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Superior Courts : Vice-Chancellor. In this case a suit had been instituted for the The Vice-Chancellor said, that he should not admistration of the estate of the testator, Samuel make the order, if he did so, it would be alterDenison, and by a decree in the cause dated ing the usual practice of the court, but he reJuly 1801, it was declared that on the death of commended it to be mentioned to the Lord a tenant for life, the testator's next of kin would Chancellor, become entitled to a share of the testator's personal estate. The tenant for life had died, and M. A. Hoyle, who claimed under one of such

Gatland v. Tanner, July 6th, 1847. next of kin, now presented a petition, praying Order of 13TH APRIL, 1847.-38TH ORDER that the Accountant-General might be directed

OF AUGUST, 1841.-DISMISSAL OF BILL, to transfer to her the share to which she was en

APPEAL PENDING. titled, as personal representative of such next of kin. The property consisted of certain sums in- Where an appeal is pending from a case devested in Bank 3 per cent. Annuities and Old ciding a point of practice material to the South Sea Annuities, and the petition stated, that

conduct of a suit, on an application being the various administrations and probates made to dismiss the plaintiff's bill for want through which they made out her claim as such of prosecution, the court, on a proper case personal representation, had been granted by being made out by the plaintiff, will direct the Consistorial Court of the Bishop of London such application to stand over until judgonly, and the question was, whether they were

ment on such appeal has been given. sufficient for the purpose without going to the In this case it appeared that plaintiff's bill Prerogative Court of the Archbishop of Canter- was filed on the 12th October last; that on the bury.

3rd of December, the defendant Tanner applied Mr. Shapter, for the petition. The adminis- for time to answer, and the Master gave him tration granted by the Consistorial Court is one month. On the 31st December, Tanner sufficient, and although a prerogative adminis- filed his answer : exceptions were immediately tration is usually obtained, yet it is more a pre- taken to it, and it was reported insufficient on cautionary measure than one absolutely neces- all the points excepted to. Exceptions were sary. The cases of Challnor v. Murhall, 6 Ves. taken to the Master's report, and on the 26th 118; Newman v. Hodgson, 7. Yes. 409 ; Thomas April last, they came on to be heard, when the v. Davies, 12 Ves. 417; and Docker v. Horner, Vice-Chancellor overruled the Master's report, 3 Brown, 240, although usually cited as prov- acting on his decision in Mason v. Hakeman, ing that a prerogative administration or probate Leg. "Obs., Aug. 29th, 1946. No proceedings is necessary to obtain money out of court, do had since been taken in the cause, and Mr. not go that length; they were all applications Lewin now moved to dismiss the bill as against under provisional grants from courts other than defendant Tanner, for want of prosecution, the Consistorial Court of London, and not one with costs. of them appears to have been a London probate

Mr. Miller, in opposition to the motion, or administration. It must be admitted, that urged that since the Vice-Chancellor's last dein The King v. Capper, 3 Price, 262, there is a cision in the cause, the case of Mason v. Wakedictum that stock for the purpose of probate man had been brought on an appeal before the and administration is supposed to lie within Lord-Chancellor, and his lordship had since the archbishopric of Canterbury; but that was heard the arguments, and had taken time to a mere dictum, and had nothing to do with the

consider his judgment; that the proceedings question then before the court.

in the cause had been delayed in order that the The Vice-Chancellor. What species of chat- Lord Chancellor's decision might be known, tel are you applying for? If it is a debt at all, and that, in case the Vice-Chancellor's decision it is one due from government, which does not should be affirmed, plaintiff intended immedireside anywhere.

ately to amend her bill. He also contended Mr. Shapter. If the liability of government that, by the Order of April 13th, 1847, 9 Beav. to answer for the debt were the test, the pre- part 1, a discretionary power is given to the rogative administration would be insufficient; court either to dismiss plaintiff's bill, or to put the Archbishop of Canterbury having no juris. him on terms, and that, under the circumdiction in the province of York, in Ireland, or stances of the case, it would be but reasonable in Scotland. It is a debt due from government that plaintiff's application should be postponed secured by act of parliament, and payable at until the Lord Chancellor had given judgment the Bank, and therefore forms bona notabilia in in Mason y. Wakeman. London, for which a consistorial probate or ad

