334 Superior Courts: Vice Chancellor : Queen's Bench. "Can you," said his Lordship, 'carry your rights farther on a deposit of deeds than on an, actual mortgage? Suppose a mortgage, and nobody a party to it but the bankrupt, could you have claimed to have been in a better situation? and can you take this deposit against the recital in the defeazance otherwise than a mortgage?" En.] Queen's Bench. COSTS AFTER CHANGE OF DEFENDANTS, AND PLEADING DE NOVO. effect a direction by Mr. C. to his employers, intervened between the deposit of the deeds to give Mr. Gurney 1000. The exhibit N. made with Messrs. Combe & Co., and a pre(the cheque from Seager & Co.) was a document of a different nature, with respect to which his vious depositee, his Lordship held that, as Honor understood really Mr. Anderdon as in Messrs. Combe had taken a deposit from the effect receding from an objection fairly put bankrupt, instead of an assignment from the forward, on the ground of the Stamp Act; but admitting, in effect, that that was a good previous depositee, their lien could not be esdocument, it was all a simultaneous transaction tablished. that the two papers, M and N., were delivered to Mr. Gurney, and Gurney executed the lease. Now, whether he actually, in the execution of the lease, sealed it, and delivered it to Hill, or sealed it and said, "I seal and deliver this as my deed," and then delivered it to Hill, did not appear to his Honor to amount to any thing substantial, because it was all one transaction; and it appeared to his Honor that the oreation of the legal estate was simultaneous with the creation of the equitable lien of the brewers and the distillers. Then it was observable, that whatever night be said of those two papers, the brewers and the distillers had actually entered into the contract that they would these two sums of 10007. each, and pay his Honor would like to know whether they did not do so for a consideration; because on the footing of their undertaking to pay the two sums of 1,000l. and 1,000l. to Mr. Gurney for Mr. Albin, Mr. Gurney did actually execute the lease, and caused to depart from himself the legal estate pro tanto of that thing which he originally held by virtue of the legal lease; but in point of fact, the whole was conducted bona fide, and these two documents M. & N. having been brought to the different parties, they acted on their promise at once and discharged Gurney's account to the amount of between 1,000l. and 2,0007. And his Honor 'said, he did not think that the mere terms of the memorandum, which was only given as part of the transaction, were to have the effect of defeating the whole of the case, but they were to be taken rather in aid of the case, and though the thing might be partially misrepresented, the substance of the memorandum tallied with the rest of the evidence, and his opinion, therefore, was, that those gentlemen had in their different suits established their right to have the equitable lien which was given by means of the deposit on the whole J A plaintiff who had joined too many defendants in an action, had, before the trial, gut an order to strike out the names of some of them. The master allowed the defendants whose names were struck out, the costs up to that time, and to the remaining defendunts the costs of the day. These defendants then pleaded payment into Court, and acceptance by the plaintiff of the sum so paid. On this plea the defendants had a verdict. The defendants, under these circumstances, were held entitled, after verdict, to the costs incurred before as well as after the date of the judges' order. Lord Denman, C. J., delivered judgment in this case. The plaintiff here had joined too nany defendants in the action. When the case came on for trial at the assizes, the plaintiff, having reason to think that he had committed an error, applied for, and obtained an order from the judge to strike out the names of some of the defendants, The defendants whose names remainedhad liberty to plead de novo. The master allowed the defendants whose names had been struck out the entire costs of the cause up to that period, and the defendants whose names remained, the costs of the day only. We think that he was right in this course, for the master could not then be taken to know that these defendants would [This is the most important decision with plead de novo. They did, however, plead payreference to equitable mortgages by deposit of ment into Court, and acceptance of the paydeeds that has for some time appeared, and that plea, and the Master has now refused to ment by the plaintiffs, and they substantiated should it not be appealed from, must prove of allow the plaintiff the costs of the cause suhgreat advantage to the holders of those secu- sequent to the pleas. In this too, we think the Master was right, for if the plaintiff had rities. It seems, however, very difficult to re-originally sued none but the right defendants, concile his Honor's conclusions with the de- they would have pleaded at the time, as they cision of Lord Eldon in Ex parte Combe, above did afterwards plead, and make payment into Court, and all farther costs would have referred to, for in that case an act of bank-been saved. The defendants have now obtained ruptcy, upon which a commission issued, having a rule for the master to allow them the costs Superior Courts: Queen's Bench: Queen's Bench P. C. of the former pleas, on the ground that had they gone to trial on those pleas, they would have succeeded on the ground of the improper joinder of defendants. The plaintiff says that he is not liable to these costs, for that the Masters's previous taxation is final on that point, and that if allowed at all, they should have been allowed then, and not having been so allowed, they cannot now be claimed. But we think that the defendants are entitled to these costs now, for the defendants could not then pay in money, and the plaintiff had not accepted it, so that this rule ought to be absolute. Jackson v. Nunn, H, T., 1842. Q. B. F. J. EJECTMENT.