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creditor and the principal, “the surety is held to be if we did not agree with it as we do. In Podley v. discharged, for this reason, because the creditor by Harradine the plea alleged that the creditor, at the so giving time to the principal has put it out of time when he became holder of the bills, as well as the power of the surety to consider whether he will when he gave time, had notice of the relationship have recourse to his remedy against the principal or of principal and surety between the defendant and his not; and because he, in fact, cannot have the same co-debtor, and the decision did not go further; but it remedy against the principal he would have had under had previously been suggested by Sir John Leach, as the original contract.” Whether, if the matter were Master of the Rolls, that even though the relationship res integra, it might not have been better to confine of principal and surety was created by an arrangement the surety's right in such cases to compensation in between them after the parties had become liable to damages for this injury, which is generally only the creditor as joint-debtors, yet the creditor by giving nominal, it is not now open to us to consider. A long time to the principal with notice of this arrangement series of decisions, many of which may be found col. discharged the surety, and this decision was affirmed lected in Rzes v. Berrington (2 White and Tudor's L. by Brougham, L.C., and by the House of Lords, Cases in Equity, 822), have settled that such an Oakley v. Pashelles (4 Cl. & Fin. 207 ; Bligh (n. 8.) alteration in the position of the surety discharges 508). him, even though the delay may be shown to be for Now, in the present case, the plaintiffs when they his benefit. Lord Eldon in Samuell v. Howarth gives executed the deed, had notice that some of the parties as the reason for this apparent harshness that, “the to the bills in their hands were not primarily liable to law has said that the surety shall be the judge of that, the Messrs. Price on those bills. They entered into and that he alone has the right to determine whether the deed-making stipulations with regard to such it is or is not for his benefit."

parties, and taking their chance as to who they should This principle has been imported from the Courts turn out to be. We think that if the effect of the of Equity into those of Law, and is clearly stated by deed was to alter the position of the parties who should Williams, J., in Strong v. Poster (17 C. B. 219). He turn out to be sureties, it was as wilfully done and as there says, “What I understand by a giving of time inequitable as if they had express notice who those in such a case, is this : the surety has a right at any parties were. moment to go to the creditor and say, I have reason The question, therefore, as it seems to us, comes to suspect the principal debtor to be insolvent, there round to this, whether the effect of the deed does fore I call upon you to sue him, or permit me to sue give time to Messrs. Price & Co., so that it would him.” If the creditor has voluntarily placed himself discharge ordinary sureties, of whom the plaintiffs then in such a position as to be compelled to say he cannot had notice. The plaintiffs and Messrs. Price did not sue him, he thereby discharges the surety ; the case intend to discharge the sureties. On the contrary, then falls within the general doctrine as to principal they have by an express proviso, agreed that in the and surety which obtains at law and in equity, that if event (which has happened) of the proposal not being the creditor does anything to alter the position of the carried fully into effect, the sureties should be liable surety he thereby discharges him.

to them as if the deed had never been made. But There is, however, another point to be noticed here : during the two years which elapsed before the Messrs. the bill of exchange on which this action is brought Price made default, the plaintiffs could not, without & is a written contract, and conclusively shows both at breach of faith and of contract on their part, have law and in equity that the contract of the defendant sued Messrs. Price ; and if the surety had called on with respect to the plaintiffs was as principal and not them to sue they would have been bound to refuse

. as surety, and moreover the plaintiffs had no notice It is quite true, that where the contract in which the at the time when they took the bill that the defendant creditor binds himself to the principal debtor not to was other than an acceptor for value. There are sue him for a time is so worded as to show that it was authorities (amongst others, Strong v. Poster,) tending intended only to apply to suits for the benefit of the to show that, in order to enable à surety to raise at creditor, and to except from its operation suits at the law a defence, on the ground that time has been given instance of sureties, and on their behalf, to the principal, it is necessary to show that the in the position of the surety is produced, and he is original contract between the plaintiff and defendant not discharged. And it seems established, that if in was that of creditor and surety. How this may be the contract for giving time there is an at law we are not now called on to decide, we are reservation of remedies against sureties, the contract determining this case as a Court of Equity. It was is to be construed as allowing the surety to retain all decided in this Court in Pooley v. Harradine (7 El. & his remedies over against the principal debtor, and (as Bl. 431) on an equitable plea, that the equity on which is said in Price v. Barker, 4 El. & Bl. 780) “ that the a Court should act “does not depend on any contract covenant not to sue is to operate only

