QUEEN'S BENCH. Common Law Courts. COURT OF QUEEN'S BENCH. Reported by ADAM BITTLESTON and JOHN THOMPSON, Esqrs., Barristers-at-Law. Friday, June 30. PINDER V. BARR. Parish clerk-Appointment during suspension of vicar by a stipendiary curate appointed by the ordinary to officiate during the suspension-Minister for the time being-Form of appointment. A stipendiary curate, nominated by the ordinary to the cure of a vicarage during the suspension of the vicar, is "the minister of the place for the time being," within the meaning of the 91st Canon of 1603; and such curate has lawful authority, if a vacancy occurs during the suspension, to appoint to the office of parish clerk. It is not competent in such a case for a stranger to object that the appointment was to hold during the suspension only; but the appointment should be made in the usual form. had since been obtained. it. QUEEN'S BENCH. Keeling to hold during the continuance of the sus pension; and at the commencement of the action it was and still is continuing. Two objections were made: first, that Mr. Keeling could make no valid appointment; secondly, that an appointment during the suspension was, at all events, invalid. In the case of Bunter v. Cresswell, 14 Q. B. 125, we had occasion to consider the effect of suspension, when it is, as in the present instance it is, admitted to be both ab officio and beneficio; and we held that it amounted to a temporary amotion, not so as to render a new collation necessary, but such as deprived him for the time being of all the fruits and incidents of his benefice, and of the exercise of all the functions For all these purposes, and and duties of his office. so far as regards him, although not absolutely, the benefice may be considered as vacant, and the bishop, in virtue of his office as chief pastor of the diocese, is to receive the fruits and to provide for the discharge of the duties. The Archbishop in the present case has appointed Mr. Keeling. No other written instrument of appointment was given in evidence, but the ordinary licence as a stipendiary curate; and by the terms of the Archbishop's grant to him, he has This was an action to recover the amount of certain licence and authority to perform the office of stifees which had been received by the defendant, but pendiary curate in the reading of the common prayers, to which the plaintiff claimed to be entitled as the and performing other ecclesiastical duties belonging parish clerk of a parish in Yorkshire. At the trial, to the said office, according to the form prescribed in before Cresswell, J. at York, it appeared that the the Book of Common Prayer, and according to the defendant also claimed as parish clerk under an apCanons and Constitutions in that behalf lawfully pointment made by the Rev. W. Drake, the vicar, but established. It was argued, and we think successmade at a time when he was under a sentence of susfully, that the power to make the appointment in pension ab officio et beneficio. The plaintiff was ap-question was not to be found in the terms of this pointed by the Rev. Mr. Keeling, a licensed stipen- licence, which is indeed hardly suited to the case of a diary curate, who had been appointed by the ordinary person who, like Mr. Keeling, for the time being has to the cure of the vicarage during the suspension of no superior over him in the cure of his parish but the Mr. Drake. The plaintiff's appointment was in terms ordinary. This, however, does not decide the case. limited to the period of suspension; but the suspen- By the 91st Canon of 1603, which was regularly sion was still in force. A verdict was taken for the adopted by the province of York, the parish clerk is defendant; but leave was reserved to the plaintiff to to be appointed by the parson or vicar, or, when move to enter it for him; and a rule for that purpose place for the time being," which choice shall be subthere is no parson or vicar, by the minister of the mitted by the said minister or vicar or parson to the parishioners the next Sunday following, at the time of divine service. This Canon was agreed to on both sides, as determining the right of appointment. The question is therefore upon the proper construction of It appears to us that by the words "parson, vicar, or minister," the Canon intends to describe the functionary, whatever title he may have, who for the time being has the cure of the parish as principal. In some sense, a mere stipendiary or assistant curate might be described as minister; but, being so only as representing another person who is the real incumbent, he is not properly the minister of the parish. In the four immediately preceding Canons, The the term "minister" is used in this sense. senting together the whole parish, the former as minister and parishioners are spoken of as reprebeing the person whose office it was spiritually to minister to the latter. Strictly speaking, therefore, the canon in question may be thought to have had in view the different constitutions of a parish-to speak of parsons for rectories, vicars for vicarages, and ministers for all other cases, such as perpetual curacies or chapelries. But the words are large enough to embrace such a case as the present, where, although there is a vicarage, there is not for the who is so as to legal title, is virtually amoved for the present purpose any vicar-that is to say, the person time, without power to perform any of the functions of the office-but where there is still a minister, not merely as assistant representing the vicar, but one who by competent authority paramount to the vicar is placed in the parish, and authorised to perform all the spiritual