situate, and tendered on behalf of the plaintiff in the present who was the real plaintiff in the action.
action, At the trial, the counsel for the plaintiff, for the The defendant's counsel objected that these deposi
: purpose of showing the extent of the estate in ques. | tions were inadmissible, but the learned judge over
ruled this objection, and they were received in value of the said farms at rack-rent, without any evidence.
deductions or allowances whatsoever, is 701. per The contents of these depositions, so far as they are annum, and I have often told my master, the defenmaterial, are as follows :
dant, so, and had hoped by this time he would have Henry Harries deposed, “I have known the said reduced the rent to that sum. I have striven hard to farms called Ysgwyddgwyn and Tyr Twppa for these pay the rent for the farm, and I have given my master forty years. I was in the occupation thereof as lessee the whole gains ; I had an advantage by being able to for a term of fourteen years, determinable on lives dispose of the produce of my farms to my three from the 2nd of February, 1818, to the month of brothers-in-law, who were shopkeepers in the neighFebruary, 1823, under the complainant as lessor bourhood, and who purchased such produce.” The thereof
. In the said month of February, 1823, the deponent then spoke to the dilapidated condition of last life dropped, whereupon the lease determined. I the premises, and the repairs which would be necesheld the said farms called Ysgwyddgwyn and Tyr sary to put them into a proper condition. Twppa, in conjunction with other lands, such other The jury returned a verdict for the plaintiff, and a lands consisting of a farm called Gwêrn Dwyna, con rule was afterwards obtained for a new trial, on the taining about 109 acres, also held by me under the ground of the improper reception in evidence of these complainant, who held the same under a lease for depositions. Against this rule lives under the Marquis of Bute, and I paid for the whole of such two farms and such other lands the W. M. James, Q.C., (of the Chancery Bar,) Tomyearly rent of 1051. One Joseph Davies occupied linson, and T. Allen, showed cause. the said farms and lands called Tyr Twppa and These depositions were properly admitted. Two Ysgwyddgwyn under the said complainant for a year principles may be said to be established with regard or two after I ceased to be tenant thereof. The said to the reception of evidence of this nature :complainant offered me the two last-mentioned farms 1st. That the affidavit of a witness used by a party just before I left them in 1823 at the yearly rent of in any matter can be afterwards used against such 651.
, which offer I refused because the Marquis of party by any person producing that affidavit. Bute refused to allow his farm to be occupied in con 2nd. That the oral statement of a witness at nisi junction with the said two farms of the complainant, prius is not within that rule, because non constat that and it did not suit me to rent those two farms without.” the witness has not said something totally different The deposition then stated facts which went to show from what the party calling him expected ; see that the defendant was at first unwilling to purchase Taylor on Evidence, 605 (2nd ed.). the estate, and only consented to do so at the instance The depositions in question fall properly within the and request of the plaintiff, and that the price paid first, and not the second, of these classes, and there is was not only fair and reasonable, but was fixed by the no authority to show that Chancery depositions which plaintiff himself. And the deponent stated that, in have been used in a former suit are not admissible answer to an inquiry by the defendant, he had told against the party who has so used them. him that he considered the farms worth 65l. a-year
Rushworth v. Countess of Pembroke, Hardres, 472, to rent."
which is generally cited as an authority against their Francis Morgan deposed, " I know the said farms admissibility, has no real bearing on the case ; the and lands called Tyr Twppa and Ysgwyddgwyn, and I question there being, whether the depositions taken have known them well for the last nineteen or twenty in one cause could be used on behalf of the same party years, and I lived in the immediate neighbourhood of in another. them previously. I became tenant of the said farms It is admitted that there are many dicta to be found in the year 1831 under the defendant, and have since to the effect that Chancery depositions are inadmissible continued the tenant thereof to the present time in a subsequent occasion, even against the party who The rent from the year 1831 up to about a year ago has previously used them. See Was 901. per annum, when the same was reduced to Brickell v. Hulse, 7 Ad. & El. 454; &NI
. per annum, but in consequence of my complaining Gardner v. Moult, 10 Ad. & El. 464 ; every year to the defendant of the dearness of the Atkyns v. Humphreys, 1 Moo. & R. 523; farm, and my threatening to give it up to the said Boileau v. Rutlin, 2 Exch. 665. defendant, he, defendant, made me allowances varying All these dicta, however, have proceeded on a misfrom 51. to 81. in each year for the dearness of the apprehension of the practice in Chancery with respect farm, and in consideration for the improvement 1 to the taking of depositions. It has been supposed made to it; the total extent of the said farm is, that until they were read in evidence at the hearing, I believe, 135 acres, and consists of about twenty the party on whose behalf they had been taken was chain acres of arable land, about thirty chain acres of unaware of their contents, and that they were thus meadow, and the rest consisting of pasture, wood land, strictly analogous to the case of the evidence of a and rough land, the exact proportion of which I am witness at nisi prius. In truth, however, as we proved unable to state. In my opinion, the full and fair at the trial, publication always took place before the