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Saperior Courts: Bankruptcy.-Analytical Digest.
Court of Bankruptcy.

In re Brodie and Brodie. February 3, 1848.

BENEFIT SOCIETY.-PROOF OF DEBT.

To entitle a friendly society to the advantages conferred by the act 4 & 5 W. 4, c. 40, in proving against a bankrupt's estate, it must appear that the bankrupt became indebted to the society by virtue of some office or employment.

Mr. Thompson appeared on behalf of the officers of a Friendly Society, called the "Salisbury Liberal and Constitutional Benefit Society," to prove upon the estate of Messrs. Brodie, bankers of Salisbury, for the sum of 1271. 12s. 7d., and to ask the commissioner to order that amount to be paid over in full from the fund in the hands of the official assignee, pursuant to the stat. 4 & 5 Will. 4, c. 40, s. 12. That section enacts, that if any person appointed to any office in a society established under the act, having in his hands or possession by virtue of his said office or employment, any monies or effects belonging to such society, shall become bankrupt, his assignees shall pay to such person as such society shall appoint, out of the estate and effects of the bankrupt, all sums of money remaining due, which such person received by virtue of his said office or employment, before any debts of the bankrupt are paid or satisfied. Here Mr. Brodie, one of the bankrupts, was treasurer of the society, and in that right received the sum now claimed.

Mr. Commissioner Evans. How does this appointment as treasurer appear?

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Mr. Thompson replied.-That he had an affdavit from Edward Roles, a brewer at Salisbury, who was a member of the society, stating, that he attended the first meeting of the society after its enrolment, which was in the year 1844, and that at such meeting Mr. Brodie was appointed treasurer, and continued to hold that office until the time of his bankruptcy.

Mr. Commissioner Evans. What does the solicitor to the fiat say to this claim?

The Solicitor to the fiat said, the only question was, whether Mr. Brodie was duly appointed the treasurer. There was no doubt he held the amount of money claimed on the part of the society at the time he became bankrupt. Mr. Commissioner Evans. What does the bankrupt say?

Mr. Brodie stated, that the money was paid into the bank on account of the benefit society, but he did not remember that he was appointed treasurer.

Mr. Commissioner Evans. That is the whole question. The affidavit now produced is too loose and unsatisfactory. It does not appear to be made by any officer of the society, and does not show that the bankrupt was appointed at a meeting authorized to appoint a treasurer, or that he was duly appointed to that office. The solicitor for the fiat must be satisfied that the bankrupt was the treasurer of the society, lawfully appointed, and if that can be done, and the solicitor draws up an order for payment of the money, I will sanction it. In the meantime the proof must stand over.

Consideration of proof adjourned.

ANALYTICAL DIGEST OF CASES.
REPORTED IN ALL THE COURTS.

Common Law Courts.. CONSTRUCTION OF STATUTES.

ARREST.

plied to should differ from the first on the same state of facts, he has power or right to order the prisoner's discharge, as upon an appeal to the court.

fresh affidavit that the defendant was about to Quære, also, whether, if it appears on the quit England at the time when those affidavits were made, though he was not when the order for his arrest was made, the court ought to & W. 191; Talbot v. Bulkeley, ib. 193. discharge him. Graham v. Sandrinelli, 16 M.

Case cited in the judgment: Imlay v. Ellefsen, 2 East, 453.

1. 1 & 2 Vict. c. 110.-Jurisdiction of court as to discharge of defendant. — An affidavit which states only that the deponent has been informed and believes, that the defendant is about to leave England, without stating from whom the deponent obtained the information, is not sufficient ground for the defendant's arrest. Under the 6th sec. of the 1 & 2 Vict. c. 110, where a judge at chambers has ordered a defendant's arrest, the court out of which the 2. Action for malicious arrest under 1 & 2 process issues has power, on application directly Vict. c. 110.-The only foundation of an action made to it, to order his discharge, if it thinks for a malicious arrest, under the 1 & 2 Vict. the materials before the judge were insufficient, c. 110, is, that the plaintiff has obtained the or that he exercised an improper discretion. judge's order for the capias by fulsehood or Upon such application, the party arrested may fraud. The declaration must therefore show use affidavits to explain or contradict those on which the order was granted, and those affidavits may be answered by the plaintiff on showing cause.