so far as the with the creditors, but on its being inequitable in him rights of the surety may not be affected.” In the deed knowingly to prejudice the rights of the surety against now before us, the creditors generally have stipulated the principal.” By this judgment we are bound, even for a right to have immediate recourse against sureties,

no alteration



but from this there is an exception of those mentioned Fogle, and asked him to take it to the school-room, in the proposal. We find that Bailey, Greatorex & Co., Bowling-green Street, and vote for Wood and Trickett, expressly bound themselves not to sue the parties to whose names were on the paper. Fogle remarked that the bills who stood in the position of suroties for a the name on the paper was not his name, and asked if period, which turned out to be two years, and we find he should get into trouble. The appellant told him nothing to show any intention to preserve for those that he would not, and that he was to take the paper sureties during that time their right to call upon and put it down before a gentleman whom he would Bailey, Greatorex & Co., to sue Messrs. Price if so see sitting there, and that they would say nothing to advised. We think, therefore, that an equitable de him. Fogle thereupon took the paper to the said schoolfence is made out, and, consequently, that the rule room, and tendered it to the officer who was sitting must be discharged.

there for the receipt of votes. The officer thereupon Rule discharged. asked him, “Are you the person whose name is signed

as George Bamford in the voting-paper now delivered Q. B.

in by you ?” Fogle answered, “No."
16 Jan. 1864.

The name of George Bamford was at the time on

the burgess-roll then in force, but the voting-paper Inducing to Personate a Voter-Municipal was not filed, nor was the vote of George Bamford Corporation Act-22 Vict. c. 35, s. 9. recorded in the said election in consequence of the

paper being handed to the officer by Fogle as aforesaid. In order to sustain a conviction under the Municipal The said Thomas Hague appealed against the said con. Corporation Act for inducing any other person to viction to the Court of Quarter Sessions, which con. personate any person entitled to vote" at a municipal firmed the conviction, subject to the opinion of the election, it is not necessary to show that the person Court of Queen's Bench, whether upon the above facts induced actually voted in the place of the person Thomas Hague had committed the offence alleged entitled : it is sufficient to show that he, being induced within the meaning of the statute, and whether the by the defendant, did hold himself out to be the person offence of inducing was duly and sufficiently set forth entitled, with the intention of voting in his place.

in and by the said conviction. A conviction which alleges "that the said T. H. did unlawfully induce one J. P. to personate G. B.,&c.,

Fowler appeared in support of the conviction, but is good, although it does not set forth any means of the Court stopped him, and called upon inducement employed.

J. B. Maule, for the appellant. Case stated by the Court of Quarter Sessions for the 1st. In order to support a conviction for inducing a perWest Riding of Yorkshire.

sonation, there must have been an actual personation. On the 5th of November, 1862, Thomas Hague, the Here there was only an unsuccessful attempt to persoappellant, was summarily convicted under section 9 of nate. Fogle did not succeed in voting in Bamford's The Municipal Corporation Act, 1859 (22 Vict. c. 35), name, and therefore he did not personate Bamford. “for that he the said Thomas Hague, within the space The words, "falsely assume to act,” &c., in the second of six calendar months next before the laying of the part of the section, point to something different from information whereon the conviction is founded, to wit, and less than personation. on the 1st of November, 1862, in the West Riding, 2nd. The conviction ought to set out the means pending a certain election of councillors for St. Philip's of inducement used. “Inducing” is merely the legal Ward, in the said borough, unlawfully and knowingly result of certain acts. did induce one James Fogle to personate one George [COCKBURN, C.J., called attention to Bamford, then being a burgess of the said borough, Regina v. Fuller, 1 B. & P. 108.] and entitled to vote at the said election, against the form," &c.

COCKBURN, C.J.-I am of opinion that our judg. By the above-mentioned section it is enacted, that ment should be for the respondents. Although the "if, pending any election of councillors, any person second part of the enactment might possibly seem to shall personate, or induce any other person to personate, point to a difference between a personation and an any person entitled to vote at such election, or whose attempt to personate, yet I am clearly of opinion that name is on the burgess-roll then in force, or falsely that is not the meaning of the section. The Legislaassume to act in the name or on behalf of any person ture has not introduced as an additional and necesso entitled to vote, &c., he shall be liable to be con- sary element of the offence that the man must have victed and punished as therein mentioned.”

voted, nor are we called upon to insert such a It was proved before the Justices who convicted the condition in the Act. Every one who presents him. appellant that, on the 1st of November, 1862, pending self as another person, and tenders a vote as such the annual election of two councillors of the borough person, is within the statute. For further security of Sheffield, the appellant gave a nomination paper, against fraud, it is provided that certain questions signed by George Bamford and properly made out, to may be put to the person who tenders a vote, and

