Superior Courts: Rolls.-Vice-Chancellor.-V. C. Knight Bruce. did not appear. The motion, so far as it asked for a receiver generally, was not pressed. Mr. Kindersley and Mr. Barber, for the motion, cited Atkinson v. Henshaw, 2 Ves. & Bea. 85; Ball v. Oliver, 2 Ves. & Bea. 96; Rutherford v. Douglas, 1 Sim. & Stu. 111; Watkins v. Brent, Ĭ M. & C. 97; and Rendall v. Rendall, 1 Hare, 152, to show generally the readiness of the court to protect property pending a litigation in the Ecclesiastical Court to ascertain the parties legally entitled to dispose of it; and relied upon the length of time since the death of Sir R. Ricketts as a proof that there could be no necessity for making the proposed transfer. 463 chases of land, unless it should be shown that such investment was not a desirable one. In this case, lands had been purchased by a railway company from the trustees of the will of a William Brown, the money had been paid and was to be reinvested in the purchase of other lands on the trusts of the will. The Master had made his report, and had found that it would be desirable that the money should be invested in the purchase of two different pieces of land. The petition prayed that the report might be confirmed, that proper conveyances might be settled, and that the railattendant on the reinvestment of the money. way company might be ordered to pay the costs The words of sec. 80 of the act, after stating that it should be lawful for the court to order the costs of the investment of money in other lands to be paid by the promoters of the undertaking, were-" Provided always, that the costs of one application only for reinvestment in land Mr. Roupell and Mr. Hall, for Mr. Stratford, shall be allowed, unless it shall appear to the in whose name the stock was standing. A recent Court of Chancery in England or the Court of case of Connor v. Connor, (See 34 L. O. 420,) Exchequer in Ireland, that it is for the benefit before Lord Cottenham, was also mentioned, of the parties interested in the said monies, that where there was a suit in the Ecclesiastical the same should be invested in the purchase of Court for the recall of letters of administration, lands in different sums and at different times, in which the Lord Chancellor was said to have in which case it shall be lawful for the court, if put the parties on terms of bringing the fund it shall think fit, to order the costs of any such investments to be paid by the promoters of the undertaking.' Mr. Robson, for Lady Ricketts, one of the executors, contended that there must be proof of a bona fide intention on the part of the party instituting the suit in the Ecclesiastical Court to prosecute it before a court of equity would interfere, while in this case that proof was wanting. into court. Lord Langdale said, that unless that which had been done by the Lord Chancellor in Connor v. Connor should lead him to a dif ferent conclusion, it was his opinion that he ought not to interfere after probate had been granted, unless some circumstance could be shown to lead him to apprehend that the fund was in danger. Now, it was not pretended that if the fund was dealt with in the mode directed by the will of the testator, it would be in any danger. The plaintiff was in this position: he might possibly establish his claim; if he did so, it was possible that the conduct of the trustees might make it more difficult for him to enforce it; but if it was not shown that there was a prospect of danger to the fund, why should he interfere with the parties who at present were legally entitled to deal with it? His Lordship subsequently stated that he had inquired into the case of Connor v. Connor, and that he found that what was there done was not in any way inconsistent with the opinion he had expressed, and he should therefore refuse to interfere. The plaintiff appealed to the Lord Chancellor, who affirmed Lord Langdale's decision. Vice-Chancellor of England. RAILWAY COMPANY. INVESTMENT OF MONEY IN LAND. — CONSTRUCTION OF 8 & 9 VICT. c. 18, s. 80.-coSTS. Under the 8 & 9 Vict. c. 18, s. 50, the court | is authorized, upon an application for that purpose, in giving the costs attendant upon the investment of money in two distinct pur Mr. Osborne appeared for the trustees. Mr. Heathfield, for the railway company, urged, that the act intended one application for one investment only; here the purchase money was split, and there were two investments, and consequently two different titles to be investigated, the costs of all which would fall upon the company, and there was nothing to show that it would be for the benefit of the parties. The Vice-Chancellor said, he was of opinion that under the words of the act the court was authorized to give the costs of both purchases, unless it could be shown that the investment was not a desirable one, which had not been done in the present instance. Vice-Chancellor Knight Bruce. Munday v. Guyer. March 18, 1847. PRACTICE.—EVIDENCE.