The defendant may also take the opinion of another judge as to the propriety of his discharge, and that opinion is in like manner subject to be reviewed by the court.

Quære, whether, if the judge secondly ap

that.

But, after verdict, a declaration was held sufficient, which alleged that the defendants, not having any reasonable or probable cause to believe that the plaintiff was about to quit England, falsely and maliciously, and without any reasonable or probable cause, caused and procured a judge to make an order for a capias against the plaintiff, and falsely, &c., by colour

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Analytical Digest of Cases: Common Law Courts.

of the said order, caused a capias to be sued out_thereon, and the plaintiff to be arrested under it. Daniels v. Fielding, 16 M. & W.

200.

BRIDGE.

A borough, incorporated by charter, with a non-intromittant clause, was enlarged, under stats. 2 & 3 W. 4, c. 64, s. 35, and 5 & 6 W. 4, c. 76, s. 7, by the addition of a parish in the same county, containing a bridge, which, until that time, the county had repaired. There was no evidence that the borough had been used to maintain any bridges: Held, that the transfer of the new district did not render the borough liable to repair the bridge. Reg. v. Inhabitants of New Sarum, 7. Q. B. 941.

Cases cited in the judgment: Rex v. West Riding of Yorkshire, 2 East, 342, 348, 351; Rex v. Ecclesfield, 1 B. & Ald. 348, 355, 359'; Rex v. Inhabitants of West Riding of Yorkshire, 4 B. & Ald. 623.

CHURCH.

Limitation act.-Where a tenant holds premises by the service of cleaning the parish church, without any pecuniary render, such service is a "rent" for which "a distress" may be made, within the meaning of the Limitation Act, 3 & 4 W. 4, c. 27, ss. 1, 8.

So the service (under the like circumstances) of ringing the church bell at stated hours from Michaelmas to Christmas. Doe d. Edney v. Benham; S. C. Doe d. Edney v. Billett, 7 Q.

B. 976.

COGNOVIT.

1 & 2 Vict. c. 110.-Attestation.-The following attestation of a cognovit was held to satisfy the 1 & 2 Vict. c. 110, s. 9:-" Duly executed by the above-named R. G., in the presence of me, the undersigned S. B., attorney on behalf of the said R. G., expressly named by him and attending at his request; and I hereby declare that I subscribe my name as witness to the due execution hereof by the said R. G., and as his attorney, and that previous to the execution thereof by the said R. G., I in

formed him of the nature and effect thereof."

Signed "S. B." &c. Phillips v. Gibbs, 16 M.

& W. 208.

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the 19th sect. of the 5 & 6 Vict. c. 122, must be made within the first four days of the ensuing term; in other cases such application must be made before final judgment.

Quære, whether the 19th sect. of the 5 & 6 bond is given under the 13th sect. Smith v. Vict. c. 112, applies to any case except where a Temperley, 4 D. & L. 510.

FEME COVERT.

tion a particular form of conveyance by a mar 3 & 4 W. 4, c. 74.-The court will not sancried woman, under the 3 & 4. W. 4, c. 74, s. 91. Woodall, in re, 3 C. B. 639.

FRAUDS, STATUTE OF.

1. Railway shares.-A contract for the sale of railway shares is not a contract for the sale of goods, wares, or merchandize, within sect. 17. Bowlby v. Bell, 3 C. B. 284.

2. Earnest.-Debt for goods sold and delivered. Pleas, never indebted and set-off. Plaintiff owed defendant a debt, and while it larger amount, and exceeding 10., without remained due sold him goods by sample to a note or memorandum in writing of the bargain for sale. Part of that bargain was, that the ment by defendant to him, but no actual paydebt due from plaintiff was to go in part pay. ment of money was made by either, nor was any receipt given by defendant for plaintiff's debt to who returned them as inferior to sample, and him. The goods were supplied to defendant, the jury found that he had never accepted them. Verdict for defendant: Held, on motion for a new trial, that nothing had been given in earnest to bind the bargain, or in part of pay ment, within 29 Car. 2, c. 3, s. 17, so as to make the contract binding on the buyer. Walker v. Nussey, 16 M. & W. 302.