19 JAN. 1864.

a false answer to any of such questions is declared PLEA.-By way of defence on equitable grounds, to be a misdemeanor. It is not because he who that the said debts were contracted by the defendants seeks to personate a voter declines to answer these by virtue of their office as overseers of the poor of the questions, not wishing to make a false answer, and parish of Kingston-upon-Thames, in the county of because his attempt is thereby defeated, that he is the Surrey, and that they lawfully contracted the same less guilty of “personating" the individual whom he within three months prior to the determination of seeks to represent. Whether he succeeds in his their year of office, which terminated before the com attempt or not, his offence is equally grave.

mencement of this action, and that the same not CROMPTON, J.-I am of the same opinion. I agree of their year of office, the same, according to the

having been discharged by them before the termination that a person cannot be said to have "induced” one

statute in that behalf, became and were due and pay. person to personate another, unless there has been an actual personation. But I think that the Justices able and recoverable from P. Jones, J. Page, J. Ner: were right in saying that there had been a personation. immediate successors in the said office of overseers of

man, and J. C. White, who were the defendants' Neither have I any doubt but that the conviction is the poor of the said parish, and were chargeable upon sufficient in alleging that Hague " did induce him to the poor-rates of the parish in like manner as they would personate,” without setting out any means of inducement. To allege more would be merely to set out

have been by the defendants. And the same being evidence in the conviction, and indeed the point is unpaid, the plaintiff brought an action against the concluded by the case cited by my Lord.

said P. Jones, &c., then being such overseers as afore

said, in the Court of Queen's Bench, for the recorers BLACKBURN and MELLOR, JJ., agreed.

of the said debts and other claims and demands made Conviction affirmed by the plaintiff against them as such overseers ; and

the plaintiff, by his particulars of demand in the said Q. B. | PENFOLD V. WEST.

action, and the declaration therein claimed and songkt

to recover from the said defendants in the said action Overseers— Transfer of Liability on Parish Con- the said debts in the declaration in this action mea

tioned, and the said P. Jones, &c., thereupon pleaded tracts to Succeeding OverseersPayment into to the said declaration as to 60l. parcel

, &c., the pay Court - Payment - 11 & 12 Vict. c. 91, ment into Court of 601., and as to the residue that 88. 1, 2.

they never were indebted : and that the plaintif To a declaration for work and materials, and on

thereupon took the 601. out of. Court, and entered a accounts stated, the defendants pleaded that the debts nolle prosequi as to the residue, and that the said 60L were lawfully contracted by them as overseers of the

so paid into Court was enough to satisfy the said 60% parish of K, within three months prior to the deter. in respect of which it was so paid, and to satisfy all mination of their year of office, which terminated before the said claims made by the plaintiff in the said action, the commencement of this action ; that the same not including his claim in this action, and that the said having been discharged, became, according to the statute P. Jones, &c., never were indebted to the plaintif, in that behalf, payable by and recoverable from P. J.

and no money became payable by them to him, nor dc., the defendants' immediate successors in the said office had the plaintiff any claim whatever against them in of overseers, and were chargeable upon the poor-rates of

respect of the residue of the plaintiff's claims in the the parish in like manner as they would have been by the defendants ; that the plaintiff sued P. J., dec., as

Demurrer and joinder in demurrer. such overseers for recovering the said debts, and also other claims made against them as such overseers, and

Mellish, Q.C. (D. D. Keane with him), in support by his particulars of demand and declaration sought to recover from the then defendants the said debt in the

The Court of Exchequer decided in the case of declaration in this action mentioned : that the then that the 11 & 12 Vict. c. 91, doos not entitle a persoa

Chambers v. Jones, 5 Exch. 229, defendants as to 607. parcel, dc., paid 607. into Court, who had a claim against overseers to recover by an and as to the residue pleaded never indebted : that the action against their successors, whatever remedy there plaintiff took the 601. out of Court, and entered a nolle prosequi as to the residue : and that the 607. so paid in The plaintiff therefore having by mistake brought to

be against them by mandamus, or otherwise. was enough to satisfy all the said claims made by the previous action for work done for the predecessors in plaintif in the said action, including his claim in this office of the then defendants, as well as for the then action:Held, on demurrer, that the plea was a good answer

defendants themselves, was compelled to enter a nalle prosequi as to that portion of his claim to which the de

fendants had pleaded “never indebted." And the DECLARATION.— For money payable for work done, 602. having been paid in, not to the whole declaration and materials provided, and on accounts stated. but “to 601. parcel, &c.," the plaintiff was entitled to

action or otherwise.

of the demurrer.

to the action.

take it out in satisfaction of that portion of his claim them before their year of office shall have determined, for which he was clearly entitled to sue the then de. such debt shall be payable by and recoverable from fendants, and to proceed against the present defendants their immediate successors in office in like manneras the for the residue. The plea does not set up any defence same would have been payable and chargeable by such which would induce a Court of Equity to grant an first-mentioned overseers during their year of office." unconditional injunction to restrain this action.