-EXAMINATION OF CO-DEFENDANT. Notwithstanding the 6 & 7 Vict. c. 85, the evidence of a co-defendant cannot be read where both defendants have exactly the same cases. THE suit was instituted for specific performance of an agreement relating to a house at New Charlton, near Woolwich. The only point of any interest arose on the tender by the defendant Guyer, of the evidence of his codefendant as a witness on his, Guyer's, behalf. The stat. 6 & 7 Vict. c. 85, s. 1, enacts, that in courts of equity one defendant may be examined on behalf of a plaintiff, or a co-defendant, saving just exceptions, and that any interest such de 464 Superior Court : V. C. Knight Bruce. - Queen's Bench. fendant so to be examined may have in the matter, or any of the matters in question in the cause, shall not be deemed to be a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect, the credit of such defendant as a witness. Mr. Russell and Mr. Pigott appeared for the plaintiff, and Mr. Bacon and Mr. Beales for the defend| ants. His Honour was of opinion, that in a case like the present, where the case of two defendants was precisely the same, one could not be examined as a witness for the other. Whatever might be the opinion of any other judge upon the proper construction to be put upon this act of parliament, he would decline to be the first judge to hold that one defendant could be examined as a witness for his co-defendant, both having the same case. Queen's Bench. (Before the Four Judges.) The Proprietors of the Cork and Bandon Railway Company v. Cazenove. T. T. 1847. INFANT SHAREHOLDER.- -RAILWAY CALLS. The plea of infancy is not of itself an answer to an action for calls on a railway company under the 8 & 9 Vict. c. 16. Quære, Whether to an action for calls, brought under that statute, any other defence can be set up than one of those mentioned in the 27th section of that act? ASSUMPSIT for seven calls. The declaration contained seven counts, one for each call, and was in the common form allowed by the 8 & 9 Vict. c. 16, (the Companies Clauses Consolidation Act,) s. 26, which enacts, "That in any action brought by the company against a share holder it shall not be necessary to set forth the special matter, but only to declare that the defendant is the holder of one share or more, and is indebted in the sum of money, &c., whereby an action hath accrued." The defendant pleaded, as to the first three counts in the declaration, that the call claimed in each of the said three counts became due while he was an infant under age, and as to the remaining four shares, that he was charged as the registered owner thereof, and that at the time he became such he was an infant under age, to wit, &c., and that since he had become of age he had not registered anew, nor done any act to make himself liable upon the original registration. Demurrer and joinder. Sir J. Bayley in support of the demurrer. This case depends on the 8 & 9 Vict. c. 16. That statute enacts, (s. 7,) that the shares shall be personal estate, and that (s. 8) every person who shall have subscribed a certain sum, and whose name shall have been entered on the register, shall be deemed a shareholder. The 21st section enacts, that such calls shall be paid when demanded, and that the word shareholder shall include his legal personal repre sentative. The 26th section gives a right of action for calls, and prescribes the form of the declaration, and the 27th section enacts, "that on the trial or hearing of such action or suit it shall be sufficient to prove that the defendant at the time of making such call was a holder of one share or more in the undertaking, and that such call was in fact made and notice thereof given; and it shall not be necessary to prove the appointment of the directors who made the call, nor any other matter whatsoever; and thereupon the company shall be entitled to recover what shall be due upon such call, with interest thereon, unless it shall appear that any such call exceeds the prescribed amount, or that due notice of such call was not given, or that the prescribed interval between two successive calls had not elapsed, or that calls amounting to more than the sum prescribed for the total amount of calls in one year had been made within that period." This section describes all that is necessary for the maintenance of the action, and all that is allowed to be set up in the defence. Infancy of the shareholder is not one of the things allowed to be set up. [Mr. Justice Coleridge. Do you mean that nothing but what is there stated could be set up as a defence?] Yes. [Mr. Justice Coleridge. Then if the defendant was a married woman, that fact could not be set up in answer to the action.] It could not. The legislature meant to make every registered shareholder liable, except in the cases there stated. It could not allow an inquiry in every case as to how a person became a shareholder. That infants might be shareholders was a fact contemplated by the statute, for the 79th section expressly declares that an infant may vote by his guardian, and that his vote may be given in person or by proxy. Mr. Crompton on the other side. Infancy is a common law defence, and cannot be taken away, except by the express words of a statute. There are no such words in this statute. It is true that this statute declares that all persons who are registered shareholders are to be liable to calls, and that in this enactment there is no exception of any particular class of persons, but the old rules of the common law must be applied to construe such an enactment. An infant in all things which stand to his benefit shall have the favour and protection of the law, and in such matters is like other men, but not in things not to his benefit. Dyer.a The same doctrine is fully enforced in Stowell v. Lord Zouche.b The Statute of Bailiffs says, that all persons who are bailiffs shall account and shall be liable to be taken in execution, yet an infant shall not be taken in execution, though he may be a bailiff. The general expressions used in the statute cannot put an end to a common law right, and the defence set up in this plea is therefore a sufficient answer to the action. Superior Courts: Queen's Bench-Analytical Digest. 