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a private body, could not acquire the rights in question against the public unless the legislature expressly gave them. The clause which has been relied upon by the plaintiff in 43 G. 3, c. xv. does clearly give such rights; the only question is, how far they operate upon roads afterwards made. There is no doubt that if the Railway Company had by contract, without the intervention of parlia ment, acquired the power of making their road to lead into the embankment road, that would have been a way within the express meaning of the clause in question. But it is necessary to go a step further. A railway leading into that road is made by an act of parliament, which confers certain rights upon the public and the question then is, as to the effect of the former act upon such new public way. Upon this point I had some doubt; but I am of opinion that unless the subsequent act expressly takes away the vested right which the Embankment Company had in the tolls before granted, the public are not entitled to cross their road without paying toll. Then, what is there to give the public that right? The liberties they are to enjoy in respect of the principal

*railway are stated in the act 59 G. 3, c. cxv.; and although that clause

*734] is not expressly re-enacted, as to the branch road, in 1 G. 4, c. liv., yet this latter statute provides that the several powers, authorities, directions, restrictions, provisions, rates, duties and other matters and things, contained in the first Railway Act shall be used and exercised by the Railway Company, and shall be applied, enforced, and put in execution, for making, completing, preserving and maintaining the branch railway, and for doing what shall be necessary for the benefit and for defraying the expenses thereof, as if the several powers and authorities, rates and other matters, contained in the former act, had been re-enacted in this, or as if the branch railway had been described in that act. The latter act, therefore, incorporates and explains the clause in question in 59 G. 3, c. cxv. I think that clause was merely a bargain between the Railway Company and the public, that the public should use the railway upon certain terms, but not subject to any greater tolls than were stated in the act. The company were to be prevented from enhancing the duties above the original rate. But this does not enable persons to cross the road of another company without paying the rates before claimable by them; and unless the act did take away the vested right of that company, the public would not be entitled to resist the present demand. On the whole, therefore, I agree that the plaintiff ought

to recover.

*735]

Postea to the plaintiff.

*OGLE v. STORY, Gent., One, &c. April 29.

A. purchased premises which were mortgaged to B. with a proviso for re-conveyance, at the costs of the mortgagor, on payment of principal and interest. A. sold the premises, and was to pay off the mortgage on the completion of the purchase; but B.'s attorney, who held the title-deeds, would not deliver them to A. till his own bill was also paid. The bill contained some items fairly chargeable on the occasion as costs due from the mortgagor, and others which were properly payable by the mortgagee: Held, that the attorney might enforce his lien on the deeds against A. to the whole extent of the bill; and that A. having been obliged to pay it for the purpose of re-leasing the deeds, could not recover back from the attorney the amount unduly charged.

ASSUMPSIT for money had and received, &c. At the trial before Lord Tenterden, C. J., at the sittings in London after Trinity term 1832, the facts of the case appeared to be as follows:-The plaintiff had purchased an estate upon which one Fullwood held a mortgage, with a proviso for re-conveyance to the mortgagor, his assigns, &c., at the costs and expenses of the mortgagor, on payment of principal and interest. The plaintiff afterwards contracted to sell the estate, clear of the mortgage, to a Mr. Pemberton, and a day was appointed for completing the purchase. The plaintiff sent a release of the mortgage to the de VOL. XXIV.-21

