238 son, Superior Courts: Vice-Chancellor.-V. C. Knight Bruce.—Queen's Bench. shire Railway Company, and the said M. Elli- by the defendant without the consent, and conand J. J. Smith, or any or either of them, trary to the wishes, of the plaintiffs, and it or their or any or either of their successors, prayed a dissolution of the partnership, that heirs, executors, or administrators, shall well the accounts might be taken, and that the deand truly pay unto the said Robert H. Daubney, fendant might be restrained by the injunction Mary H. Daubney, J. H. Daubney, and W. H. of the court from drawing cheques in the name Daubney, or some or one of their heirs, executors, of the firm, &c., from keeping possession of, administrators, or assigns, or shall deposit in or using or intermeddling with the partnership the Bank of England, for the benefit of the books, or any of the papers, bills, notes, cash, parties interested in the above-mentioned lands, or securities of the said firm, and from hinderas the case may require, under the provisions ing or preventing the plaintiffs, or either of and in the manner directed by the said Lands them, from having full access to the partnerClauses Consolidation Act, all such purchasemoney or compensation as may in the manner provided in and by the said act be determined to be payable by the said railway company, &c." On the 11th of October, 1847, the railway company entered and took possession of the land, upon which plaintiff filed a bill for an injunction to restrain the company from constructing their railway upon the land. Mr. Bethell and Mr. Taylor, for the plaintiff, now moved for the injunction on the ground that no sufficient notice had been given to plaintiff of the company's intention to purchase the land pursuant to the Lands Clauses Consolidation Act, 8 Vict. c. 18, s. 18, and that the bond was informal in respect of the condition, the owners of the land being tenants in common in fee. Mr. J. Parker, contrà, urged that notice had been given to W. H. Daubney, who had forwarded it to plaintiff, and that was sufficient; besides, by section 85 of the act under which the company had proceeded, no notice was necessary. The company had no means of knowing the title and interests of the parties, and it was impossible at all times to frame a bond so as to correspond to the legal title to the property. The bond ought not, therefore, to be vitiated on account of an informality in the condition. The Vice-Chancellor said, it appeared to him that the parties had not complied with the terms of the act; neither was the bond in a proper form. The money was to be paid to these four persons, who were tenants in common in fee, or some or one of their heirs, executors, administrators, or assigns: this was an entire departure from the usual language, and clearly wrong. He should therefore grant the injunction. Vice-Chancellor Knight Bruce. PARTNERSHIP.-INJUNCTION. A member of a partnership firm, who had removed the partnership books, was at the suit of his co-partner restrained by the court from keeping the books elsewhere than on the partnership premises. In this case the bill was filed by Messrs. Chas. and J. F. Greatrex, two members of a firm carrying on business at Walsall, against Thomas Greatrex, another member of the firm, alleging the removal of the partnership books ship books, and liberty to inspect or transcribe the same or any of them, when they or either of them should think proper, and from placing, depositing, or keeping the said partnership books, or any of them, or permitting them, or any of them, to be placed, deposited, or kept at any other place than the partnership premises, without the consent of the plaintiffs, &c. Upon Speed moving, ex parte, for this injunction, the Vice-Chancellor granted an interim order as to the cheques, and gave leave to give a notice of action for the 7th of Dec., on which day Russell and Speed moved for the injunction as prayed by the bill. They cited Lane v. Newdigate, 10 Ves. 192; and Whittaker v. Howe, 2 Bea. 388. The Vice-Chancellor said the order would be equivalent, or nearly so, to directing the defendant to bring back the books to the place of business; but as in Lord Eldon's time and since, the practice had been so, he would make the order as asked, except that the word "full" must be omitted. Queen's Bench. (Before the Four Judges.) An order for a commission to examine witnesses abroad under 1 W. 4, c. 22, s. 4, must state" the time, place, and manner of such examination," or a subsequent order must be made supplying these matters. If an order is defective in these respects, and no subsequent order supplying the deficiency is proved to have been made, the examina tions taken under a commission thus irregu larly issued cannot be received in evidence. THE plaintiff brought a writ of error, to reverse a judgment in outlawry, and the issue raised on the pleadings was, whether the plainand issuing the said writ of exigé facias, upon tiff was, before and at the