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administratrix and her surety. Usual conditions, and the damages in respect of the breaches in the declarabreaches of thosc conditions by the administratrix. tion mentioned were never ascertained or liquidated,

Fourth plea, by H, the surety, that after the causes of and that, if they had been, they would not hare action accrued he became bankrupt.

amounted to the said penalty of the bond; and that Second replication to fourth plea, that such bank- the said penalty never was proved under the said bankruptcy was before the passing of the Act, 24 & 25 Vict. ruptcy, and that no proof in respect of the bond or c. 134.

of anything secured thereby, or payable thereunder, Third replication to fourth plea, that the conditions of was ever made under the said bankruptcy. the bond had never been wholly performed, that it was Demurrer to each of these replications, and joinder always possible that further breaches might be committed, in demurrer. that the damages in respect of the breaches never were

Field, in support of the demurrer. liquidated, and that no proof in respect of the bond was ever made:

The replications are bad ; they do not traverse or Held, on demurrer, that both replications were good,

avoid the plea of bankruptcy, which is a good answer

to the action. There are two questions. 1st, whether the bond not having been proveable at the time of H's the unliquidated nature of the breaches preventel the bankruptcy.

claim from being proveable ? 2nd, whether the plaintif Declaration on an administration bond for 4007. is entitled to have judgment on the bond to stand as a given, on the 2nd of December, 1858, by the de security against future breaches ? Now, it is clear that fendant Sarah Brookes, then Sarah Baker, and the there would have been a complete answer to the action.

if the bankruptcy had taken place since the recent Act, defendant John Hughes, to the Judge of the Court of Probate, upon the usual conditions, for the due ad- But the clainı might have been proved even before the

late Act, ministration of the personal estate of John Baker by

Hankin v. Bennett, 8 Exch. 107; the defendant Sarah. Breaches, 1st, that the defendant Sarah did not make a true and perfect inven

Hodgson v. Bell, 7 T. R. 97.

[MARTIN, B.--Are there no cases on this point :) tory ; 2nd, that she did not exhibit such inventory in the district registry ; 3rd, that she did not make [Dowdeswell mentioned a true and just account of her administration ; 4th, Taylor v. Young, 3 B. & Ald. 521 ; that she wasted, instead of duly administering, a great Longford v. Ellis, 1 H. Bl. 29n; part of the said personal estate. Averments, that the The Overseers of St. Martin v. Warren, 1 B, & bond had been assigned to the plaintiff by order of the Ald. 491.] Judge of the Court of Probate ; and of performance of In those cases there was nothing to measure the conditions precedent.

debt; but here the debt may be measured. Why may Judgment was signed against the defendants, Henry not the value of the intestate's estate be ascertained ! Brookes and Sarah his wife, for want of a plea.

That would be the amount to be proved. If it cannot Pleas, by the defendant Hughes, Ist, traverse of be ascertained, then the penalty would be the debt. breaches.

[Martin, B. - Taylor v. Young seems direct against 2nd. Non est factum.

you. The bond is not proveable at all, there being a 3rd. That the bond was not assigned.

difficulty as to valuation.] 4th. That the defendant, before action, became bankrupt within the meaning of the statutes in force

Dowdeswell, for the plaintiff, was not called upon. concerning bankrupts; and that the causes of action

Per CURIAM.-(Pollock, C.B., Martin, Channell, in the declaration mentioned accrued before the de- and Pigott, BB.) The plaintiff is entitled to judgment. fendant became bankrupt.

Judgment for the plaintis. 2nd replication to the fourth plea. That the said John Hughes so became bankrupt, as therein is mentioned, and was adjudicated bankrupt thereupon and

Ex. Ch. obtained his, certificate, being the discharge on which

SHEPHARD and Another e. 2 Dec. 1863.


PAYNE and Auother. that plea relies þefore the passing of the Act of Parliament made and passed in the 24th and 25th years of Coram-POLLOCK, C.B., CHANNELL and BRAMWELL, the reign of Victoria the Queen, for amending the law

BB., BLACKBURN and MELLOR, JJ. relating to Bankruptcy and Insolvency in England.