and ecclesiastical duties of the vicar as principal; and, as the words are large enough to embrace this case, so we think that they ought to be thus applied, considering, even at the present time, how important it is that the appointment of clerk should be in the resident officiating minister, on whom he is to attend, to whom he is to be the assistant, under whom he is to perform certain parts of the service, and who ought to have the direction in chief of all engaged in the service, and who therefore ought to have the conby the consideration that at the date of the Canon the trol over the clerk. And this ground is strengthened clerk's service was deemed much more important than at present, so that a good understanding between him and the minister may reasonably be expected to have been provided for with great care. We are of opinion, therefore, that Mr. Keeling comes within the term of the Canon; and we are not prevented from so holding by the narrow terms of his licence; and from looking at the substance, as we must do, we see that he was both actually and lawfully, for the time being, the minister of the parish. The second question, therefore, arises whether he has made a good appointment. The objection is, that the office of parish clerk, in the absence of custom to the contrary, is a freehold office for life; and the appointment to hold during suspension changes the tenure. The suspension, however, may endure indefinitely; for a certificate such as will satisfy the archbishop may not be procured during the life of the suspended vicar. It is doubtful, therefore, whether the tenure of the office is changed; but, at all events, it appears to us the June 19.-H. Hill showed cause.-First, Mr. Keeling was a mere stipendiary curate and not in any sense the incumbent of the vicarage; and, that being so, he had no power to appoint a parish clerk. The Canon of 1603, when it speaks of "parson, or vicar, and, if there be no parson or vicar, then the minister of the place for the time being" means that the incumbent or superior minister shall appoint. [COLERIDGE, J. -Is the suspension over?] It was for two years, and until a satisfactory certificate of good conduct should be obtained. The two years have expired, but the certificate has not been obtained. Gibson, 214, shows the right of appointment to be in the incumbent; and Mr. Keeling's licence as a curate gives him no authority to interfere with its exercise. Secondly, this is a freehold office; and an appointment for a limited time or for a time dependent upon a contingency is bad; so that either Mr. Keeling could not appoint at all, or he must appoint for life, which is inconsistent with his position as a person put in by the ordinary to perform the ecclesiastical duties of the parish during the temporary suspension of the vicar. Atherton and Unthank, contrà.-According to the terms of Mr. Keeling's licence, he is not only to read the Book of Common Prayer, but to perform other ecclesiastical duties according to the Canons and Constitutions; and by one of the canons the appointment of parish clerk forms part of those duties. The canon, it is true, uses the expression "minister;" but in a parish there are only the three degrees of rector, vicar, and curate; so that the canon must use the word "minister' as applicable to a curate; and then Mr. Keeling comes within the very terms of the 91st Canon of 1603. In other places, also, the word "minister" is employed to mean the officiating clergyman: (stat. 2 & 3 Edw. 6, c. 1: 13 Eliz. c. 12; 13 Eliz. c. 20; 31 Eliz. c. 6, s. 10; so, also, frequently in the Canons; see Index, tit. "Minister.") And during the suspension of the vicar, Mr. Keeling was, in fact, the superior minister of the place: (Bunter v. Cresswell, 14 Q. B. 125.) Secondly, the appointment of plaintiff during the suspension is valid, although the office of parish clerk is generally a freehold office for life. There is no authority either for or against a temporary appointment; but if the appointment ought to be for life, then the words which limit it to the period of suspension may be rejected. COLERIDGE, J., referred to Anon. 2 Chitt. 254. JUDGMENT. COLERIDGE, J. now delivered the judgment of the court (a). This was a rule obtained for entering a verdict for the plaintiff; and the question in the case was the validity of the appointment of a parish clerk, the action having been brought by him to recover fees, which the defendant had, as it was alleged, wrongfully received as such. The vicar of the parish had been suspended by the diocesan, Archbishop of York, for two years, and until a satisfactory certificate was obtained of his good conduct. Mr. Keeling had been appointed to the cure. During the suspension in 1851, the office of parish clerk had become vacant, and the plaintiff was appointed by Mr. (a) Coleridge, Wightman, Erle, and Crompton, JJ. EXCHEQUER. objection does not lie in the mouth of a stranger, COURT OF EXCHEQUER. Reported by FREDERICK BAILEY and C. J. B. HERTELET, Esqrs., Barristers-at-Law. May 3 and 9. GRAVES v. LEGG AND ANOTHER. Contract for wool-Condition precedent-Pleading The declaration stated a contract for wool to arrive af 101d. per pound, laid down either at Liverpool, Hull, A or London, deliverable at Odessa during August them next, to be shipped with all dispatch, &c.; the names of the vessels to be declared as soon as the wool wa shipped; that the wool was delivered at Odessa, to the agents of plaintiff, and was with all dispatch shipped on board a certain ship, which sailed fro Odessa with the said wool on board, and afterwards arrived at Liverpool with the said wool on board, There was further