7,8 Analytical Digest of Cases: Courts of Equity. the stock having been a breach of trust, did not affect the question as between the first and second mortgagees. That the cestui que trusts of the stock, not having been parties to or adopted the mortgage, were not necessary parties to the suit for foreclosure. Allen v. Knight, 5 Hare, 272. Cases cited in the judgment: Saunders v. Dehew 2 Vern. 271; Evans v. Bicknell, 6 Ves. 173. 3. Sale.-Jurisdiction.-Advowson.—A testator devised his advowson to trustees, to sell on the death of A., and divide the produce amongst certain persons. A. was the incumbent, so that on his death no sale could be made until the vacancy was filled up. Held, that the court had no jurisdiction to authorise a sale in the lifetime of A., on the ground that it would be beneficial to the parties. Johnstone v. Baber, 8 Beav. 233. VENDOR AND PURCHASER. 1. Conditions of sale.-Vendors having put forth ambiguous conditions of sale: Held, to be bound strictly by those conditions. Time held to be of the essence of the contract between vendor and purchaser, partly by reason of the nature of the trade carried on upon the property offered for sale, and partly upon the construction of the conditions of sale. Seaton v. Mapp, 2 Coll. 556. 2. Personal representation.-Diocesan probate. An agreement having been entered into for the sale of certain securities upon tolls within the diocese of Lincoln, it appeared from the abstract of title, that the will of one in the series of owners, through whom the property passed to the vendor, had been proved only in the consistory court of the Bishop of Lincoln. Upon a bill filed by the purchaser against vendor, the court declined, either to force the title on the purchaser or to order the vendor to procure probate in the prerogative court of the Archbishop of Canterbury. Williams v. Bland, 2 Coll. 575. 3. Delay. Laches.-Specific performance.Where there has been great delay and little hope of perfecting the title within a reasonable time, the court will dismiss a purchaser with costs. In 1842, the defendant contracted to purchase an estate. A suit for specific performance having, in the same year, been instituted by the vendors, it appeared, that the vendors claimed under a testator who died in 1809, and subject to his debts: that a creditor's suit had been instituted in 1813, and a decree for an account and sale made in 1817, since which time nothing effectual had been done in the suit, and no report of debts had been actually confirmed. After so great delay, no further time was given to the vendors to complete their title, and the bill for specific performance was dismissed with costs. Fraser v. Wood, 8 Beav. 329. Case cited in the judgment: Sidebotham v. Barrington, 3 Beav. 524; 4 Beav. 110; 5 Beav. 261. 4. Bidding, retracting.—An estate sold under a decree was knocked down to the solicitor of a mortgagee, who was not a party to the suit, but consented to the sale. A motion by the solicitor, to be discharged from his purchase, on the ground that he retracted his bidding before the hammer fell, was refused with costs. Freer v. Rimner, 14 Sim. 391. See Specific Performance. 5. Payment into court.-accepting title.-A purchaser applying to pay money into court must undertake to accept title, although the payment is consented to by all the parties. Denning v. Henderson, 33 L. O. 354. 6. Payment of purchase money.-Income tax. --Upon motion for payment of purchase money, with interest, into court, a deduction on account of the income tax was not allowed to be made part of the order. Holroyd v. Wyatt, 33 L. O, 550. VOLUNTARY SETTLEMENT. 1. In the case of an imperfect voluntary deed, neither the assignor nor the executor can be compelled to permit the assignee to use his name for the recovery of the debt. Held, that neither a voluntary assignment by deed of a mortgage debt, accompanied by a grant, not specifying the particular estate, but of all estates held in mortgage, and by a covenant for further assurance, and without delivery of the mortgage deed, or notice to the mortgagor, nor the voluntary assignment of a policy of assurance retained in the hands of the assignor, and without notice given to the grantor, though accompanied by a covenant for further assurance, can be considered as a complete and effectual assignment, to be acted upon and enforced by the assignee, without any further or other act to be done by the assignor. Ward v. Audland, 8 Beav. 201. Cases cited in the judgment: Fortescue v. Barnett, 3 Myl. & K. 36; Edwards v. Jones, 1 Myl. & Cr. 226. 2. A trustee under a voluntary settlement of chattels, policy of assurance, and mortgage, filed a bill against the representatives of the settlor for the recovery thereof. Held, that if the property were legally vested in the plaintiff, he might recover it at law and apply it on the trusts; but if otherwise, then as the deed was voluntary, the court could afford the plaintiff Ward v. no assistance in recovering it. Audland, 8 Beav. 201. See Power of Appointment; Settlement. WARD. The court will direct a settlement on the ap plication of the mother of an infant ward, who has married without a settlement being executed, although the mother may have consented to the marriage and an assignment may have been made by the ward and her husband after the marriage to a third party. Russell v. Nicholls, 33 L, O. 18. 