Fees of Registrar of Archdeaconry CourtIx3rd replication to the fourth plea. That at the time of the said bankruptcy the said condition had not, nor

memorial Usage-Presumption of. has it now, wholly been performed ; and it was then, The Registrar of an Archdeaconry Court reccises est and is now, and always has been, possible that further tain fecs for duties attached to his office. From the wor breaches of the said condition other than those which 1727 to 1801 fees of the unvarying amount of is. til. had been committed before the said bankruptcy might, and 4s. 6d. were received From 1801 to 1857, rhca and may, be committed ; and the plaintiff says that the present dispute arose, fees slightly in excess of

78. 6d. and 4s. 6d. were received. The excess was not outgoing churchwardens appear and deliver their prenow claimed :

sentment papers, which are inspected by the Judge, Heldthat the modern excess did not affect the ori. and filed by the Registrar, who enters a minute of ginal right to the fees of 7s. 6d. and 4s. 6d. That, if them in the visitation book. it were necessary to their validity, the fact of these fees The churchwardens elect deliver in their declarations having been received for an unbroken period of 130 of office, which are acknowledged before the Judge years, raised a strong presumption that fees of that and filed by the Registrar, who enters a minute of them amount ucre immemorial.

in the visitation book. Long.continued modern user of a right capable of There is a visitation held at Easter, and one at legal origin, raises a strong presumption of the existence Michaelmas to amend any errors in the one at Easter. of that legal origin, and the onus lies on those who The various duties occasion great expense and outlay seek to upset it, of showing that it is founded in in clerks' salaries, printing, postage, and sundries, and usurpation.

for these services the Registrars are only paid by “visiThis was an appeal from the judgment of the Court tation fees” claimed as follows:of Common Pleas *, in an action for the recovery of fees

At the Easter visitation for process, schedule by a Registrar of an Archdeacon's Court: it was made citations, service, act on appearance of outgoing into a special case by consent and by a Judge's order, churchwardens, articles of inquiry, presentment and and there was a judgment in favour of the plaintiff. filing, declarations of office and filing 78. 6d., of which The defendants, who were the Churchwardens of the 28. is due to the official, and 1s. to the apparitor. parish of Little Totham, in the archdeaconry of Col

At the Michaelmas visitation 4s. 6d. is payable in chester, now appealed.

the whole : of which ls, is due to the official, and 1s. The plaintiff is Registrar of the archdeaconry of to the apparitor. Colchester, in the diocese of Rochester, which com- The gross amount of visitation fees received by the prises 200 parishes and eighteen rural deaneries within appellants as Registrars is under the sum of 1001. the jurisdiction of the Archdeacon as ordinary.

The claim in question arose in respect of the followThe defendants are Church wardens of Little Totham, ing visitations :in Essex, within the archdeaconry.

On the 20th of May, 1857, there was a visitation at The Registrars hold their office jointly and severally Kelvedon, to which the defendants were cited as for their lives and life of survivor by patent, under described, as churchwardens of Little Totham. The the seal of the Archdeacon. The archdeaconry of Col. defendant, John Payne, attended, and subscribed the chester is divided into four districts, or “calls," and statutory declaration, and was admitted. The defenLittle Totham is in the Kelvedon “call.”

dant, Henry Quihampton, did not appear. There were The proceedings of the Court of the archdeaconry also visitations on the 26th of October, 1857, 31st of are as follows :

May and 27th of October, 1858, 9th of June and 6th The Archdeacon issues a process to the Registrars of December, 1859, and on the 9th of June, 1860, and under his seal, to appoint a day for the “Easter visi- the total amount claimed by the plaintiff in respect tation” in the parish church of Kelvedon, or on some

of such visitations, and refused by the defendants, is occasions in Witham church, and directing the church. 21. 3s. 6d. All such fees being claimed, -1st, as just wardens to attend.

