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should be at liberty to take the 201. out of Court, de his costs up to the time of the plea pleaded. As to fendant to plead de novo. Whereupon defendant whether the costs ought not to have been taxed on the pleaded to the first count, that a bill of exchange had lower scale, the 7th of the Directions to the Masters of been given for and on account of the alleged cause of H. T. 1853, disposes of that, for this Court has held action; and that, after action brought, the said bill that this rule does not apply where at the commencehad been paid by the payment of 201. by an indorser ment of the action the debt due exceeded 201., and and by payment of the defendant of another 201., here at the issuing of the writ the debt was 391. 18. being the 201. which had been taken out of Court. The 6s. 8d. was improperly charged against the deThis plea, the plaintiff confessed, entered a nolle pro- fendant, and is the only matter of objection. The sequi to the second count, and proceeded to have his rule must therefore be discharged, and defendant costs taxed; and the contention was, 1st, whether must pay the costs of this application, minus the plaintiff was entitled to any costs at all ; 2nd, if to 6s. 8d. any, whether on the higher or lower scale ; 3rd, whether, at all events, the costs arisen out of the second

WILLIAMS, J.-I agree that the rule should be dis. count were not the defendant's. The Master gave his charged. Speaking for myself alone, I consider the allocatur on these points in favour of the plaintiff.

plea to be of a novel and unusual kind, it first states

that a bill of exchange was given before action for Prentice, for the plaintiff, now showed cause. He and on account of the cause of action in the first called attention to the R. 23, T. T. 1853, which, being count, which is alone a perfect answer, and suspends made under statutory powers, was as effective as an the remedy, if true, and then goes on to say that the Act of Parliament, and, therefore, could not be over- bill has been paid after action, which raises another ridden by the County Courts Act. That Act can only defence. This was very embarrassing to the plaintiff

, apply when there is “judgment to recover 201. or as he could not tell what was the actual defence, and less," which is not the case here at all. As to the difficulties would arise on a traverse of the plea as to costs on the indebitatus count, the Master offered to what was the issue. As it is, I think the Master was allow defendant his costs on that; but Cattlin never justified in treating it as a plea in the nature of brought in his bill of costs : his only claim to review puis darrien continuance pleading. the taxation in this respect can be in regard to a sum of 6s. 8d. for the summons sent back to the Judge at

WILLES and KEATING, JJ., concurred. Chambers, and which was charged against him ; but

Rule discharged.

Note.* -See that sum is too trifling to be regarded by the Court as

Howard v. Brown, 1 N. R. 287 ; 1 H. & C. 694; sufficient ground for sending the matter back to the Master,

The Submarine Company v. Dixon, 3 N. R. 44. Newton v. Boodle, 4 C. B. 359.

C. P. >

SICHELL v. LAMBERT.
Cattlin, defendant in person.- The County Courts
Act is expressly in my favour; for the plaintiff has
only recoved 201. from me.

Evidence of Marriage—Omnia Præsumuntur

It was not necessary for me to bring in my bill of costs at once, and, as to the

pro Matrimonio. 6s. 8d., it is charged against me in a matter in which I

The same presumptions will be made in favour of succeeded on application to the Court, and was directed any marriage lawful by the laws of England, that are by it to Chambers.

made in the case of marriages solemnised according to

the rites of the Church of England. ERLE, C.J.—This rule must be discharged. The main question is, whether the plaintiff was not de

This was an action for goods sold, to which, among prived of costs by the County Courts' Act, or whether others, there was a plea of coverture, and at the trial, his costs should not be taxed on the lower scale. The before Keating, J., at Guildhall last term, the proof facts of the case, and the R. 23 T. T. 1853, seem to given in support of the plea consisted of the evidence dispose of the first part of the question. The action of the defendant that in 1844 she was married to one was on a bill for 391. 18., and there were at first pleas John Lambert, at the Roman Catholic chapel in York partly in bar, partly as to payment into Court, then Street, Portman Square, by a priest in the garb of the an altogether fresh plea is pleaded, that before action Roman Catholic clergy, and with the usual rites of brought a bill of exchange was given in respect of the that Church. The witness then pulled out of her first cause of action, and that it was paid after action. pocket two documents, one purporting to be a certi. Now this last plea was the operative plea before the ficate of the marriage by the priest and signed by him, Master, and was rightly taken by him in connection the other a certificate of the Vice-Consul for France with the above rule, which seems to me to be a that they had been before him and been civilly statutory enactment in effect, and gives a statutory married. The witness further said, that she received specific privilege-namely, that in every case of pleas a letter from her husband a month or two before, and like this plaintiff may confess the plea, and recover that her husband was in Australia.

