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278

Superior Courts: Common Pleas.

Wilde, C. J., referred to Meyer v. Everth, 4 Camp. 22.

Peacock was heard in reply.

"that the vendor would deliver an abstract of contract which makes it a bad plea. Jones v. title to the purchaser, or his or her solicitor, Nanney, 1 M. & W. 333; Whittaker v. Mason, who should examine the same with the prin- 2 Bing. N. C. 359; Brind v. Dale, 2 M. & W. cipal deeds at Chelmsford; and that on pay-775; Nash v. Breeze, 11 M. & W. 352. The ment of the remainder of the purchase money, case of Smart v. Hyde, 8 M. & W. 728, will be the vendor would execute, at the expense of the relied upon on the other side, but that case is purchaser, a proper conveyance or assurance to clearly distinguishable from the present. him or her as he or she might direct." It then Couch, contrà. Smart v. Hyde shows that this alleged that the plaintiff had become the pur- plea does not amount to the general issue. chaser of the said houses, &c., "subject to the Then taking the declaration and plea together, said conditions of sale, and to the performance the latter rather admits the contract in the dethereof;" and further averred mutual promises claration, and sets up a collateral contract to and performance by the plaintiff of his part of the effect that if a particular kind of abstract the conditions. Breach, that although a were delivered, no other would be required, reasonable time for that purpose had elapsed, and if stated merely as something collateral, yet the defendant had not caused to be de- the plea is not bad, Parker v. Palmer, 4 B. & livered to the plaintiff, or any solicitor of the A. 387; Sievetring v. Dutton, 15 L. J., N. S., plaintiff, any abstract showing such a good and C. P. 276. sufficient title to the said houses as the plaintiff was, according to the said conditions of sale, entitled to require to be shown by the abstract therein mentioned as to be delivered by the Wilde, C. J. There must be judgment for vendor; and that the defendant, after the inak. the plaintiff. The plea is bad as being an aring of the agreement, &c., delivered as and for gumentative denial of the contract alleged in an abstract showing, &c., an abstract which the declaration. It was admitted in the course did not show such a good and sufficient title to of the argument, that the true meaning of the the said houses as according to the said con- condition of sale was the delivery of an abstract ditions of sale the plaintiff was entitled to re- showing a good title to the interest sold. Such quire, &c., but which, on the contrary, showed being the meaning, the question is, whether the a less good and less sufficient title, &c. Plea, plea is or is not a denial of that promise which that it had been agreed as part of the contract, is alleged in the declaration on the part of the that the defendant should duly deliver an defendant to deliver a good abstract of title in abstract of the title to the said houses, com- the sense which properly belongs to that allegamencing with a certain deed of conveyance tion. Now, the effect of the plea is, that the from, &c., only, but that he, the defendant, should not be required to furnish any other abstract, and by no means to go into any previous title or evidence thereof, notwithstanding the deeds or documents relating to the prior title might be mentioned, &c.; and that the defendant did, within a reasonable time, &c., deliver to the plaintiff's solicitor an abstract of his title to the said houses, commencing with the said deed of conveyance, and which shows a good and sufficient title in that behalf to the said houses, &c., commencing with the said deed of conveyance. Verification. Special demurrer that the plea was an argumentative traverse of the allegation in the declaration, which is to the effect that the defendant did not deliver such an abstract as showed such a good title, &c., as the plaintiff was, according to the said conditions of sale, entitled to require to be shown, and that the plea amounted to a plea of the general issue. Joinder in demurrer.