465 hood three qualities of potatoes were known, 'wares, middlings, and chats," wares being the largest and best: Held, that evidence was not admissible to show that the plaintiff had in fact contracted for the sale to him of a particular kind of ware potatoes, viz., Regent's wares, whilst those offered to him by the defendant were of an inferior kind, viz., "Kidney wares." Smith v. Jeffreys, 15 M. & W. 561. DEED. See Recitals in Deed. fendant bears that character; that is not denied, but rather admitted, in the plea. But then it is said that he was an infant when he became a shareholder. That is not at all an answer to this action. If the circumstances under which he became a shareholder were such as to prevent him from making a lawful contract, or if he had on coming of age repudiated the contract, that fact should have been pleaded. But as the statute contemplates the holding of these shares by an infant, the mere plea of infancy as an answer to an action for calls is not sufficient. With respect to the calls coming due subsequent to his coming of age, his acPlace of custody.-At the trial of a feigned quiescence there sets up the whole transaction. issue to ascertain whether certain townships Mr. Justice Patteson. The general rule of composing a parish were entitled to the sepalaw in favour of infants is not now the subject rate appointment of overseers, the master of the of doubt. The question here is confined to the workhouse of the union in which the parish construction of the act of parliament which was situate produced certain bastardy bonds makes the holder of shares liable to calls upon from the year 1716, which he stated he received all the shares held by him. Then who may about four years ago, but had no knowledge be a holder of shares? Among others, a whence they came. minor may, for the 79th section expressly enables him to vote as such in a particular manner. Mr. Justice Coleridge concurred. Mr. Justice Erle. The defendant's plea shows that he had permitted his name to be on the register after he became of age. That was a ratification of his previous acquisition of his shares. Judgment for the plaintiff. ANALYTICAL DIGEST OF CASES, REPORTED IN ALL THE COURTS. Common Law Courts. ADMINISTRATOR. See Judgment of Manor Court. ADMISSIONS. Construction of notice.-In an action on a bill of exchange alleged to have been accepted by the defendant, under the style and firm of A. & Co., an order was made by consent, to admit the hand-writing of the acceptance. The notice to admit was as follows:-" Bill of exchange for 1217. 10s. drawn by the plaintiff, upon and directed to the defendants as A. & Co., and accepted by B. for the defendants as A. & Co., payable, &c., and indorsed, &c.: Held, that this admission precluded the defendants from denying the authority of B. to bind the firm of A. & Co. by such acceptance, and was not a mere admission that he signed an acceptance purporting to bind that firm. Wilkes v. Hopkins, 1 C. B. 737. See Contract. AMBIGUITY. CONTRACT. Ambiguity.-Parol evidence.-The defendant, by a written contract, agreed to sell the plaintiff 60 tons of "ware potatoes," at 57. a ton. It appeared in evidence, that in the neighbour DOCUMENTS. Held, that this evidence was properly received, the workhouse being the natural repository for such documents, and one in which it was reasonable to expect to find them. Slater v. Hodgson, 33 L. O. 189. See Inspection of Documents. ESTOPPEL. See Judgment of Manor Court. FALSE IMPRISONMENT. Special damage.-In an action of trespass and false imprisonment, where the plaintiff was committed to prison by the defendants, and expenses were incurred in an unsuccessful attempt by the plaintiff to obtain his discharge by suing out a writ of habeas corpus: Held, that, if these expenses were admissible in estimating the amount of damages, they could only be given in evidence under an allegation of special damage in the declaration. Spence v. Meynell and another, 33 L. O. 92. HEARSAY. See Secondary evidence. INSPECTION OF DOCUMENTS. abortive railway company against a provisional In an action by an allottee of shares in an committee-man to recover back the deposit, the court will order the defendant to allow the plaintiff to inspect and take a copy of the parliamentary contract and subscribers' agreement, if it appear that those documents are in the possession or control of the defendant. Stead man v. Arden, 4 D. & L. 16. Case cited in the judgment: Marrow v. Sanders, 3 Moore, 671; 1 Brod. & B. 318. JUDGMENT OF MANOR COURT. How proved.-Effect of former judgment against administrator.- Estoppel.