What is the effect of that section is not very clear,

I am inclined to think that I should come to the same 1. Smith, Q.C. (B. C. Robinson with him), in sup conclusion as that thrown out by the Court of port of the plea.

Exchequer, that is, that the succeeding overseers were The plea distinctly avers that the 60l. paid into not personally liable; though there was a plausible Court in the previous action was enough to satisfy all ground for saying that it was recoverable from them by claims against the present as well as the former de-action. But assuming that they were not so liable, it fendants. And as the plaintiff united both claims in is quite plain that they were the persons who would the former action, the defendants are entitled to the have to raise the money out of the rates and repay it to benefit of the sum then paid in; and if

, as the plea their predecessors in office, and the present defendants alleges, it was sufficient, they ought not to be compelled therefore would have a elaim on them to get the to pay over again. It is very doubtful whether the

money out of the rates, so as to hold them harmless. whole was not recoverable in the action against the Then, if the plaintiff had brought the former action former defendants, the words of the statute, 11 & 12 for this claim alone, the then defendants would have Vict., are “shall be recoverable," the ordinary mean. had a plausible defence, at least, but they would not ing of which would be by action. And the decision in be bound to set it up. They might, being the persons the Court of Exchequer was on the 2nd section of the who would have ultimately to pay the money, and Act and not the 1st.

therefore in the nature of cestuis-que-trusts, pay money This plea is probably a good defence at law, but into Court and say, that is enough to satisfy your at all events a Court of Equity would afford relief if claim. But then the trustees, who were at law liable, the facts be what the plea alleges.

must have the benefit of that payment in some form or COCKBURN, C.J.—I understand this plea in sub- another. To effect this, the interposition of a Court stance to state , that whereas by the operation of the of Equity would, perhaps, be necessary. Here the

case is further complicated by the addition of a claim, Act of parliament, the debts incurred by the present defendants who had been parish officers were payable then a sum being paid into Court generally, I think

certainly recoverable from the then defendants, and by their successors, so far at all events as to justify that ought to be allowed against both accounts. There those successors in discharging them, that an action

is in this plea an averment that it was enough to satisfy was brought against those successors for claims comprising the claim against the present defendants, and

“all the claims made by the plaintiff in the said that the then defendants paid into Court a sum which action, including his claims in this action.” If that was enough to satisfy not only the claims against them, and that it will be proved ; if it is not established, it is

is established, it seems to me that this is a good plea, but the debts incurred by the previous overseers. That being so, I think this plea is pro tanto good. It a material averment, and the plaintiff will recover. was competent for the then defendants to pay it, and if

MELLOR, J., concurred. they have paid it, the present defendants ought to

Judgment for the defendant, have the benefit of such payment. It appears to me to amount to a plea of payment, in which it was necessary to set out the facts more comprehensively, inasmuch as the payment was not made by the present


} CAWTHORN v. TRICKETT. defendants. If the 601. was not sufficient to satisfy

11 Jan. 1864. both claims, the defendants will be defeated, but if it Demurrage—To unload in regular turn”was, although Mr. Mellish's clients may have thought

Liability of Freighter. they were taking it out of Court in respect of the claim for which alone they could recover in the former Action by a master of a ship against freighler under action, yet I do not see that they would be in any a bill of lading, to which both were parties, for demurway prejudiced if the 60l. was enough to cover all rage, the bill of lading containing a clause that the that was due to them.

vessel should unload in her regular turn :

