58 Superior Courts: Lord Chancellor.-Rolls.-Vice-Chancellor. being an outlaw, without proof of his having become an outlaw subsequently to the filing of the original bill, or by consent. THIS was a motion to strike out the name of Mr. Whittaker, as a plaintiff in a bill of re ground that he had been outlawed, and that a plea of outlawry would be a bar to the suit if he were continued as a plaintiff. Mr. Freeling for the motion. cation under the 93rd Order of May, 1845, before the last of the answers had come in, not being aware at the time of Vice-Chancellor Wigram's decision in the case of Stinton v. Taylor, 4 Hare, 608; that the defendants who opposed it had been as negligent as the plain-vivor and make him a defendant, upon the tiff in not prosecuting the suit, either by moving to dismiss the bill for want of prosecution, or by setting down the cause to be heard under the 116th Order of May, 1845-and that the defendants would not be prejudiced by this indulgence to the plaintiff, as no evidence had yet been given, and as no step to dismiss the bill could be taken before next Michaelmas Term. They referred to Arnold v. Arnold, 1 Phill. 805; Hemming v. Dingwall, 1 Coop. 14, and 10 Jur. 531, (also in 32 L. O. 251); Dallimore v. Ogilvie, and Cresswell v. Harris, cited in Mr. Cooper's Report of the last case; Yate v. Bolland, 2 Dick. 495, and French v. Lewsey, 6 Madd. 50. The other part of the motion refused by his Honour was for the production at the hearing of the probate copy of the will of the testator's deceased executor, and which Mr. Webster submitted, ought to have been granted as of course. Mr. Bacon and Mr. Wright, contrà, urged, that the great delay which had taken place prevented the plaintiff from receiving the required indulgence, as it was entirely unaccounted for ; and as no special circumstances were stated except the solicitor's mistake in the practice, and which the Vice-Chancellor did not think sufficient. In Hemming v. Dingwall, as reported in the Jurist, (supra,) there appeared to have been only a delay of a few days. With respect to the production of the probate copy of the will, his Honour was justified in refusing it, as such application ought not to have been mixed up with the motion for enlarging publication, and had evidently been introduced merely as a makeweight for the purpose of asking for costs. The Lord Chancellor remarked, that with regard to one part of the motion, (production of the probate copy,) he thought the Vice-Chancellor was quite right-as to the remaining portion of it, he thought it might be granted, as both parties had been equally negligent. If the plaintiff alone had caused the delay it would have been a different matter; or if the defendant would be prejudiced by granting the motion. His Lordship said, that without laying down any principle for these applications, he thought, under the circumstances of this case, the indulgence might be granted and publication enlarged until the first day of next term, upon payment by the plaintiff of the costs of the application. Rolls Court. Whittaker v. How. May 22, 1847. OUTLAWRY.-REVIVOR. The court will not allow a plaintiff in an original cause to be turned into a defendant to the revived cause, upon the ground of his Mr. Lloyd, contrà, said, it did not appear but that Mr. Whittaker was an outlaw at the time of the bill being originally filed, in which case the outlawry would have been a good plea to the bill.. intention of directing an inquiry as to the time Lord Langdale, upon this, intimated an of the outlawry; but ultimately, with the consent of Mr. Lloyd, made the order asked for, on the payment of the costs of the application. Vice-Chancellor of England. Baldwin v. Damer. July 3rd, 1847. DISMISSAL OF BILL. ANSWER. - 16TH, 66TH, AND 68TH ORDERS OF MAY, 1845. Where, through the negligence of plaintiff, certain defendants have not answered the bill, and one of the defendants is entitled to move to dismiss the bill for want of prosecution, a motion for that purpose by such defendant granted, and the bill ordered to stand dismissed, unless plaintiff filed his replication within a given time. THIS suit was originally instituted for the purpose of restraining the directors of the Great Munster Railway from dealing with a sum of 21,000l. The injunction was refused, and the bill not having been amended within the time allowed by the orders of the court, Mr. Hubback now moved, on behalf of one of the defendants, to dismiss the bill for want of prosecution. Mr. Welford, on behalf of the plaintiff, urged, that the defendants were sixteen in number, and that three or four of them had not put in their answers on account of negotiations going on between them and the plaintiff'; and he cited the case of Arnold v. Arnold, Leg. Obs. May 15th, 1847, lately decided before the Lord Chancellor, as authorising the delay which had taken place on the part of the plaintiff. The Vice-Chancellor said, it appeared that the plaintiff had got in the answer from some of the defendants, but that instead of compelling the rest to answer, had been entering into negotiations with them, and had therefore himself been wilfully delaying the prosecution of the suit. Under such circumstances, he was of opinion that the motion ought to be granted and the bill dismissed, unless the plaintiff would undertake to proceed within three weeks. Superior Courts: V. C. Knight Bruce.