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fendant, who was the mortgagee's solicitor, for approval, and also requested several times to know what would be the amount of his bill of costs on the re-conveyance of the premises; but no bill was sent till the parties met for the completion of the purchase, as appointed. The defendant's clerk then attended, and brought with him the deeds which Fullwood held as mortgagee, and the defendant's bill of costs. The plaintiff's brother, who acted as his solicitor, observed that the bill was large, and that its correctness could not be ascertained then; and he asked if payment was required at that time. The clerk said his instructions were to receive the money. The plaintiff's solicitor then said that he would pay it if he was obliged to do so, but should reserve the right of taxing it on a future occasion. The bill *was then paid, the purchaser, with the assent of all parties, giving one check, in part of the purchase-money, for Fullwood's principal and interest, and the defendant's costs. The clerk the following receipt:-"Received of Mr. Pemberton, by the direction of J. W. Ogle, Esq., (the plaintiff,) the sum of," &c. "for costs, as by bill annexed." The deeds were then handed over, and the purchase completed. The plaintiff having afterwards ascertained that the bill was not such as a mortgagor could fairly have been called upon to pay (which was admitted at the trial,) brought this action to recover back the excess, which he had been compelled to pay order to obtain possession of the deeds. For the defendant it was insisted, that, as an attorney holding deeds of his client, he had a lien upon them for the whole of his bill of costs, against all the world; that it was immaterial to him by whom the bill was paid, but without payment he was not bound to hand them over, or even bring them to the meeting; that the complaint was, not so much that the bill was exorbitant, as that a mortgagor ought not to pay it: if the bill was in itself excessive, that was a question between Fullwood (the mortgagee) and the defendant; and the present action if maintainable by the plaintiff, should have been brought against Fullwood himself. Lord Tenterden, however, was of opinion that the plaintiff was entitled to recover, and he directed a verdict accordingly, but gave leave to move to enter a nonsuit. A rule nisi having been obtained for that purpose,

Sir James Scarlett and Platt now showed cause. The defendant could not enforce any lien for more than the amount he was entitled to receive from the plaintiff; and that amount is measured by the terms of the mortgage [*737 deed. When the mortgage was redeemed, the deeds in question were no longer Fullwood's. As soon as his principal, interest, and reasonable costs were paid, he was bound to hand them over. The defendant then could not claim to retain one man's title-deeds for another's debt. His lien upon them was com mensurate with Fullwood's right. Whether the defendant's charges were just or not, as between him and Fullwood, is nothing to the plaintiff. The defendant might have desired the plaintiff to settle the costs with Fullwood, who could not have claimed more of the plaintiff than the proper costs as between those parties; but, instead of that, he has chosen to stand in Fullwood's place, and receive the costs himself from the plaintiff. He was not, then, entitled to demand more than would have satisfied Fullwood. He made himself, in fact, his agent in that transaction. [PARKE, J. Fullwood had a legal interest in the deeds, and might pledge them. He did pledge them with his own attorney for the amount of his bill. Could not the attorney retain them till that was paid?] He knew, when he received them, what was the extent of the depositor's interest. If the defendant is not liable in the present action, there is no oppertunity of taxing his bill; and that might be alleged by Fullwood, if the plaintiff sued him on account of these charges.

F. Pollock and Kelly, contrà, were not heard.

DENMAN, C. J. It is not contended that the mortgagee had not a right to pledge these deeds. Then a party who takes property subject to a mortgage, must ask where the title-deeds are: he must take care to secure himself. It makes no difference that the person with whom they are pledged was the mortgagee's attorney. The rule must be absolute.

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LITTLEDALE, J. I am of the same opinion. The plaintiff should have ascertained before in whose hands the deeds were.

PARKE, J. The defendant had a lien for the amount to which he was entitled against Fullwood. He, as mortgagee of the property, was competent to pledge the deeds with the defendant for that sum. The fact is, that the plaintiff has overpaid Fullwood; and he should have taken his remedy against him. Rule absolute.

*739]

*JOHN NURSE and MARY, his Wife, J. HARRIS, and Two Others v. C. WILLS, Gent. One, &c. April 29.

Declaration by husband and wife, stated that by agreement between the plaintiffs and the defendant, reciting that one J. L. had been arrested at the suit of the plaintiffs; that the defendant had become bail to the sheriff; that the bail had been forfeited; and that J. L. had given a cognovit for the debt and costs,-it was understood and agreed between the plaintiffs and defendant, and the defendant undertook and promised, in consideration that the plaintiffs would not enter up judgment, or sue out execution against J. L. until a certain day, that he, the defendant, would render J. L. on that day, or, in default, pay the debt and costs. Averment, that the plaintiffs had not entered up judgment or sued out execution against J. L. before that day. Breach, that the defendant did not render J. L. on the day, or pay the debt and costs:

Held, on motion in arrest of judgment, after verdict for the plaintiffs,

First, that, as the agreement was stated to be with the plaintiffs, the promise must be taken, after verdict, to have been made to them.

Secondly, that it sufficiently appeared that the wife had a joint interest, because the recital in the agreement of a cognovit by J. L. to all the plaintiffs, was an admission by the defendant of such joint interest.