time of the awarding which the said judgment in outlawry was pronounced, and thence continually until the time of pronouncing the said judgment of outlawry, and afterwards, in parts beyond the seas, to wit, at Enghien les Bains, in the kingdom of France. The plaintiff put in evidence the depositions of two witnesses, taken under a commission. The order upon which the commission issued was also put in evidence: it was as follows Greville V. in error. Superior Courts:- Queen's Bench, 239 Upon reading, &c., I do foundation of the authority to order the comorder that a commission in mission to issue is not shown, for the directions Stulze & others, this cause do issue to ex- of the statute have not been complied with, amine on interrogatories A. and the allegation that the witnesses are residO. and C. H., witnesses on the part of the ing in France will not supply the defect. The plaintiff in error, who now reside at E., in the case referred to is not applicable here. In that kingdom of France; and that the commission case the order was not produced: here the order interrogatories and depositions, when taken, be was produced, and being defective on the face returned to my chambers in Rolls Gardens, of it, the commission issued without authority, &c., under the hands and seals of the acting and the evidence, taken under it, is not receivcommissioners; and that office copies be read able. This being a statutory authority, no in evidence, saving all just exceptions, &c. general implication such as would support the F. POLLOCK. exercise of a common law authority can make it valid. (Signed) The commission itself was directed to three Lord Denman, C. J. This is an objection persons, one of whom was the British consul, which I cannot get over, although it is painful directing them to cause two witnesses, therein to yield to it. By the provisions of the statute named, to come before them at Paris, and there the order for the examination of the witness to examine the said persons on interrogatory must state the time or place and manner of the on oath. The commissioners were authorised examination if out of the jurisdiction. The to employ an interpreter, and were directed to examine the witnesses apart. place must be named in the order. Here is an order not naming any place. There are the names of witnesses who reside in France, but care ought to have been taken to show that the commission was issued to be executed in France. There has not been in this order a compliance with the directions of the statute. I therefore think that without entering into the other matters, as to which we should be ready to make any reasonable presumption, the foundation for this evidence has failed, and the rule must be made absolute. The case was tried before Patteson, J., in Middlesex, and an objection was taken to the admissibility of the depositions on several grounds, the chief of which was, that the order for the commission made under the 1 W. 4, c. 22, s. 4, did not name the place at which the commission was to be executed, but this objection was overruled, and a verdict was found for the plaintiff. A rule nisi having been obtained for a new trial. Mr. Martin and Mr. E. Beavan now showed cause. One objection to this order is, that it Mr. Justice Patteson. I confess that I does not state the place where the commission thought it doubtful at the trial whether was to be executed. The statute enables the there should not be some authority for the Courts at Westminster to order a commission insertion of time and place which are to issue for the examination of witnesses on mentioned in the commission itself. There oath at any place, as well out of as within their does not appear to be any such authority, for jurisdiction; and this order alleges that the the order does not state either time or place. commission is to issue for the purpose of ex- If we could presume that another order was amining witnesses residing in the kingdom of made, we might support the commission; but France. The commission issues regularly we cannot make any such presumption. As under the seal of this court, and it must be as- to the case which Mr. Martin has cited as havsumed that every necessary thing has been ing been decided by the Lord Chief Baron, it done in order to justify the issuing of that com- does not appear that any order was produced, mission. If there was any defect, the defend- and the Chief Baron held that it was not necesant should have moved to set aside the com- sary to produce the order. But here it was mission, and should not have allowed it to produced, and there does not appear to be any issue, and after taking the chance of the evi- direction in it as to place, which there ought to dence being favourable, then object to its regu- be according to the statute. It is for the judge larity. A case of Entwistle v. Dent was tried who directs the commission to issue to say before the Lord Chief Baron, at the sittings where it is to be executed, at what time, and, if after