an averment of notice to the defen dants, and of the lapse of a reasonable time efter arrival, and of performance by the plaintiff of all conditions. Breach, that defendants would not accept or pay for any part thereof. To this the defendants pleaded, that they agreed with plaintiff to buy the said wool for the purpose of reselling the same in their trade; that wool fluctucted greatly in price in the market, and that they could only resell the said wool when they had notice of is being shipped, and the name of the vessel in which was shipped declared according to the contract mentioned in the declaration, of which plaintiff had notice; but that plaintiff did not declare to defendants the wa of the vessel in which the wool was shipped at ar within the time within which he was bound to declare, that is to say, as soon as such wool was so shipped, but omitted and delayed so to declare the name for a long and unreasonable time; and before they had such notice, the price of wool had fallen in the market, &c. wherefore they did not, nor would accept or pay for the said wool: Held a good plea, such declaration of the name of the vessel being a condition precedent to the acceptance of the wool. The declaration stated that the plaintiff agreed t sell to the defendants, and the defendants agreed to buy of the plaintiff, about 300 or 350 bales white washed Douskoy fleece wool, to arrive, at 10jd per pound, laid down either at Liverpool, Hull, or London, deliverable at Odessa during August then next, style, to be shipped with all dispatch, warranted fr average quality, but should they prove otherwise, to be taken with a fair allowance, which it was mutually agreed between buyer and seller should be assessed by the said Messrs. Hughes and Ronald, subject to the the ports stated, and the names of the vessels to be safe arrival of the wool in good condition at any of declared as soon as the wools were shipped, customary allowances, payment cash in fourteen days, ess 14. 10s. per cent. discount, from the date of finishing loading, which agreement being made afterwards, the said wool, being 333 bales of wool of the quality and description in the said agreement mentioned, was daring the said month of August, old style, delivered, to wit. by the growers thereof at Odessa, to wit, to the agents of the plaintiff in that behalf, and was with ali dispatch then shipped there on board a certain vessel, called the Science, which said vessel then sailed from Odessa with the said wool on board thereof, sai afterwards, to wit, on the 22nd Nov. 1853, arrived at Liverpool with the said wool on board, safe and good condition, and according to the terms of the and of the lapse of reasonable time after arrival, an said contract; averment of notice to the defendants of performance by the plaintiff of all condities Breach, that the defendants would not accept or pay for the said wools or any part thereof. The defendants pleaded" that they agreed with the plaintiff to buy the said wool in the declaration mestioned for the purpose of reselling the same in the way of their, the defendants', trade and business f wool dealers, and thereby acquiring gains and profits that wool is an article that fluctuates greatly a price in the market, and that they, the defendants could only resell the wool as aforesaid, when, and not before, they the defendants had notice of the saxe being shipped, and when, and not before, the name of the vessel in which it was so shipped had been declared according to the said contract in the said declaration mentioned, of all which premises the plaintiff at the time of the making of the said agreement had notice; and the defendants further say, that, although the plaintiff had such notice, yet he, the plaintiff, did not declare të EXCHEQUER. the said defendants, or either of them, the name of the vessel in which the said wool was shipped at or within the time at or within which he was by the said agreement bound to declare, that is to say, as soon as such wool was so shipped, but omitted so to do, and delayed and omitted so to declare the name of the said ressel in which the said wool was so shipped in the said declaration mentioned, or to give the defendants any notice of the same being so shipped for a long and unreasonable time after the same had been so shipped; and the defendants had not notice of the shipment of the said wool, or of the name of the vessel in which the same had been so shipped, until after the expiration of a long and unreasonable time after the same had been so shipped, and after the plaintiff was bound to and ought to have given and declared the same, and ought and could have done so; and the defendants further say that between the time that the name of the said vessel ought to have been declared, according to the said agreement in the said declaration mentioned, and the time when it was first declared to the defendants or when they first had any notice of the said ship having sailed with the said wool on board thereof, the price of wool in the market had greatly fallen, and the said wool thence continually remained so fallen in price, and the same, when the name of the said vessel was first declared and when the defendants first had notice or knowledge of the same having been so shipped, would sell or could be sold only for a much less sum of money than it would have done at the time when the plaintiff ought to and could have declared the name of the said vessel, or given the defendants such notice as aforesaid; wherefore the defendants did not nor would accept or pay for the said wool as in the declaration mentioned.' Demurrer and joinder. Blackburn, in support of demurrer, cited Cutter v. Powell, 2 Smith L. C. 11; 1 Wms. Saund. 