Thirdly, that, though the agreement by the wife was void, it might be rejected as surplusage, and that the count would then be good, as stating a promise to pay the debt and costs to the plaintiffs, in consideration that they would not enter up judgment, or sue out execution until a given day.

THE declaration stated, that, by agreement between the plaintiffs and the defendant,―reciting that one James Lang had been arrested at the suit of the plaintiffs; that the defendant had become bail to the sheriff; that the bail bond had been forfeited; that Lang had confessed the action, and damage sustained by the plaintiffs to the amount of 2007., and had consented that judgment should be entered up, and execution should issue for the debt and costs due to the plaintiffs from Lang,-it was agreed between the plaintiffs and the defendant, and the defendant undertook and promised, in consideration that the plaintiffs should not nor would enter up judgment, or sue out execution, or proceed further in the suit, or take any further steps therein against Lang, the sheriff, or the bail, until a certain day,-that the defendant should render Lang on that day, so that the plaintiffs might have the full security of his body, or, in default, should pay to the plaintiffs 1377. 15s. 2d., *being the debt and costs aforesaid. The declaration then proceeded to state a further agreement between the plaintiffs and the defendant, that the time for rendering Lang should be extended to the first day of Easter term, it being fully understood, and the defendant, in consideration of the premises and of such extension, promising and agreeing that he, the defendant, would render Lang on the lastmentioned day, or, in default thereof, would pay to the plaintiffs the abovementioned sum, being the debt and costs aforesaid. The declaration then stated a further agreement between the said parties, in similar words, to extend the time until the first day of Trinity term. It then stated, that the plaintiffs had not entered up judgment, nor sued out execution, nor proceeded further in the said suit, until the first day of Trinity term, nor hitherto; and assigned for a breach, that the defendant had not rendered Lang, nor paid the plaintiffs the

*740]

said sum of money.

In a second count, the two extensions of time were omitted; and it was stated that, in consideration that the plaintiffs should not nor would enter up judgment or sue out execution, or proceed further in the suit against Lang, the sheriff, or the bail, until the 20th of February, the defendant undertook, &c. that he would then duly render Lang into custody, or, in default, pay the said sum to the plaintiffs, being the debt and costs in the said action; and a similar breach was assigned.

Judgment having been signed after a verdict for the plaintiffs, with general damages, a rule nisi was obtained for arresting the judgment, on the ground that one or both of the counts were bad; first, because the promises upon the extensions of time mentioned in the first count were not averred to have been made to the plaintiffs: and secondly, because the consideration for the promises in each count, supposing them rightly stated, was an agreement by the wife, jointly with her husband and others, and, as she was not capable of making a contract in point of law, she ought not to have joined in the action.

[*741

Kelly and Hayward now shewed cause. It may be collected from the decisions that, wherever the action will survive to the wife, the husband and wife may join. Now, here, Lang, by his cognovit, admitted the joint interest of the husband and wife, and that would have survived to her. In debt on bond made to the wife during coverture, Howell v. Maine, 3 Lev. 403, (see 1 Selw. N. P. 288, n. (12,)) or in assumpsit on a promissory note given to the wife during coverture, Philliskirk v. Pluckwell, 2 M. & S. 393, husband and wife may join. So, where husband and wife have recovered judgment on a bond made to the wife dum sola, husband and wife may join in an action on such judgment, or husband may sue alone, for that which was before a chose in action transit in rem judicatam, and is of another nature from what it was before the coverture, Woolverston v. Fynnimore, Trin. 18 & 19 G. 2; 1 Selwyn, N. P. 288.