-CONSENT RULE. Where a plaintiff in ejectment has replied to the defendant's plea, he has become thereby a party to the suit, and may be compelled on motion to enter into and draw up the consent rule. Lord Denman, C. J., delivered judgment in this case. This was a rule, calling on the plaintiff to shew cause why his replication should not be set aside and judgment entered for the defendant, unless he consented to enter into the ordinary consent rule within a week. The plaintiff had replied to the defendant's plea, but had refused to draw up the consent rule. The defendant had done all in his power to bring this case to trial, and he has a right to bave the consent rule drawn up, that the plaintiff, in case the defendant'should succeed at the trial, should become liable for the costs. Generally speaking, it is true that a plaintiff is not, in this kind of action, a party to the suit, until this rule has been drawn up; but in this case, he has made himself a party, by replying to the plaintiff's plea. He cannot, therefore, be allowed to prevent the further progress of the suit, by declining to draw up the consent rule. The present rule must therefore be absolute. Doe d. Blayney v. Savage, H. T., Q. B. F. J. 1842. Queen's Bench Practice Court. SERVICE IN EJECTMENT. CHARITABLE INSTITUTION. Service in ejectment upon the secretary of a charitable institution and upon the matron, the latter of whom lived upon the premises, and a subsequent acknowledgment of the receipt of the declaration and notice by the attorney of the society: Held, sufficient for judgment against the casual ejector. Bovill moved for judgment against the casual ejector, The premises in dispute were held by the "South London Institution," as tenants; service had been effected upon the matron of the institution on the premises, and also upon the secretary. The attorney of the society had since acknowledged that the papers had DISTRINGAS.-AFFIDAVIT. 335 Where a deponent to an affidavit in support of a motion for a distringas stated that he had gone to the house lately occupied by the defendant, and from inquiries at an adjoining house learned that he had gone away nine weeks; that he afterwards called twice at the adjoining house, having left messages for the defendant, but without hearing anything of defendant, and that from the defendant's house being shut up, and from "various other circumstances which had come to his knowledge," he believed the defendant was keeping out of the way to avoid service; the Court held that it was insufficient. Montague Smith moved for a distringas. The affidavit stated that the deponent had gone to the house of the defendant: that he had found it shut up; and could not get admission; that he had gone to the next house, and there learned that the defendant had gone away nine weeks; that he made appointments to call on the two following days, leaving messages for the defendant; that he called in pursuance of such appointments, but without hearing of the defendant; and that from various circumstances which had come to his knowledge, be believed the defendant was keeping out of the way to avoid service. Williams J.-That is not enough: 1 am not satisfied with the affidavit. Rule refused. Collumpton v. Exeter, H. T. 1843. Q. B. P. C. MANDAMUS TO EXAMINE WITNESSES ABROAD. Upon an application for a mandumus to exa- Winser had obtained a rule calling on the defendant to shew cause why a mandamus should not issue for the examination of witnesses abroad, under the 1 W. 4, c. 22. W. H. Watson shewed cause. A commission for the same purpose had been already granted, but abandoned. The Court would only grant this rule on payment of costs by the plaintiff. The defendant was not desirous of examining any witnesses, and there was no reason why he should be exposed to the possibility of incurring any costs. Fairlie v. Parker, 1 Mo. & P. 405, was referred to. Winser.-No doubt under the 13 G. 3, c. 63, the costs of this application would have been imposed on the applicant. The commission which had been obtained was invalid and void, and this motion was therefore requisite. The case fell within the provisions of the 1 W. 4, c. 22, by the 3d section of which it was directed that the costs should be in the discretion of the Court. This was an action by an attorney for Rule granted. Doe d. Fishmonger's Company his bill of costs; and the object of the commisv. Roe, H. T. 1843. Q.B.P.C. reached his hands. Williams, J.-Take a rule. 336 Superior Courts; Queen's Bench P. C.—Parliamentary Intelligence.-Letter Box. sion was to obtain evidence of his retainer by the defendant. The retainer was a necessary piece of evidence, and the Court would order the costs to be costs in the cause. Williams J.-I think the question should be left in the discretion of the judge at Nisi Prius. If he thinks the commission unnecessary, the plaintiff will have to pay the costs. Rule accordingly.-Wright v. Cape, H. T. 1843. Q. B. P. C. WRIT OF ERROR.-ALLOWANCE.