Held, that under that clause the freighter was liable BLACKBURN, J.-I am of the same opinion. The section provides that “if the overseers of the poor of for demurrage, and that the master might sue on the

bill of lading. any parish shall lawfully by virtue of their office contract any debt on account of the parish within This was an action tried in the Sheriffs' Court for three months prior to the termination of their year of unliquidated damages in respect of demurrage. The office, and the same shall not have been discharged by defendant was the freighter of the plaintiff's ship under a bill of lading, in which was this clause :- tract to which he is a party under a bill of lading. “The vessel to take her regular turn in unloading." There was that in this case which amounted to a conOn arriving at her destination, Maidstone, there were tract in the bill of lading : "The vessel to unload in no vessels unloading, but the vessel in question might her regular turn,” are words inserted ; and I think have been unladen forthwith. This the freighter that they amount to a contract by either shipowner or neglected to do for several days, and the consequence freighter that neither will do anything to hinder the was this action, which was for not unloading within a regular unloading of the vessel. The question in all reasonable time, and secondly for demurrage. There actions of this sort is, what is the contract that esta. were the usual traverses to these counts, and at the blishes the liability of a consignor or consignee! And trial the plaintiff recovered damages, defendant's the contract may be proved expressly by the very counsel objecting that there was no proof of any con- words of a contract, as here, or by implication from all tract to the effect charged.

the circumstances of the case. Michaelmas Term, 1863, Shaw obtained a rule on the

WILLIAMS, J.-I think the damages are such as are grounds that—1st. There was no case to go to the jury. 2nd. That the action having been brought by one of attributable to the breach of contract contained in the

bill of lading. the co-owners without joining the other two, failed; it having appearad at the trial that the plaintiff was but WILLES, J. - This rule was granted on the authority one of three co-owners.

of Brouncker v. Scott (4 Taunt. 1), Evans y. Forster

(1 B. & Ad. 118), and to these I will add Slindt F. Keane now showed cause. Taking the second point first, it was proved that cedent cases to mean something more than they had

Roberts (5 D. & L. 460), which last case took antethe entire management of the ship was with the

decided. But these cases were actions against conplaintiff alone, and that he had undertaken to pay all the expenses, paying over to his co-owners one-third signces, while this is an action against a consignor for of the nett profits, that gave him a sufficient interest to him to unload contained in the bill of lading.

not unloading, where there is an express contract by maintain this action, Story on Agency, s. 393.

KEATING, J., concurred. [WILLES, J.-It is more like a case of tenancy in

Rule discharged. common than agency.] In

C. P.

} GASQUOINE v. Cartux.

11 Jan. 1864. Shields v. Davis, 6 Taunt. 65, a master was held entitled to sue. The plaintiff cer. Practice-CostsPlea of Matter arising after tainly comes within the description of an exercitor

last Pleading-Less than 201. recovered. navis, Story on Agency, s. 36, citing the Digest.

The 11th section of the County Courts Act, 13 & 14 Next, the stipulation in the bill of lading is an Vict. c. 61, by which a plaintiff is deprived of costs, if agreement to unload in the regular turn, or else to he shall recover in the superior Courts 201. or less, des indemnify the plaintiff for not doing so.

not affect R. 23, T. T. 1853, which provides that Shaw.—The so-called stipulation is simply a direc- after the last pleading, may confess the plea and reconer

plaintiff, in answer to a plea of matter of defence arist tion inserted by the owners of the ship as to the course his costs incurred up to the time of plea pleaded, to be adopted by the vessel on arriving at Maidstone,

although he thereby recovers not more than 201. Brouncker v. Scott, 4 Taunt. 1. There is nothing more in this bill of lading than in

In this case a rule was obtained last term by the other cases in which actions for demurrage have failed, defendant in person for the Master to review his taxa

tion in this cause. because there was no contract. The plaintiff, as master, had no power to sue,

This was action on a bill of exchange for 397. Is.

The declaration contained two counts-one on the bill, Domett v. Beckford, 5 B. & Ad. 521 ; Dewell v. Moxon, 1 Taunt. 391 ;

the other a money count. To this there were pleaded, and as co-owner he could only sue in conjunction with 1st, payment into Court of 201. ; 2nd, tender the the other co-owners ;

balance on the bill; and 3rd, to the money count, Chappell v. Comfort, 10 C. B. (N. s.) 802; 31

never indebted. Application was next made by the L. J. C. P. 58;

defendant to a Judge in Chambers to strike out the was also cited.

last count, which was refused with costs, which

defendant paid ; but he appealed to the Court, who ERLE, C.J.—This rule ought to be discharged. The directed that the matter should be referred again to question is—can the plaintiff, who is both a partner the Judge, with a suggestion on the part of the Court and master, sue Trickett, the defendant, who loaded to dismiss the summons only on condition of plaintiff his goods under a bill of lading, for demurrage! I undertaking to confine himself on the second count to take it to be clear that the master can sue on any con- proof of the consideration of the bill, and that plaintif

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