Peacock, (T. Jones with him,) in support of the demurrer. The vendor of an estate is impliedly bound to make out a good title to the purchaser. Souter v. Drake, 5 B. & Ad. 992; Doe d. Gray v. Stannion, 1 M. & W. 695, and the defendant here therefore was bound to deliver an abstract showing a good tile as stated in the declaration. The plea however sets up a a qualified contract different from that in the declaration, and is clearly therefore bad. It does not admit the promise in the declaration and excuse the performance, but, on the contrary, denies the former, and sets up another

defendant did not engage to deliver a good abstract of title at all, but only one commencing from a deed of a certain date, and amounts to the defendant's saying, the promise I made is a different one from that alleged in the declaration. It is well known that if a defendant means to answer an action by denying that he made the contract, he must do so by apt terms, and not argumentatively. Therefore, whenever the language of the plea is properly a denial of the contract in the declaration, and it is cir cuitously expressed, the plea is bad, for such a denial must always be direct, and no case has been cited at all impugning that principle; on the contrary, they all proceed on a distinct recognition of it. It is quite clear that a plaintiff need not set out all the terms and conditions of the contract, but only so much as there has been a breach of. In the case cited of the sale of certain bales of wool, (Sievetring v. Dutton,) the declaration averred that a certain quantity of wool had been sold, which would embrace any kind of wool, leaving it open to the plaintiff to prove what wool he could. The defendant then might plead that the sale was of a particular kind of wool and still the declaration would remain perfectly consistent. The plea would not falsify the declaration, but, on the contrary, would merely state that the sale took place under circumstances which did not compel the defendant to take the wool. So it will be found in most of the cases that the defence has been quite consistent with the allegations in the declaration. In the present case, however, the

Superior Courts: Common Pleas.-Exchequer.

279

plea states distinctly a contract inconsistent had issued, and that he would instruct his at with the contract in the declaration, not by a torney to accept service. Accordingly, writs denial in terms, but by a statement of facts in-were sent to Mr. Leeds, an attorney at Neath, consistent with the averments in the declara- who appeared for all the defendants, except tion, and therefore, on the principle of all the cases, the plea is a bad one.

Coltman, J., concurred.

Maule, J. The plea is in effect a circuitous denial of the contract alleged in the declaration. It states a contract inconsistent with that in the declaration in point of time, and in requiring the delivery of a particular deed. It is therefore an argumentative and inferential denial of that which, if denied at all, should be denied directly. The cases quoted do not in any way interfere with this principle. Smart v. Hyde was certainly a very peculiar case, but even there the court went on the very ground on which we hold this plea bad. On the whole, I think the plaintiff is entitled to the judgment of the court.

Cresswell, J. Whatever discussion may arise as to the other cases referred to being within the principle laid down, there can be no doubt that the present case falls within that principle, and that the plea is bad, being in effect a denial of the contract in the declaration.

Judgment for the plaintiff.

Court of Exchequer.

one for whom an appearance was entered sec. stat. The cause then proceeded, and after notice of trial was given, Leeds consented to a judges' order for payment of debt and costs. The money not having been paid, final judgment was signed against all the defendants, and execution issued, under which the goods of Gordon were seized by the sheriff. It was sworn that Gordon had never given any authority, direct or indirect, to Leeds to appear for him. It was also stated that Leeds was in solvent circumstances.

Martin showed cause, and argued that the court would not set aside proceedings carried on by an attorney without authority, unless it appeared that the attorney was insolvent. He cited Anonymous, Salk. 86, 88; Stanhope v. Firmin, 3 Bing. N. C. 301; Mudry v. Newman, 1 C. M. & R. 402; Williams v Smith, 1 Dow. P. C. 632; Barber v. Wilkins, 5 Dow. 305; Hubbart v. Phillips, 13 M. & W. 702.

The Attorney-General, in support of the rule, cited Robson v. Eaton, 1 T. R. 62; Hambridge v. De La Cronée, 16 Law Jour. C. P. 85; Doe d. Davies v. Eyton, 3 B. & Adol. 785.

Cur, adv. vult. Rolfe, B., (after stating the facts). The rule

Bayley v. Buckland and others. Trinity Term, of law hitherto has generally been considered,

8th June & 3rd July, 1847.