and lawful fees settled by competent authority ; This process is delivered to the “apparitor" (the 2nd, as ancient and accustomed fees due by virtue summoning officer of the Court), who issues citations of their office; and 3rd, as a reasonable


tion for work and labour done. The question for the Presentment papers (printed articles of inquiry), Court on the special case was, whether the plaintiff's are sent by the Registrar to the rural dean of the were entitled to recover from the defendants the said eighteen rural deaneries.

sum or sums, or any or either of them, or any part of The rural dean arranges with the churchwardens a them, and the Court was to be at liberty to draw infeday when he shall make his visitation, and in his rences of fact. If the Court should be of opinion in presence, and in their own parish, the churchwardens the affirmative, their judgment was to be entered for fill up and sign their presentments ready for delivery the plaintiff for the whole of the sum of 21. 38. 6d., or at the visitation.

such part of such sum as the Court should order. If On the day appointed for visitation, the church- the Court should be of opinion in the negative, then wardens attend the Registrar at an inn, where printed judgment of nolle prosequi was to be entered up for declarations of office under 5 & 6 Will. 4, c. 62, s. 9, the defendants. It was agreed that in any event no are delivered to them, which they sign.

costs should be paid by the plaintiffs to the defenAt an hour appointed, the Archdeacon, official or dants, or by the defendants to the plaintiffs. surrogate takes his seat in the church, attended by the The points marked for argument on the part of the Registrar, and after service the Court is opened. The plaintiff were, “that the plaintiffs were entitled to

recover the sums of money claimed, --Ist, as just and * 14 C. B. (X. .) 431.

lawful fees settled by conipetent authority ; 2nd, as

ancient and accustomed foes due to them by virtue of the Court of Error is required to draw any inferences their office ; 3rd, as a reasonable compensation for of fact from the facts stated in the case which the work and labour done."

Court where it was originally decided ought to have On the part of the defendants,–1st, that the fees drawn. claimed could be due only by virtue of a uniform and The inferences which the Court below have drawn immemorial custom, or upon a quantum meruit, on are stated in their judgment delivered by my Brother the ground of work being done at the request of the Willes. We agree in them all; but they appear to defendants; 2nd, that the facts stated in the special have thought it unnecessary to say whether the proper case showed that no uniform or immemorial custom inference to be drawn from the facts was, that fees has ever existed ; 3rd, that the facts negative any of the fixed amounts of 78.. 6d. and 4s. 6d. were notion of a request by the defendant.” The judgment immemorial, inasmuch as the fees need not be of a was for the plaintiff, and against this judgment the fixed and ascertained, but may be of a reasonable defendants now appealed.

amount; and they drew the inference of fact that

these amounts were reasonable. Mr. Mellish, on the Mellish, Q.C. (Alfred Wills with him), for the

argument, suggested this meant that, in point of law, plaintiff's in Error, referred to the following authorities : there might be an ancient fee varying in pecuniary 1 Stephen's Laws of the Clergy, 227 ;

amount from time to time with the changes in the Grove v. Elliott, 2 Vent. ;

value of money and other circumstances, and subject Middleton v. Crofts, 2 Atk. 650.

only to the restriction that it should be reasonable, Mathew v. Burdett, 2 Salk. 512;

and he questioned the accuracy of this position. Moore v. Moore, Ld. Hardwicke, 157 ;

Without expressing, or indeed forming, any opinion 2 Inst. 533 ;

upon this question, we prefer to rest our judgment 4 Inst. 274 ;

affirming that of the Court below on this, that, in car Veale v. Prior, Hardres, 351 ;

opinion, the facts stated in the case are such that it Viner's Abridgment, “Fees,” (E.)

should be presumed that the fees of 78. 6d. and 43, 64. Goslin v. Ellison, 1 Salk. 330;

were immemorial fees attached to the office of Regis. Burdeaux v. Lancaster, 1 Salk. 330;

trar, if that presumption is necessary to give then Pollard v. Jerard, 1 Salk. 333;

validity. Johnson T. Lee, 5 Mod. 238 ;

