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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 1,0001. B. made payspecifying the amounts :--the deputy steward ments to A. equal to 5 per cent. upon that sum of the court stating that he was present at the until A.'s death. After the death of A., her trial, and that it was not usual to draw up a executor wrote to B. referring to the transacmore formal judgment; and it appearing that a tion as a loan of money: B. in reply asserted levari facias had issued, reciting a judgment in that he was employed by A. to purchase an terms corresponding with the entry.

annuity for her, and that he had done so. No An administrator sued in the manor court purchase of an annuity was proved : Held, that for debt due from the intestate, pleaded, no there was evidence to go to the jury in support assets. Replication, that he had assets. Issue of a count for money lent. Howard v. Danbury, thereon, and verdict for plaintiff. Judgment 2 C. B, 803. was entered up, execution issued, and nulla

Case cited in the judgment: Harrington v. Mac. bona returned. Plaintiff declared in debt,

morris, 5 Taunt. 228. setting forth these proceedings, and alleging that defendant had, at the time of the recovery,

NEGLIGENCE. assets to be administered, and had eloigned 1. Improper driving.-In an action on the and wasted them. Plea, that, at the time of the case for improper and negligent driving, in recovery, defendant had fully administered, &c., which the declaration alleged generally, that without this, that he had eloigned or wasted, the injury to the plaintiff was caused by the &c. Issue thereon. Held, that, on the trial of improper and negligent driving of a horse and the issue, defendant could not prove that all phaeton by the defendant; it was held comassets which had come to his hands at the time petent for the plaintiff to show that the defendof the former recovery had been duly adminis- ant drove the horse in a bit or bridle that was tered. And that the plaintiff might take this not suitable for the purpose. objection without having replied ihe former re- Improper driving means a neglect to possess, covery as an estoppel. Dawson v. Gregory, 7 or to use, the requisite degree of skill or Q. B. 756.

strength for the safe conduct of the horse.

Hall v. Barratt, 33 L. 0. 258.
LIMITATIONS, STATUTE OF.

2. Gas company.-A gas company incorpoPayments on account within six years.-A., rated by act of parliament, with the usual an attorney, being indebted to B. in several powers to take up pavements, &c., for the pursums on bond and simple contract, bearing pose of laying down and repairing mains, pipes, interest, from time to time stated accounts with &c., had for some years supplied gas to a house B., in which he debited himself with the in- belonging to the plaintiff'; the only means of terest, and took credit for payments which he shutting it off being by a stop-cock within the made from time to time, on account of B., for house, the key of which was kept by the octhe rent and tithes of a farm occupied by B., cupier. The last tenant, on quitting, gave and other disbursements. The latest of these notice to the company that he should not reaccounts was stated in 1823, and a balance quire any further supply ; and one of their was struck therein in favour of B.: up to that workmen, at his request, removed a chandelier time the rents and tithes had nearly balanced from one of the rooms, leaving the end of the the interest, but the rents were then con- pipe properly secured. The internal fittings siderably reduced. Afterwards A., who took were the property of the plaintiff. Whilst the considerable part in the management of B.'s house remained untenanted, the gas, by some affairs, continued to pay the rents and tithes unexplained means, escaped, and an explosion on B.'s account, and stated a further account took place, by which the house was consiwith B. in writing, in which he took credit for derably damaged. the payment of rent and tithes, but inserted no In case against the company, alleging a item on the debit side. The latest account breach of duty on their part in not taking stated was in 1842. B., in 1843, sued A. for proper means to prevent the influx of the gas the sums due on simple contract, and interest into the house, the judge having, upon the thereon.

above facts, directed a nonsuit, the court de Held, that the facts above stated were evi- clined to interfere. dence for the jury, from which they might find Negligence on the part of the plaintiff was that the payments of rent and tithes since 1823 held to be an admissible defence under the plea were payments made on account of the interest of not guilty. Holden v. Liverpool New Gas due on the simple contract debts, so as to take Company, 3 C. B. 1. the case out of the Statute of Limitations. Worthington v. Grimsditch, 7 Q. B. 479.