Mr. Lewin urged that it was unreasonable ministration is the proper one. The case of thus to wait; the Lord Chancellor might postSmith v. Stafford, 2 Wills. Ch. Rep. 166, and

his decision for an indefinite time; beExparte Horne, 7 Barn. & Cress. 632, are parallel ones ; and since the case of Scarth v. Bishop of London, 1 Hagg. 625; 1 Wms. exors. a In this case it was decided, that if the 228, note, the Bank of England always transfer whole bill is demurrable, a defendant may, stock on a probate taken in the Consistorial under the 38th Order of August, 1841, decline Court. He also cited Young v. Elworthy, 1 answering such portions of the bill as he objects M. & K. 215; Pearce v. Pearce, 1 Keen, 76, to answer, although he may have answered the and i Dan. Ch. Pr. 2nd edit. p. 305.

pone

remainder.

277

Superior Courts : V. C. Knight Bruce.- Queen's Bench.-Common Pleas, sides it was open for the plaintiff to appeal from An order had been made by Mr. Justice any decision which the Vice-Chancellor might Erle, at chambers, requiring Ford, an attorney, make in the cause.

to deliver up certain deeds and documents to The Vice-Chancellor ordered the motion to one Jones, under the following circumstances : stand over until the Lord Chancellor had given -Ford and Rogers had been in partnership as his judgment in Mason v. Wakeman.

attorneys. Rogers died, but before his death they had been employed as the attorneys of

Mr. Jones, and since the death of Rogers, Ford Vice-Chancellor knight Bruce.

had acted as the sole attorney for Mr. Jones, Cope v. Russell. March 23, 1847. Two bills of costs had been delivered in, one

amounting to 521. 6s. 8d. for work done by PRACTICE.

Messrs. Ford and Rogers, and the other Substituted service of the subpæna to appear amounting to 2861. for work done by Ford

and answer on the solicitor of a defendant, alone. The latter bill has been paid by Mr. that defendant being out of the way and his Jones, but the amount of the first bili was place of abode unknown, was refused on barred by the Statute of Limitations. The motion made for that purpose.

deeds and writings now required to be delivered

up

had been deposited with Ford in reSwift moved that service of the subpæna to appear and answer, might be made on Mr. spect of business done since the dissolution of

Mr. Justice Erle was of

the partnership. C., the solicitor of the defendant, who was out of the jurisdiction of the court, and whose opinion that Ford had no lien on them.

Mr. Wordsworth applied for a rule to show address was not known. The plaintiff 'had recovered judgment against the defendant in cause why the judge's order should not be set

aside, and contended that Ford had a lien upon an action at law, and the defendant then filed these deeds,

and was entitled to retain them till a bill to restrain the levying of execution, but the bill of costs due from Jones to Ford and such bill was dismissed. In the action and in the suit, Mr. C. acted as the defendant's solici- Rogers had been paid. tor, and in another action by another party is quite right, and that we ought not to inter

Lord Denman, C.J. It seems to me that it against the defendant, Mr. C. also acted as fere with this order. his solicitor. The defendant having withdrawn himself, and it not being known where he was, Copartners are in the nature of agents for

one

Patteson, Mr.Justice. I think it is quite right. an attempt was made to make a compromise of another. Ford received these articles, which the demands of the plaintiff, and of the other he is called on to deliver up, not on the part of party who had brought his action, in all which himself and another, but of himself only. Yet Mr. C. acted as the solicitor of the defendant. it is said that he has a lien on them, –a lien Under these circumstances, and on the autho- which has attached on them for a debt due to rity of Hobhouse v. Courtney, 12 Sim. 140; him and to another person for whom he is an Kinder v. Forbes, 2 Beav. 503; Hornby v. Holmes, 4 Hare, 306, and 9 Jurist, 225, 796, agent. But it does not appear that he had held

the things for any one else but himself. the motion was made.