—QUASHING ALLOWANCE. This Court possesses the power to quash the Martin had obtained a rule calling upon the defendant to shew cause why the allowance of a writ of error, and all proceedings thereon in this action, should not be quashed, and why he should not pay the costs of this application. Mr. Newland, in person, shewed cause.From the affidavits in support of the rule, it appeared, that the plaintiff having recovered judgment in the action in this Court, the defendant brought a writ of error, which was duly argued in the Court of Exchequer Chamber; and the judgment was affirmed. In consequence of some observation of the Court, in giving judgment, as the defendant alleged, the present writ of error was subsequently sued out; and it was sworn that the object of the present writ was to attack part of the case, other than that which the Court of Error had already decided. It was, however, objected, that this Court had no power to set aside the writ, for in Jones v. De Lisle, 3 Bing. 125, it was held, that such a motion must be made in Chancery, whence the writ had issued. Martin, contrà.-The motion was to the Court, to set aside an act of one of its officers in allowing the writ, which was imprudently done. The statute 11 Geo. 4 and 1 W. 4, c. 70, s. 8, was decisive, for by that act it was provided that from a judgment in error no writ of error shall lie or be had, except the saine be made returnable in the High Court of Parliament." Williams, J.-That decides the question. It is said that I have no power to interfere; but I entertain no doubt on that subject; this rule is to quash "the allowance" of the writ. The allowance is the act of the minister of the Court, in which I have an undoubted jurisdiction. I think further, that the precise words of the statute put the case beyond a doubt. PARLIAMENTARY INTELLIGENCE RELATING TO THE LAW. House of Lords. Attorneys and Solicitors. [In Committee.] Debtors and Creditors Lord Langdale. [For 2d reading,] Lord Cottenhamn. Lord Brougham. Law of Evidence. [Passed.] Lord Beaumont. Ld. Campbell. Rule absolute with costs.-Holmes v. New-J. K. lands, H. T. 1843. Q. B. P. C. The Legal Observer. MONTHLY RECORD FOR FEBRUARY, 1843. ."Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. JOINT STOCK BANKS. THESE establishments are now so interwoven with our commercial and mercantile affairs, that a professional glance at them may not be unacceptable to some of our readers. When a case has been determined on sound principles, and others afterwards occur, though differing in circumstances, if the same principles apply, it is generally considered that they will be governed by the same case. Assuming then, that Bosanquet v. Wray, 6 Taunt. 597, rightly determined that no legal contract could be made between two firms, in which one member is a partner in both, it may be interesting to inquire how far that compound principle of technicality and law is applicable to the case of a public officer of one joint stock banking company, suing that of another, in which one or more persons are mutually shareholders; and also to that of a public officer of one of such company's suing one of its own members. The point has arisen upon the Irish act of the 6 Geo. 4, c. 42, which closely corresponds with the English one of the 7 Geo. 4, c. 46, and is left in doubt by Mr. Baron Parke in Hughes v. Thorp, 5 Mee. & Wels. 656, his Lordship saying," as to whether the act of parliament enables the company to sue one of its members for a debt due from him to the company, that is a point which I think admits of considerable doubt, and upon which I have not made up my mind. I believe the intention of the legislature was to give such a power; but I have considerable doubt, if the words admit of it." Opposed, however, to this, is the Vice Chancellor of England's judgment in Manners v. Rowley, 10 Sim. 471, in which, after alluding to the 7 Geo. 4, his Honor said, "I must say, that if my opinion had been asked with respect to that statute, I should have said, that it enabled the public officer of the company to sue perVOL. XXV.-No. 769. sons who were members of the company, as well jointly with other persons, who were not That statute provides members, as alone. for actions on suits by the public officer against any person or persons, bodies politic or corporate, or others, whether members of such coI confess it appartnership or otherwise. pears to me to comprehend all persons whom it may be necessary to join as defendants, whether they are members of the co-partnership or not. There may, certainly have been a diffculty in proceeding in some cases at law." Nor is that judgment impeached by that of Seddon v. Conner, 10 Sim. 58, in which bis Honor said, "It seems to me that no part of these acts can in any possible way be construed into a provision for determining questions be tween one member of the partnership, as such, and the other members of it." That not being the point in question, which is whether the public officer can sue a member, not as such, but as a debtor, though it will appear from Lord Eldon's judgment in Vansandau v. Maore, 1 Russ. that a member, as such, might be sued. It must not be concealed, that from the report of the parliamentary committee on joint stock banks, dated 25th July, 1838, it appears that the joint opinion of Sir John (now Lord) Campbell, and the present Attorney and Solicitor General was taken, and that they represented it as very doubtful whether a person indebted to a joint stock banking company, and who might happen to be a shareholder, could be sued at law for the debt;" and to this weight of opinion must be added that of Mr. (now Justice) Wightman, who expressly said, "no such action was maintainable—that the public officer was merely the nominal plaintiff, the real plaintiff's being the whole of the members of the bank, and that the statute (7 Geo. 4,) gave no power to banking companies to sue individual members in cases where they could not have sued before in the name of the X the day negotiated with the Bank of England for a remission of