HIGHWAY.

of

1. By stat. 34 G. 3, c. 64, when the boundary of two parishes lay along the centre of a highway, justices were empowered, on information of the fact, to summon the surveyors the respective parishes, hear the parties and their witnesses, and finally determine the matter by order, apportioning the highway between the parishes for the purpose of repair. Forms of information, summonses, and orders were given.

By an order under this act, the justices recited an information laid before them, that one side of a certain highway was in, and repairable by parish, H., and the other side in, and repairable by, parish W., praying an apportionment; that they had summoned the surveyors, who attended, and that they had examined wit nesses; and they ordered that the highway should be apportioned between H. and W dividing it by a transverse line. The order contained no direct finding that the sides of the highway were respectively in H. and W; but indictment for non-repair of the part allotted the statute form was correctly followed. On to H., held, that the justices must be taken to have considered the question, whether or not part of the highway was in H., and to have de

Analytical Digest of Cases: Common Law Courts.

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cided by their order that it was; and that the could be carried into effect without the assistfact could not be questioned on trial of an in- ance of parliament, and therefore not within dictment, the subject-matter being within the the provision at the end of the 7 & 8 Vict., c. jurisdiction of the justices, and their finding of 110, s. 2, which is, in legal effect, an excepthe fact conclusive. Reg. v. Inhabitants of tion.

Hickling, 7 Q. B. 880.

Semble, that if the sale had been illegal, the Case cited in the judgment: Brittain v. Kin-broker who negociated the sale and received naird, 1 Brod. & B. 432. the money had no right to set up the illegality of the transaction in answer to an action for 2. A order directing an indictment for non-money had and received, the purchaser not repair o a road, under stat. 5 & 6 W. 4, c. 50, having insisted on such illegality. Bousfield ss. 94, 95, must show on the face of it that it v. Wilson, 16 M. & W. 185. was made at a special session for the highways, held within the division in which the road is situate. If it do not, it is void; and an order for costs made under sect. 95, by the judge who tried the cause, will be set aside. Reg. v. Inhabitants of Hickling, 7 Q. B. 890.

INSOLVENT.

1. Effect of final order for protection, under 7 & 8 Vict., c. 96, s. 22.—A final order, under the 7 & 8 Vict., c. 96, s. 22, for the protection of an insolvent from being taken or detained under any process, in respect of a debt included in his schedule, cannot be pleaded in bar; such order being a mere personal protection, and that statute containing no provision equivalent to the 10th section of the 5 & 6 Vict., c. 116. Toomer v. Gingell, 3 C. B.

322.

2. Stat. 7 & 8 Vict., c. 96, s. 25, as to annuities secured by bonds, &c., not retrospective. The provision in 7 & 8 Vict., c. 96, s. 25, that every sum of money payable by way of annuity or otherwise, at any future time or times, by virtue of any bond, averment, or other securities, shall be deemed and taken to be debts within the meaning of the 5 & 6 Vict., c. 116, and of that act, is not retrospective. Thompson v. Lack, 3 C. B. 540.

JOINT-STOCK COMPANIES' REGISTRATION
ACT.

LANDLORD AND TENANT.

Proceedings by justices to put landlord in possession, under 11 Geo. 2, c. 19.-Evidence of order.-Proceedings of magistrates for restitution of premises, under sect. 16 of stat. 11 Geo. 2, c. 19, are, by section 17, to be revised (in England) by the judges, on circuit, &c., acting as individual justices.

Held, therefore, that the allegation in an indictment, that an order was made by A. and B., the justices of assize for Surrey, was not supported by a certificate of such an order signed by the deputy clerk of assize in the same way as an order of court.

Semble, that it is not necessary, on such indictment, to prove the proceedings before the magistrates, preliminary to the restitution; and that it is sufficient to put in the record made up by them, in which, after reciting the complaint and other proceedings, they declare that they put the complainant into possession.