Case cited in the judgment : Bridge v. Grand

Junction Railway Company, 3 M. & W. 244; Cases cited in the judgment: Ashby v. James,

6 Dow). P. C. 340. 11 M. & W. 542 ; Waugh v.

Cope, 6 M. & W. 827.

Verdict ugainst evidence.-- Rejection of evi

dence.—'The court will not grant a new trial Evidence to support count for.-A., in 1837, on the ground of the verdict being against evitransferred 1,0001. in the 4 per cents. to B., dence, if it appear upon the notes of the trial

NEW TRIAL.

MONEY LENT.

!

REJECTION OF EVIDENCE.

Analytical Digest of Cases : Common Law Courts.

467 that evidence had been' improperly rejected, which, if received, would have warranted the

See New Trial.
jury in returning the verdict sought to be set
aside.

SECONDARY EVIDENCE.
The plaintiff, in the further and better par-

Sufficient search.- Hearsay.-On examinaticulars of his demand, delivered under a judge's tion before removing magistrates, it was deorder, omitted all mention of a sum for which posed, in order to let in secondary evidence of he bad given the defendant credit in the par- an indenture of apprenticeship (not parochial), ticulars delivered with the declaration. At the that D. had possession of it after the apprentrial, it appeared that the further particulars tice's death, and had stated, in answer to an inwere alone annexed to the record; but the de- quiry, that she, D., had given it to S., the masfendant offered in evidence the particulars in ter of a workhouse in which D. was an inmate ; which the credit was given to him. The under that S. was dead, and S.'s widow had stated, in sheriff having refused to receive these particu, answer to inquiry, that she had searched S.'s lars in evidence, the jury notwithstanding found papers, but could not find the indenture, and a verdict for the defendant. On motion for a had given up all the parish papers to an assistnew trial, on the ground of the verdict being ant overseer: it was further deposed, that the against the evidence: Held, that the court said overseer, in answer to inquiry, that he had would not grant a new trial, as the particulars examined the papers, but did not recollect seetendered in evidence ought to have been re- ing the indenture, and had handed over the ceived, and, if that had been done, the verdict papers to another assistant overseer : and it would have been warranted. Boulton v. Pritch- was proved, that this last had searched the ard, 4 D. & L. 117.

papers, but could not find the indenture : that NISI PRIUS, OBJECTIONS AT.

the master and matron of a work house, in which

D. (after the inquiry first stated) had died, See Way, right of.

stated, that no papers were found in D.'s pos

session at her death : that the widow of the soProving notice by copy, without notice to pro- licitor who prepared the indenture stated, that duce.- A written notice to quit may be proved her husband's papers were in possession of P.; by production of a copy, though no notice has and that the said papers in P.'s possession been given to produce the original. Doe d. were searched, but the indenture could not be Fleming v. Somerton, 7 Q. B. 58.

found. On this proof, the magistrates received

the secondary evidence. On appeal, proof was Cases cited in the judgment: Kine v. Beaumont, 2 Bro. & B. 288; Swain v. Lewis, 2 Cro. M. given as above, and also direct proof of the & R. 261; S. C. 3 Tyr. 998.

search of the papers by S.'s widow.

On this proof the sessions received the se

condary evidence : Held, See Admissions.

1st. That the magistrates and the sessions were to judge for themselves, whether the proof

of bona fide search was satisfactory, and that See Contract.

this court could not disturb their conclusion without seeing that it was one which they could

not legitimately come to. Semble, if the post-mark of a letter be given in evidence, it ought to be proved, either by gitimate in each case, and could not be im

2ndly. That the conclusion here appeared lepersons from the post-office, or by persons are in the habit of receiving letters from that peached as derived in part from hearsay evi

dence. Reg. v. Inhabitants of Kenilworth, 7 post-office. Woodcock v. Houldsworth, 16 M.

Q. B. 642. & W. 124.

Cases cited in the judgment: Rex v. Morton, 4

M. & S. 48 ; Rex v. Denis, 7 B. & C. 620;
See Slander.

Bishop of Meath v. Marquis of Westminster, 3
N. C. 183, 200.

