Candidates who passed their Examination, Trinity Term, 1837. 223 Attorneys to whom articled. Zachary Turner. younger. younger. Llewellyn, Thos. Mor- Henry Mostyn. gan. | Lowe, Alfred Hurst. Mogg, William Rees. Henry Brayley Wed-Ouvry, Frederick. lake. Archibald Cameron. Edward Loss. John Fiske. Benjamin Bodenham. William Rogers. William Humfrys. John Parker Gylby. Parker, Rob. Holme. Pearce, William the younger. Righy, William. Robinson, Thos. Hills. the younger. William Preece. George Freeth. Frederick Turner. George Thornbury. William Hen. Morris. Samuel Lister Booth. RaynerWinterbotham, Samuel Payne. William Collison. Townsend, Geo. Bar- Edward Thomas Car nard. Turner, Frederick. Ward, James. James Edward Norris. | Walters, Roger John Cribb Stephen. Hawker, Thomas. John Sargent. Wells, Arthur. dale. Alexander Poulden. Robert Edmeades. Robert Maser. Henry Wells. 224 Selections from Correspondence.-Superior Courts: Lord Chancellor. the defendant was until lately in the King's Bench Prison thereon, having been discharged by the Insolvent Debtors' Court. As the sheriff, who was bound to notice from what Court the hubcas, and from what Court the execution in his office, had issued, delivered the defendant into a wrong custody, by which the plaintiff, if he desired it, was precluded from bringing the defendant up to the Court of Exchequer under the compulsory clause of the Lord's Act, is not the sheriff fixed as for an escape, there being by his improper return to the habeas and delivery of the defendant into the marshall's custody, no cause in the Court of Exchequer? A. was taken in execution at the suit of B. upon an Exchequer writ, and remained in custody of the sheriff until a habeas corpus cum causa was sued out by the defendant's procurement in the Court of King's Bench. This was lodged at the sheriff's office, without there being, as is usual in such cases, a King's Bench writ to authorize a removal to the prison of that Court. The sheriff, notwithstanding, made his return to the King's Bench habeas, and delivered the defendant into the tipstaff's custody, upon the Exchequer writ only; and LEGALIS. SUPERIOR COURTS. Lord Chancellor's Court. PLEADING.-MULTIFARIOUSNESS.-DEMURRER. A stranger to a charity joined one of the trustees thereof in obtaining some of the charity estate in exchange for land, the joint property of the two: Held, that toan information praying a general account of the charity estate, and that the exchange of the lands be set aside for the benefit of the charity, a demurrer by the stranger for multifariousness could not be sustained. This was an appeal from an order of the Vice Chancellor, allowing a demurrer to an information on the ground of multifariousness. The information prayed among other things, for an account of rents and profits of certain charity estates in Yorkshire, and for a reference to the Master to report on a scheme for the better administration of the charity; and also, that an exchange between some of the defendants, of the charity lands for others, be set aside. The charity property was the result of a bequest in the year 1692, for the endowment of almshouses, and the support of a school. There were two sets of funds and two sets of trustees, but some of the trustees were trustees of both charities; and in the course of time the funds got so mixed together, that it was difficult to ascertain which part of the property belonged to the school, and which to the almshouses. Another object of the information was to ascertain this, and also to recover back from Mr. Sheldon Cradock, and one of the trustees named Headlam, certain parts of the lands of the charity, which they were alleged to have taken improperly in exchange for lands of their own. This was done under the alleged authority of an act of parliament, the 1st and 2d G. 4, c. 92, which gave trustees power to make exchanges of charity lands for the advantage of the charity. The information charged that Headlam, as a trustee, colluded with Cradock and others to give these lands to himself and Cradock in exchange, for lands much inferior; that a majority of the trustees did not concur in the Superior Courts: Lord Chancellor; Vice Chancellor. transfer, as the act required; and that the previous valuations were partial and unfair. To that information, Cradock put in a demurrer for multifariousness, which was allowed by the Vice Chancellor, and the information was dismissed, as against Cradock, with costs. Mr. Wigrum, Mr. G. Richards, and Mr. Smithe in support of the appeal.