1 Superior Courts: Lord Chancellor.Rolls-Vice-Chancellor. V. C. Knight Bruce. 79 RECENT DECISIONS IN THE SUPE RIOR COURTS. REPORTED BY BARRISTERS OF THE SEVERAL Lord Chancellor. Myers v. Weatherall. March 26th, 1847. APPEAL.-MOTION IN RESPECT OF COSTS The court will not rehear a motion in respect Vice-Chancellor of England. PARTIES.-CONSTRUCTION OF 39TH ORDER On a cause coming on for argument under the THE plaintiff in this case filed a bill for an account on behalf of himself and other shareholders, against the directors of a railway. The defendant by his answer raised an objection that a certain class of shareholders ought to be parties. The plaintiff set down the cause for argument on that objection, under the 39th On the cause coming Order of August, 1841. Mr. Elderton said, that this was a motion to discharge an order of Vice-Chancellor Wigram, ordering the plaintiff to pay the costs of an ap-on for argument, the defendant proceeded to plication to his Honour under the following raise ore tenus, other objections for want of circumstances. After a notice to dismiss the parties generally, besides that stated in his anbill had been given by the defendant, an order swer. To this the plaintiff objected. Mr. Bethell and Mr. Terrell for the defendof course to amend was obtained at the Rolls by the plaintiff, and the costs tendered. When ant, contended, that although the 39th Order the motion to dismiss was brought on, the in terms said, that the cause was to be argued Vice-Chancellor required to be informed of on that objection only on which it was set what had been done under the order to amend, and it was then contended that such order had been irregularly obtained; but if so, the application to discharge it ought to have been made at the Rolls. His Honour made no order on the motion further than directing the payment of the costs by the plaintiff. The Lord Chancellor. This is rehearing the motion for costs only. The rule is, that if it is necessary to look into the facts of the case to ascertain whether the costs were properly ordered, such a rehearing cannot be had; if it be manifest on the face of the order that the costs were improperly ordered, it is otherwise. It is necessary in this case to look into the affidavits to get at the facts, therefore it comes within the first-mentioned principle, and this motion must be refused, with costs. Rolls Court. Re Taylor. April 22, 1847. FOUR-DAY ORDER.-DELIVERY OF PAPERS. The court requires the four-day order for the delivery of papers, to be preceded by an order limiting some longer period for their delivery. In this case Mr. Rogers moved for an order upon a solicitor to deliver up his papers within four days, or in default for his committal. Two orders for the delivery of the papers had been previously obtained and served; but neither of them limited any time, within which the delivery was to be made. Lord Langdale said, that the four-day order ought to be preceded by an order fixing some longer period for the delivery of the papers, and made an order for their delivery within a week, in default of compliance with which, the four-day order could be obtained. down; yet clearly it did not mean to prevent a defendant at the hearing from urging other objections connected with it. Mr. J. Parker and Mr. Bilton, contrà, contended, that if this were allowed a defendant might raise a most trivial objection by his answer, and then on the hearing argue most important questions, which the plaintiff would then hear for the first time and be unprepared to combat; besides, if the defendant had originally stated in his answer the important questions which he afterwards raised ore tenus, the plaintiff, without setting the cause down to be argued, might have amended his bill, and they cited Hunter v. Macklew, 5 Hare, 238. The Vice-Chancellor, after looking at the case cited said, that it was directly in point, and that he felt himself bound by it. V. C. Wigram there seemed to think, that he was not bound to attend to the objections raised ore tenus at the hearing, and that he should so decide with him in the present case. Objection allowed. Vice-Chancellor Knight Bruce. A defendant having appeared, and being in 80 Superior Courts: Vice-Chancellor Knight Bruce.