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the defendant, stating that he wished for further

5 Nov. 1863.

now before us contains strong matter of presumption Marshall Griffiths obtained a rule nisi on the ground that the chapel was registered, and that a registrar that there was no evidence of the marriage.

was present, and to assume the contrary we should Bcasley now showed cause.

have to assume, see section 39, that the priest had According to the plaintiff's contention, if the mar. committed a felony. The maxim omnia ritè esse acta riage is void, the priest has committed a felony by the præsumuntur applies. 39th section of the 6 & 7 Will. 4, c. 85, and has given WILLIAMS, J.-I am of the same opinion. I look a certificate which is conclusive evidence against him. at this case as raising the question, whether, when a But I contend that even though the place of worship marriage is solemnised by a third person, a presump may not be registered and the priest be guilty of a tion does not arise in favour of the marriage until felony, the marriage is not void or null unless the the contrary appears. parties “knowingly and wilfully” contracted marriage against the statutory regulations,

WILLES, J.-Same opinion. Section 42, which 6 & 7 Will. 4, c. 85, ss. 20, 24.

enacts that marriages unduly solemnised with the The parties here manifestly intended to contract, knowledge of both parties are void, has a strong bearing and still believe they have contracted, a lawful mar. upon the meaning of the Act. These parties bonâ fiue riage. Before the Act, very slight évidence of the believed, no doubt, that they were duly married marriage was enough,

This section must be taken as intended to modify the Hopewell v. De Pinna, 2 Camp. 113 ;

former sections, so much relied on by Mr. Garth. Pre(WILLES, J., referred to Catterall v. Catterall, 1 sumptions in favour of marriage have gone very far. Roberts. 580 ; Rex v. Brampton, 10 East. 287. )

Lord Stowell's rule is well known, though it is true (ERLE, C.J., referred to section 35, that all marriages it must be taken in reference to the decisions in the under the Act shall be "good and cognisable as mar.

Queen v. Milles (10 Cl. & Fin. 534), and recent cases. riages before the Act according to the rites of the I refer to Lord Ellenborough's observations in Reg. v. Church of England.”

Brampton (10 East, 289), as showing that besides the 4 Geo. 4, c. 76, s. 22;

maxim of omnia ritè esse acta præsumuntur, which Campbell v. Corly, 28 L, T. 109, coram P. C.]

applies to the solemnisation, there is an additional [WILLES, J.-In a case, * before Lord Plunkett, in presumption omnia pro matrimonio præsumuntur, “Drury & Walsh's Reports,” you will find it appa

which arises from the mere cohabitation. rently held that the maxims “Omnia ritè esse,” &c., been shown to have been complied with, we should

I think, here, that certain preliminaries not having and Omnia præsumuntur pro matrimonio,” both apply to the evidence of a marriage.]

presume that they were complied with. Garth, in support of the rule; the Act renders it

KEATING, J., concurred.

Rule discharged. necessary that the chapel should be registered, and that a registrar should be present, of which facts there

C. P. is no evidence, whatsoever; a registrar's presence is a

} BARTHOLOMEW V. MARKWICK.

11 JAN. 1864. sine qua non to a legal marriage, and if there is any inclination of the evidence as it stands either way, it is Rescission of ContractPleading. rather to show that no registrar was there.

Where a special contract for the sale of goods is re. ERLE, C.J.—This rule must be discharged. The scinded by one of the parties thereto, after delivery of question is, whether there was evidence on which part of the goods, the other may maintain against him the jury were justified in finding that the defend- an action on the money counts for goods sold and deant was married. (His Lordship stated the facts.) livered, although the time fixed for payment of the If this marriage was valid it was so under the 6 original quantity of the goods has not elapsed. & 7 Will. 4, c. 85. That Act provides that marri. ages in a registered building, and in the presence of which the defendant pleaded simply never indebted

This was an action for goods sold and delivered, to a registrar, shall be valid marriages. Now it is not It arose under the following circumstances : shown that the defendant knew the chapel was registered, or that a registrar was there ; and the to the warehouse of the plaintiff, and told the foreman

The defendant, wishing to furnish his house, went question is

, whether we should presume these facts. I that he should want 7001. worth of furniture, for think we should so presume ; mere cohabitation is good which he would pay half in cash, and the other hall evidence of marriage, and though this rule of law by a bill at six months ; the foreman desiring : applies specially to Protestants of our church, I do reference of respectability, defendant showed himi not see why it should not apply to all marriages number of shares in some public company. About 4001 lawful by the laws of England. The special case worth of goods were then sent in, some on approval • The learned Judge probably refers to Piers v. Tuite, 1 Dr.

some definitely ordered. The plaintiff then wrote to & W. 279; affirmed 2 H. of L. Ca. 331.

