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Wilde Serjt. opposed the application, on the ground 1831. that this recovery was suffered at bar; and the deed to

HAMİLTON, create a tenant to the præcipe bearing a date subsequent Demandant;

FARRER, to the first day of the term in which the recovery was

Tenant. suffered, to which day the judgment had relation, it could not operate in support of the recovery. The rule, therefore, as to collecting the intention of the parties from the deed, did not apply. The recovery at bar was accomplished according to the intention of the parties; and the mistake was not there, but in the deed. If so, the recovery wholly failed; for the tenant had no estate in him at the time of the recovery; and the statute 14 G. 2. c. 20. s. 6., which enacts that a recovery shall be good though the deed be executed after judgment, provided it be executed within the same term, applies only to cases where the person joining in the recovery has a sufficient estate in him to suffer the same. To put the demandant in his place, without any writing to warrant such a proceeding, would be, not to amend, but to substitute a new recovery, and to falsify the records of the court; it would, in effect, alter the warrant of attorney, which the Court has always refused to do. The cases referred to in support of the application passed without opposition, and perhaps without discussion ; but in Allen, demandant, Hexley, tenant (a), the Court refused to make the amendment now required.

Russell. In that case certain documents were called for by the Court; and, as they were not produced, there might have been reason for suspecting fraud.

Tindal C J. I think that this amendment ought to be allowed, and that in allowing it we violate no general rule of law, while we carry into effect the obvious intention of the parties. That a recovery was intended

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1881. to be suffered, and the dramatis persone assigned, is

admitted; and the only question is, whether the formal HAMILTON, Demandant; parts of the proceeding are sufficient after fifty years' pos

session in conformity with the intention of the parties. Tenant.

In support of that intention so evinced, can we allow the names of the demandant and tenant to be transposed ? Lord, demandant, Biscoe, tenant, is an authority in point, and a decision where the application was opposed. But it is said, that in that case the deed to make the tenant to the præcipe was anterior to the recovery, so that there was something to amend by. It is true that here the deed bears date the 27th of November : it may, however, have been executed at any time before: but if it were executed on the day it bears date, not more than three weeks could have elapsed from the time of the recovery; and by the statute 14 G. 2. c. 20. s. 6., a deed executed subsequently to the recovery, in the same term, is put on the same footing as a deed executed before. So that this case falls within the principle of the case in Barnes ; and we are glad that any ground can be found to support a possession of fifty years, and the manifest dictates of justice.

GASELEE J. Consistently with the facts alleged, the deed may have been executed by the tenant in tail before the day of its date; so that there may be no necessity for recurring to the statute of 14 G. 2.

Bosanguet J. concurred in the propriety of the amendment.

ALDERSON J. We should be very anxious to grant this amendment where the parties clearly intended to effect a valid recovery; and the only error is of the same nature as putting John Doe by mistake for Richard




Nov. 4.

HIS cause, and all matters in difference between the Upon re- parties, had been referred to the arbitration of a sur- ference to a

surveyor of a veyor. Costs to abide the event. The Defendant had cause and all paid 6001. into court.

matters in

difference, an The arbitrator awarded that the Defendant had over

award that paid the Plaintiff 341.

Defendant had overpaid Plain

tiff 341., Jones Serjt., in shewing cause against a rule for an Heid, not attachment, objected that this award was not final, and sufficient to

entitle the was void for uncertainty. The arbitrator should have disposed of the cause and of the matters in difference enforce the separately. The 341. might have been overpaid upon a award by

attachment. general balance of other matters in difference, and the Plaintiff might have been unpaid as to the matter contested in this action, and entitled to the verdict and costs, which he might levy separately: Highgate Archway Company v. Nash. (a) If the 341. was to be taken as overpaid in the action, then there was no adjudication upon the other matters in difference. In Randall v. Randall (6), where various matters were referred to an arbitrator, it was held he must adjudicate upon all.

Andrews Serjt., for the Plaintiff, contended that the award was sufficient, it not appearing that any matters save those in the cause had come before the arbitrator. The award amounted in effect to a finding that the Plaintiff had no cause of action.

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The Court took time to consider, and now thought there was sufficient doubt on the face of the award to justify the refusal of an attachment, and to leave the Plaintiff to his remedy by action.

Rule discharged.


Nov. s.

PLANCHÈ v. COLBURN and Another.

the Defendred of at the Defendants whiff the sum of

Defendants THE Defendants had commenced a periodical pubengaged Plain.

*lication, under the name of “ The Juvenile Library,"

1 tiff to write a treatise for a and had engaged the Plaintiff to write for it a volume periodical pub- upon Costume and Ancient Armour. The declaration lication.

m. stated, that the Defendant had engaged the Plaintiff for menced the 1001. to write this work for publication in “The Juvenile treatise, but

Library;" and alleged for breach, that though the author before he had 4 completed it, wrote a part, and was ready and willing to complete and the Defend-, deliver the whole for insertion in that publication, yet. the periodical that the Defendants would not publish it there, and republication : fused to pay the Plaintiff the sum of 1001., which they Held, that Plaintiff might

fach had previously agreed he should receive. There were sue for com- then the common counts for work and labour. pensation, At the trial before Tindal C. J., Middlesex sittings without ten

after last term, it appeared that the Plaintiff, after enterlivering the ing into the engagement stated in the declaration, comtreatise.

menced and completed a considerable portion of the work; performed a journey to inspect a collection of ancient armour, and made drawings therefrom; but never tendered or delivered his performance to the Defendants, they having finally abandoned the publication of “ The Juvenile Library,” upon the ill success of the early numbers of the work. An attempt was made




to shew that the Plaintiff had entered into a new contract.

The Chief Justice left it to the jury to say, whether the work had been abandoned by the Defendants, and whether the Plaintiff had entered into any new contract; and a verdict having been found for him, with 501. damages,


Spankie Serjt. moved to set it aside, on the ground that the Plaintiff could not recover on the special contract, for want of having tendered or delivered the work pursuant to the contract; and he could not resort to the common counts for work and labour, when he was bound by the special contract to deliver the work. If the Plaintiff had delivered the work, or so much of it as he had completed at the time “ The Juvenile Library”. was abandoned, the Defendants might have turned it to account in some other way.

Tindal C. J. In this case a contract had been entered into for the publication of a work on Costume and Ancient Armour in “The Juvenile Library.” The considerations by which an author is generally actuated in undertaking to write a work are pecuniary profit and literary reputation. Now, it is clear that the latter may be sacrificed, if an author, who has engaged to write a volume of a popular naturé, to be published in a work intended for a juvenile class of readers, should be subject to have his writings published as a separate and distinct work, and therefore liable to be judged of by more severe rules than would be applied to a familiar work intended merely for children. The fact was, that the Defendants not only suspended, but actually put an end to, 6 The Juvenile Library;" they had broken their contract with the Plaintiff; and an attempt was made, but quite unsuccessfully, to shew that the Plaintiff


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