Trinity Term, when he ruled that the there are any particular directions necessary, it production of the commission itself was suffi- is for him to give those directions. It would be cient, without proving the order on which it for the parties to draw up the terms, and for was made. the judge to ratify them by his order. There is nothing of this kind here, so I do not see what authority there was for the insertion of time and place in the commission. Mr. Barstow, contrà. The common law courts derive their power to issue commissions like the present from the statute 1 W. 4, c. 22, and the 4th section requires that "by the same Mr. Justice Coleridge. I am of the same or any subsequent order or orders" the court opinion, though with much regret, on both "shall give all such directions touching the points, namely the necessity of the order time, place, and manner of such examination naming the place where the commission is as may appear reasonable and just." This to be executed, and the impossibility, when order merely directs a commission to issue, the order has been put in, of presuming and does not name any place where the com- that everything has been rightly done, If mission is to be executed, nor has any subse- the objection is sustainable on the first quent order issued supplying this defect. The ground, the answer given to it by Mr. Martin 240 Superior Courts: Queen's Bench,Bankruptcy. cannot be admitted; for though if there was no order put in, a presumption might perhaps be made, yet when the order is put in we must look at it, and then if we find it to be insufficient the commission will fall to the ground. The statute intended that every preliminary as to parties, time, and place, should be settled by the parties and then ratified by the judge; here the order was in blank as to these particulars. Ex vi termini to issue a commission includes naming the commissioners. Mr. Martin has been driven to contend that simply on the order to issue a commission the parties have authority to insert what persons they please, where the execution should take place, and at what time. That does not seem to me a fair interpretation of the statute, and the rule must be absolute. shede v. Swan, reported 1 Exch. R. 154, and 16 Law Jour. 284, and referred to Leg. Obs. ante, p. 203. The points raised by the argument are sufficiently adverted to in the following judgment. Mr. Commissioner Fane, after stating the nature of the claim, and reading the guarantee as above set forth, said-" It was objected that the guarantee had no consideration to support it, the words having discounted' importing a past transaction, and therefore not forming a sufficient consideration. It was proposed to show, what the facts of the transaction really were, to establish that the words having discounted' meant having now discounted,' in which case the discounting and the giving the guarantee would be part of one transaction. It was objected, that the evidence was not admisMr. Justice Wightman. If the case wholly sible. I was, however, of opinion, that the evidepended on the production of the commission, dence was admissible, because evidence is there might be something in the argument of always admissible of the facts of a transaction, Mr. Martin; but such is not the case. It hap- to explain a written agreement concerning the pens that the authority for issuing the com- transaction, although evidence of what the mission is the judge's order, which, being put parties to the agreement may have said may in, appears to be defective. Any defect in the first order might be supplied by a subsequent order; but we cannot take it for granted that any subsequent order ever issued. There does not here appear to have been any sufficient authority for issuing the commission. Rule absolute. Court of Bankruptcy. In re Ricketts and James, exparte Flight. not be admissible. The facts appear to be, that James was anxious that a promissory note for 4,000l., on which Vigers was liable, and which was payable on the 16th August, should be retired, and on the 15th of August he waited on Flight, to get him to furnish the means for retiring it. Flight had at the time a promissory note for 4,000l., signed by Vigers, dated the 13th of August, which had been sent him by Vigers, to induce him to retire the first promissory note, and a negotiation ensued between James and Flight, which ended in Flight saying, that he would furnish 3,800l. to retire the old 4,000l. note, if James would furnish the remaining 2007., and guarantee the payment of the new promissory note, dated the 13th. These terms were agreed to by James, upon which Flight desired his clerk to draw a cheque for 3,800l., and at the same time James drew and signed the guarantee in question. It does not exactly appear, at what moment or in what MR. THOMAS FLIGHT, of Bond Court, way, James furnished the 2007., but it does ap Walbrook, claimed to prove against the sepa-pear that the first promissory note was retired rate estate of the bankrupt, Trevenen