-Queen's Bench. Vice-Chancellor Knight Bruce. Re Pongerardo. June 25th, 1847. GUARDIAN.-INFANT.-PETITION.- SIR E. SUGDEN'S ACT, 1 w. 4, c. 65, s. 32. A petition under Sir E. Sugden's Act, (1 W. 4, c. 65,) for payment of dividends belonging to an infant, ought to be the petition of the guardian solely, and confined to the object of payment merely. The bank having refused to obey an order granted upon a petition seeking payment, and also, the appointment of a proposed guardian, the court thought the objection valid. 359 child was above the age of nineteen; that the defendant was willing and able to maintain the child; that when requested the plaintiff's refused to deliver the child into the care and custody of the defendant; and that the plaintiffs were damnified by their own voluntary act. Replication traversing the request of the defendant. Verdict for the defendant. Held, on motion to enter judgment non obstante veredicto, that the facts disclosed in the plea afforded a good defence to the action, and showed that the expense sought to be recovered was incurred by the voluntary act of the plaintiff. A PETITION had been presented in this case in the name of the proposed guardian and of the infant, seeking a reference to the Master to bond, dated the 28th February, 1825, given by THIS was an action of debt on a bastardy approve of such guardian, and also, an order the defendant to the plaintiffs, the churchupon the Bank of England to pay the dividends wardens and overseers of the parish of Mansto such guardian when appointed. It was field, to indemnify them from all incumbrances, thought to be doubtful whether such a petition costs, damages, and expenses whatsoever, by embracing both objects could be regular under reason of the birth, education, and maintenance Sir E. Sugden's Act, which seemed to confine of a bastard child, and from all actions, suits, the jurisdiction of the court to a petition presented solely by the guardian. The court, however, intimated that the petition did not appear objectionable, provided the bank did not refuse to act upon it, but recommended the parties to take the order in another form. Mr. Daniel now appeared upon the petition of the guardian, seeking an order upon the bank for paying the dividends, and he stated that the bank declined acting under the former order. His Honour said, he thought the objection was good, and granted the prayer of the present petition. Queen's Bench. (Before the Four Judges.) Bownes v. Marsh. Trinity Term, 1847. DEBT. INDEMNITY BOND.-BASTARD. &c., touching or concerning the same, until such child should have obtained a settlement out of the said parish of Mansfield. The declara. tion, after setting out these facts, went on to allege that the defendant did not indemnify the child to be maintained and provided for at the parish, but suffered and permitted the said expense of the inhabitants of the said parish. The defendant, in his third plea, alleged, that and before the commencement of the action, after the making of the said writing obligatory, the said child was above the age of nineteen; that she has been and is under the power and control of the churchwardens and overseers of the parish; that the defendant was and is ready and willing and able to maintain and provide for the child; and that the plaintiffs, after being requested by the defendant, have refused to deliver over the child To an action of debt on a bastardy bond of to the defendant; and that the plaintiffs are indemnity, the defendant pleaded that the * Section 32, enacts, "That it shall be lawful for the Court of Chancery, by an order to be made on the petition of the guardian of any infant, in whose name any stock shall be standing, or any sum of money, by virtue of any act for paying off any stock, and who shall be beneficially entitled thereto, or if there shall be no guardian, by an order to be made in any cause depending in the said court, to direct all or any part of the dividends due, or to become due, in respect