NOTICE TO QUIT.

NOTICE TO ADMIT.

PAROL EVIDENCE.

POST-MARK.

PRIVILEGED COMMUNICATION,

PRODUCTION OF DOCUMENTS.

SLANDER.

RECITALS IN A DEED.

See Notice to quit.

Privileged communication.- Evidence of er.

press malice.-To an action for a libel the deA., by a deed, in which it was recited, that fendant pleaded not guilty, and a justification. he was seised in fee, mortgaged to B. in fee. He offered no proof of the justification, but gave Indorsed on this deed was a memorandum, evidence to show that the document was pubsigned by C., "that by an indenture of sur- lished under circumstances rendering it a pricharge, bearing date, &c., the within premises vileged and private communication between were charged by me, the purchaser of the equity defendant and a third party. of redemplion thereof, with the payment of the Held, that the jury, in forming their opinion further sum of 3251. and interest."

(upon the first issue) whether or not the comHeld, that this amounted to an admission munication was privileged, ought not to take by C. that he came in under A., and that he into consideration the fact that the justification was therefore bound by the recital that bound had been pleaded and abandoned. Wilson v A. Doe d. Gaisford v. Stone, 3 C. B. 176. Robinson, 7 Q. B. 68.

468

Analytical Digest of Cases.-Editor's Letter Box.

MATERIAL EVI

UNDERTAKING TO GIVE

DENCE.

THE EDITOR'S LETTER BOX.

VERDICT AGAINST EVIDENCE.

1. A letter written and posted in county A., and addressed to, and received by, the plaintiff will be further enlarged, in order to increase

The next volume of the Legal Observer in county B., whereby the defendant admits a part of the debt claimed in the action, is evi- the number and value of the REPORTS OF Redence sufficient to satisfy the plaintiff's under- cent DecisIONS, without curtailing any of taking to give material evidence in county A. the Original Articles, or select Information, for Hall v. Story, 16 M. & W. 63.

2. In an action for goods sold, the plaintiff, which the Work has been distinguished. We who was bound by an undertaking to give trust, indeed, to improve also the scope of our material evidence in the county of Durham, original disquisitions. gave in evidence a letter written by the defend

In carrying this improvement into effect, and ant, admitting part of the claim, which letter was posted in Durham and received in York- to enable the Reports of Cases and other Court shire. Held, sufficient to satisfy the under-business to be collected together and readily taking. Hall v. Storey, 4 D. & L. 345. referred to the work will be divided into two Case cited in the judgment: Gilling v. Dugan, 1 parts. C. B. 8.

The 1st Part, containing original articles on.

all projected alterations in the Law and PracSee New Trial.

tice;—the state of the Profession and measures

for its improvement ;-New Statutes, with exWAY, RIGHT OF. Evidence of agreement to explain acts of re- planatory. notes and disquisitions on their conpair.-Objections at nisi prius. -Defendant, at struction ;-Parliamentary Bills, Reports and nisi prius, to prove a public right of way over Returns:-Notes or Commentaries on importplaintiff's land, showed acts of repair done in a ant Decisions in Cominon Law, Equity, and certain year by C., the township surveyor: Conveyancing :-the Law of Railways, InsurPlaintiff offered to prove in answer an agreement made in that year, between C. and the ance, and other Joint Stock Companies :-Resteward of plaintiff's predecessor, that C., in view of New Books :- The Law of Attorneys consideration of repayment by the steward, and Costs, and the Examination of Articled should repair a road, which, according to plain

Clerks : tiffs case, was the road now in question. De

Proceedings of Law Societies : fendant's counsel objected, because it did not Legal Biography ; Correspondence ; Profesappear that the steward, in that character, had sional Lists, &c. authority to make such agreement. The judge The 2nd Part containing original and early received the evidence, which was not further Reports of every important Decision in all the objected to; and plaintiff had a verdict.