- Queen's Bench, Mary Rebecca Falkner, one of the de- was to convey the goods, the acts of God and fendants in this case having appeared, was in the dangers of navigation excepted, from Gibcontempt for want of answer. On being raltar to London, in a vessel which was to stop brought to the bar by habeas corpus, she stated, at Cadiz on the voyage. The breach was the that she was unable to put in her answer non-delivery of the goods. To a declaration through poverty, having made oath in court to setting out the above facts, the defendant that effect, she was turned over from the sheriff pleaded, amongst other pleas, that on the of Middlesex to the Queen's prison, and a re-arrival of the vessel at Cadiz, the goods in ference was directed to the Master to inquire question were seized by the custom-house and certify to the court respecting her alleged officers of that town, and afterwards confiscated poverty. A warrant was taken out to consider as contraband by a court there of competent the order, at the return of which the plaintiff's jurisdiction. To this plea there was a demurrer and defendant's solicitors attended, and the on the ground that it did not form any defence latter was ordered to bring in a proper state of to the action. facts within a week. More than a week having Mr. Crompton in support of the demurrer. elapsed without the state of facts being brought This is an absolute contract on the part of in, a warrant was taken out calling upon the the defendant to deliver the goods in London, defendant to show cause why the Master should the acts of God and the dangers of navigation not report default, but the defendant's solicitor excepted. The defendant in his plea does not now appearing at the return of the last-men- bring himself within either of these exceptions, tioned warrant, and more than three months and nothing short of illegality will excuse him having elapsed since the order of reference, the Master, at the request of the plaintiff's solicitor, certified that the defendant was in default. C. M. Roupell for the plaintiff applied, that upon the Master's certificate for a habeas corpus cum causis to bring the defendant to the bar of the court to answer her contempt, and for an order that the proper officer should attend at the return of the writ with the record, that the same might be taken pro confesso against the defendant, he stated that a similar order had been made by the Vice-Chancellor of England in Venables v. Brandon. His Honour made the order without requiring notice to be served on the defendant. Feb. 27. The defendant being brought to the bar of the court, it was ordered, with the consent of the plaintiff, that a traversing note should be forthwith filed by the plaintiffs, that the defendant should be at liberty to put in an answer within a limited time, and that the defendant should be discharged, the costs of the contempt to be costs in the cause. Queen's Bench. (Before the Four Judges.) Spence v. Chadwick. Easter Term, 1847. PLEADING.-CONTRACT.-EXCEPTION. A. delivered goods to B. to be conveyed from Gibraltar to London, the act of God and the dangers of navigation excepted. The vessel was to touch at Cadiz on the passage. While the vessel was at Cadiz the goods belonging to the plaintiff were seized as contraband, and forfeited according to the revenue laws of Spain. Held, in an action by A. for the non-delivery of the goods, that a plea setting out the above facts was bad as not amounting to a defence to the action. THIS was an action by the freighter against the shipowner to recover the value of certain goods. The contract on the part of the defendant, as appeared from the bill of lading, from the performance of his contract. The courts of this country do not take notice of the revenue laws of any other country, and it is not any excuse to say that it became impossible to perform the contract. Gosling v. Higgins,3 Blight v. Page, Barker v. Hodgson, Sjoerds v. Luscombe, Holman v. Johnson.e He, Mr. Boville, contrà, contended, first, that the circumstances set out in the plea brought the defendant within the exception named in the bill of lading, because the loss was occasioned by inevitable accident, and not through any neglect or default of the defendant. also contended that there was an implied warranty that the goods shipped were lawful and proper for the voyage; and that the defendant was exonerated, because the plaintiff consented that the vessel should go to Cadiz, where the goods in question were condemned by a court of competent jurisdiction, which judgment the courts in this country will recognise. He cited Story on Bailments, sec. 488; Abbott on Shipping, 326; Fletcher v. Inglis; Gabay v. Lloyd Hill v. Idle Magalhaens v. Busher; Power v. Whitmore Philips v. Hunter:* Hadley v. Clarke.1 Mr. Crompton was heard in reply. Lord Denman, C. J. The defendant enters into a positive contract to convey the goods of the plaintiff from Gibraltar to London, and the the act of God or the dangers of navigation. only exception named in the bill of lading is The defendant, in excuse for not performing his contract, says, that the vessel having put into the port of Cadiz, as agreed upon between the parties, that the goods were there condemned according to the revenue laws of Spain. The plea does not show that there was anything of the law of nations as between England and illegal in the contract, that it was in violation although there was not to satisfy a year's rent, and there the affidavit stated that there was no sufficient distress to satisfy the arrears of rent: in the present case the affidavit is so framed that the objection taken in Doe v. Powell does not arise. Superior Courts: Queen's Bench.