320, a; 2 lb. 352, n. 3; Ellen v. Topp 6, Exch. 441; Campbell v. Jones, 6 T. R. 570; Ollive v. Booker, 1 Exch. 416. C. E. Pollock, contrà, cited 1 Wms. Saund. 320 a; Cur. adv. vult. PARKE, B. (after reading the pleadings.)—In this case, the question raised by these pleadings is, whether the provision that the names of the vessels should be declared as soon as the wools were shipped was a condition precedent to the defendants' obligation to accept and pay for the wools according to the contract stated in the declaration, and under the circumstances stated in the plea. This contract, we think, is to be construed with reference to some of those circumstances. It is stated in the plea that the wool was bought, with the knowledge of both parties, for the purpose of reselling in the course of the defendants' business; that it is an article of fluctuating value, and not saleable until the names of the vessels in which it was shipped should have been declared according to the contract. The declaration having averred, according to the 57th section of the Common Law Procedure Act, the performance of conditions precedent generally, the defendants proceed in this plea to specify this condition of declaring the names of the vessels as one on the breach of which they insist. The loss which they aver to have sustained by that breach is immaterial. The only question is, whether the performance of the agreement was a condition precedent or not to the defendants' contract to accept and pay for the goods. In the numerous cases on the subject in which it has been laid down that the general rule is to construe covenants and agreements to be dependent or independent according to the intent and meaning of the parties to be collected from the instrument, and of course to the circumstances legally admissible in evidence, with reference to which it is to be construed, one particular rule well acknowledged is, that where a covenant or agreement goes to part of the consideration on both sides, and may be compensated in damages, it is an independent covenant or contract, and an action might be brought for the breach of it, without avering performance in the declaration under the old system of pleading, and under the new the denial of such performance would be bad; and the cases of Campbell v. Jones, 6 T. R. 570, and Boon v. Eyre, 2 W. Black. 1312-13, are instances of the application of the rule. But then it appears, as Mr. Serjt. Williams observes, in Pordage v. Cole, 1 Saund. 320 a (and the Lord Chief Baron, in delivering the judgment of this court in Ellen v. Topp, 6 Exch. 441, adopts the bservation), "the reason of the decision in that and similar cases, besides the inequality of the damages, seems to be, that where a person has received part of the consideration for which he entered into the agreetent, it would be unjust that because he had not the whole, he should, therefore, be permitted to enjoy that part without either payment or doing anything for it. Therefore, the law obliges him to perform the agreement on his part, leaving him to his remedy to recover any damage he may have sustained in not having received the whole consideration." (Those are the words of Mr. Serjt. Williams in the note.) goes on to observe that it must appear upon the record that the consideration was executed in part. He EXCHEQUER. Nov. 23, 1853, Jan. 12, May 1, and June 13, 1854. Weights-5 Geo. 4, c. 74-5 & 6 Will. 4, c. 62-Con- EXCHEQUER. This may appear by the instrument declared on itself, question depends upon the construction of the statute A contract for sale by the long hundredweight is valid (Per Pollock, C.B.; Platt and Martin, B.B.-Parke, This was an action brought for the nondelivery of a quantity of iron purchased by the plaintiff of the defendant. The declaration stated the sale by the defendant, and the purchase by the plaintiff, of a large quantity, to wit 240,000 lbs., of good bar iron, and that was said to be for the price of 4167. Plea, that the contract for the sale and the purchase of the iron was made between the plaintiff and the defendant after the passing of the 5 & 6 Will. 4, c. 62, relating to the sale and purchase of iron, to wit, 100 tons long weight; that is to say, a certain illegal weight, to wit by the ton weight, consisting of 2400lbs. avoirdupois, being more than twenty hundredweights standard weight in said Act mentioned, contrary to the form of the statute in such case made and provided. The defendant relied on the illegality stated in the plea. At the trial a verdict was returned for the defendant. Subsequently a rule nisi to enter the verdict for plaintiff non obstante veredicto was obtained. The case was argued on several days: Keating, Q.C. (Archibald with him) showing cause against the rule for judgment non obstante veredicto; Gray, in support. The cases and statutes cited were:-Rex v. Major, 4 T. R. 750; Rex v. Arnold, 1 T. R. 353; Tyson v. Thomas, 1 M'Clel. & Y. 119; Noble v. Durrell, 3 T. R. 271: 5 & 6 Will. 4, c. 63; 5 Geo. 4, c. 74; 31 Edw. 3, st. 1, cc. 2 and 5; 16 Vict. c. 29. JUDGMENT. Cur, adv. vult. MARTIN, B.