On a motion for a new trial, on account of the Superior Courts, by Barristers of the several improper reception of evidence, the former ob- Courts :-New Rules and Orders of Court;jection was renewed, and it was argued, also, an Analytical Digest of all Reported Cases in that the evidence, when given, did not show all the Courts -- classified according to the that the road to which the agreement related i was the same as that now in question.

leading subjects adjudicated upon; - Cause Held, 1. That (assuming the roads to be Lists ;-Circuits ;-Sittings; and every other identified) the agreement, even if the steward information relating to the business of all the had no sufficient authority, was evidence to

courts. explain the fact of repair, and was properly admitted.

The price will remain the same as at present, 2. That, if the evidence failed to identify the viz. : 8d., or stamped 9d. roads, that objection should have been made at nisi prius, when the defect appeared, and the A correspondent at Birmingham refers judge should have been requested to strike the “ Tacitum” to the 6th section of the New evidence out of his notes, and that point could County Courts Act, which repeals the 8 & 9 not now be raised. Ferrand v. Milligan, 7 Vict. c. 127, and every other act, &c. so far as Q. B. 730.

the same affect or relate to the jurisdiction, &c.

of that court or give jurisdiction to any other Commission to examine.- Upon a motion, on court, &c.; sect. 7 provides for proceedings the part of the defendants, for a commission to commenced previously to the passing of the examine witnesses abroad, it was required that act, and the sects. 98 and 99, for unsettled it should appear to the satisfaction of the judgments, &c. in courts holden by virtue of court, upon an affidavit from their attorney, that act, or under any act repealed by that act, that the evidence of the witnesses proposed to for the payment of any debt, &c. be examined was material and necessary to the

"The letter from Rochester shall be inserted. defence of the action. Healy v. Young, 2 C. B.

We will endeavour to procure a fuller report 702.

of the case of Richard v. Kingdon, 33 L. 0.477.

WITNESSES.

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PRIVILEGE OF MEMBERS OF PAR-I been on this occasion at chambers, and LIAMENT FROM ARREST. that its determination was founded on

something more solid and satisfactorythan This subject, which was discussed in a mentaries a work which with all its merit

a vague passage from Blackstone's Comformer number,a as a question of law, has cannot be regarded as the most precise or subsequently, as it might readily have bun accurate legal authority. anticipated it would have done, bes:

Concurring with tlose, however, who brought under the consideration of one of desire to see our legislative institutions rethe learned judges sitting at chambers, as

spected as well as powerful, we should a matter of judicial decision. Mr. Thomas Duncombe, one of the greatly prefer finding the question set at

rest for ever, by the voluntary relinquishmembers for the Borough of Finsbury, ment of a privilege which the altered cirwhilst sojourning in Yorkshire, was ar-cumstances of society no longer renders rested under a writ of capias, addressed to necessary for the preservation of parliathe sheriff of that county, on the 3rd of mentary independence. That the abanSeptember, and applied to Mr. Justice donment of such an odious distinction Williams, the sitting judge at chambers, to would be expedient, can scarcely be denied be discharged, on the ground that he was by those who agree with us in consid-ring exempted from arrest by reason of his that its assertion never fails to refleci disprivilege as a member of parliament. The credit not only on the individual who authorities to which our readers' attention

resorts to such a protection from the ascerhave already been directed were nearly all tained claims of a creditor, but also upon brought under the notice of the learned the body who struggle to maintain an judge, who finally made an order for the exemption from the operation of laws discharge of the defendant from custody, the pressure of which is seldom complained upon condition that no action should be of by any but the improvident and disbrought for the arrest.

honest. As we ventured to intimate, the extent

It will be recollected that in the session of the privilege is involved in some doubt, before the last, a bill was introduced by and in such a case the learned judge was Lord Brougham on this subject; and clearly justified in deciding in favour of doubtless it will be again brought forward. liberty. The learned judge's order, how. We shall, therefore, in our next number, ever, may become the subject of an appeal while the matter is before the public, to the court in which the action is dependenter somewhat at length into the general ing, in Michaelmas Term, and we confess policy of the question. we should be glad the question was more

INTE fully discussed than it appears to have

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* See ante, p. 336. Vol. XXXIV. No. 1,019.