-The information was filed for the due administration of the charity. Cradock being in possession of some of the charity lands was a necessary party. It was charged that Headlam, a trustee, colluded with Cradock to procure the fee simple of these lands. There was a clear case against Headlam, and as Cradock mixed himself up in the transaction with him, it was necessary to bring him before the Court in order to obtain substantial justice and a due administration of the charity. No universal rule could be laid down as to what is "multifariousness" in pleadings; it was only to be collected from the circumstances of each case; and it depended generally on what the Court should think most convenient for obtaining justice. Although there was some inconvenience in making Cradock a party to this information, it would be much more inconvenient to institute another suit against him. The Court would not countenance two suits where the objects of both would be attained in one suit. They cited Salvidge v. Hyde,a and the observations of his Lordship in the late case of Campbell v. Mackayb. Mr. Jacob and Mr. Bethell for the demurrer. It would be the greatest hardship on a person to be made to answer a long bill and information, to nineteen parts out of twenty of which he was utterly a stranger. The decision of the Vice Chancellor in Salvidge v. Hyde was overruled by Lord Eldon, and the demurrer was allowed. The observations of the Lord Chancellor in the case of Campbell v. Mackay, were in favour of this demurrer. The Lord Chancellor, having taken time to consider the question, now gave his judgment. After stating the allegations and charges in the information, his Lordship said the ques tion was, whether the information made such a case against the defendant as called for an answer from him. The information stated the acquisition of the property which formed the foundation of the charities, the funds for the support of which were mixed together without any specific appropriation to either charity; it then set out the names of the persons who are trustees, and stated that a piece of land, containing about eighty-five acres of the charity estates, were in the possession of Cradock, and that he, who was not a trustee, in the year 1832, together with the defendant Headlam, who was a trustee, entered into a plan to procure from the other trustees the fee simple of that piece of the charity lands in exchange for other land which was the joint property of Cradock and Headlam. The in 225 formation prayed an account generally of the charity funds, and that this exchange be set aside for the benefit of the charity. It was argued in support of the demurrer, that Cradock was improperly mixed up in the suit, the object of which was the administration of the charity estates, and to get back from Headlam that part which he appropriated to himself. Now could that be done without making Cradock a party? The object was to set aside the exchange in which Cradock was concerned with Headlam, and which was one transaction common to both. It appeared to him to be impossible to proceed successfully against Headlam, without bringing Cradock before the Court. Could the information be dismissed against a person who thus mixed himself up with the trustee? Many cases might arise, in which it would be possible and proper to separate them. The object was to administer the charity estate for which Headlam was accountable. It was said, that two suits would be more convenient here. Suppose Cradock was not mixed up with the general prayer, could there be one suit for the general account, and another for the particular transaction? The effect of this transaction was, to make Cradock liable as a trustee for the benefit of the charity. He, the party who objected to the suit, was the person who joined in the transaction sought to be set aside. Suppose he was a trustee of one charity, and that an information was filed against him, could he object that, as he was trustee of part of the charity, he could not be mixed up in the general account? His Lordship referred to the observations of the Vice Chancellor in Campbell v. Mackay, and to those made by himself afterwards in the same case, when it came before him on appeal; and to the decision of Sir John Leach in Salvidge v. Hyde, in which, although Lord Eldon did not go to the same extent as that learned Judge did, and although he reversed his decision and allowed the demurrer in that case, still his Lordship's observation fully sustained the appeal in the present case. On the authority of Lord Eldon, putting a case identical with this, in reversing the order of Sir John Leuch in Salvidge v. Hyde, his Lordship had no hesitation in reversing the order made in the present case. The demurrer was overruled on the usual terms; and two months were given to Cradock to put in his answer. Attorney General v. Crudock and others, Sittings at Lincoln's Inn, July 13, 18 and 19, 1837. Vice Chancellor's Court. SPECIFIC PERFORMANCE.-ACCEPTANCE OF TITLE. A purchaser of an estate having agreed to complete his purchase, if the vendor could do certain acts, died intestate before the acts required to better the title were done : Held, on a bill filed by the purchaser's heir at law, that on the vendor's doing what 226 Superior Courts: Vice Chancellor; Rolls. was agreed on, the purchase money should be paid out of the intestate's personal es tate. was liable, not only to pay the bill, but the costs of the suit to recover payment. George Gerard drew a bill of exchange on This was a bill filed by the heir at law of a William Hunter, dated Sept. 1834, at three person who contracted for the purchase of an month's date. Hunter accepted the bill; the estate, but who died intestate before the pur-drawer sent it to his banker's to be discounted; chase was completed. The vendor, and the widow and administratrix of the purchaser, were