Buperior Courts: Lord Chancellor.-Rolls.

613

so proceeded, the defendant obtained the order ones. For this purpose a bill for £4,000, which he now sought to make absolute. The drawn on Messrs. Barclay and Co. in London, Vice-Chancellor had refused this motion upon and payable seven days after sight, was transthe grounds that the common law clerk of the mitted on the 6th of August, 1842, to Mr. plaintiff's solicitor had made a slip in the Knightly, by whom it was indorsed and forpractice by not giving notice of trial in time, warded to Mr. Howard, with directions also alleging that he was unaware of the order to indorse it and forward it to Messrs. Barlastly obtained by the defendant, and upon the clay and Co. in London. Mr. Howard regrounds that the plaintiff had used every en-ceived the bill on the 16th of August, and on ⚫deavour to rectify the mistake by immediately the same day gave it to a Mr. Ridler, the applying to a judge at chambers for leave to managing officer of the Cheltenham and Glouenter the issue nunc pro tunc, which could not be obtained in consequence of the defendant's refusal to consent, notwithstanding the plaintiff's offer to defray all expenses. They cited the case of Casborne v. Barsham, 5 Myl. & Cr. 113, the principle of which was recognised by the Master of the Rolls in the case of Hargrave v. Hargrave, 8 Beav. 289. Subsequently to the Vice-Chancellor's refusal of the defendant's motion, his Honour had granted liberty to the plaintiff to proceed to a new trial of the said issue at the sittings after Michaelmas Term next.

cester Banking Company. The bill became due on the 23rd, and the proceeds were then carried to the private account of Mr. Howard. On the 29th Mr. Howard and Mr. Knightly sent an order to Mr. Ridler to invest the proceeds of the bill in the names of the new trustees. At the time when the bill was originally given by Howard to Ridler, Howard had a credit given him by the bank for upwards of £1,500; but this credit rested upon a bill accepted by Howard; in the interval between the 16th and 29th, bills to the amount of £700, accepted also by Mr. Howard, were The Lord Chancellor, without hearing Mr. dishonoured, and there were at that time Bethell and Mr. Schomberg, who appeared for known to be bills to a considerable amount the plaintiff, said, that the present case was accepted by Howard and soon to become due. very much opposed to that of Casborne v. Under these circumstances, suspicion as to Barsham (supra), where it was evident the Mr. Howard's solvency was aroused at the plaintiff did not intend to go to trial. Here bank, and Mr. Ridler replied to the order of the plaintiff was anxious to proceed, and the Messrs. Knightly and Howard, that he could defendant wished to take advantage of a slip. not allow Mr. Howard to draw out the proNow the court would always relieve where ceeds of the bill until the overdue bills were such slip could be satisfactorily accounted for. paid. Mr. Howard subsequently proved un、 Undoubtedly there had been here great igno- able to meet his liabilities to the bank. The rance or negligence, but as soon as the error present bill was filed by the new trustees to was discovered, every step was taken to re-recover the amount against Mr. Howard, and medy it. The motion must be refused with

costs.

Rolls Court.

Hawks v. Howard. July 22 & 23, 1847. BREACH OF TRUST. ANSWER TO DEFEND

ANT.- -INQUIRY.

the bank, whom it was sought to make responsible for the proceeds, upon the ground that Mr. Ridler, at the time when the bill was given to him, knew that it was trust property. Mr. Ridler positively denied the knowledge thus imputed to him. He admitted, however, the following circumstances, which it was contended raised a sufficiently suspicious case against him to justify inquiry. These circum

The answer of a trustee, who had handed stances were:-That Howard had asked Ridover a trust fund to a co-defendant in ler to take charge of the bill for hin; that he the suit, by whom it had been applied to knew Knightly to be a clergyman, and theredischarge liabilities of the trustee to him-fore that it was unlikely that a bill which reself, is not admissible for the purpose of quired to be indorsed by him and Mr. Howard raising a case for inquiry as to whether should be Mr. Howard's own money, and that the co-defendant had not notice of the he had afterwards said that a great deal of the money in the hands of attorneys was the money of other people, not their own.

trust.