-Queen's Bench Practice Court.-Common Pleas. 81 Spain, or that there was anything criminal in decided was, that there might be sufficient on the nature of the transaction. The defendant the premises to countervail a half year's rent, must be taken to have entered into a contract the nature of which he fully contemplated, and the law of Spain was equally unknown to both parties. The plea, therefore is insufficient, the rule of law, which has not only been acted on for centuries, but is founded on good and sound reason, being, as stated by Lord Ellenborough in Atkinson v. Ritchie,TM that when the party by his own contract creates a duty or charge on himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Patteson, J. The defendant clearly does not come within the exception contained in the bill of lading. The loss has not arisen from any act of God or the dangers of navigation. Then it is said, the defendant has been prevented from completing his contract because the goods were confiscated by a court of competent jurisdiction in Spain, but it is not shown that there was any default on the part of the plaintiff, or that he knew the goods were contraband. The plaintiff did not request that the vessel should touch at Cadiz, that was a mere description of the route. Neither party, therefore, were acquainted with the law of Spain, and the seizure did not arise from the default of either plaintiff or defendant, and the case falls within the principle laid down in the case of Atkinson v. Ritchie. Wightman and Erle, J.'s, concurred. Queen's Bench Practice Court. EJECTMENT.-AFFIDAVIT. On an application for judgment against the casual ejector where proceedings have been taken under 4 Geo. 4, c. 28, it does not render the affidavit irregular to state, that a year's rent is due, if the affidavit also allege that there is no sufficient distress on the premises to satisfy half a year's rent. J. Browne moved for judgment against the casual ejector, the proceedings being taken under 4 Geo. 2, c. 28, to recover possession of certain premises for the nonpayment of rent, there being no sufficient distress on the premises to countervail the arrears of rent. The affidavit used in this case was regular in all respects, except that it stated that one year's rent was in arrear, and the Master objected to draw up the rule on the ground that the case came within the authority of Doe dem. Powell v. Roe, 9 Dowl. 548. It was now contended that the objection taken in that case did not apply in the present case, for here the affidavit states that there is no sufficient distress to be found on the premises to countervail half a year's rent, which is all the statute requires. The principle on which Doe dem. Powell was 10 East, 530. Coleridge, J. I think you are within the words of the act, and do not see that any mischief can arise, therefore you may take your rule. Rule absolute. Common Pleas. Where to a count on a bill of exchange the defendant pleaded the delivery and acceptance by the plaintiff of his, the defendant's, own promissory note, payable on demand, for and on account of such bill of exchange and the causes of action in respect thereof, and then further alleged that the plaintiff afterwards agreed to accept and did accept the warrant of attorney to confess judgment of a third party, in full discharge and satisfaction of the said promissory note, and of all causes of action in respect thereof, and of the causes of action in the said count on the bill of exchange mentioned. Held, that the plea only set up one defence by way of satisfaction and discharge, and was not bad for duplicity. ASSUMPSIT by the drawer against the acceptor on three bills of exchange. Plea, that after the making and acceptance of the bill in the first count mentioned, and after the same became due and payable according to the tenor and effect thereof, and before the commencement of the suit, to wit, on, &c., the defendant made his promissory note in writing, bearing date, &c., and thereby promised to pay to the plaintiff or order, on demand, 1,050l., and then delivered the same to the plaintiff, who then took and received the same for and on account of the last-mentioned bill of exchange and the causes of action in respect thereof in the said first count mentioned; and that thereon and afterwards and after the making and delivering of the said promissory note in the plea mentioned and before the commencement of the suit, to wit, on, &c., it was agreed by and between the plaintiff and defendant and Thomas Earl of Dundonald, that the said Earl should sign and seal, and as his act and deed deliver to the plaintiff in full discharge and satisfac tion of the said promissory note in this plea mentioned, and of all causes of action in respect thereof, and of the cause of action in the said first count mentioned, a certain deed or instrument called a warrant of attorney to confess judgment, bearing date, &c., in the form, &c., thereinafter mentioned; and that the plaintiff should accept and receive the same of