-The judgment of a manor court in a plea of debt is sufficiently proved by production of a minute in the court books, containing entries of the pleadings, but setting forth, as to the judgment, only a form of caption, names of parties and suitors 466 Analytical Digest of Cases: Common Law Courts. of the court, and a memorandum that a venire who possessed other stock of the same descripfacias was executed, verdict found for plaintiff, tion. B., after some years, sold out all his and final judgment entered for debt and costs, stock, including the 1,000l. B. made payspecifying the amounts:-the deputy steward of the court stating that he was present at the trial, and that it was not usual to draw up a more formal judgment; and it appearing that a levari facias had issued, reciting a judgment in terms corresponding with the entry. An administrator sued in the manor court for debt due from the intestate, pleaded, no assets. Replication, that he had assets. Issue thereon, and verdict for plaintiff. Judgment was entered up, execution issued, and nulla bona returned. Plaintiff declared in debt, setting forth these proceedings, and alleging that defendant had, at the time of the recovery, assets to be administered, and had eloigned and wasted them. Plea, that, at the time of the recovery, defendant had fully administered, &c., without this, that he had eloigned or wasted, &c. Issue thereon. Held, that, on the trial of the issue, defendant could not prove that all assets which had come to his hands at the time of the former recovery had been duly administered. And that the plaintiff might take this objection without having replied the former recovery as an estoppel. Dawson v. Gregory, 7 Q. B. 756. LIMITATIONS, STATUTE OF. Payments on account within six years.-A., an attorney, being indebted to B. in several sums on bond and simple contract, bearing interest, from time to time stated accounts with B., in which he debited himself with the interest, and took credit for payments which he made from time to time, on account of B., for the rent and tithes of a farm occupied by B., and other disbursements. The latest of these accounts was stated in 1823, and a balance was struck therein in favour of B.: up to that time the rents and tithes had nearly balanced the interest, but the rents were then considerably reduced. Afterwards A., who took considerable part in the management of B.'s affairs, continued to pay the rents and tithes on B.'s account, and stated a further account with B. in writing, in which he took credit for the payment of rent and tithes, but inserted no item on the debit side. The latest account stated was in 1842. B., in 1843, sued A. for the sums due on simple contract, and interest thereon. Held, that the facts above stated were evidence for the jury, from which they might find that the payments of rent and tithes since 1823 were payments made on account of the interest due on the simple contract debts, so as to take the case out of the Statute of Limitations. Worthington v. Grimsditch, 7 Q. B. 479. Cases cited in the judgment: Ashby v. James, 11 M. & W. 542; Waugh v. Cope, 6 M. & W. 827. MONEY LENT. Evidence to support count for.-A., in 1837, transferred 1,000l. in the 4 per cents. to B., ments to A. equal to 5 per cent. upon that sum until A.'s death. After the death of A., her executor wrote to B. referring to the transaction as a loan of money. B. in reply asserted that he was employed by A. to purchase an annuity for her, and that he had done so. No purchase of an annuity was proved: Held, that there was evidence to go to the jury in support of a count for money lent. Howard v. Danbury, 2 C. B. 803. Case cited in the judgment: Harrington v. Macmorris, 5 Taunt. 228. NEGLIGENCE. 1. Improper driving.-In an action on the case for improper and negligent driving, in which the declaration alleged generally, that the injury to the plaintiff was caused by the improper and negligent driving of a horse and phaeton by the defendant; it was held competent for the plaintiff to show that the defendant drove the horse in a bit or bridle that was not suitable for the purpose. Improper driving means a neglect to possess, or to use, the requisite degree of skill or strength for the safe conduct of the horse. Hall v. Barratt, 33 L. O. 258. 2. Gas company.-A gas company incorporated by act of parliament, with the usual powers to take up pavements, &c., for the purpose of laying down and repairing mains, pipes, &c., had for some years supplied gas to a house belonging to the plaintiff; the only means of shutting it off being by a stop-cock within the house, the key of which was kept by the occupier. The last tenant, on quitting, gave notice to the company that he should not require any further supply; and one of their workmen, at his request, removed a chandelier from one of the rooms, leaving the end of the pipe properly secured. The internal fittings were the property of the plaintiff. Whilst the house remained untenanted, the gas, by some unexplained means, escaped, and an explosion took place, by which the house was considerably damaged. In case against the company, alleging a breach of duty on their part in not taking proper means to prevent the influx of the gas into the house, the judge having, upon the above facts, directed a nonsuit, the court declined to interfere. Negligence on the part of the plaintiff was held to be an admissible defence under the plea of not guilty. Holden v. Liverpool New Gas Company, 3 C. B. 1. Case cited in the judgment: Bridge v. Grand Junction Railway Company, 3 M. & W. 244; 6 Dowl. P. C. 340. NEW TRIAL. Verdict against evidence.