The Solicitor General and White, contrà. The first count is bad; first, because no promise to the wife is alleged: there is nothing but a promise resulting in law, and that is to the husband. In Buckley v. Collier, 1 Salk. 114, it was held, that the husband must sue alone for work done by the wife during coverture, unless an express promise to the wife be alleged. PARKE, J. That was on demurrer: here, the agreement is stated to have been [*742 between the plaintiffs and defendant, and that being so, the promise, after verdict, must be taken to have been made to them.] It does not appear that the wife here had any joint interest which would have entitled her to maintain the original action. [PARKE, J. The cognovit is given to all the plaintiffs and that being recited in the agreement to which the defendant is a party, is a sufficient admission of the joint interest of the wife.] Assuming that to be so, this differs entirely from the case of a bond or promissory note given to the wife while sole, because she is then capable of contracting; the action here is brought on a contract which the wife, under coverture, was incapable of making, for a married woman cannot contract; a promise, express or implied, gives no interest to her; the whole results to the husband, and the action ought to be brought in his name; Bigwood v. Way, 2 Bl. Rep. 1236. A feme covert cannot even have goods with her husband, Abbot v. Blofield, Cro. Jac. 644. In this case it is necessary to state a consideration for the promise, and that distinguishes it from Philliskirk v. Pluckwell, 2 M. & S. 393, where it was held, that husband and wife might sue on a promissory note made to the wife during coverture. Here, the forbearance to enter up judgment, or sue out execution, was the act of the husband, and not of the wife. In Rumsey v. George, 1 M. & S. 176, Lord Ellenborough said, "A consideration of forbearance by the husband is a consideration arising during coverture, and expressly moving from the husband, who has the power of immediately enforc

325 ing the claim; and is, therefore, sufficient to support a promise made to *743] *him alone, who is the instrument of forbearance." [PARKE, J. May not what is alleged to be the contract of the wife be treated as wholly void? In Brashford v. Buckingham, Cro. Jac. 205, assumpsit was held to lie by husband and wife, on a promise, in consideration that she would cure a wound, it being alleged that she had cured it.] There the cure was the act of the wife. Here, the forbearance is the act of the husband. If the agreement with the wife be rejected as surplusage, the right of the wife is entirely gone. In Yard v. Eland, 1 Ld. Raym. 368, where a debtor to the wife as executrix, promised to pay to the husband, in consideration of the husband's giving time, it was held that the husband ought to sue alone, because the wife was not a party to the agreement between him and the defendant. So, here, if the agreement with the wife be considered as struck out of the declaration, she is improperly joined, not being a party to the husband's promise to forbear. Cur. adv. vult.

DENMAN, C. J. now delivered the judgment of the Court. After stating the substance of the two counts in the declaration, his Lordship proceeded as follows:

It was argued that both the promises on extensions of time in the first count were insufficiently stated; because no promise to the plaintiffs was averred in either; but on the argument, the Court intimated its opinion, that, as the agreement in both cases was stated to be with the plaintiffs, the promise must be taken, after verdict, to have been made to them.

It was then objected that, even supposing the promise to have been made to the plaintiffs, the count was bad *in law. It was not disputed that, where *744] a wife is the meritorious cause of action, or there is a consideration moving from her, the husband and wife may join; that they might have joined in an action upon a judgment obtained by both;-but it was insisted, first, that a joint interest in the wife was not stated with sufficient clearness and secondly, that, as the consideration in this case was an agreement by the wife (jointly with her husband and others), and as she was incompetent to agree in point of law, the consideration was altogether void.

The first objection was disposed of by the Court in the course of the argument it is clear that the cognovit by Lang to all the plaintiffs, which is recited in, and admitted by, the agreement, is a sufficient admission by the defendant of a joint interest in the wife.

With respect to the second objection, the agreement by the wife is undoubtedly void; but it does not follow that the count is therefore bad. It states an agreement by all, and then a promise by the defendant, in consideration of the plaintiffs not taking out execution until a certain time. Supposing all mention of the agreement had been omitted, and the count had stated that the defendant had promised to pay to the plaintiffs, in consideration that they should not nor would take out execution until that time, and that no execution was accordingly taken out, would not such a count have been good? Or, supposing that the mention of the wife's agreement had been omitted, and that of the other parties stated, and that the consideration for the promise had been alleged, as before, to be the forbearance of the plaintiffs to sue out execution;-would such a count *745] be objectionable? In either case, the forbearance by all is a sufficient consideration for the promise; and it is not rendered less sufficient by the addition of the agreement of all, which, in point of law, would be binding on all the plaintiffs, except the wife. The same reason applies to the other parts of the first count, which state the agreement of all to extend the time, and the promise by the defendant in consideration of the premises, that is, of such agreement of such extension. In each part, there is a sufficient consideration moving from the wife, as well as the other plaintiffs, namely the forbearance by all, and the extension of the time by all; and this cannot be vitiated by the additional averment that all agreed; which, on the face of the declaration, would amount, in law, to the agreement of all but the wife. For these

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