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470

Vacation Fees upon Issuing Fiats in Bankruptcy. VACATION FEES UPON ISSUING |ject of the Bankruptcy Laws,-the equal FIATS IN BANKUPTCY. distribution of the bankrupt's property

amongst all his creditors. A fiat sued out A REPORT has gone the round of the at the instant, is frequently the only means morning papers, of a statement alleged to the law provides, by which an importunate have been made by Mr. Lloyd, of Milk or a well-informed creditor is prevented Street, as to the expense of obtaining the from protecting himself from loss at the Lord Chancellor's signature to a fiat in expense of all the other creditors, by bankruptcy, which, we understand, is in- sweeping away the entire property of a correct, and which we have been requested trader. Judgments may be signed and to notice

executions issued, as well during the long Mr. Lloyd is erroneously supposed to vacation as at other periods of the year. It have stated that he had paid a sum of is only reasonable, therefore, that the ma141. 14s. for obtaining the Chancellor's chinery by which the Bankrupt Laws are signature to a fiat issued at the instance of put into operation should be equally aca bankrupt, upon a declaration of Insol- cessible at every period. vency. We understand the fact to have No one could desire that the Lord Chanbeen, that Mr. Lloyd stated he paid the cellor, who needs relaxation at least as sum of 12s. 6d., being his proportion of much as any other member of the profesthe expenses of a journey to obtain the sion, should remain in town during the long Chancellor's signature, in addition to the vacation, merely to affix his signature to ordinary fees paid upon the issue of a fiat, fiats in bankruptcy. Means might readily which, we believe, amount to 11. 12s. 6d. be devised by which a direct personal apin the first instance, and a further sum of plication to his lordship in such case could 81. 78. 6d., making together the 101. re- be dispensed with. By analogy to the quired by the stat. 6 Geo. 4, c. 16, s. 4. practice of the Common Law Courts, it is

The additional sum of 141. 148. would now understood, that one of the equity have amounted in certain cases to a positive judges remains in London or its neighbourprohibition. It greatly exceeds the com- hood during the long vacation, to attend to pensation allowed to a solicitor in many applications that do not admit of postponeinstances for his personal exertions in ment. The vacation judge might surely working a fiat from first to last. We were be entrusted with the charge of signing quite sure, even before we made the in- fiats, which, we apprehend, is a mere quiry, that there must have been an error ministerial duty, when the preliminary in the statement: it would have been forms have been complied with and are perfectly monstrous to impose a tax of regular. such magnitude either on a bankrupt de- At all events, we are satisfied that the siring to divide the remnant of his estate attention which has now been directed to amongst his creditors, or upon creditors the subject, will prevent the establishment suing out a fiat with the view of adminis- of an objectionable practice. When the tering a bankrupt estate. The payment of emoluments of professional men have been even so small a sum as 12s. 6d., in addition reduced to so low a scale, as to render it to the usual fees, however, we consider questionable to some persons, whether the objectionable in principle. Those who profession can continue to be conducted inpractise in the Court of Bankruptcy com-dependently, it is certainly not the time plain, not without some show of reason, for imposing an additional burthen on that they have no vacation. A commis- suitors by the creation of new official fees sioner sits in that court six days in every of any amount. The reduction, if not the week, all the year round, for the purpose total abolition, of official fees, is one of the of opening fiats, hearing cause shown objects to which all who are sincerely deagainst summonses served trader sirous of seeing the profession placed on a debtors, considering the sufficiency of better footing might advantageously direct bonds entered into under the statute 1 & 2 their efforts. Vict. c. 110, s. 8, and disposing of other We ought perhaps to add, that it is only business of a peremptory nature.

when a fiat issues upon a bankrupt's own The urgency and uncertainty of com-petition, under the 7 & 8 Vict. c. 96, that mercial transactions renders this continu- the Chancellor's signature is necessary. In ous attention to the affairs of a bankrupt ordinary cases, the fiat is signed by one of more than expedient. It is indispensable the masters. to effectuate that which is the great ob

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