APPEARANCE FOR MEMBER OF JOINT-STOCK

COMPANY--JUDGMENT.--IRREGULARITY.

as stated in an anonymous case in Salkeld, 86, that where an attorney takes upon him to appear, the court looks no further, but proceeds as if the attorney had sufficient authority, and In an action against the members of a joint- leaves the party to his action against him, but stock company the managing director autho- they qualified it in Salkeld, 88, stating that the rised an attorney to accept service of pro- judgment was regular, "but that if the attorney cess for all the defendants. The case probe not responsible or suspicions, they would cceded, and after notice of trial, the same set aside the judgment, for otherwise the deattorney, by the authority of the managing di- fendant has no remedy, and any one may be rector, consented to a judge's order for pay- undone by that means.' We are disposed to ment of debt and costs. The money not having lay down a different rule, and to confine the been paid, final judgment was signed, and liability of the defendant to cases in which the execution levied on the goods of a defendant course of the proceedings have given him notice who had no notice of the proceedings. The of the action being brought against him. court set aside the judgment as irregular. When, therefore, a defendant has been served with process, and an attorney without authoIn such case, if a defendant has had notice of rity appears for him, we think the court must the proceedings, the court will not interfere, proceed as if the attorney really had authority; unless the attorney be insolvent, when they because in that case the defendant having will relieve the defendant on equitable knowledge of the suit commenced, is guilty of terms. If the attorney be solvent, the court will leave him to his remedy against the fence by his own attorney, if he has any dean omission in not appearing and making deattorney. fence on the merits. There the plaintiff is without blame, and the defendant is guilty of negligence. But even in that case, if the attorney be not solvent, we should relieve the defendant upon equitable terms, if he had a defence on the merits. If the attorney were solvent, it would not be unjust to leave the defendant to his remedy by summary application against him. On the other hand, if the plaintiff, without serving the defendant, accepts the appearance of an unauthorised attorney for the defendant, he is not wholly free from the imputation of negligence. The law requires him

THIS was an application on behalf of a Mr. Gordon to set aside a judgment and execution. It appeared that the defendant Buckland was the managing director of a joint-stock company called the Vale of Neath Brewery Company, and that Gordon was a shareholder in the company. The action was brought on a promissory note against fifty-two defendants who were shareholders in the company, including Gordon. After the writ of summons issued, Buckland wrote a letter to the plaintiff's attorney, in which he stated that he was sorry to find that process

280

Superior Courts: Court of Review.-Parliamentary Proceedings.-Letter Box.

to give notice to the defendant by serving the writ, and he has not done so. The defendant there is wholly free from blame, and the plaintiff not so; and upon the same principle on which we before proceeded, we must set aside the judgment, as irregular, with costs, and leave the plaintiff to recover those costs and the expense to which he has been put from the delinquent attorney by summary proceeding. The case of Hubbard v. Phillips, 3 M. & W. 702, is an authority for such an application. Now, applying those principles to the present case, it is clear that this judgment is irregular, and the rule must be made absolute for setting it aside.

Rule absolute.

Court of Review.

Tithes. Passed.

Copyhold. For 3rd reading.

House of Commons.

NEW BILLS IN PROGRESS.

Commons Inclosure, (No. 3.) For 2nd read

ing.

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Trustees Relief. For 3rd reading.
Insolvent Debtors. To be reported.
Health of Towns. Postponed.
Custody of Offenders. Passed.
Joint Stock Companies. Passed.
Winding up Joint Stock Companies (No. 2).
For 2nd reading.

Prisons. In Committee.

Bankruptcy and Insolvency. For 3rd read

Exparte Norton re Robinson. June 11, 1847. ing.

AFFIDAVIT.

An affidavit, sworn, but not signed, was allowed to be taken off the file, for the purpose of being signed, upon an undertaking that it should be refiled, after being signed, without any alteration.

Mr. Amphlett moved in this case that an affidavit which had been filed on the part of the respondent, which had been sworn, but by accident had not been signed by the defendant, might be taken off the file merely for the purpose of being signed and re-sworn. The case was mentioned by request of the officer of the court, who declined allowing this step to be

taken without the sanction of the court.