THIS was a suit to recover a trust fund under the following circumstances. The fund Mr. Howard, by his answer, stated that he originally consisted of a promissory note dated had distinctly communicated the fact of the the 16th of August, 1838, and payable four bill being trust property to Mr. Ridler at the years after date. The trustees were Mr. time of giving up the bill to him, and that it Knightly, a clergyman resident in Warwick-was carried to his account at the advice of Mr. shire, and Mr. Howard, a solicitor, practising Ridler, and only to prevent the inconvenience at Cheltenham. Shortly before the time when of having to get Mr. Knightly's order for the the note became payable, an intention was formed of changing the trustees; but as the change had not been completed at the time when the note became due, it was determined that the money should be received by the old ttrustees, and by them paid over to the new

subsequent investment of its proceeds, which was so soon to take place. Mr. Howard could not be examined as a witness in the cause, because the right of the plaintiff against the bank depended upon his remedy over against Mr. Howard, who was therefore an indispen

614

Superior Courts: Rolls.-Exchequer.-Bankruptcy.

sable party to the suit. But the plaintiffs urged that the contradiction of the two answers was a sufficient reason for the court to direct an issue to try the fact of whether or not the bank had notice of the trust at the time when the note was deposited.

Mr. Turner and Mr. Goodeve for the plain

tiffs.

Mr. Kindersley and Mr. Smyth for Mr. Howard.

Mr. Roupell and Mr. Heathfield for the bank.

order of Bosanquet and Co., for £379 10s., being the price of the bark. The plaintiffs, upon the offer of a del credere commission, accepted the bill. On the arrival of the bark, Thompson found that it was inferior to the sample, and refused to accept it. The plaintiffs having been called on to pay the amount of the bill of exchange, brought the present action to recover from the defendant the amount so paid. The learned judge left it to the jury to say whether the bark corresponded with the sample, and they found it did not, and returned a verdict for the plaintiffs for the amount of the bill. A rule nisi having been obtained to enter a nonsuit on the ground that the action was not maintainable against the defendant,

Lord Langdale, after stating the facts of the case, said that the plaintiff was under great difficulty in establishing his case against the bank; the answer of Mr. Howard had been drawn to his notice, but that answer could not be read against a co-defendant. There were Gurney and Baddeley showed cause. The indeed cases where the answer of one defend- consideration upon which the plaintiffs acant might have an effect against another; but cepted the bill having failed, they are entitled it could not be read as evidence against him. to recover the amount as money paid to the The defendants, therefore, were obliged to re- defendant's use. It is said that there is no sort to the answer of Ridler, and though they privity between the plaintiffs and the deseemed to admit that they could not succeed fendant, and that the plaintiffs ought to have on Ridler's answer alone, said that Ridler's sued Thompson, but the fact of the bill having answer disclosed such a case, as with the been accepted by the plaintiffs at the request statements on Howard's answer would induce of the defendant is sufficient to enable them the court to direct an inquiry. His lordship to maintain this action. then examined the admissions above stated on Ridler's answer, and ended by directing the bill to be dismissed as against the bank.

Exchequer.

•Hooper v. Treffry. Trinity Term, May 25, 1847.

MONEY PAID. FAILURE OF CONSIDERA

TION.-BILL OF EXCHANGE.

Crowder in support of the rule. The action is improperly brought against the defendant. Thompson is the person who is liable to repay the plaintiff, and he could then recover the amount so paid as special damage in an action against the defendant for his breach of contract. Between the plaintiffs and defendant there is no privity whatever.

Pollock, C. B. The rule must be discharged. The bill was drawn by the defendant and accepted by the plaintiffs at the defendant's request. That is sufficient to create a privity between them. The bark turned out to be inferior to the sample, and Thompson in consequence repudiated the contract, so that the consideration upon which the plaintiffs ac

The defendant having some bark to dispose of, applied to the plaintiffs to find him a purchaser. The plaintiff's showed a sample to T., who agreed to purchase the bark at £7 per ton, provided it was equal to sample. The defendant shipped the bark, sent the plaintiff's the invoice, and request-cepted the bill wholly failed, and as they were ed them to accept a bill of exchange for compelled to pay it when due, they are enthe price of the bark. The plaintiffs at- entitled to recover back the amount as money cepted the bill upon a del credere commis- paid to the defendant's use. sion. The bark was found inferior to sample, and T. repudiated the contract. The plaintiff's having paid the bill of exchange when due: Held, that they were entitled to recover the amount of money paid for the defendant's use.