-This was a rule for judgment non obstante veredicto on the second plea. After much consideration I have not been able to satisfy myself that the plea is good. There is no ambiguity in its language which could be aided by the verdict, and the question simply is whether a contract for the sale of 100 tons of iron, long weight, being a phrase article by the long stone, the operation of the 11th perfectly well known to mean tons of twenty hundred-section would be to affix an absolute statutory meanweights of 120 lbs. each, is illegal and void. The ing to the word "stone," that the word "long" would EXCHEQUER. be considered as of no avail, and that all evidence that the parties really meant 16lbs. (pounds) would be inadmissible; and the contract would, in legal construction, be deemed to be for fourteen pounds standard weight. If I am correct in this view as regards the word "stone," the same construction would of course apply to the words or denominations "long hundred," or "ton long weight," and, as applicable to the present case, the result would be that the sale was a lawful sale, but that the contract would be fulfilled by the delivery of 100 tons of iron of 2240lbs. avoirdupois each ton. In the course of the argument I was inclined to think that the 21st section rendered the contract illegal. Upon considetion, however, I am satisfied that it has reference to false and dishonest weight only, and has no bearing upon the present question. I think that what the law prohibits is the use of any pound other than the standard pound, and that all contracts for sale by weight must be by this standard pound; and further, that, if parties in contracts use the words or denominations stone," "hundredweight," or "ton," they shall be conclusively taken to mean the weights mentioned in the 11th section; but if they use any other word or denomination of weight, which, according to the ordinary rules of law applicable to the use of words, means a multiple of the standard pound, it is my opinion that it is lawful for them so to do, and that a contract using such word is legal. This is in exact conformity with the judgment of the Court of Q. B. delivered the other day in the case of Hughes v. Humphreys, 28 L. T. Rep. 208, when the word "hobbet" was used in a contract for the sale of wheat. This construction of the statute would probably show that the plaintiffs would have been compelled to amend their declaration at the trial, if the objection had been taken at the trial that the contract alleged in it had not been proved. This objection, however, was not taken, and justice will be done if the damages are confined to the deficient delivery, calculating the ton as meaning 2240lbs., and not 2400lbs. EXCHEQUER. as EXCHEQUER. which every such local weight or measure shall bear only provides for the standard pound and its multiple, to any of the said standard weights or measures shall not for the quarter, hundredweight, or ton; admitting be expressed, declared, and specified in such agree that it does so, it still forms a strong ground for ment, or otherwise such agreement shall be null and giving a similar construction to the 11th section of void. The 16th section provides that weights and the 5 & 6 Will. 4; for if a sale by every customary measures not in conformity with the said standard pound is prohibited and rendered void, what reason weights and measures, but established by local eus- can be given for not prohibiting the sale by hundredtom or founded on special agreement, may be used, weight or ton? The 21st section enacts that every provided that the ratio which they bear to the person who shall use any weight or measure other standard weights and measures shall be marked than those authorised by this Act, or some aliquot thereon. This section applies to the actual use part thereof, as hereinbefore described, or which of specified weights and measures in weighing has not been so stamped as aforesaid, except and measuring. Upon this statute it is clear that as hereinafter excepted, or which shall be found any agreement to sell by a customary pound, or light or otherwise unjust, shall, upon conviction, any multiple of a customary pound weight, is forfeit a sum not exceeding 52; and any contract, absolutely void, unless the ratio it bears to the bargain, or sale made by any such weights or meastandard pound is expressed in the contract. But the sures shall be wholly null and void, and every such statute does not in express terms apply to the sale by light or unjust weight or measure so used shall, on a customary stone, quarter, hundredweight, or ton, being discovered by any inspector so appointed as although such sales are clearly within the same aforesaid, be seized and, on conviction of the person mischief. I will next consider what the effect of the using or possessing the same, shall be forfeited." The subsequent statute 5 & 6 Will. 4, c. 63, is. The Act immediate object of this 21st section probably was to begins by repealing the statute 4 Will. 4, c. 49. By prohibit the use of, and contracts for a sale by, certain the 11th section, which recites that "by local customs specific weights, which are not according to the Act, in markets, towns, and other places, the denomination or are not properly stamped; and if the case depended of the stone weight varies," it is enacted that "from upon that section alone, and there were no other proand after the passing of this Act the weight denomi- visions upon the subject of contracts, I think sales by nated a stone shall in all cases consist of 14lbs. customary weights would not be prohibited. But the avoirdupois, and that the weight denominated a provision makes the whole system complete. To hundredweight shall consist of eight such stones, and secure against confusion and fraud, the use in weighthat the weight denominated a ton shall consist of ing and measuring of all unauthorised weights and twenty such hundredweights: provided always, measures to weigh or measure by is prohibited. All that nothing herein contained shall prevent any contracts by such specific weights and measures, a bargain, sale, or contract being made by any multiple for