Semble, that orders under section 17 of stat. 11 Geo. 2, c. 19, should be signed by the judges who make them. Reg. v. Sewell, 8 Q. B. 161.

LEASE.

Agreement for lease.-Stamp.-8 & 9 Vict., c. 106.-By 7 & 8 Vict., c. 76, s. 4, (in force from and after the 31st of December, 1844, and repealed by, 8 & 9 Vict., c. 106, from the Broker and principal.—Illegal contract.-In 1st of October, 1845,) it was enacted, that no an action of assumpsit for money had and re- lease in writing of any freehold, copyhold, or ceived, the defendan: pleaded, as to 941. 2s. 6d., leasehold land should be valid, unless the parcel, &c., that, after the passing of the 7 & same should be made by deed, but that any 8 Vict., c. 110, and after the 1st of November, agreement in writing to let any such lands 1844, the defendant, as the broker and agent should be valid, and take effect as an agreeof the plaintiff, sold on account of the plaintiff ment to execute a lease. By a document, fifteen scrip shares in a certain joint-stock dated the 3rd of July, 1845, and purporting to company, called the Boston, Newark, and be a memorandum of agreement, (made while Sheffield Railway Company, for 941. 2s. 6d.; that section was in force,) M. agreed to let, and B., to take certain rooms in a house from formation of which company was commenced after the 1st of November, the 7th of that month, for the monthly rent of 1844, and which, at the time of such 36s., to be paid every four weeks: Held, that sale, was a joint-stock company within the it was only an agreement to execute a lease, provisions of the said act, that is to say, a and was well admitted in evidence as such partnership whereof the capital was agreed and agreement, without a stamp, being of no cerintended to be divided into shares, &c., &c., tain value above 17. 16s. and not being a banking company, &c., (negativing the excepted cases mentioned in the enacting part of the 7 & 8 Vict., c. 110, s. 2;) and that the 941. 2s. 6d., parcel, &c., was money received by the defendant as the proceeds of such sale: Held, bad, on demurrer, for not showing that the company was a railway company, the execution of whose works

the

Quære, whether, since the repeal of 7 & 8 Vict., c. 76, s. 4, by 8 & 9 Vict., c. 106, such a memorandum would require a stamp of 17. 15s. as a lease under 55 Geo. 3, c. 184, sched. p. 1, tit. Lease. Burton v. Reevell, 16 M. & W. 307.

LECTURE-ROOM.

Restriction on prosecution by stat. 2 & 3

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Analytical Digest of Cases: Common Law Courts.

An administration in an unsigned letter, Vict., c. 12, s. 4.-Conviction.- Award of penalty. Stat. 2 & 3 Vict., c. 12, s. 4, which written and sent by direction of the assignees forbids the instituting any prosecution for of a bankrupt, by an accountant employed by offences under that act, except in the name of them to wind up the affairs of the bankrupt the Attorney or Solicitor-General, applies only estate, will not take a debt of the bankrupt out to offences created by the act itself, though, of the Statute of Limitations. Pott v. Clegg, by section 6, it is to be construed as one act 16 M. & W. 321. with stat. 39 Geo. 3, c. 79, which creates other See Church. offences. Where a statute gives a form of conviction, not fully describing the offence, the conviction, nevertheless, must fully describe it; but in the part which awards the penalty, it is sufficient to follow the statute form: although the enacting part of the statute gives part of the penalty to the informer, and the form is not so drawn as to show who he is. Reg. v. Johnson, 8 Q. B. 102.

LIMITATIONS, STATUTE OF.

1. Negative pregnant.-Trespass quare clausum fregit.

LOCAL ACT.