The Chief Judge said, he would grant the application, upon an undertaking to swear the affidavit again, in the same state in all respects as at present, except the signature, which being added, it might be refiled.

This undertaking being given, the order was made.

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PROCEEDINGS IN PARLIAMENT RE- parent.

LATING TO THE LAW.

Royal Assents. July 9, 1847.

Threatening Letters.
Custody of Offenders.

House of Lords.

NEW BILLS IN PROGRESS.

Ecclesiastical Jurisdiction.

ing.

Here is another instance of a proposed alteration in the law at the very close of the session. It will have the effect of abridging professional | business, and we hope the public will derive a corresponding advantage.

EXPECTED PROROGATION OF PARLIAMENT.

It appears to be settled that the session will For 2nd read-terminate on Thursday next, the 22nd instant. Wednesday will be comparatively a dies non: so that a few days only remain to complete such of the bills as are intended to be passed.

Police. For 3rd reading.
Trustees Relief. In Committee.

Clergy Offences. Postponed.

Poor Laws Administration. For 3rd reading.
Poor Removal. For 2nd reading.

House of Commons Costs Taxation. Passed.
Charity Trustees. In Committee.

THE EDITOR'S LETTER BOX.

The letters which are unavoidably postponed shall be attended to in an early number.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, JULY 24, 1847.

-"Quod magis ad Nos

Pertinet, et nescire malum est, agitamus."

HORAT.

LEGAL RESULTS OF THE SES- its introduction into the House of ComSION OF PARLIAMENT.

mons, that until we have had an opportunity of seeing it in the form in which it THE session has at length terminated, obtained the Royal assent, it would be preand the Parliament is defunct. We cannot mature to enter upon a critical examinafelicitate our readers upon the passing of tion of its provisions. The scope of the a single measure connected with the law measure, however, is so narrow as to forbid which holds out any considerable prospect us to anticipate that any amendment has of benefit to the public, or even of practical been effected in the Law of Bankruptcy or improvement; but, perhaps, it is matter of Insolvency. A change of jurisdiction is congratulation that so little has been done to the utmost that was contemplated or atunsettle, and that the spirit of change has tempted. The trading community have passed so lightly over our legal institutions. complained, discussed, considered, and asMany of the bills, in the progress of sociated, in order to give effect to their which the profession may be supposed to remonstrances as to the unsatisfactory statehave been peculiarly interested, were of this branch of the law. Those remon-> abandoned or defeated in the course of the strances have hitherto been utterly inefsession. fectual. The Commissioners of BankThe bills placing the administration of ruptcy, who were entrusted with the admithe Poor Laws on a different footing, and nistration of the law, whilst pointing out its the Poor Amendment Act Removal Bill, imperfections, have publicly and repeatedly however, have obtained the Royal assent. deplored the harshness of its operation upon The Masters in Chancery Affidavit Office, honest insolvents, and the encouragement the House of Commons Costs' Taxation, it affords for the practice of successful and the Trustees Relief Bill have also frauds upon creditors. The evil is adpassed. The most important, perhaps, mitted, but the session has terminated we might say the only important legal measure of the session is, the Bankruptcy and Insolvency Bill.

without any attempt to redress it. The Insolvent Act, (5 & 6 Vict. c. 116,) requires that the commissioner shall be The government has succeeded in pass- satisfied that an insolvent's petition and ing the Bill for abolishing the Court of schedule are true, before he is authorised Review, and transferring the Insolvent to make a final order for the protection of Jurisdiction heretofore exercised by the such insolvent. The last Insolvent Act, 7 Commissioners of Bankruptcy, having per- & 8 Vict. c. 96, s. 2, prescribes a form of tinaciously refused to listen to the repre- petition, and enacts, that if such petition sentations made by independent mem- shall not be in the form therein prescribed, bers, at all sides of the house, as to the ex-"such petition shall be dismissed." pediency of postponing the measure until power is given to the court in which the the next session. So many changes and petition is filed to amend it under any ciralterations have been made in the bill since cumstances. Many hundreds of petitions