a portion of its privileges, and passed the English Act of the 7 Geo. 4, c. 46, which, together with the Irish Statutes, opened a free trade in banking within certain limits, and upon certain conditions. If this then be so, it is submitted that sufficient has been said to show that these acts are of a remedial description, and consequently entitled to a liberal construction. It is now a matter of history that the committee being supported by these opinions, reported to the house, that "by the general law of partnership, the common law remedy for the recovery of debts which existed between It is desirable, notwithstanding the reparty and party, was not applicable in cases peal of the statute 5 Geo. 4, to advert to where the debt was contracted between a part- it in connection with that of the 6 Geo. 4, and nership and one of the partners or sharehold- to connect both, as far as a similarity of exers. In such a case, the remedy was by pro- pression will admit, with the English Statutes, ceeding in a court of equity, and such a remedy for the purpose of avoiding repetition, and in the case of a joint stock bank was so cum-shewing at a glance the advance of legisbrous, so complicatad, and so dilatory as to lation. afford no adequate means for the recovery of a just debt," that thereupon and on the 4th Aug. 1838, the 1st and 2nd Vict. c. 96, was expediently and temporarily passed, and after being continued, subsequently became a permanent part of the statute law,-thus adding a legislative declaration to that authority: against which we humbly strive to contend. Lest, however, we should be deemed presumptuous, we again take refuge under the judgment of the Vice Chancellor in Manners v. Rowley, in which his Honor says, "the question is whether I am now forbidden to put this constauction on the stat. 7 Geo. 4, because the stat. of the first and second year of her present Majesty contains the words "be it enacted."-I think I am not. The recital of this act does not take notice of the case for which the enacting part of the statute provides. I mean the case of actions or suits by the copartnership against the members jointly with other persons. I think that under the stat. 7 Geo. 4, the companies were empowered to sustain suits of that kind in the naine of their public officer. It is immaterial that this was a case in equity, the construction of a statute there, being the same as at law; in which we cannot recognize any difficulty of proceeding either of a technical or other description. It will be remembered that, previous to the passing of these statutes, banking companies consisting of more than six persons, were prohibited by statute. By the 2d section of both the Irish Acts, such copartnerships were allowed beyond fifty miles from Dublin; and by the English Act, beyond sixty-five miles from London, and by all the three they were required to register the names of all their members in a book at the Stamp Office, expressly naming two as the public officers, in one of whose name "such copartnership might sue and be sued." The 5th sect. of the 5 Geo. 4, and the 10th of the 6th are similar, except as hereinafter noticed, and provide, that all actions and suits by or on behalf of such a co-partnership against any person or persons for recovering any debt or enforcing any of its claims or demands, and all proceedings at law or in equity relating thereto, or other the concerns of any such co-partnership, should and lawfully might be commenced in the name of the public officer for the time being as the nominal plaintiff for and on its behalf; and that all actions or suits and proceedings at law or in equity by any person or persons against such co-partnership should and lawfully might be commenced against him. The variance alluded to is the The point is, that the Irish Act, as also the addition in the 6 Geo. 4, of an express power 7 G. 4, confers an unbounded freedom of to found a commission in bankruptcy against action through the medium of the public any such person or persons, and also of the officer, annihilating all technicalities, and en- words "whether a member or members of such abling him, unaided and uniufluenced by sub-co-partnership, or otherwise," after "person or sequent legislation, to work out all the remedies the exigencies of such copartnerships can require; to sustain this, however, it will be necessary to advert briefly to the objects, the progress, and the result of legislation upon this subject. persons," and with the exception of the express power to issue a fiat, the clause as amended in that, is the same as the one in the English statute. The 6th sect. of the first, and the 17th of the last Irish statutes, provided that all judgThe parent Joint Stock Bank Acts are Irish. ments had or recovered in any action or suit They are the 5 Geo.4, c. 73, and the 6 Geo. 4, at law or in equity against any such public c. 42, and both were passed for the "encou-officer should have the like effect and operaraging the introduction of British Capital into tion upon and against the property of such Banking Establishments in Ireland," and with- co-partnership, and of every member thereof, out diving into the cause, it cannot be forgotten as if they had been recovered or obtained that the panic of 1825 involved in its conse- against such co-partnership, and that the sequences the ruin of thousands, the proximate bankruptcy of any such public officer in bis cause of which was ascribed to the then un-individual character should not be construed satisfactory state of the system of country to be that of the co-partnership. And that banking, to remedy which the government of such co-partnership, and every member thereof, |