}

references as to the defendant's respectability, and asking the defendant, meanwhile to send on the half

C. P.

BENNETT and Another cash and the bill, in order to cover the account for the 9, 25 Nov. 1863.

v. BENHAM. goods already delivered. To this the defendant replied, 12 JAX, 1864. that this way of doing business would not suit him ; that he sho uld order no more goods, and desired

County Court-Concurrent Jurisdictionplaintiff to take away from his promises all the goods

Practice. that had not been ordered ; but he did not remit either the cash or the bill, or give the references, or

When one of two plaintiffs lives more than twenly offer back the rest of the furniture. Whereupon this miles from the defendant, the Superior Courts have

concurrent jurisdiction. action was brought, being long before the six months had elapsed after which the bill

, which was to have that all materials used before him must be brought

In an appeal from a Judge at Chambers, the rule been given, would have fallen due. At the trial before Keating, J., at the Guildhall, it before the Court, does not apply to a document entirely

irrelevant. was objected, Ist, that on the frame of the declaration, the action could not be sustained ; 2nd, that the This action was brought to recover the sum of 61. 8s. action was premature : but the Judge directed the An application was made to Willes, J., at Chambers, jary that if they were of opinion that the defendant for costs, on the ground that a superior Court had conhad rescinded and put an end to his own contract by current jurisdiction with the County Court, as one of his conduct, the verdict must be for the plaintiff, and the plaintiffs lived more than twenty miles from tho a verdict was given accordingly, with leave to move to defendant. enter a nonsuit.

The learned Judge refused to allow the costs. 6 Nov. 1863.

9 Nov. 1863. Coleridge, Q.C., obtained a rule nisi accordingly,

Hance now moved the Court for a rule calling on the citing

defendant to show cause why the order of Willes, J., Chitty on Contracts, " 384 (4th ed.);

should not be rescinded, contending that the fact of Paul v. Dodd, 2 C. B. 800.

one of two plaintiffs living more than twenty miles The Court now called on Coleridge, to support his from the defendant gave concurrent jurisdiction, rule. He cited the same authorities, arguing that the Hickie v. Salamo, 8 Exch. 59. above caso established that the plaintiff could not

Rule nisi. recover for a breach of the contract, except by a 25 Nov. 1863. special count, and next that a count in that form even Dowdeswell now showed cause. would not lie because the contract was entire, and could He contended that it was not enough to show that not be brought before the six months had elapsed. one partner only (a sleeping partner) lived more than O'Brien, Serjt., contra, was not called upon.

twenty miles from the defendant.

[THE COURT intimated that unless he could disERLE, C.J.-The rule must be discharged. It tinguish this case from Hickie v. Salamo, it was useless seems that the plaintiff and defendant were in treaty for him to continue the argument, as they were not in respect of a large quantity of goods, for one half disposed to overrule that case.] of which he was to be paid in cash, and the other half He then objected that this was an appeal from a by a bill at six months. Part of the goods were deli- Judge at Chambers, and that all the materials used at vered under this contract, but no money or bill was Chambers were not before the Court. given, then the action is brought for goods sold and delivered.

Hance, in reply, said that they had all the docu. I think, if the special contract had remained open,

ments that were important. the action properly lay on the special contract, and an

ERLE, C.J.-We are not going to lay down a rule action for debt, as for part of the goods already that every document used at Chambers must be brought delivered, would not have laid ; but here the defendant before the Court. It would often cause great and refused to carry out his part of the contract, and said, needless expense. We will consult the other Judges. “I will take no more of your goods ;" now that, I

Cur. adv. vult. think, is a rescission of the contract, and the defendant

12 Jan. 1864. having kept back the goods delivered, an action in

ERLE, C.J.—This was an appeal from a decision of this form lies. The authorities were much discussed in my time, in the Queen's Bench, beginning with my Brother Willes at Chambers, refusing to grant Dela Tour's Case (2 El. & Bl. 678), and this principle is costs on the ground that one of two plaintiffs lived now firmly established.

more than twenty miles from the defendant. We are

of opinion, on the authority of Hickie v. Salamo, that WILLIAMS, WILLES, and KEATING, JJ., concurred. these costs ought to be allowed. It was objected that