Assumpsit for money paid.-Plea non assumpsit.

Ar the trial before the Lord Chief Baron, it appeared that the defendant, having some bark to dispose of, applied to the plaintiffs, who were bark and leather factors, to find him a purchaser. The plaintiff's showed a sample to one Thompson, a dealer in bark, at Edinburgh, who agreed to purchase the bark at £7 per ton, provided it was equal to sample. The defendant shipped the bark, and sent the plaintiffs the invoice of it, and requested them to accept a bill of exchange, payable to the

Alderson, Rolfe, and Platt concurred.
Rule discharged.

Bankruptcy.

In re Glover. 20th October, 1847. TRADER DEBTOR'S SUMMONS UNDER 1 & 2 VICT., c. 110.-PRACTICE.-SUFFICIENCY

OF NOTICE.-SUFFICIENCY OF BOND.

A notice accompanying affidavits of suffi ciency by sureties need not state that the sureties are housekeepers or freeholders. When a bond proposed to be given under the stat. 1 & 2 Vict., 110, in addition to the ordinary condition prescribed by the statute, contained the words, or shall be released by the plaintiff in such action:" Held, that these words were surplusage, and did not invalidate the bond.

THE trader (Glover) was served with a copy

Superior Courts: Court of Bankruptcy-Analytical Digest.

of affidavit filed in this court, and a notice requiring immediate payment of a debt, pursuant to the 1 & 2 Vict., c. 110, s. 8, and proposed to enter into a bond with two sureties. The debtor gave notice of his intention to present such bond to the commissioner for his approval this day, which notice was accompanied by office copies of affidavits of sufficiency by the sureties in the usual form. The bond being submitted to Mr. Commissioner Evans for his approval,

Mr. Commissioner Evans, without calling on the debtor's solicitor, said, I am not disposed to give effect to an objection like that taken to the notice of sureties, unless I felt constrained to do so by some authority. The rules of the common law courts, in matters of bail, are not binding in this court in reference to trader debtors' summonses, and no rules have been framed by the commissioners of this court under the statute 1 & 2 Vict., c. 110. I do not think the omission of the word " housekeeper" in the notice of sureties material. As to the second objection, the bond contains the condition required by the act of parliament. Some other words are added which do not abridge the liability of the principal or his sureties, and may be treated as surplusage. If there is no objection to the sufficiency of the sureties, I shall approve of the bond.

The solicitor for the summoning creditor said, he was not prepared to deny that the sureties were sufficient.

Mr. Commissioner Evans. Then I approve of the bond.

Upon the execution of a writ of inquiry directed to the sheriff in an action for a malicious

prosecution, in which the damages are under 40s., a certificate under the stat. 3 & 4 W. 4, C. 24, s. 2, to entitle the plaintiff to costs, should be signed by the under-sheriff in the name of the sheriff, and not in his own name. Stroud v. Watts, 2 C. B. 929.

616

Analytical Digest of Cases: Common Law Courts.

of issue.-In Common Pleas the signature of counsel to the pleadings need not appear on the issue delivered.

An issue in a cause to be tried before the sheriff pursuant to the stat. 3 & 4 W. 4, c. 42, s. 17, delivered with a blank for the teste of the writ of trial, is defective. The defendant should apply to a judge at chambers to amend the issue at the plaintiff's expense. It is no ground of objection, that a blank is left for the return of the writ of trial. Jefferies v. Yablouski, 2 C. B. 924.

JUDGES' NOtes.

Sheriffs' Court.-This court cannot aid a party in obtaining a copy of the notes taken at a trial.

An application for a rule that a defendant might be furnished with a copy of the notes taken by the judge of the Sheriffs of London's Court on a former trial between the same parties, was refused. Parkhurst v. Gosden, 2 C. B. 894.

JUDGE'S ORDER.

1. Rule of Court.-A motion to make a judge's order a rule of court, and for the costs of the application, is absolute in the first instance, if made upon the affidavit required by Reg. Gen. T. T. 3 Vict. Black v. Lowe, 4 D. & L. 285.