Wightman and Erle, J.s, concurred. His Honour intimating, that the last cited

Rule refused. case was a strong authority for the motion, still declined to make the order, as, if made, it had better be so by a higher branch of the

Common Pleas. court.

Sharland v. Leifchild. Easter Term, 1847. Motion refused.

PLEA TO A DECLARATION ON CONTRACT.

ARGUMENTATIVE DENIAL. WHAT Queen's Bench.

AMOUNTS TO THE GENERAL ISSUE. (Before the Four Judges.)

Where the declaration in an action of assumpIn re Ford. Easter Term, 1847.

sit complained of a breach by the defendant

of a condition on which the sale of certain JUDGE's ORDER.-ATTORNEY.-COSTS.

houses had been made to the plaintiff, F. & R., attorneys in partnership, are em- namely, " that the vendor would deliver an

ployed by J. R. dies, and F. is afterwards abstract of title to the purchaser, or his or employed by J. as his attorney, and in re- her solicitor," and the plea of the defendant spect of work done after the death of R. stated hat at the time of the promise it was certain deeds are given into the custody of

agreed as part of the contract, that the deF. by J. The bill of costs for work done

fendant should deliver an abstract of the by F. after the death of R. was paid by J., title, commencing with a certain specified but the joint account was unpaid.

deed, and that extent only. Held, that the Held, that F. had no lien on those deeds so os plea was an argumentative denial of the

to enable him to retain them in respect of contract in the declaration, and bad as the bill of costs due from J. to F. & R. amounting to the general issue.

ASSUMPSIT. The first count of the declarab The motion was made before the Lord tion alleged a sale of divers houses by auction, Chancellor, on the 25th of May, and refused. upon certain conditions, and amongst others,

278

Superior Courts : Common Pleas.

" that the vendor would deliver an abstract of contract which makes it a bad plea. Jones 7. 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 Wilde, C. J., referred to Meyer v. Everth, was, according to the said conditions of sale, 4 Camp. 22. entitled to require to be shown by the abstract Peacock was heard in reply. 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, defendant did not engage to deliver a good ahshould not be required to furnish any other stract of title at all, but only one commencing abstract, and by no means to go into any pre- from a deed of a certain date, and amounts to vious title or evidence thereof, notwithstanding the defendant's saying, the promise I made is a the deeds or documents relating to the prior different one from that alleged in the declaratitle might be mentioned, &c.; and that the tion. It is well known that if a defendant defendant did, within a reasonable time, &c., means to answer an action by denying that he deliver to the plaintiff's solicitor an abstract of made the contract, he must do so by apt terms, his title to the said houses, commencing with and not argumentatively. Therefore, whenever the said deed of conveyance, and which shows the language of the plea is properly a denial of a good and sufficient title in that behalf to the the contract in the declaration, and it is cirsaid houses, &c., commencing with the said cuitously expressed, the plea is bad, for such a deed of conveyance. Verification. Special de- denial must always be direct, and no case has murrer that the plea was an argumentative been cited at all impugning that principle; on the traverse of the allegation in the declaration, contrary, they all proceed on a distinct recogniwhich is to the effect that the defendant did not tion of it. It is quite clear that a plaintiff need deliver such an abstract as showed such a good not set out all the terms and conditions of the title, &c., as the plaintiff was, according to the contract, but only so much as there has been a said conditions of sale, entitled to require to be breach of. In the case cited of the sale of cershown, and that the plea amounted to a plea of tain bales of wool, (Sievetring v. Dutton,) the the general issue. Joinder in demurrer. declaration averred that a certain quantity of