of such stocks, or any such sum of money, to be paid to any guardian of such infant, or to any other person, according to the discretion of such court, for the maintenance and education, or otherwise for the benefit of such infant, such guardian, or other person, to whom such payment shall be directed to be made being named in the order directing such payment; and the receipt of such guardian or other person for such dividends or sum of money, or any part thereof, shall be as effectual as if such infant had attained the age of 21 years, and had signed and given the same." The re damnified by their own voluntary act. Mr. Hayes showed cause, and contended that the right of the putative father must prevail as against strangers, and that the point about the consent of the child did not arise, as the child in the plea was stated to be under the power and control of the parish officers. He cited Haines v. Jeffell, Simpson v. Johnson, Hays v. Bryant, Richards v. Hodges, Rex v. Cornb 1 Doug. 8. C Lord Raym. 68. d d 1 Mod. 43. 360 Superior Courts: Queen's Bench.-Exchequer.-Letter Box. forth, Strangeways v. Robinson,' Pope v. Sale, Sherman's case.h Mr. Macaulay, contrà. The parentage between the father and a bastard child is not recognised by the law: Co. Litt. 123 a. The child is capable of exercising a choice, and it should be shown in the plea that she was willing to go to her father. The allegation in the plea, that the child was in the power and control of the plaintiff, does not imply imprisonment. In re Lloyd. not the father of the child. The learned judge told the jury, that if they were of opinion that the defendant was not the father of the child, then there was no evidence of any loss of service resulting from the defendant's connexion with the plaintiff's daughter, and that they ought to find a verdict for the defendant. The jury having found a verdict for the defendant, a rule nisi was obtained for a new trial on the ground of misdirection, against which Humfrey showed cause. Criminal knowCur. ad. vult. ledge is not sufficient to found an action for Lord Denman, C. J., delivered-the judgment seduction, unless attended with loss of service, of the court. After stating the facts of the or some pecuniary or other injury. Where the case and the pleadings, he said, the jury found party debauched is in the service of another that the defendant was able and willing to person, the parent cannot maintain the action, maintain the child, and that the plaintiffs re- yet in that case the shame to the parent and fused to deliver her to him. But the plaintiffs the injury to his feelings are equally the same moved to enter a judgment for them, notwith-as if she were in his service. The action is standing the verdict, as they contended that founded on the loss of service, and unless some the facts as stated in the plea did not constitute injury results from the criminal connexion, an answer to the action, for that it was not there is no trespass of which the parent can shown that the child was willing to go and live complain. Grinnell v. Wells, 8 Scott, New with the defendant. We think the objection Rep. 741. ought not to prevail, for the plea states that the child was under the control of the plaintiffs, and that they refused to deliver to her the defendant. If she was willing, the facts set forth in the plea show that the plaintiff's did not permit and suffer her to go to the defendant, and that their retention of her was contrary to his express desire. He has, therefore, alleged sufficient to show that it was by the act of the plaintiffs themselves that this expense now sought to be recovered from him was incurred. Exchequer. Rule discharged. Prentice in support of the rule. It is conceded that the action cannot be maintained unless there is some loss of service, but when once the service is proved the law will presume a loss to the master in consequence of the criminal act. The declaration would have been good if it had merely stated that the defendant assaulted and debauched the plaintiff's servant; the damage here stated is either a special damage or a consequential damage necessarily arising from the act of the defendant. If in the nature of special damage, it is admitted on the record. Torens v. Gibbons, 5 Q. B. Rep. 297. Wherever a wrongful act is done, the law Eager v. Grimwood. Trinity Term, 1st June, will presume some damage. [Pollock, C. B. 1847. SEDUCTION.-LOSS OF SERVICE.