2. Judgment.-Attestation of consent. The "orders of the judges" of 12th June, 1845, printed ante, vol. 14, p. 335, is not a rule of court, but a mere regulation for the guidance of the judges at chambers; and, therefore, where a judge's order for judgment had been obtained on a written consent, signed by a defendant, and attested by an attorney acting also for the plaintiff, the court refused to set aside the order and judgment signed thereon. Dixon v. Sleddon, 15 M. & W. 427.

And see Arrest, 1.

JUDGMENT AS IN CASE OF NONSUIT.

A defendant is entitled to move for judgmeut as in case of a nonsuit, although the cause, on being called on for trial, was struck out of the list in consequence of neither plaintiff nor defendant appearing. Allott v. Bearcroft, 4 D. &

L. 327.

MANDAMUS.

tice of appeal, the justices had dismissed the appeal, subject to a special case, or a motion for a mandamus: Held, that the applicant was not too late in applying, in the Easter Term following, for a mandamus to hear the appeal Reg. v. Justices of Cheshire, 4 D. & L. 94. Cases cited in the judgment: Rex v. Justices of Pembrokeshire, 2 B. & Ad. 391; Reg.v.Justices of the West Riding of Yorkshire, 1 G. & D. 706; 2 Q. B. 505.

3. Shareholder in a bridge. Poor-rate. — Commissioners were appointed by statute for building a bridge, the tolls to be vested in them, with power to contract for the building and repairs, and to convey the tolls to the parties with whom they contracted, charged with certain payments. The commissioners contracted accordingly with certain subscribers, who agreed to build and repair the bridge; and the commissioners agreed, when the bridge should be built, to convey over in perpetuity all the tolls, &c. to the subscribers, their executors, &c., to hold as tenants in common and not as joint tenants, or as such subscribers should appoint.

The bridge being built, the commissioners by indenture reciting the contract, assigned to the trustees in fee the bridge and tolls, upon trust to permit and suffer the subscribers, their heirs and assigns, to take the tolls, and to have the sole management thereof, and to appoint receivers, &c., on condition that the subscribers should make certain annual and other payments, keep the bridge in repair, pay salaries, &c., and should in the last place, yearly for ever, share all the residue of the tolls, &c. among the subscribers for the time being, and their respective heirs and assigns, proportionably to their several shares and interests, as tenants in common and not as joint tenants. Proviso, that if the trustees, their heirs and assigns, should adjudge that the subscribers had made default in the payments, &c., they should not, during such default, be permitted to retees should receive and manage the same, and ceive or solely manage the tolls, but the trusdo whatever the subscribers were required to do.

tolls, which were taken, in part, at a toll-house The subscribers entered into receipt of the at one end of the bridge, in the parish of Putney. H. C. was proprietor of a small share, 1. A parish clerk was dismissed from his and was clerk to the subscribers, but was not office on a charge of misconduct by the incum-appointed to represent them in any other manbent in Nov. 1841, who died in the year 1844. ner; nor was he an inhabitant of Putney. In The clerk made written applications to the in- a poor-rate for that parish, he and many other cumbent in the year 1843 and 1845, but could persons were assessed together as owners and obtain no answer. A rule nisi for a mandamus to the incumbent to restore him to the office was obtained in January last, and it was stated on the affidavits that the poverty of the applicant was the reason why an earlier application had not been made.

Held, that under the facts of this case, the application for a mandamus was not made to the court in proper time. The Queen v. Gifford, 34 L. O. 228.

occupiers of part of the bridge, which was situate in Putney. H. C. did not appeal; and being summoned before a justice of one of the metropolitan police courts, disputed his liability, and contended that some persons were improperly inserted in the assessment, and (as the fact was) that some proprietors were omitted. The justices declined issuing a distress warrant.

This court granted a mandamus, calling upon the justice to issue such warrant.

Held, by Lord Denman, C. J., and Patteson, J., that H. C. might be distrained upon for

Analytical Digest of Cases: Common Law Courts,

the rate, and must obtain contribution as he could from the said subscribers. By Williams and Wightman, J.'s that H. C. was at all events liable for some portion of the rate, and not having appealed, could not now contend that he was rated for too much, or that other persons were improperly joined with him as subscribers, or omitted. Reg. v. Paynter, 7 Q. B. 255.

MARRIED WOMAN..

See Execution, 3.

MISDIRECTION.