Peacock, (T. Jones with him,) in support of wool had been sold, which would embrace any the demurrer. The vendor of an estate is im- kind of wool, leaving it open to the plaintiff to pliedly bound to make out a good title to the prove what wool he could. The defendant then purchaser. Souter v. Drake, 5 B. & Ad. 992; might plead that the sale was of a particular Doe d. Gray v. Stannion, 1 M. & W. 695, and kind of wool and still the declaration would rethe defendant here therefore was bound to de- main perfectly consistent. The plea would not liver an abstract showing a good ti'le as stated falsify the declaration, but, on the contrary, in the declaration. The plea however sets up a would merely state that the sale took place a qualified contract different from that in the under circumstances which did not compel the declaration, and is clearly therefore bad. It defendant to take the wool. So it will be does not admit the promise in the declaration found in most of the cases that the defence has and excuse the performance, but, on the con-heen quite consistent with the allegations in the trary, denies the former, and sets up another 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 ato 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 one for whom an appearance was entered sec. cases, the plea is a bad one.

stat. The cause then proceeded, and after Coltnan, J., concurred.

notice of trial was given, Leeds consented to a Maule, J. The plea is in effect a circuitous judges' order for payment of debt and costs. denial of the contract alleged in the declaration. The money not having been paid, final judgIt states a contract inconsistent with that in the ment was signed against all the defendants, declaration in point of time, and in requiring and execution issued, under which the goods the delivery of a particular deed. It is there- of Gordon were seized by the sheriff. It was fore an argumentative and inferential denial of sworn that Gordon had never given any authothat which, if denied at all, should be denied rity, direct or indirect, to Leeds to appear for directly. The cases quoted do not in any way him. It was also stated that Leeds was in interfere with this principle. Smart v. Hydel solvent circumstances. was certainly a very peculiar case, but even Martin showed cause, and argued that the there the court went on the very ground on court would not set aside proceedings carried which we hold this plea bad. On the whole, on by an attorney without authority, unless it I think the plaintiff is entitled to the judgment appeared that the attorney was insolvent. He of the court.

cited Anonymous, Salk. 86, 88; Stanhope v. FirCresswell, J. Whatever discussion may arise min, 3 Bing. N. C. 301; Mudry v. Newman, 1 as to the other cases referred to being within C. M. & R. 402; Williams v Smith, 1 Dow. the principle laid down, there can be no doubt P. C. 632; Barber v. Wilkins, 5 Dow. 305; that the present case falls within that principle, Hubbart v. Phillips, 13 M. & W. 702. and that the plea is bad, being in effect a denial The Attorney-General, in support of the rule, of the contract in the declaration.

i cited Robson v. Eaton, 1 T. R. 62; Hambridge Judgment for the plaintiff. v. De La Cronée, 16 Law Jour. C. P. 85; Doe d. Davies v. Eyton, 3 B. & Adol. 785.

Cur. adv. vult. Court of Erchequer.

Rolfe, B., (after stating the facts). The rule Bayley v. Buckland and others. Trinity Term, of law hitherto has generally been considered, 8:h June & 3rd July, 1847.

as stated in an anonymous case in Salkeld, 86,

that where an attorney takes upon him to apAPPEARANCE FOR MEMBER OF JOINT-STOCK

pear, the court looks no further, but proceeds COMPANY--JUDGMENT.--IRREGULARITY.

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- jadgment was regular, “but that if the attorney cess for all the defendants.

The case pro

be not responsible or suspicions, they would ceeded, 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 u 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 altorney 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 an omission in not appearing and making dewill leave him to his remedy against the fence by his own attorney, if he has any deattorney.

fence on the merits. There the plaintiff is This was an application on behalf of a Mr. without blame, and the defendant is guilty of Gordon to set aside a judgment and execution. negligence. But even in that case, if the atIt appeared that the defendant Buckland was torney be not solvent, we should relieve the the managing director of a joint-stock company defendant upon equitable terms, if he had a called the Vale of Neath Brewery Company, defence on the merits. If the attorney were and that Gordon was a shareholder in the com- solvent, it would not be unjust to leave the depauy. The action was brought on a promis- fendant to his remedy by summary application sory note against fifty-two defendants who were against him.' On the other hand, if the plainshareholders in the company, including Gordon. tiff, without serving the defendant, accepts the After the writ of summons issued, Buckland appearance of an unauthorised attorney for the wrote a letter to the plaintiff's attorney, in which defendant, he is not wholly free from the imhe stated that he was sorry to find that process putation of negligence. The law requires him

AFFIDAVIT.