the defendants, and the bill prayed against the former a specific performance of the contract; and against the latter, that the purchase money be paid out of the intestate's personal estate, come to her hands as his administratrix. The only question in the cause was whether the deceased had accepted the title; and as to that a correspondence between the vendor and purchaser and their legal advisers was read, from which it appeared that the purchaser was willing to perform his part of the contract, if the vendor would do certain acts for bettering the title; and the vendor agreed to do those acts. Mr. Knight and Mr. Smithe, for the plaintiff, submitted that the arrangement between the vendor and purchaser amounted to an acceptance of the title. The acts agreed to be done were easily effected, and they would remove all difficulty as to the title. The latter agreement was not a distinct and independent agreement, but was in furtherance of the contract to purchase.a Mr. Jacob and Mr. Hall, for the vendor, said he was ready to convey on receiving the purchase money. Mr. Treslove and Mr. James Campbell, for the administratrix, submitted the hardship of enforcing the performance of the contract upon her, who, instead of deriving any benefit from it, would have to apply all the intestate's personal estate to make up the purchase money. The purchaser could not have intended to apply all his property to the purchase of this estate, without charging it with a provision for his wife, or leaving some part of the purchase money or charge on it. This was a case which required some restriction or condition to be annexed to the rule of equity. His Honor the Vice Chancellor had no doubt from the correspondence that the purchaser had accepted the title, such as it was, when the acts agreed to be done should be performed. Hard as it was on the widow, he had only to decree payment of the purchase money out of the personal estate. Fowell v. Fowell, Sittings at Lincoln's Inn, June 30th, 1837. Rolls Court. LOST BILL OF EXCHANGE.-REFUSAL TO PAY -COSTS. An acceptor of a bill of exchange refused to pay, only because the bill was not produced; although an affidavit of the loss of the bill and an indemnity against any future claim were offered: Held, that the acceptor' a Frazer v. Bennett, p. 195, ante. but the messenger lost it on his way. The messenger gave notice to the acceptor of the loss, and when the bill became due, he offered to make affidavit that it was lost. This affidavit, and a bond of indemnity against all future demands in respect of the bill, were tendered to the acceptor, but he, after first saying that he would pay the bill on receiving the indemnity of two responsible persons, when that indemnity was offered, refused to pay. Gerard, the drawer, filed his bill stating the facts, and praying a discovery and payment from Hunter, with costs of the suit. Mr. Barber for the plaintiff, read the proofs of the loss of the bill, which happened by some unaccountable accident. The like proof was offered to the defendant the moment after the loss was discovered. A bond of indemnity was also offered. He read the proof of this offer also, and of the refusal of the defendant at last to pay the bill unless it could be produced. To sustain an action at law on the bill, it would be necessary to produce it; but the plaintiff did all that was necessary to support his case in a Court of Equity. Hansard v. Robinson.a Mr. Bailey, for the defendant, admitted his liability under the circumstances proved in the case, to pay the bill, and the only question was as to the costs of the suit. The only order the Court could make, was to refer the question of the sufficiency of the indemnity to the Master, or to dismiss the bill against the defendant without costs, on his undertak ing to pay the amount of the bill, on having an indemnity from two responsible persons. He cited for the purposes of his argument, Teresey v. Geray, and Macartney v. Graham. Mr. Barber in reply, distinguished this case from Teresey v. Geray, and said the other case was in favour of the plaintiff; it was the constant practice of the Bank of England, and other banks to pay bills upon affidavit of the loss, and an undertaking from two responsible householders to indemnify them against future claims in respect of such bills. Lord Langdale, M. R.-The only question in the case is, as to the costs, for the defendant now admits his liability to pay the bill. The affidavit and the bond of indemnity that were offered, ought to have satisfied any reasonable person that he was perfectly safe in paying a debt to which he had no objection but the non production of the bill. The cases that were cited for the defendant, were more against him rather than for him, and as his refusal to pay appears to be rather vexatious, the decree must be against him for the costs of the suit, as well as the amount of the bill. a 7 Barn. & C. 90. b 1 Ves., sen., 341. c 2 Sim, 285; S. C. 2 Russ, & Myl. 353. Superior Courts: King's Bench. 227 The costs incurred before the suit to be paid | been maliciously uttered with the view to inby the plaintiff himself. jure the plaintiff in his good name and credit. Gerard v. Hunter, Sittings at the Rolls, In Sweetapple v. Jesse, Lord Denman says, July 3d, 1837. King's Bench. [Before the Four Judges.] SLANDER.