The facts stated in the case show that from 1727 to Fleetwood v. Finch, 2 H. Bl. 220 ;

1801 visitation fees of the unvarying amount of 73. 64. Spry v. Gallop, 16 M. & W. 716 ;

and 4s. 6d. were uniformly received. From 1801 ta 1 Blackst. Com. 69 ;

1857 (when the present dispute originated) fees of a Farg. He also referred to canons 116, 117, 119, 123, 135, ing amount, but always slightly in excess of 78. 6d. and 136, and to the judgment of the Court below, reported | 48. 6d., were received. The amount in excess of 7s. 6.. in 14 C. B. (N. S.) 431.

and 4s. 6d. is not now claimed ; and if it were the Coleridge, Q.C., for the defendants, referred to

uniform receipt for seventy-one years (from 1727 to 1801)

of the amounts of 78. 6d. and 4s. 6d. would be over 4 Coke Inst. 339 ; Comyn's Digest, “Courts" (N. 9); “Eccle-whelming evidence that the excess was a usurpation. siastical Persons" (C. 5);

But the modern usurpation of an excess does not affect Rolle's Abridgment, 285, “Prohibition;"

the title to the original fees of 78. 6d. and 4s. 6d. These

have been received from 1801 to 1857 as much as from Chiverton v. Temple, 2 Rolle's Rep. 150 ; Pollard v. Jerard, 1 Ld. Raymond, 703 ;

1727 to 1801, so that the title to them depends on an Bacon's Abridgment, “Officer,” 10 ;

unbroken perception as of right for 130 years. That Claggett v. Sanderson, 1 P. Wms. 657 ;

does not in itself give any title; but in favour of rested 1 Cardwell's Documentary Annals, 92, 145, 164; interests, and for the quieting of titles, the rule of Idem, vol. ii., 33.

evidence has been established that where there has

been long continued modern user of a right capable of Mellish, Q.C., in reply.

a legal origin, the existence of that legal origin should Cur, adv. vult.

be presumed, unless the contrary be proved. This BLACKBURN, J., delivered the judgment of the presumption is not one juris et de jure, which cannot Court.

be rebutted ; but neither is it one purely of fact, and This was an appeal from the decision of the Court of only to be drawn when the jury really entertain the Common Pleas on a case in which power was given to opinion that, in fact, the legal origin existed. The drawn inference of fact,

true rule seems to be laid down by Lord Weasleydale The appeal was argued after last Michaelmas Term (then Parke, B.,) in Jenkins v. Harvey,' when he before the Chief Baron, my Brothers Bramwell, Chan- says, that the correct mode to direct a jury is to tell nell, Mellor, and myself. We are of opinion that the them that from uninterrupted modern usage they judgment of the Court below ought to be affirmed. By the Common Law Procedure Act, 1854, s. 32,

* 1 Cr, M. & R. 877.

should find the immemorial existence of the payment This was a cause of salvage, instituted by the owners (if that be necessary for its validity), unless some of the steam-tug “Triumph” against the brig“ Kate,” evidence is given to the contrary, or, as he says in de. freight and cargo, for services rendered in November, livering the written judgment of the Court on the 1863. On the 3rd of December the “Kate” was arsecond trial of the case, from proof that an office rested by the plaintiffs in the sum of 5001. On the existed in 1752, “the jury may, and ought to presume 12th of December an appearance was entered on behalf it to be prescriptive, if that be necessary to make it of the owners ; affidavits were at the same time filed, valid, unless the contrary be proved.The claim in showing that the value of the property saved (ship, that case was by the corporation of Truro for a metage freight, and cargo) was 6501., and no more ; and notice due of 4d. per chaldron for coals in that port, and it was of motion was given for the dismissal of the suit with supported. I. mention this as showing what is meant costs and damages. On the 16th of December the by the latter part of the sentence quoted. I suppose plaintiffs allowed the property to be released without neither the Barons of the Exchequer nor the jurors, as bail. The hearing of the motion was postponed at the antiquarians, believed that 4d. a chaldron was actually request of the plaintiffs ; and on the 20th of January paid before Richard the First returned from the Holy they filed a valuation by a valuer appointed by the Land; but the modern user was enough to cast upon Receiver of Wreck for Southampton, which was dated the other side the onus of proving that it was a usur- 15th December, and stated the value of the property pation.