Rule discharged. this was an appeal from a Judge at Chambers, and that

}

all the materials before him ought to be brought before the Court. It is true that one document was omitted,

C. P.

COLE v. MEEK. but it was one which was allowed by the counsel on

14 JAN. 1864. both sides to be immaterial. It is a very good rule that all documents used at Chambers should be brought

Charter-Party-Breach of Covenant. before the Court; but one which was irrelevant must

The defendant covenanted, by charter-party, to load o be taken as non-existent-therefore all were before us.

full and complete cargo of sugar, or other lawful Williams and KEATING, JJ., concurred.

produce." He loaded the vessel with as inuch timber as Rule absolute. she could carry, but there was room for 30 tons of broken

stowage :-
C. P.
HEATH v. BREWER.

Held, that the covenant had been broken. 13 Jan. 1864.

This was an action on a charter-party, and was tried Hackney Carriage Act Notice of Action

before Erle, C.J., at the last London Sittings. Reasonable Belief.

The defendant covenanted that he would take the

vessel to Havannah, discharge the cargo then on board, A man is not entilled to notice of action under a statute requiring such notice to be given, merely on the and then load from his agents "a full and complete ground that the act done by him for which the action is cargo of sugar, or other lawful produce.” Rates of brought was done in the bonâ fide belief that he was

freight were specified to be paid by the charterer to the acting under the powers conferred by the statule ; but owner, "for sugar and molasses, per ton, &c. ; same he must also show that the facts which formed the

rates for rum, per liquid tun, and per load for timber; ground of that belief would have justified him, if true.

other goods, if any be shipped, to pay in proportion to

the foregoing rates, except what be shipped for broken This was an action against a cab proprietor for de stowage, which shall pay as customary." facing a cabman's licence ; tried before Byles, J., in the The vessel proceeded to Havannah, discharged her Sittings after last term, verdict for plaintiff

, damages cargo there, and then began to load with timber. She 201., with leave reserved to defendant to enter a verdict took on board as much timber as she could carry, but on the ground that he was entitled to a month's notice it was proved that she might have carried thirty tons of action by virtue of the Hackney Carriage Act, the of “broken stowage " in addition. This was said to defendant having defaced the licence by writing on it be a breach of the covenant. The learned Judge left --that the plaintiff had broken his cab, and refused to to the jury the question, whether the vessel contained pay anything-in the bond fide belief that he was

a “full and complete cargo." A verdict was found for justified by the Act in so doing.

the plaintiff. Kemp, now moved for a rule nisi. The 47th section of the Act in question, 6 & 7 Vict. c. 86, enacts that notice for a new trial on the ground of misdirection. He

Karslake, Q.C. (F. M. White with him), now mored of action shall be given before any action is brought contended that the construction of the charter-party for anything done “in pursuance of the Act.” The defendant honestly believed he had a right to indorse and complete cargo had been carried according to the

was for the Court and not for the jury, and that a full the licence according to the fact, though no doubt the doctrine laid down in proper course would have been for him to have gone

Moorsom v. Page, 4 Camp. 103 ; and before a magistrate, and got him to make the indorse.

Irving v. Clegg, 1 Bing. N. C. 53. ment, for the Act gives a magistrate power to indorse in this manner-sect. 21.

ERLE, C.J.—This was entirely a question for the ERLE, C.J.-— The statute gives to the magistrate jury : they have disposed of it, and I am by no means alone power to make such an indorsement of the for the Court, e. g. I come to the same conclusion. The

dissatisfied with their decision. If it were a licence. In the case of Hermann v. Seneschall, words of the charter-party are "a full and complete (13 C. B. (N. s.) 403) the rule is put very clearly by my Brother Williams ; he says, the defendant is entitled to

cargo." The defendant might load with whatever notice of action if he honestly believed in a state of merchandise he chose, but he was bound to fill the facts, which if true would have justified him. Now vessel. If the cargo with which he loaded left room as the magistrate is the only person entitled to indorse for broken stowage, he was bound to add so much of the licence, the only way in which the defendant that to the timber as would fill the vessel. could take advantage of the rule would be, if he

Williams, J.-I concur in my Lord's judgment, honestly believed he was a magistrate ; and there is for the reasons he has given. no reason for supposing that he believed that.