-Rejection of evidence. The court will not grant a new trialon the ground of the verdict being against evidence, if it appear upon the notes of the trial · Analytical Digest of Cases: Common Law Courts. that evidence had been improperly rejected, which, if received, would have warranted the jury in returning the verdict sought to be set aside. REJECTION OF EVIDENCE. See New Trial. SECONDARY EVIDENCE. 467 the mas The plaintiff, in the further and better particulars of his demand, delivered under a judge's tion before removing magistrates, it was deorder, omitted all mention of a sum for which he had given the defendant credit in the particulars delivered with the declaration. At the trial, it appeared that the further particulars were alone annexed to the record; but the defendant offered in evidence the particulars in which the credit was given to him. The undersheriff having refused to receive these particulars in evidence, the jury notwithstanding found a verdict for the defendant. On motion for a new trial, on the ground of the verdict being against the evidence: Held, that the court would not grant a new trial, as the particulars tendered in evidence ought to have been received, and, if that had been done, the verdict would have been warranted. Boulton v. Pritchard, 4 D. & L. 117. NISI PRIUS, OBJECTIONS AT. See Way, right of. NOTICE TO QUIT. Proving notice by copy, without notice to produce. A written notice to quit may be proved by production of a copy, though no notice has been given to produce the original. Doe d. Fleming v. Somerton, 7 Q. B. 58. Cases cited in the judgment: Kine v. Beaumont, 2 Bro. & B. 288; Swain v. Lewis, 2 Cro. M. & R. 261; S. C. 3 Tyr. 998. NOTICE TO ADMIT. See Admissions. PAROL EVIDENCE. See Contract. POST-MARK. Semble, if the post-mark of a letter be given in evidence, it ought to be proved, either by persons from the post-office, or by persons who are in the habit of receiving letters from that post-office. Woodcock v. Houldsworth, 16 M. & W. 124. PRIVILEGED COMMUNICATION. See Slander. PRODUCTION OF DOCUMENTS. See Notice to quit. RECITALS IN A DEED. A., by a deed, in which it was recited, that he was seised in fee, mortgaged to B. in fee. Indorsed on this deed was a memorandum, signed by C., "that by an indenture of surcharge, bearing date, &c., the within premises were charged by me, the purchaser of the equity of redemption thereof, with the payment of the further sum of 3257. and interest." Held, that this amounted to an admission by C. that he came in under A., and that he was therefore bound by the recital that bound A. Doe d. Gaisford v. Stone, 3 C. B. 176. Sufficient search.-Hearsay.-On examinaposed, in order to let in secondary evidence of an indenture of apprenticeship (not parochial), that D. had possession of it after the apprentice's death, and had stated, in answer to an inquiry, that she, D., had given it to S., ter of a workhouse in which D. was an inmate ; that S. was dead, and S.'s widow had stated, in answer to inquiry, that she had searched S.'s had given up all the parish papers to an assistpapers, but could not find the indenture, and ant overseer: it was further deposed, that the said overseer, in answer to inquiry, that he had examined the papers, but did not recollect seeing the indenture, and had handed over the was proved, that this last had searched the papers to another assistant overseer: and it papers, but could not find the indenture: that the master and matron of a work house, in which D. (after the inquiry first stated) had died, stated, that no papers were found in D.'s possession at her death: that the widow of the so licitor who prepared the indenture stated, that her husband's papers were in possession of P.; and that the said papers in P.'s possession were searched, but the indenture could not be found. On this proof, the magistrates received the secondary evidence. On appeal, proof was given as above, and also direct proof of the search of the papers by S.'s widow. On this proof the sessions received the secondary evidence: Held, 1st. That the magistrates and the sessions were to judge for themselves, whether the proof of bona fide search was satisfactory, and that this court could not disturb their conclusion without seeing that it was one which they could not legitimately come to. gitimate in each case, and could not be im- Cases cited in the judgment: Rex v. Morton, 4 SLANDER. gave Privileged communication.-Evidence of express malice.-To an action for a libel the defendant pleaded not guilty, and a justification. He offered no proof of the justification, but evidence to show that the document was published under circumstances rendering it a privileged and private communication between defendant and a third party. Held, that the jury, in forming their opinion (upon the first issue) whether or not the communication was privileged, ought not to take into consideration the fact that the justification had been pleaded and abandoned. Wilson v Robinson, 7 Q. B. 68. |