to be 8201. ; and also affidavits, placing the value at a We think that, in the present case, the modern still higher amount. The defendants had meanwhile usage for 130 years to take fees of 7s. 6d. and 4s. 6d. filed their proofs of damage, for detention, wharfage raises a strong presumption that visitorial fees of that dues, &c., amounting altogether to 1101. amount were immemorial, and though the other facts The 17 & 18 Vict. c. 104, s. 460, decides that in cerstated in the case are such as raise an inference that tain cases of dispute with respect to salvage, “the the amounts had formerly been varying and lower in dispute shall be referred to the arbitration of any two amount, we do not think that they are sufficient to satisfy Justices of the peaco,” &c. The 25 & 26 Vict. c. 63, the onus cast upon those who seek to upset an enjoy- s. 49, extends such provision “to all cases in which ment for so long a time by showing the origin to be in the value of the property saved does not exceed 10001. ;" usurpation; we think, therefore, that if it be necessary and section 50 provides that, “whenever any salvage for the validity of these fees that fees of that amount question arises, the Receiver of Wreck may, upon apshould be immemorial that presumption ought to be plication from either of the parties, appoint a valuer to made. In every other respect we agree with the value the property,” &c.; and “any copy of such valuareasons given in the judgment in the Court below, tion purporting to be signed by the valuer, and attested which, we think, ought to be affirmed.

by the Receiver, shall be received in evidence in any Judgment affirmed. subsequent proceeding."

26 JAN, 1864.

Lushington, in support of the motion.


The arrest was wrongful ab initio,
26 JAN., 8 Feb. 1864.

The William and John, 1 N. R. 484. Before the Right Honourable Dr. LUSHINGTON. The defendants, therefore, are entitled to costs, as of Salvagem Jurisdiction-Costs and Damages

course. They ought also to have the damages they have

actually suffered. Damages, if not to be awarded in Crassa Negligentia–17 & 18 Vict. c. 104, every case where the value of the property falls short 8. 460; 25 & 26 Vict. c. 63, ss. 49, 50. of the statutory mark, 10001., ought at least to be given By the 460th section of the Merchant Shipping Act, when the plaintiffs, as in this case, arrest without pre1854, and the 49th section of the Amendment Act, 1862, viously obtaining a valuation from the Receiver of the Court of Admiralty has not jurisdiction to determine Wreck, as provided for by 25 & 26 Vict. c. 63, s. 50.

The arrest then amounts to an act of crassi negligentia, and award the amount of salvage due, if the value of the property saved is proved not to exceed 10001. ; bui, upon which damages clearly follow, nevertheless, it retains jurisdiction to condemn, in costs

The Evangelismos, Swabey, 378. and damages, salvors so wrongfully arresting property,

Damages were given in the recent case of and for other collateral purposes.

The Eléonore, ante p. 96, Lawford v. Partridge, 1 H. & N. 621, distinguished.

a case in all important respects like the present.

So in the case of The Court will not decree for damages, unless the circumstances show mala fides or crassa negligentia on the

The Victor, 1 Lushington, 72, part of the salvors in arresting, whereof the fact that the where cargo was improperly kept under arrest for a

claim unfounded in law. salvors arrested without first obtaining a valuation of the property from the Receiver of Wreck (us provided for Milward, contrà. by 25 & 26 Vict. c. 63, s. 50) is not conclusive evidence. The value of the property was so nearly 10001, that

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it was not crassa negligentia on the part of the plain. | not even give costs." I have no disposition to assume tiffs to arrest, and they withdrew as soon as the value a right to question this authority, but I will observe, of the property was ascertained. Without crassa negli- that it was founded upon an express enactment that gentia, and without mala fides which is not imputed the County Court “shall not have cognisance of any here, there can be no claim of damages for setting action of ejectment in which the title to any corporeal the law in motion,

or incorporeal hereditaments shall be in question." The Evangelismos, Swabey, 378.