Negligence. Commissioners' clerk. - By a local act, (3 & 4 Vict., c. lv,) commissioners were appointed for improving a navigation; all their powers to be executed by the majority present at a meeting of not fewer than three. They were not to be personally liable on contracts made, or for damages incurred in relation to any thing done in pursuance of the act, but might be sued in the name of their clerk. The commissioners, at a meeting duly held, (November 12,) resolved to accept a tender Plea, that the close was the freehold of H., their clerk thereupon drew up a contract ac for executing works in pursuance of the act; wherefore the defendants, as the servants of H., and by his command, committed the tres- cording to the tender; and it was afterwards (December 4) signed by the contractor. It passes. Replication, that defendants did not, as the servants of H., and by his command, purported to be made by A., B., and C., being three of the commissioners appointed for put committed the trespasses: Held, that the replicating the act in execution, and recited the pre tion involved a " negative pregnant," and was vious resolution; but it did not appear (unless therefore bad on special demurrer. Jones v. as before mentioned) that the contract was Jones, 4 D. & L. 494. executed or sanctioned by the majority of a regular meeting.

Cases cited in the judgment: Michael v. Myers, 6 M. & G. 702; Myn v. Cole, Cro. Jac. 87; Aubery v. James, 1 Vent. 70.

Held, that the contract, made in conse quence of the above resolution, was a contract entered into by the commissioners in execution of their office."

And that they were liable, and might be sued in the name of their clerk, for damage negligently done by the contractor to third persons in execution of such contract.

Another plea deduced title, by an inclosure act to an allotment of land, comprising the locus in quo, to one T., and stated his entry and possession until just before the time when, &c., and giving colour to the plaintiff, justified the trespass as the servants of, and by the command of, T. Replication, that defendants enThe contractor, in executing part of the tered and committed the trespasses after the work contracted for, (the diversion of a creek. passing of the Limitation Act (3 & 4 W. 4, c. made a drain, which, from a defect in the 27), and that the entry was made for the pur- materials, could not resist water; and, without pose of recovering the close in which, &c., and having any authority to do so, he turned in that the right to enter did not at first accrue the water, which broke through and flooded to T. or the defendants, or any person through the neighbouring land. The drain was not whom they claimed, at any time within finished at the time; but it did not appear twenty years before making that entry: Held, that anything further was about to be done on special demurrer, that the replication was for the purpose of securing it, if the mischief good, it being sufficient for the plaintiff to had not happened. bring the case within the second section of the statute, and if the defendants relied upon any subsequent clause as preventing the right of entry from being barred, that matter should come from them by way of rejoinder. Jones V. Jones, 4 D. & L. 494.

2. Banker and customer.-Money deposited with a banker by his customer in the ordinary way is money lent to the banker, with a superadded obligation that it is to be paid when called for by cheque; and consequently, if it remain in the banker's hands for six years, without any payment by him of the principal or allowance of interest, the Statute of Limitations is a bar to its recovery (dubitante Pollock, C. B.) An administration by a bankrupt in his balance-sheet will not take a debt out of

In an action on the case against the commissioners, (sued by their clerk,) a declaration stating that they made the diversion and executed the works so negligently that, in conse quence thereof, and from no other cause, the water broke through and flooded plaintiff's land.

Held that, on the facts above stated, defendant was not liable. Allen v. Hayward, 7 Q. B. 960.

Cases cited in the judgment : Laugher v. Pointer, 5 B. & C. 547; Randleson v. Murray, 8 A. & E. 109; Quarman v. Burnett, 6 M. & W. 499; Milligan v. Wedge, 12 A. & E. 737; Rapson v. Cubitt, 9 M. & W. 710,

RAILWAY.

1. Acts done in pursuance of a statute.—

the Statute of Limitations as against his as-Obstruction. A railway company was emsignees.

Analytical Digest of Cases.-Common Law Courts.

powered by statute to divert a canal, and it was enacted that, if by any accident, or in the execution of any works authorized by the act, (otherwise than from the neglect or mismanagement of the railway company,) or by reason of the bad state of repair of the railway company's works, the canal should be so obstructed that boats could not pass, the railway company should pay the canal company, by way of ascertained damages, 101. at least for every hour during which the obstruction should continue; and if it should continue beyond seventy-two consecutive hours, or should have been occasioned by any wilful act of the railway company, then at 207. per hour at least by way of ascertained damages. And that, in default of payment on demand made on the railway company's treasurer, &c., the canal company might recover the sum by action of debt or on the case. But this clause was not to prevent their recovering special damage in respect of injuries by machines or engines on the railway, or of the acts or defaults of the railway company, in respect of which the lowest amount of liquidated damages was ascertained as aforesaid, though the special damage might exceed the liquidated damages; but, if such liquidated damages should have been paid, and any action for special damage should be brought, credit was to be given there

in for such

payment.