-MASTER. -SERVANT. Is there any authority to show that a master may maintain an action of trespass for assaulting his servant when the master has sustained no damage?] It is so laid down in Viner's An action for seduction will not lie, unless Abridgment, title Trespass, 453. Wherever some loss of service or other injury has re- there is an invasion of a legal right the law will sulted from the seduction. Therefore, presume a damage. Fayre v. Prentice, 1 M. & where a parent brought an action for the G. 828; Woodward v. Watton, 2 New Rep. 476. seduction of his daughter then in his Alderson, B. It is clear that the parent canservice, and it appeared that the defendant not maintain this action where his daughter is had seduced her, and that she was delivered in the service of another person, which shows of a child, but the jury found that the child that the action is founded on the loss of was not the defendant's: Held, that the service. Now, if the mere fact of connexion is jury were rightly directed to find a verdict to be held a loss of service, it is difficult to see for the defendant. where it would stop. Suppose a servant took a walk, contrary to the orders of her master, would that be a loss of service? The rule must be absolute to enter a nonsuit, unless the parties agree to a stet processus THIS was an action for seduction. The declaration stated, in the usual form, that the defendant with force and arms, &c., assaulted and debauched the daughter and servant of the plaintiff, by means whereof he was deprived of her services. The defendant pleaded not guilty. At the trial, before the Lord Chief Baron, it was proved that the defendant had had connexion with the plaintiff's daughter, and that she was delivered of a child, but it was contended on the part of the defendant that he was Pollock, C. B., and Rolfe, B., concurred. THE EDITOR'S LETTER BOX. THE extent of the matter this week, including some more of the recent Statutes, has rendered it expedient again to increase our usual space. Correspondents will please to address their letters and communications to the Editor, at Messrs. Maxwell & Son's, 32, Bell Yard, Lincoln's Inn. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUdence. SATURDAY, AUGUST 14, 1847. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. ་ REPRESENTATION OF THE PRO-111 new members of the bar, and 7 soliciFESSION IN THE NEW PAR- tors. This number includes several who LIAMENT. but those interests being duly provided for, the lawyer is, we think, bound to care for the welfare and improvement of the laws and of his brethren who practically carry them into effect, and without whose integrity and intelligence, vain would it be to exercise their legislative functions. are not now in practice, and a few who may be considered as only honorary THE first session of the new parliament members. Indeed, there are not more will doubtless be an important one to all than twenty whose names are familiar to classes of the community. It will be pe- the echoes of Westminster Hall, although culiarly so to the legal profession. The many others are sufficiently distinguished facts already elicited by the committee on as law or political reformers. No doubt the fees of courts of law and equity, the all our representatives are bound to attend enormous Taxes on the administration of to the general interests of the community, Justice, and the exceedingly objectionable mode in which they are levied, will call for a revival of the committee, and ultimately for the redress of that prominent grievance, both to the suitor and the practitioner. The results of the elaborate inquiry into the state of legal Education will also attract peculiar attention. The defective mode in Our "learned and honourable friends" which Legislation is conducted, especially who have so far attained the object of their as it regards the alterations of the law, ambition, will be induced, we trust, to must be considered, and some remedy at seize the earliest opportunity of considering least attempted. The state of the Profes- some of the important topics affecting the sion in both its branches;—the anomalies in best interests, not of their branch only, the mode of calling to the bar, and the but of the whole profession, and with it government of the Inns of Court;-with the the due and efficient administration of complaints so justly and powerfully urged justice. by the great body of Attorneys and Solicitors, cannot fail at an early period to demand consideration. It may not, therefore, be inappropriate thus early to look at the result of the present general election, and to address a few words to those who have been returned to parliament, and will have the peculiar duty of considering the subjects to which we have referred. The members of both branches of the profession already elected are in number about 43, viz.:-25 barristers re-elected, VOL. XXXIV. No. 1,014. It has again and again been seriously urged that the