instance, where a vendor had such unauthorised or by some aliquot part, such as the half, the quarter, weights and measures in his possession, and conthe eighth, or the sixteenth part of the pound weight." tracted to sell by them; and lastly, all contracts by Now this section comes in place of the 12th section of the pound, stone, cwt, ton, &c., and by the foot or yard the repealed statute 4 & 5 Will. 4, c. 49, which is as or gallon, customary or local measure, are prohibited. follows:-"And whereas by local customs in the I think therefore that it appears sufficiently that this markets, towns, and other places throughout the particular contract is forbidden, and consequently is United Kingdom, the denomination of the stone void. It occurred to me in the course of the argePARKE, B. This case has been fully argued before weight varies, being in the country generally deemed ment, that the 11th sect. of the 5 & 6 Will. 4 might us during Michaelmas, Hilary, and Easter terms last, to contain 14lbs. avoirdupois, and in London com- be explained to mean, that if there was a contract to and been the subject of much consideration by all of us. monly eight of such pounds, or otherwise sell by the stone or cwt., or ton, without any menIt is clear that the plea was proved; for there is no may be, be it therefore enacted that from and tion of customary weight, it should be held to meat question that the sale was by long weight, and that after the 1st Jan. 1835 the weight denominated a that the weight should be 14lbs., 112lbs, and the meaning of the term "long weight" is 2400lbs. stone shall in all cases consist of 14lbs. avoirdupois, 2240lbs. respectively-that is clear; and that if the avoirdupois to the ton; therefore there can be no new and that the weight denominated a hundredweight parties stipulated for a customary stone, or a customtrial. It was indeed contended, on the second ar- shall consist of eight such stones, and that the ary hundred or ton, the contract should be interpreted. gument of Mr. Gray, that the plea meant that the weight denominated a ton shall consist of twenty such against the meaning of the parties, to be for the contract was for 100 tons long weight, expressed hundredweights, and all other contracts made by any statutory weight only. I think this would be to be 240,000lbs., which would be the same as if it other stone, hundredweight, or ton, from and after the an unreasonable construction. If the contract prohad been for 240,000lbs.; and it then would be good. 1st Jan. 1835, shall be null and void." It will be seen hibited is illegal, both parties are in equal fault. But if that be the meaning of the plea, then it was that this section expressly avoids all contracts by any and are equally punished if it be held void, as it must not proved, and there should be a new trial. But I other than the statutory stone, cwt. or ton; whereas be, whether the vendor can oblige the vendee to take think the meaning of the plea is, the sale was by the corresponding section in the 5 & 6 Will. 4 does nor the vendee oblige the vendor to deliver; and long weight, and that long weight meant 2400lbs. to not provide in express terms that the contract should the vendor chooses to deliver (being presumed to be the ton; and that it was not expressed to be be void. This affords undoubtedly a strong argument conversant of the law), he suffers by his own fault. 240,000lbs. on the contract itself. The only question that the Legislature in the latter Act did not intend But if the contract be held valid in a different sense then is, whether that plea, understood in that sense, this consequence to follow. But then comes the from that of the contractors, the punishment is is good after verdict. This depends upon the con- question whether, notwithstanding the want of the unequal. If the contract be for customary stones af struction of the 5 & 6 Will. 4, e. 63, taken in con- express enactment in this particular clause, the in- 8lbs. each, the purchaser gains 6lbs. on each stone, junction with the prior statutes relating to weights tention of the Legislature can be sufficiently collected and so punishes the vendor by obliging him to de and measures. Does that Act make the contract from the different provisions of the Act, coupled with liver so much. On the other hand, if the contract be void? I have great difficulty in coming to a con- some of the provisions of the old Act, to prohibit such for long weight, the vendor gains, and so punishes the clusion as to the meaning of the Legislature; but, contracts; and if they do prohibit them, no court of purchaser; for, having agreed to sell 2400lbs., he is after much consideration, I think that their intention law can enforce them. I have come to the conclusion entitled to the price if he delivers only 2240lbs. I think must be taken to have been to prohibit the sale by that this is to be collected from different parts of the the Legislature never could have intended what ap weights other than by the standard weights denoted in two Acts. In the first place, the 11th section above pears so unreasonable: of course, they might have the schedule, and long weight is not such a standard recited, going beyond the recital, which states the dis-enacted that such should be the consequence in exweight; and, consequently, that a contract to sell by crepancy of the stone only (and enactments go very press terms; but they certainly have not done so. that weight is void, for every contract prohibited or often beyond the recital), provides that the hundred- One more observation remains. The proviso in this made unlawful by a statute is therefore void. The weight shall in all