It was also enacted that no action should be brought for anything done or omitted to be done in pursuance of this act, or in the execution of the powers or authorities given by it, without 20 days' notice, nor unless the action should be brought within six calendar months next after the act committed, or, in case there should be a continuation of damage, then within six calendar months next after the doing such damage should have ceased.

Held, that an action of debt for liquidated damages incurred by obstructing the canal, was an action for something done in pursuance of the act; and that the limitation clause applied.

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sum of 1,000l., together with all interest for the same after the rate of 51. per cent., payable as hereinafter mentioned, shall be fully paid and satisfied; and it is hereby stipulated that the said principal sum of 1,000l. shall be repayable and repaid on the 15th of January, 1844, and that in the meantime the said company shall, in respect of interest as aforesaid on the said principal sum, pay to the bearer of the coupons or interest warrants the several sums mentioned in such warrants respectively, at the times specified therein."

In January, 1844, the previous interest having been duly paid, the last of the coupons or interest warrants was presented, and the interest paid to the plaintiffs; but the company did not then pay the principal, or give notice to the plaintiffs that they were ready to pay it : Held, that the plaintiffs were entitled, in an action of covenant, to recover interest from the 15th January, 1844, to the time of the payment of the principal. Price v. Great Western Railway Company, 16 M. & W. 244.

Cases cited in the judgment: Dickenson v. Harrison, 4 Price, 282; Watkins v. Morgan, 6 C. & P. 661.

3. Imprisonment for non-payment of fare.By 5 W. 4, c. x., (local), the London and Croydon Railway Company was incorporated. By sec. 106, they were authorized to make bye-laws for the good government of their affairs, for regulating their proceedings, and for the management of the undertaking, and of the officers and servants of the company in all respects, "and to impose and inflict such reasonable fines and forfeitures all upon persons offending against the same as to the said company shall seem meet, not exceeding the sum of 51. for each offence;" such bye-law to be binding upon and be observed by all parties," of England, or the directions of the act. By provided they were not repugnant to the laws orders for regulating the travelling upon and sec. 148, the company were empowered to make use of the railway, and for or relating to travellers passing thereon; such orders and regulations to be binding upon such travellers, on pain of forfeiting a sum not exceeding 5l., which the company shall attach to a default. By sec. 163, penalties and forfeitures imposed by the act, or by any bye-law, order, or rule made in pursuance thereof, might be recovered in a summary way by adjudication of justices, one-half the penalty to go to the informer, and the other half to the company. By sec. 165, any officer or agent of the company may seize 2. Interest, when recoverable as damages. and detain any person whose name and resiThe Great Western Railway Company granted dence should be unknown to such officer or to the plaintiff's debenture bonds in the follow-agent who shall commit any offence against ing forms:-" By virtue of an act passed, &c., the act, and may convey him, &c. before a juswe, the Great Western Railway Company, in tice without any warrant or other authority than consideration of 1,000l. to us paid by T. P. that act. The company made a bye-law, under and W. G., do assign to the said T. P. and their common seal, by which each passenger, W. G. the said undertaking, and all future not producing or delivering up his ticket on calls, and all the estate, right, title, and interest leaving the company's premises, was required of the said company in and to the same, to hold to pay the fare from the place whence the train unto the said T. P. and W. G., until the said originally started: Held, that this was not a

The declaration stating that the canal, by means of the defendant's works, became obstructed on a certain day, and continued so obstructed for 99 hours next following, and that defendants refused payment when demanded: Held, that the time of limitation ran from the last obstruction, and not from the demand of payment. Kennet and Avon Canal Company v. Great Western Railway Company, 7 Q. B. 824.

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