successful lawyers in parliament are apt to disregard the interests of the profession. They seem to think that if they rose "in their place in parliament" and defended the honour and character of the profession, they would be unfavourably heard, and that if they vindicated the solicitors, they would commit a breach of the etiquette of the bar, which forbids an advocate from_conciliating the good will of his clients! Perhaps a solitary individual might feel some delicacy on the R 362 Representation of the Profession in the New Parliament. the bar surely could not lie open to any subject, but twenty men in the first rank of ence of these projected laws to men learned in the particular subjects to which they related, and capable of judging of the probable operation and consequences of the alterations proposed. The complaint, however, of parliamentary negligence comes as loudly from the general body of the bar as from the at- It is surely the duty, and we are pertorneys and solicitors. It is alleged that suaded that it is also the interest, of the successful advocates enter the senate for higher branch of the profession to exert the purpose of promoting their own per- themselves for the general good of the sonal aggrandizement, or that of the in- whole. They should not wait till they are fluential members of the bar, and that they called upon, but enter at once heartily into are equally regardless of the schemes the performance of their honourable vocawhich injure the profession without bene- tion. They should not hesitate, whenever fiting the public, as of measures which an occasion may arise, to vindicate every might promote professional, whilst they rank of the profession, and claim for their also advanced the public, interests. brethren the honourable position to which For several years past, during the pro- they are entitled. We hope the time has gress of the numerous projects for the re- arrived when a better state of things may form, or alteration, or amendment of the be expected, and that all branches of the law, it would have been of great public and profession will concur in removing the improfessional advantage, if our legal repre- pediments which interrupt the course of sentatives in parliament had investigated justice, and place its professors in their individually and collectively the devices true position before the public. which session by session have been so We shall resume and enlarge upon some recklessly introduced :-many of them of these topics, and in the meantime subwould then have been rejected altogether; join the list of lawyers in parliament, corothers remodelled and amended ;-and thus rected according to the latest information. the disgrace of endless acts "to amend It is unnecessary to repeat the names of acts" would have been avoided. The those who have been unfortunate in the knowledge, experience, and learning of the recent contests, but hope the time may bar ought either to take the lead in, or to soon arrive when we may record their accontrol, every proposed amendment of the cession to the rolls of parliament. law. Holding the position of leading advocates in all the superior courts,-formidable even in number,-and deservedly possessed of great weight, they might have overruled all obnoxious plans, even when supported by the influence of the strongest government. The people of this country are, above all things, attached to the right administration of justice,-to the making of wise laws, and their due execution. The power of the bar in parliament would be irresistible in the support of just, and the overthrow of pernicious, measures. But 1st. Members of the bar, re-elected for the new parliament: Aglionby, H. A., Cockermouth. Bernal, R., Rochester. Buller, C., Q. C., (Judge Advocate,) Liskeard. Cabbell, B. B., Boston. Cardwell, E., Liverpool. Christie, W. D., Weymouth. Cripps, William, Cirencester. Dundas, Sir D., S. G., Sutherlandshire. Godson, R., Q. C., Kidderminster. North Northumberland. Grey, Right Hon. Sir G., (Home Secretary,) Hayter, W. G., Q. C., Wells. how few have ever thought, for a moment, that it was their duty to watch the fatal progress of that system of dangerous and crude legislation, which for so many years has disgraced the statute book,-by which, for the most part, the remedies in courts of justice have been rendered more dif-versity. ficult, to the great perplexity and inconSPAVenience of the practitioners, and the ultimate injury of the suitors! The foremost men of the bar, supported by their brethren at large, and assisted by the intelligence and practical experience of solicitors, should have demanded a refer580 Lefevre, Right Hon. G. S., Hampshire. Romilly, John, Q. C., Devonport. |