James, by a bill-broker, (Mr. Barber,) who knew upon a written guarantee in the following where it was, and that he did so on the 15th of words : GUARANTEE. Evidence is admissible of the facts of a trans- meant. "To Thomas Flight, Esq., Bond Court." Mr. Hoggins appeared on behalf of Mr. Flight to support the proof, which was opposed by Mr. Bagley on the part of the assignees. The case was argued at some length before Mr. Commissioner Fane. The cases cited by counsel were-Wain v. Warlters, 5 East, 10; Hawes v. Armstrong, 1 Bing. N. C. 761; and Haigh v. Brooks, 10 Ad. & El. 309. The commissioner's attention was also directed, subsequently to the argument, and before he pronounced judgment, to the recent case of Gold August by two cheques, one for 3,8001, and the other for 2007., which were credited to Flight in Barber's book, and that James on that day, debited Vigers' account with 2001. Now, as a word in the past tense, such as 'having discounted,' includes all past time, it may of course mean a minute ago, as well as a week ago, or a year ago, and facts being admissible to explain, which it really meant, and the facts of this case clearly prov ing, that it meant a minute ago, the whole was one transaction, and the consideration sufficient. The proof must therefore be admitted." In re Lysaght and Smithet. Dec. 30, 1847. NOTICE OF SUFFICIENCY.-BOND... SURETIES. Where the notice of sufficiency of sureties to a Superior Courts: Bankruptcy.-Analytical Digest. bond, given under the stat. 1 & 2 Vict. c. 110, described one of the sureties as a "gentleman," and he turned out to be a clerk, the commissioner refused to approve of the sureties. AN affidavit of debt having been filed, and notice requiring immediate payment given, pursuant to the stat. 1 & 2 Vict. c. 110, s. 8, the debtors gave notice of their intention to enter into a bond with two sureties, as required by the statute, and now appeared before Mr. Commissioner Evans to approve of the sureties. 241 Hammond was not a gentleman, but a clerk at an office in Lombard Street. It had been decided in Moss v. Heavyside, 2 D. & Ry. 772, that a clerk in a mercantile house, described as a "gentleman," was improperly described, and could not be allowed to justify as bail. Mr. Lawson, on the part of the debtors, submitted, that as the surety had himself sworn that he was a gentleman, his affidavit was conclusive of the fact, and at all events it was not pretended the creditor was misled by the description. William Charles Rule, a clerk to Mr. Lloyd, Mr. Lloyd, on behalf of the summoning cre- was then sworn, and stated, that he had called ditor, objected to the sureties on the ground at 71, Lombard Street, which was the office of that one of them was improperly described in the General Steam Navigation Company, in the the affidavit of sufficiency, and notice given by morning, had seen the proposed surety, (Mr. the debtors. The surety objected to was de- Hammond,) and ascertained from his own lips, scribed as, W. J. B. Hammond, of 71, Lombard that he was the cashier of that company. Street, and 12, Kennington Place, Vauxhall, Mr. Commissioner Evans. Under those Gentleman: it turned out, however, that Mr. circumstances, I cannot approve of the sureties. ANALYTICAL DIGEST OF CASES. REPORTED IN ALL THE COURTS. Courts of Equity. PLEADING. AMENDED BILL. 1. Production of documents.-On a motion for production of documents, it is for the plaintiff to show from the admissions in the answer that the documents relate to the contents of the bill as it stands when the motion is made. And therefore, where, after an answer admitting possession of certain documents relating to the matters mentioned in the bill, or some of them, the plaintiff amended his bill by striking out part of it and then moved upon that answer, the motion was refused. Haverfield v. Pyman, the defendant's possession, and prayed for an The plaintiff claimed an estate which was in account and payment of the rents received by documents in the defendant's possession relatthe defendant, and for a discovery of all the ing to the matters contained in the bill. The defendant pleaded the instrument under which he claimed to all the relief and to so much of 2. After replication.-An order of course to amend by adding parties obtained after repli-swered to the matters which his plea did not the discovery as related to the rents, and ancation is irregular. Hitchcock v. Jaques, 9 Beay. 192. 2 Phill, 202. 3. Irregularity.-A plaintiff having one of the defendants under his control, kept back his answer. Another defendant put in his answer, and after great delay on the part of the plaintiff, moved to dismiss for want of prosecution. The plaintiff, to defeat the motion, obtained an order of course to amend. Held, that as there was an answer outstanding, the order to amend could not be considered irregular; but it was afterwards discharged on other grounds. Forman v. Gray, 9 Beav. 196. 4. Petition.