280 Superior Courts : Court of Review.— Parliamentary Proceedings.-Letter Box.
to give notice to the defendant by serving the Tithes. Passed.
writ, and he has not done so. The defendant

Copyhold. For 3rd reading.
there is wholly free from blame, and the plain-
tiff not so; and upon the same principle on
which we before proceeded, we must set aside

Hause of Commons. the judgment as irregular, with costs, and

NEW BILLS IN PROGRESS. leave the plaintiff to recover those costs and

Commons Inclosure, (No. 3.) For 2nd readthe expense to which he has been put from the delinquent attorney by summary proceeding. ing.' The case of Hubbard v. Phillips, 3 M. & W. Trustees Relief. For 3rd reading. 702, is an authority for such an application. Insolvent Debtors. To be reported. Now, applying those principles to the present

Health of Towns. Postponed.
case, it is clear that this judgment is irregular,
and the rule must be made absolute for setting Custody of Offenders. Passed.
it aside.

Joint Stock Companies. Passed.
Rule absolute. Winding up Joint Stock Companies (No.2).

For 2nd reading.
Court of Keview,

Prisons. In Committee.

Bankruptcy and Insolvency. For 3rd read. Exparte Norton re Robinson. June 11, 1847. ing.

Masters in Chancery Affidavit Office. Passed. An affidavit, sworn, but not signed, was al

Registration of Voters. In Committee. lowed to be taken off the file, for the pur

Parliainentary Electors. Postponed. pose of being signed, upon an undertaking Parliamentary Electors, (No. 2.) For 2nd that it should be refiled, after being signed, reading. without any alteration.

Vexatious Actions. In Committee. Mr. Amphlett moved in this case that an af- Poor Removal. Passed. fidavit which had been filed on the part of the Trust Monies Investment. For 3rd reading. respondent, which had been sworn, but by accident had not been signed by the defendant, might be taken off the file merely for

the pur

THE CHARITY TRUSTEES BILL. pose of being signed and re-sworn.

The case

This Bill constitutes the Treasurer of each was mentioned by request of the officer of the court, who declined allowing this step to be County Court a corporation sole, for the purtaken without the sanction of the court. pose of enabling the judge to order the charity

The Chief Judge said, he would grant the estates to be vested in such treasurer, without application, upon an undertaking to swear the the expense of Deeds of Conveyance to New affidavit again, in the game state in all respects Trustees. The bill permits this to be done, on as at present, except the signature, which being the application of the parties interested, but is added, it might be refiled.

This undertaking being given, the order was not obligatory. It does not appear to be liable made.

to the objections of the bill of last session; but

the necessity of the act should be made apPROCEEDINGS IN PARLIAMENT RE- parent. LATING TO THE LAW.

Here is another instance of a proposed alter

ation in the law at the very close of the session. Koyal Assents. July 9, 1847. It will have the effect of abridging professional Threatening Letters.

business, and we hope the public will derive a Custody of Offenders.

corresponding advantage.

NEW BILLS IN PROGRESS.

House of Lords.

EXPECTED PROROGATION OF PARLIAMENT.

It appears to be settled that the session will Ecclesiastical Jurisdiction. For 2nd read-terminate on Thursday next, the 22nd instant. ing.

Wednesday will be comparatively a dies non : Police. For 3rd reading.

so that a few days only remain to complete Trustees Relief. In Committee.

such of the bills as are intended to be passed. Clergy Offences. Postponed. Poor Laws Administration. For 3rd reading.

THE EDITOR'S LETTER BOX. Poor Removal. For 2nd reading. House of Commons Costs Taxation. Passed. The letters which are unavoidably postponed Charity Trustees. In Committee.

shall be attended to in an early number.

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