617

of the late tenant for life, on the ground that
the lease was granted under a power not pro-
perly executed, the court will, on motion, order
the lessor of the plaintiff to give particulars of
the alleged defects in the execution. Doe d.
Lord Egremont v. Williams, 7 Q. B. 686.
See Ejectment, 3.

PAUPER

1. Misconduct in suit.-A., suing in formá pauperis, neglects to proceed to trial pursuant to notice, the defendant is entitled to the costs of the day, under the rule of H. 2 W. 4, r. 110, but not to dispauper A.

Notice of trial having been given and the cause entered, 4.'s attorney's clerk was, by a blunder in issuing the jury process, prevented from passing the record in due time. court ordered A. to pay the costs of the day. Hodges v. Toplis, 2 C. B. 921.

The

Arrest.-New trial.-In case for maliciously, and without reasonable or probable cause, causing the plaintiff to be arrested on a capias under the stat. 1 & 2 Vict. c. 110, s. 3, the order for which had been obtained upon an affidavit not fairly disclosing the nature of the contract, for the alleged breach of which the 2. Release.-Lateness of motion:-A plaintiff and after action defendants were suing, the judge having stated sued in formá pauperis, that, in his opinion, the plaintiff had failed to brought, executed a release to the defendants; make out a want of reasonable and probable the release having been pleaded puis darrien cause, told the jury that, to entitle the plaintiff continuance, the court set it aside on the applito a verdict, they must be satisfied that there cation of the plaintiff's attorney. was a total want of reasonable and probable cause, and that the defendants had acted with malice: Held, a misdirection. Gibbons v. Alison, 3 C. B. 181.

OUTLAWRY.

Want of proclamations.—Judgment of outlawry, for not appearing to answer an indictment for high treason, was reversed after the lapse of 116 years, on writ of error sued out by a co-heir of the outlaw, because it did not appear by the record that proclamations had been made, or a writ of proclamation issued. Judgment, that the outlawry be reversed, and the co-heir, plaintiff in error, be restored to all things which he hath lost, &c. Tynte v. The Queen, 7 Q. B. 216.

PARTICULARS OF DEMAND.

1. The plaintiff's particulars of demand claimed "the sum of 450l., for his services as elerk or manager to the defendant, from Aug., 1837, to Oct., 1839, inclusive, after the rate o 2001. per annum. The proof was an agreement by the defendant that the plaintiff, who was the manager of a banking company, should have a certain per centage, by way of commission, on all business he should introduce to the defendant: Held, that the particulars were not sufficient to let in such a demand, and that the defendant was, in strictness, entitled to a nonsuit. Law v. Thompson, 15 M. & W. 541; S. C. 4 D. & L. 54.

2. In an action on the indebitatus counts by a broker, to recover the amount of shares purchased for the defendant, and commission on the same, the court obliged him to furnish the dates of the purchases within the compass of a few days, and the name of the parties from whom purchased. Berkeley v. De Vere, 4 D. & L. 97.

3. Defects in execution of power. In ejectment brought by remainder-man against lessee

It is not too late to apply on the 8th of June to set aside such a plea which had been delivered on the 22nd of April. Wright v. Burroughes, 4. D. & L. 226.

PEREMPTORY UNDERTAKING.

Enlargement.-On a cause being called on for trial, the plaintiff, who had given a peremptory undertaking to try, applied for its postponement, on the ground of the absence of a material witness. Pending the application, it was discovered that, owing to some defect in the entry of the record, the cause could not be tried; and it was accordingly struck out of the list. The court discharged a rule absolute for judgment as in case of a nonsuit, which was subsequently obtained, and enlarged the plainRogers v. tiff's peremptory undertaking. Vaudercom, 4 D. & L. 102.

Cases cited in the judgment: Ward v. Turner, 5 Dowl. 22; Petrie v. Cullen, 2 D. & L. 604; 7 M. & G. 1020; 8 Scott, N. R. 705; Lumley v. Dubourg, 3 D. & L. 80; 14 M. & W. 295.

PREROGATIVE OF THE CROWN.

Venue. The prerogative of the crown to change the venue in an action can only be exercised by the crown officers in actions coming within the class of personal in the sense of transitory.

Quare, Whether in a rule to show cause the Attorney-General has, officially, in this court, a right to the final reply. Hilton v. Lord Granville, 34 L. O. 134.