-Facts occurred after a petition has been answered cannot be introduced into it by amendment. Doubtfire v. Elworthy, 15 Sim. 77. purport to cover, and set forth a list of all the documents in his possession relating to the matters in the bill, except such of them as re lated to the rents. Held, that the plaintiff was entitled to a dis- EXECUTOR. If the will of a testator is stated to have been proved by A., his executor in the Prerogative Court, and the will of A. to have been proved by B., his executor in the proper Ecclesiastical Court, non constat that B. is the personal representative of the original testator. Jossaume v. Abbot, 15 Sim. 127. INFANT. 5, Parties.-An objection for want of parties having been allowed at the hearing, the plain- Attorney-General's answer.-As to the netiffs obtained an order for leave to amend by cessity of infants and the Attorney-General adding parties. They did not, however, amend, raising the points of their defence specifically but again brought on the cause for hearing by the answer, instead of putting in what is without having discharged the order or stated termed the common answer. on the record why they had not acted upon it. In a case in which the defence of an infant 242 Analytical Digest of Cases: Courts of Equity.-Chancery Cause Lists. had not been properly raised and proved, a decree was made for the plaintiff without prejudice to any bill to be filed by the infant within six months to establish his right. Lane v. Hardwicke, 9 Beav. 148. INTERROGATORY. The last interrogatory for the examination of witnesses expunged and the deposition to it suppressed because it did not contain the words "or either of them." Peacock v. Kernot, 15 Sim. 71. PARTIES. 1. Breach of trust.-A party entitled to a moiety of an ascertained fund cannot maintain a suit for payment of his share without making the person entitled to the other moiety a party, if, owing to a breach of trust, the whole fund is not forthcoming. Semble: And the decision in Perry v. Knott, (5 Beav. 293), to the contrary disapproved. Lenaghan v. Smith, 2 Phill. 301. 2. Demurrer.-Husband and wife.-Husband and wife sued, amongst other things, for an account of the rents of her copyhold estate. The wife died. Held, on demurrer, that it was not necessary to make her personal representatives a party to a bill to revive the suit. Upon overruling the demurrer, liberty was reserved to the defendant to raise the same at the hearing. Jones v. Skipworth, 9 Beav. 237. 3. A bill brought by A. on behalf of himself and all other shareholders in a company provisionally registered, except the defendants, against the provisional committee, and praying relief against the defendants on the ground that the concern had been brought immaturely to an end by reason of their fraud and mismanagement, charged that the other shareholders were unknown to the plaintiff, and, if known, would be too numerous to be made parties to the suit. Demurrer for want of parties overruled. Wilson v. Stanhope, 2 Coll. 629. Case cited in the judgment: Cockburn v. Thomp son, 16 Ves. 321. PLEA. Where a defendant, neither pleading nor demurring to any part of a bill, answers it, whether sufficiently or insufficiently, he is generally thenceforth precluded from filing a plea in the suit, notwithstanding the bill be amended. Where, therefore, an original bill was answered and the bill was then amended, the amended bill not differing from the origi nal bill in parties or subject-matter, though differing from it materially as to the extent of discovery as sought in relation to the main charges and allegations against the defendant, a plea to the amended bill was overruled. Esdaile v. Molyneux, 2 Coll. 636. SUPPLEMENTAL BILL. 1. Parties. A suit was instituted by legatees whose interest (upon the happening of a contingency) might vest in the next of kin against the executors alone. The next of kin were brought before the court by supplemental bill. Held, that the executors were not improper parties to such supplemental bill. Parker v. Parker, 9 Beav. 144. another bill which he prayed might be taken 2. A. filed an original bill and afterwards as supplemental to the former against B. Some of the statements in the latter were not only inconsistent with, but contradictory to, some of the statements in the former. Both bills were dismissed with costs. Blackburn v. Staniland, 15 Sim. 64. 3. After an order on further directions had been made which contained a declaration as to the rights of the plaintiff, he discovered that 4. ought to have been made a party to the suit, and filed a supplemental bill to bring him be fore the court. On the hearing of the supplemental suit, A. objected that the declaration was erroneous in law, but the court said that the same declaration must be made in the sup plemental as had been made in the original suit, for otherwise the record would be incon sistent with itself, and that A. must present a See Amended Bill, 5; Supplemental Bill, 1. petition of re-hearing. Jenkins v. Čross, 15 REPLICATION. See Amended Bill, 2. Sim. 76. |