cases of contracts consist of eight 11th section, that contracts may be made by a ma plea is therefore, I think, good. The Act is one of a stones of 14lbs. and a ton of twenty such cwts. And tiple or aliquot part of a pound, cannot, in my p series beginning with the 5 Geo. 4, c. 74, which re- it follows that, in every case, it shall not consist of nion, be applied to such a case as this, on the ground pealed a great number of statutes, and was for as- any other number of pounds than the 112lbs. to the that, long weight being known to be 2400lbs, weight certaining and establishing, as the title declares, cwt. and twenty times that amount to the ton, and in to the ton, the parties may be taken to have culuniformity of weight and measure; and the Act re-effect it prohibits contracts for any other description tracted for a multiple of pounds, as they contracted cites "that it is necessary for the security of com- of ewt. or ton. The proviso shows clearly that for tons. To bring this case within the proviso, they merce and for the good of the community, that the section relates to all bargains, sales and con- should have contracted for so many parts of po weights and measures should be just and unior statutory multiples of pounds, as stones, cwts, form, and that the true measure of the present tons. To allow the customary weight to be tra standards is not verily known, which is the lated into pounds is to defeat the object of the Legis cause of great confusion and manifest frauds." lature, which appears by the recital of the 5 Ges Nothing can be clearer, therefore, than the intention and in the recital to that section also, to be to preve of the Legislature to have one uniform standard; and disputes about customary weights, which vary in d the use of terms in contracts to describe both weights ferent places. It is true the section recites a varie and measures other than those established by law, ation by local custom as to the stone only; but the whereby confusion may arise, and frauds may be comsection provides also for cwts, and tons. which an 2 mitted on strangers unacquainted with local usages, the same mischief. A contract with a stranger in the is within the same mischief. Whether it is actually market, or with a person in a distant part of the kingd prohibited by any of the statutes on this subject is would be likely to generate a dispute, as to whis the question. This Act provides for what shall be the the contract be according to the custom or not; standard measure of weight, from which all others as to the quantity of the customary weight, I hav are to be ascertained and computed, namely, the come to the conclusion, for the reasons I have sta standard pound; and by sect. 9, all contracts for goods that the contract was void, and that the plea is to be sold by weight (except coals, &c.) shall be and consequently that the plaintiff is not enti according to that standard of weight, or parts or to judgment. But I will add, since I prepared multiples thereof. Then the 15th section of the same judgment, I have thought over the subject ver statute provides that all contracts, bargains, and sales, much and I have been informed that a case b for goods by weight or measure, where no special been decided a few days ago in the Q. B., in wh agreement shall be made to the contrary, shall be there was a decision on the statute as to customary deemed to be made and had according to the standard weights and customary measures, and it was i weights and measures ascertained by that Act; and cided that the statute applies only to custo 17 in all cases where any special agreement shall be measures; and that the hobbet, which had in forme made with reference to any weight or measure estacases been treated as a customary measure, an blished by local custom, the weight or proportion the contract was on the evidence in that case tracts, and excepts out of them contracts by EXCHEQUER. treated to be a contract by a customary weight, it and it seems to me therefore that, that being a plain multiple of a pound, it falls within the proviso of the Act of Parliament. It therefore seems to me, upon the whole, the contract does not involve in its execution the use of any prohibited weight; and the sale contracted for of the goods is a sale by a weight of a known denomination, which is an ascertained and known multiple of a pound. Therefore, for these two reasons, it seems to me the sale was legal, and that this plea was bad; and that the judgment ought to be for the plaintiff. ment shall be made with reference to any weight PLATT, B. (after stating the pleadings).—The ques- The statute 4 & 5 Will. 4, e. 49, is entirely out of the question, except as it may throw some light upon the matter by what that statute contemplated, because that statute is now wholly and entirely repealed. The whole matter turns upon the true construction of the statute 5 Geo. 4, c. 74, and the statute 5 & 6 Will. 4, c. 63. Now it was contended at the bar, and to some extent my brother Parke has adopted the view, that the 9th section of the 5 Geo. 4, which may remain unrepealed, provides, That all contracts, bargains, sales, and dealings made or had for or with respect to any coals or any other goods, are to be sold, delivered, done, or agreed for by weight or measure, shall and may be made and had according to the said standard of weight, and so on. This is, no doubt, a positive enactment that it shall be so; and if it were not altered by what has been enacted afterwards, no doubt it would remain the law, and it would be necessary that every contract should be according to the standard; and there is no doubt that by the 15th section of the same statute, which also is unrepealed, that all contracts of sale shall relate to the same standard, and "where any special agreement shall be made and had with reference to any weight or measure established by local custom, the rate which every such local weight or measure shall bear to every standard weight shall be expressed, declared, and specified in such agreement, or otherwise such agreement shall be null and void." I do not think that the 15th section applies to the present subject at all. I think that the long hundred is not a local weight. 