and 82 Superior Courts: Common Pleas. Chancery Sittings. from the said Earl in such full discharge and curity; the plea therefore shows, not two, but satisfaction as last aforesaid. The plea then only one mode of satisfaction. It is not necesalleged the subsequent execution of the war- sary to examine with any minuteness whether rant of attorney in full satisfaction and dis- the case of Price v. Price did or did not break charge of the said promissory note in the plea in upon Kearslake v. Morgan, but such cermentioned, and of all causes of action in the tainly appears not to have been the intention of said first count mentioned; and that the plain- the Court of Exchequer. That case, however, tiff accepted and received the said warrant of is not consistent wich the case of Mercer v. attorney in such full satisfaction and discharge Cheese, but then the latter case appears not to of the said promissory note in that plea men-have been a decision of this court on the point, tioned, and of all causes of action in respect the counsel having thought it better to amend. thereof, and of the cause of action in the said Without going further into the question of first count mentioned. To this plea there was whether or not the cases of Price v. Price and a demurrer on the ground of duplicity. Joinder Kearslake v. Morgan may not stand together, in demurrer. it is sufficient to say that in this case there is no duplicity. T. Jones in support of the demurrer. The plea is double, inasmuch as either the promissory note therein mentioned or the warrant of attorney would of itself have been a good defence. Kearslake v. Morgan, 5 T. R. 513, and Mercer v. Cheese, 4 M. & Gr. 804, are authorities to show that the giving and acceptance of a bill or note was a sufficient answer prima facie, and if so, then the subsequent allegation of the delivery and acceptance of a warrant of attorney was clearly another and sufficient defence. Coltman, J., concurred. Cresswell, J. All that the plea alleges with respect to the note falls short of showing any satisfaction of the cause of action, and that being so, it would have been bad on general demurrer. It was necessary, therefore, to go further, and accordingly, by the allegation as to the giving of the warrant of attorney, only one defence is set up, and although it is alleged that the latter was given in satisfaction of the note, which is only a collateral security as well as the present cause of action, yet the plea is not on that account bad. Channell, Sergeant, (Bevan with him). The note here was the note of the debtor himself, payable on demand, and was not therefore Williams, J. The present is one of that even a suspension of the cause of action as was class of cases where a negotiable instrument the case in Kearslake v. Morgan, where the note given may amount to a quasi satisfaction, and given appears to have been that of a third the plea is not made bad for duplicity by its party. Then in Mercer v. Cheese, the court going on, as here, to allege that which turns only expressed a passing opinion, upon which the quasi satisfaction into an actual one. the plaintiff elected to amend; besides there Whether the plea is argumentative or not it is the bill pleaded was made payable on a future not necessary to say, as that question is not day. The case too of Price v. Price, 16 Law raised by the demurrer. J., N. S., Exch. 99, seems to be at variance with the opinion expressed in Mercer v. Cheese, and to be an authority in support of the present plea. The note here being payable on demand, is not even a suspension of the plaintiff's claim; it is in fact stated in the plea merely as matter of inducement, and therefore cannot make the plea double. Steph. on Pl. 5th ed. 296. Jones was heard in reply, and cited in ad- Saturday dition the case of Maillard v. Duke of Argyle, 6 M. & G. 40. Monday Friday Judgment for the defendant. CHANCERY SITTINGS. Monday Wilde, C. J. It appears from the plea that the promissory note was given for and on ac- Tuesday count of the debt, payable on demand, and Wednesday therefore in point of law it was of no greater Thursday effect than the original liability between the parties. It appears also on the face of the pleadings that the note remained in the hands Saturday of the plaintiff, for the plea alleges that the warrant of attorney was given in satisfaction of it, which would not be the case if it had been outstanding in the hands of another. The only Thursday mode therefore by which satisfaction is shown is by the warrant of attorney, alleged in the Friday plea to have been given in satisfaction of the Saturday note and also of the cause of action in the first Monday count mentioned. The note at the highest ap- Tuesday pears to be in the nature of a collateral security, Wednesday and the warrant of attorney was a satisfaction Thursday of the cause of action and the collateral se- Friday . Lord Chancellor. AT WESTMINSTER. Trinity Term, 1847. May 22 { Appeal Motions and Ap . . peals. (Petition-day) Cause, Lu 24 natic and Bankrupt Pe 25 28 29 31 June 1 2 { titions. Appeals. |