Willes, J.-I am of the same opinion, but wish to WILLIAMS, WILLES, and KEATING, JJ., concurred.

add, that I think this case is distinguishable frorn

Rule refused. Moorsom v. Page, and that our decision here is not Note. --Sec Orchard v. Roberts, 3 N. R. 213. inconsistent with the ruling of Lord Ellenborough

question

}

there. In that case the vessel was full, and it was action at law by plaintiffs, unless there had been an held that the defendant was not bound to take out express contract to pay them. Now, the misdirection some of the ballast and replace it with copper. Here complained of was the putting the very question to the there was an actual vacant space, which might have jury which was to ascertain this fact :-“Did, in fact, been filled with thirty tons of broken stowage. the defendants make the contract alleged ?" To which

the jury have said, “No." KEATING, J., concurred.

Rule refused.

Then, as to the letters. They simply state the money

“shall be paid.” It might have been very

inadvisable to have recognised the title of the C. P. LONDON INVESTMENT COMPANY

plaintiffs to the debt, and it must be observed it is 15 JAN. 1864. v. MONTEFIORE and Others.

never said that “you shall be paid.” We do not Policy of Insurance-Assignment. think the words employed are equivalent to that Notice of assignment of a policy of fire insurance

expression. and application for payment by the assignee after the WILLIAMS, J., concurred. loss insured against, create no legal obligation on

WILLES, J.—The jury find no promise in fact, and the insurer to pay the assignee.

I cannot see a promise in law. In this case the plaintiffs were mortgagees by assign

KEATING, J., concurred. ment of a policy of insurance of certain household pre

Rule refused. mises at Stratford, and of the lease itself, in respect of

C. P. a sum of 1301. advanced to the lessee, one Page. The

SKULL and Another v.

6 Nov. 1863. premises were burnt down after the completion of the

GLENISTER and Another.

12, 13, 16 JAN. 1864. mortgage, and before notice to the defendants, the insurers, of the assignment of the policy. Upon the Construction of Deed-Right of Way-Trespass. loss occurring, the plaintiffs wrote to the defendants

A deed purported to convey land of the width of thirty requesting them to retain the money due to Page on feet. Before the execution of the deed, the land in questhe policy, as they were the mortgagees. Reply, that tion had been marked out by stakes ; but it had not been defendants could do nothing unless the money were done very accurately. On a dispute arising whether attached. The manager of the plaintiff then called on exactly thirty feet passed, or the land staked out, the the defendants, and told them an attachment was not Judge left the question to the jury :necessary, for the plaintiffs held the lease ; but the

Held, he was wrong in so doing : that he should have defendants replied it was their invariable practice to asked the jury under what circumstances the deed was require an attachment before paying over any money executed, and then have put his own construction on it. An attachment accordingly issued out of the Lord

If a defendant has a right of way through plaintiff's Mayor's Court, and plaintiffs applied for the money. land to close A, but not to close B adjoining, and he Defendants replied by letter, that if the attachment uses the way to carry materials through close A on to were taken off, and plaintiffs would come with Page, close B, it is a proper question for the jury whether such the next day the money should be paid. There was a

use was bonâ fide or merely colourable. conflict of evidence as to whether the managing clerk of the defendants had expressly promised to pay the

This action was brought for a trespass alleged

to have been committed on the plaintiffs' bridge and plaintiffs. The case was tried before Byles, J., last term, and roadway, and for depositing building materials, &c,

thereon. the following questions were left to the jury :

The defendants pleaded inter alia (except 1st. Had the defendants' clerk authority to make an

as to depositing the materials), a right of way appurte

nant to a piece of land, of which the defendants were express promise to pay ? Answer: Yes. 2nd. Was there an express promise in fact? Answer: land with the right of way from the plaintiffs. There

tenants, to one Wheeler, who had purchased the said No. Thereupon the learned Judge caused a verdict to be

was a new assignment, to which the defendants paid

40s. into Court, and the plaintiffs replied damages entered for the defendants.

ultra. This cause had been twice tried. J. J. Powell, Q.C., now moved for a rule nisi, on At the first trial the verdict was for the plaintiffs on the ground of misdirection. The learned Judge asked all the issues ; but a new trial was obtained by the dean immaterial and wrong question of the jury in fendants, on the ground of misdirection in the Judge, putting the second question to them, for the letters in telling the jury that unless Wheeler had expressly show a complete contract to pay. The plaintiff's title demised the way with the land to the defendants, the was complete in equity.

way did not pass. This Court held that the way was ERLE, C.J.—There has been no misdirection. The appurtenant, and passed by the demise of the land

words. * insurers were debtors to Page, and paid him the debt in question. This being the case, thero could be no

# 1 N. R. 326.

without express

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