The present case differs from that in several im. But on another ground the Court can neither give portant respects. In the first place the Court of costs nor damages. The jurisdiction of this Court Admiralty had original jurisdiction in all cases of having been taken away by the statute 25 & 26 Vict. salvage, and still holds and exercises that jurisdicc. 63, this Court has no power to make any order in tion, save as regulated by the Merchant Shipping Art, the case.

The proceedings are coram non judice;" 1854, and the Amendment Act, 1862. The positive and altogether void,

direction, contained in the former statute, that in cerTinniswood v. Pattison, 3 C. B. 247 ;

tain cases the dispute shall be referred to the Justices, Cannon v. Smalwood, 3 Lev. 203 ;

appeared to me equivalent to a prohibition to this Lawford v. Partridge, 1 H. & N. 621.

Court to exercise its jurisdiction in such cases, but it This last case is directly in point to show that the does not do more than that. In the second place the Court cannot even give costs.

proceedings in this Court are in rem, valuable property

is arrested and detained by process of the Court ; and Lushington in reply.

hence arise strong reasons in favour of allowing the The proceedings here are in rem; and the Court must have power to direct the disposal of the property and the incidental rights of the parties, notwithstand

Court its usual powers of dealing with the property in its hand; and, if so, the ordinary power of the Court

ing it has not authority to proceed with the main to award damages continues also.

course of the cause. For instance, without the order The jurisdiction of this Court, moreover, is not

of the Court the marshal cannot release the property, wholly taken away by the statute 25 & 26 Vict. c. 63; and how can the Court order the release, if its hands it is taken away by implication merely, that is, only

are tied altogether? Property might thus remain so far as is necessary ; and upon reference to 17 &

under detention for an indefinite time. Again, who 18 Vict. c. 104, s. 460, it appears that all that is taken is to pay the legal expenses of the custody of the proaway is the right to “determine the dispute with

perty ? Again it must be admitted to be right and respect to salvage."

just that a defendant whose property has been wrong2 FEB. 1864,

fully arrested and detained, should recover costs and Dr. Lushington. The defendants pray a decree for damages. As a fact it has always been considered costs and damages. The plaintiffs now say that the within the power and practice of this Court to award Court, having no jurisdiction over the case at all, has costs and damages in such cases, and this practice, no jurisdiction to give costs and damages; and in which does justice in the simplest and most direct support of this contention Mr. Milward has cited the way, received the approbation of the Judicial Comcases of Tinniswood v. Pattison (3 C. B. 247), and mittee in the case of The Evangelismos (Swabey, Lawford v. Partridge (1 H. & N. 621). In T'innis- 378). wood v. Pattison it was held that a County Court could I am of opinion, therefore, that I have power in not proceed in replevin after a plea or cognisance set- this case to make a decree for costs and damages ting up a title to freehold, although no issue was taken My decree, however, will be for costs only. The de on that part of the plea ; but it must be observed, that fendants are not, in my opinion, entitled to damages, that was a question of proceeding with the cause, not because the circumstances of the case do not show en of costs. The case of Lawford v. Partridge goes fur- the part of the plaintiff any mala fides or crassa net. ther, for it decided that inasmuch as the County Court ligentia, without which, according to the case of The had by statute no cognisance of the case, it had no Evangelismos, unsuccessful plaintiffs are not to be power to non-suit and give costs; and during the mulcted in damages. A similar principle obtains in argument the Lord Chief Baron said (which is no doubt Common Law, Dacres V. Jenkins (11 M. & W. 756). true), “After a prohibition the Judge can do nothing,

Decree for costs only.

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