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No

282

Legal Results of the Session of Parliament.-Construction of the Stamp Act.

report of a case, in which two questions were decided touching the construction of the Stamp Act, (55 Geo. 3, c. 184.)

have been dismissed for defects of form.
One case was reported in this work,a in
which three petitions filed one after an-
other by the same insolvent, were dis- The action was brought to recover the
missed, upon objections to the form of the price of railway scrip, and the evidence to
petition. The commissioners have re- support the plaintiff's case was, that on the
peatedly expressed their regret that, 12th August, 1846, the defendant gave
under such circumstances, and where no the plaintiff a verbal order, and subse-
objection arose upon the merits of the case, quently, on the same day, and in respect
they could not assist an insolvent, and of the same transaction, signed a memoran-
permit him to amend his petition. Again, dum in the following form:-" Bought of
there is no power in any case to allow an Nathan Knight (the plaintiff) fifty shares
opposing creditor his costs; and where a in the Huddersfield, Halifax, and Bradford
fraudulent debtor has his conduct exposed Railway Company, at 107. per share."
and investigated, it is at the expense, not This document was unstamped, and lost
of the insolvent's estate, or of the general before the trial. It was proposed, how-
body of creditors, but at the expense of ever, to give secondary evidence of the
the particular creditor who has already, contents; but this was objected to, on the
perhaps, suffered a serious pecuniary in- ground that the lost paper contained the
jury at the hands of the insolvent. These only legal evidence of the contract, and
obvious defects of the existing law are left ought to have been stamped. Cresswell,
without any attempt at amendment. In- J., who tried the cause, thought the ob-
stead of repealing the acts which have projection well-founded, and nonsuited the
.duced so much confusion and dissatisfac- plaintiff.
tion, the great measure of the session has It was afterwards argued, that the above
been, to entrust the administration of the memorandum was not an agreement re-
law so universally condemned to new quiring a stamp, and that the transaction
judges, with the prospect that as soon as was within the exemption in the Stamp
they have mastered its provisions, and en- Act relating to "goods, wares, or merchan-
deavoured to put such a construction on dise." In reference to the first point, it
them as may be thought conducive to the was submitted, that nothing is liable to
ends of justice, the whole system shall be stamp duty as an agreement, except that
altered, and laws founded on a different which both parties reduce into writing, and
principle substituted. A course of pro- that the memorandum signed by the de-
ceeding so much opposed to the dictates of fendant was not a contract binding on both
experience indicates a very remarkable in the parties, but a mere acknowledgment
sensibility to the importance of the sub- by one of them of an antecedent parol
ject, and induces us to look rather with contract.
apprehension than hope to the effects of a
measure passed under such circumstances.
The Vexatious Actions Bill, referred to
in a former number, and the very im-
portant bill introduced so late in the ses-
sion as on the 8th July, by Messrs. Greene,
Milner, Gibson, and Parker, for amending
the Acts for winding up the affairs of Joint-
Stock Companies, have both been with-
drawn, it would seem, without discussion.

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AGREEMENT FOR PURCHASE OF RAILWAY

The court, however, whilst admitting that a mere proposal is not within the statute, held that this was a memorandum in which the defendant put down what he meant to be the terms of the contract, and which the plaintiff received as such. It was evidence of the contract, and within the words of the Stamp Act. The case of Hughes v. Budd was referred to, where an agreement signed by the plaintiff only was held to be valid as an agreement, and to require a stamp.

Upon the second point it was argued, that railway scrip was "merchandise," as a thing accustomably merchantable in the market, and transferred by delivery; but

NEWSPAPnumber of the Exchequer Reports the court held, that the sale of scrip could

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published during the last week contains the

In re Shetler, Leg. Obs., vol. 31, p. 274.
Ante p.163.

For other minor bills postponed, see p. 304

not be said to be the sale of "goods, wares, or merchandise," within the meaning of

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