-DECLARATION. A declaration in slander, where the words do not necessarily and of themselves impute a crime punishable by law, must distinctly allege such matter as shews that the words spoken were intended to impute such a crime; and if such allegation is not distinctly made, the Court will not infer it, even after verdict. This was an action of slander tried before Mr. Baron Gurney, at the spring assizes for Chester in 1836. The declaration stated that some houses had been destroyed by fire; that the defendant knowing, &c. and intending to injure the plaintiff, spoke these words, "thou (meaning the plaintiff) knows that thou set fire to those buildings, and thou will never be easy till thou hast told." Plea, the general issue. Verdict for the plaintiff, damages 107., subject to a motion to enter a nonsuit on the ground that the words alleged did not impute a crime punishable by law. Mr. J. Jervis, in Easter Term 1836, moved accordingly. He referred to Sweetapple v. Jesse, a a where the words stated were that "young Sweetapple has set his own premises on fire," and the judgment was arreeted on the ground that wilfully setting his own premises on fire was not, except under special circumstances, a crime punishable by law. "after a verdict for the plaintiff, the Court is bound to presume all matters which it was necessary for him to prove in support of his declaration. The guilty setting fire to the premises was a matter necessary for the plaintiff to prove, and it must be presumed, after verdict, to have been proved by the plaintiff. Mr. Arnold, on the same side. In Shepherd on Slander,b is a passage to the effect that the imputation of burning a dwelling-house may be actionable, and an action is said to have been maintained for saying "thou didst burn a dwelling-house, "" or "thou didst burn a barn full of corn," not stating that it was done wilfully or feloniously. Barcham v. Nethersale, and Comyn's Digest,d shew that slander will lie where words which appear to impute a crime are proved to have been uttered. In Wilner v. Hold,e the words "thou hast killed thy wife," stated in the declaration as nuper uxorem,' were held to mean that he had murdered her, although it was argued that there might be a justifiable killing. This case is stronger than that, for there can be no justifiable arson. In Stowe v. Holland,f the words were "thou art knave and rascal: thou settest upon me in the highway, and takest my purse and my money," the objections taken here were taken there; yet judgment for the plaintiff. In Peake v. Oldam, which was a case in error, the words " you are guilty" inuendo of the murder of A. B., were held after verdict a sufficient charge of murder, though the colloquium was only of death. The word guilty" there might make a difference. [Lord Denman, C. J.-It is stated in the declaration that the words used there were meant to impute murder. That was a thing for the jury to decide; and they found that that was the crime intended to be imputed.] In Peke v. Oldam, Lord Mansfield said, "where words from their general import appear to have been spoken to defame a party, the court ought not to be industrious in putting a construction upon them, different from what they commonly bear." Mr. J. Jervis, in support of the rule, was stopped. Mr. J. Evans shewed cause. The case of Sweetapple v. Jesse, as far as it goes, appears to be an authority against the declaration; but there is this distinction between the two cases. It was there stated that the plaintiff was in possession of the premises which were burnt. Here the premises did not appear to be the plaintiff's, and setting fire to another's premises must of necessity be unlawful. At all events, after verdict the Court will intend everything in favour of the verdict. If it can be made to appear that a crime is imputed, the Court, Lord Denman, C.J.-There is really nothing after verdict, will presume that it was so im-in it. We always presume after verdict, and puted. It is so here. [Lord Denman, C J.- where there is a good ground of action, that Suppose he set fire to the premises by accident, what is necessary to be proved to support the and somebody else had been charged with the action has been proved; but in this case there crime of having set fire to them wilfully, he is not enough stated to shew a good ground of would never be easy. Does your declaration action. We cannot presume that. alledge more?] That is a possible state of things; but the Court must not suppose mere possibilities in order to set aside a verdict. The words alleged indicate that the defendant meant to make charge of something which had been matter of remorse with plaintiff, as if it had been in itself criminal. The declaration in the indictment strengthens this view. of the matter, for it states the words to have a 5 Barn. & Ad. 27. Mr. Justice Littledule concurred. Mr. Justice Patteson -There is not in the present declaration anything to help the verdict. In a very recent case in the Court of b Page 42. c Noy, 155. d Tit. Defamation, B. 2. e Cro. Car. 489, 8 Cowp. 275. |