Exch. Cham. ERRINGTON v. RORKE. purpose of ascertaining and securing the rights of such tenants, E. T. 1857. lessees or under-lessees, as aforesaid; that is, of ascertaining the tenancies of all the occupying tenants, and securing the rights of those whose rights affected the lands to be sold: and accordingly, the section proceeds to direct that the sale shall be made subject to the tenancies, leases or under-leases ascertained as aforesaid, subject to which the owner or incumbrancer applying for a sale shall be owner or incumbrancer, and such other of the tenancies, leases, &c., ascertained as aforesaid, as shall appear to the Commissioners to have been granted bona fide by the owner or person in possession or receipt of the rents, subject to which it shall appear to the Commissioners the sale ought to be made. Now, here the two classes of tenancies are distinguished; and the distinction between them is very important to attend to, with a view to the defendant's case before the Court the first consisting of leases, &c., subject to which the owner or incumbrancer applying for a sale was subject as such; the second class, such as having been only granted by the persons in possession, but bona fide, the Commissioners might think should not be disturbed, but the sale made subject to them. As to the first class, the section is imperative; the sale must be made subject to them; there is no discretion left to the Commissioners. As to the second class, it is left wholly to their judgment and discretion to which and how many of them the sale should be made subject. The first class stand proprio vigore. The land being charged with them, and the incumbrance being subject to them, it would require express enactment to annul them; instead of which the Act expressly recognises them, and directs that the lands should be sold subject to them. Then comes the 24th section, by which it is enacted "That the conveyance to be executed by the "Commissioners shall express or refer to the tenancies, leases or "under-leases (if any) subject to which the sale is made." This is a provision altogether for the benefit of the tenants, whose leases it was the object of the 23rd section to secure. The omission to comply with this direction, however it might be a defect in the conveyance, could not possibly affect or defeat the pre-existing right of the tenant, subject to whose lease a sale could only be made. E. T. 1857. ERRINGTON บ. RORKE. I come next to the 27th section; and the language there used appears to me strongly to favour the view I have been submitting; for not only do the words "such conveyance" necessarily refer back to sections 23 & 24, but in addition to this, it is expressly enacted "That the conveyance shall be effectual to pass the fee-simple of "the lands, subject to such tenancies, leases and under-leases as "shall be expressed or referred to therein as aforesaid "assuming, of course, that the Commissioners had done their duty by inserting those leases subject to which the Act had expressly provided that the sale should be made by the enactments I have referred to in the 23rd and 24th sections. When the Legislature speaks of the conveyance executed by the Commissioners, surely they must be intended to speak of a conveyance executed according to law. We are not to interpret this Act as an Act passed to protect purchasers, regardless of the protection of tenants whose rights were prior and paramount to the Act; and looking at it in this view, we must, as between parties claiming protection under the same Act, apply the rule "qui prior est tempore potior est jure.” It now only remains shortly to notice the 49th section of the Act, upon which the plaintiff's Counsel have also relied. It might be sufficient to observe that though this section makes the conveyance of the Commissioners conclusive evidence of all matters therein mentioned, yet it expressly, and in terms, only applies to a conveyance "executed as required by this Act," and therefore comes within all the observations I have already made upon the previous sections. But I may also add that the concluding part of the 49th section, enacting "that no such conveyance shall be impeached for any informality therein," seems to afford a strong inference that although informalities could be cured, the Legislature never intended to prevent substantial error being shown. Upon the whole of the case, therefore, my opinion is that the judgment given below was right and should be affirmed; but the other Judges being of a different opinion, the judgment below must be reversed, and a venire de novo awarded. Venire de novo. DOUGLAS v. EWING. (Common Pleas.) E. T. 1856. April 17. the trial was a surprise on the defend THIS was an action for trover, tried before the CHIEF JUSTICE Where the case made by of the Common Pleas, at the Sittings after Michaelmas Term the plaintiff at 1855. The summons and plaint stated that the defendants, on the 18th of August 1855, converted to their own use 117 pieces, containing about 11,230 yards, of linen drills, the goods of the plaintiff, of the value of £253. ants, the Court granted a new trial, though no objection to the Judge's Pleas. First, that the defendants did not convert to their own charge had use any goods of the plaintiff, as alleged. Second. That the goods were not the goods of the plaintiff at the time of the conversion. been taken by the defendants at the trial. Where, from a manifest error in to one of the pleas, it was an said Third. That before the time of the alleged conversion, wit, on the 11th of August 1855, one Robert Wilson was agent entrusted by the plaintiff with the possession of the said goods, within the true intent and meaning of a certain Act of Parliament passed in the 5th and 6th years of the reign of her present Majesty, in such case made and provided; and whilst the plaintiff was such owner as aforesaid, and whilst the Robert Wilson was such agent as aforesaid, the defendants did bona fide make an agreement with the said Wilson for the advance of £170, to be secured, with interest and commission thereon, by a deposit and pledge of the said goods with the defendants; and that the said Robert Wilson did, in pursuance of the said agreement, deliver said goods to the defendants, who thereupon, and upon the security thereof, did advance to the said Robert Wilson the said sum of £170; and the defendants further say that the said sum of £170, together with commission and interest thereon, is still due and owing by the said Robert Wilson to the defendants, and that they retain the said goods impossible to try the entire question between the parties, the Court allowed the plea to be amended at the trial, on the condition of the plaintiff being allowed to tender an issue on the defence as amended. E. T. 1856. as a security or lien for the said moneys, which is the alleged Common Pleas. conversion in said summons and plaint mentioned. DOUGLAS v. EWING. The following were the issues to be tried. First. Did the defendants convert to their own use the said linen drills, or any part of them? Secondly. Were the said linen drills, or any part of them, the plaintiff's goods at the time of the alleged conversion? Thirdly. Did the defendants bona fide make or enter into a contract or agreement with the said Robert Wilson for the advance to the said Robert Wilson of the sum of £170, to be secured, with interest and commission thereon, by the deposit and pledge of the said linen drills with the said defendants? Fourthly. If so, did the defendants afterwards, upon receiving the said linen drills from the said Robert Wilson, and upon the security thereof, advance to the said Robert Wilson the sum of £170? At the trial, the plaintiff's case was, that he had never entrusted the goods to Wilson as an agent, within the meaning of the Factors Act; but that Wilson had falsely and fraudulently represented to the plaintiff that he, Wilson, wanted the goods for the purpose of negociating a sale with certain parties from Ballymena, whom he expected to meet in the market of Belfast, alleging that the said parties would give the price demanded by the plaintiff. The plaintiff himself was examined as a witness, and stated that Wilson's representation as to the purchasers from Ballymena was a falsehood, made use of for the purpose of persuading the plaintiff to part with the possession of the goods, and that the delivery of the goods to Wilson, under the circumstances, was not an entrusting them as agent, within the meaning of the Factors Act. Wilson was in attendance, upon the plaintiff's subpana, but was not examined by either party, the defendant rgarding him as the agent of the plaintiff. When the jury had retired, the defendants' Counsel suggested the propriety of examining Wilson. His Lordship concurred in that view; but the plaintiff's Counsel refused to let Wilson be examined. It appeared that Wilson had continued to reside in Belfast, and that the plaintiff Common Pleas. DOUGLAS had taken no steps against him, on the ground of the alleged E. T. 1856. fraud. The learned Judge directed a verdict for the plaintiff, and the jury acccordingly found for him upon all the issues, except the third. They also found that Wilson had obtained the goods from the plaintiff fraudulently and by false pretences. A conditional order for a new trial having been subsequently obtained, on the ground of surprise and misdirection Joy (with him S. Ferguson) now showed cause. The Court will not grant a new trial for the purpose of allowing a party to make a case which he might have made at the trial: Vernon v. Hankey (a); Cook v. Berry (b); Harrison v. Harrison (c); Dickenson v. Blake (d); Bell v. Thompson (e). Wilson was not an agent within the meaning of the 5 & 6 Vic., c. 39 (Factors Act). The following cases were also cited: Load v. Green (f); Irving v. Motly (g); Wilkinson v. King (h); Earl of Bristol v. Wilsmore (i); Roscoe on Evidence, p. 504; White v. Spettigue (k). Fitzgibbon, Macdonogh and M. Harrison, contra. An objection to the Judge's charge may be relied on now, though not made at the trial: Murphy v. Harris (1); Knight v. Egerton (m); Toulmin v. Hedley (n). The Judge should have allowed the amendment and new issue at the trial: Buckland v. Johnson (o); Wilkin v. Reed (p). The following authorities show that a verdict should have been directed for the defendant: White บ. EWING. |