1 am of opinion it is as much a known weight, and known in every part of the kingdom where the English language is spoken, as the hundredweight of 112lbs.; it is no local word like the hobbet, or like the other expressions of weights we and all their measurements and other dealings shall but left out of their proof a bill of exchange for 6561. PARKE, B.-It is exceedingly embarrassing. These Acts of Parliament, I must say, are very obscure. Judgment for plaintiff, non obstante veredicto. BANKRUPTCY. North, for the Banking Company, submitted that the facts were in favour of his clients. It was clear that the trading was exceedingly limited; and, the bankrupt having carried on business under the style of "M'Lintock and Co." the bank could have no certain knowledge of his position. If they had summoned him before this court, as the petitioner's suggested, and required him to give an account of his means, he would probably have declared that he had no assets, and but a slight interest in the business. He conceded that the debt was proveable under the first bankruptcy; but the bill was not in the posssession of the bank until four months after the issuing of the fiat, and no proceedings were taken in the bankruptcy after the usual meeting for the bankrupt's last examination. Bond, for the assignees.-The affidavits as to the extent of the trading are contradictory, but the evidence of the balance sheet should be a sufficient answer to the allegations of the bank. It shows that the bankrupt has contracted debts since his former bankruptcy, to the amount of 5000l. and his assets have realised nearly 1800. It is admitted that the bank's agent had knowledge of the trading in July 1851, and he laid by until M'Lintock made his cording to the principle laid down by the courts of law and equity, in all the analagous cases reported, yielded priority to the subsequent creditors. The earliest case is Troughton v. Gilley, 1 Ambler, 630, in which Lord Chancellor Camden said, the bankrupt's prior creditors "knew that he was trading with a multitude of persons, and in order to do that, it was necessary he should take as well as give credit; this is a declaration to all mankind that he had sufficient capacity. It falls within the principle, that if a man having a lien stands by and lets another make a new security, he shall be postponed; therefore I think the first creditors ought to lose their priority." In ex parte Bourne, 2 Glyn and I. 141, Lord Eldon said, "take the instance of a commission taken out in 1820, and another taken out against the same person four or five years afterwards upon a subsequent trading; if he has been permitted to go into the world as a trader, and to gain credit as such, the court will not permit the creditors under the first commission to take that which they could not take without injustice to the creditors under the second, whom they have permitted to deal with the bankrupt as if he had his certificate; and that they should only take that part of the bankrupt's subsequently acquired property which should remain after all the creditors who had been so permitted to deal with him after the first commission should have been paid; that the profits derived by the bankrupt from such subsequent dealings shall belong to the creditors under the first commission; but the debts contracted in his trading after he secondly engaged in trade with the permission of those creditors shall be first paid." The most recent case is Tucker v. Hernaman, 22 L. J. Rep. 791, in which the doctrine of Troughton v. Gilley, was held by the Lords Justices on appeal, who went so far as to order that the official assignee having appealed against a decision so manifestly in accordance with law and equity, should personally pay the costs J. M'Lintock, of Barnsley, Yorkshire, linen manu- of the appeal. These cases should be sufficient, but facturer, was made bankrupt in March 1840. The York- they may be strengthened by a reference to the pracshire District Banking Company were large creditors, I tice of the courts on a provision of the old bankrupt LEEDS. (Before Mr. Commissioner WEST.) Ex parte SCOTT, P.O., re M'LINTOCK. Uncertificated bankrupt a second time bankrupt Proof by a creditor under former bankruptcy-Effect of lying by. M. was made bankrupt in 1840, and did not obtain a certificate of conformity. S. was a creditor, but did not prove for the whole of his debt. In 1841 S. sued M. for the balance, and he executed a cognovit. In 1842 M. began to trade again, and carried on business until 1852, when he executed an assignment to his creditors. S. had knowledge of the trading for some time previous to the second stoppage An adjudication of bankruptcy having followed the assignment, S. entered up jumment on the cognovit, and proved under the second bankruptcy as a judgment-creditor: Held, that S., having suffered M. to trade again unmolested, was postponed, and could not participate in the bankrupt's subsequently acquired estate until the second creditors were fully paid. CIRCUIT REPORTS. law now repealed. By 6 Geo. 4, c. 16, if a bankrupt's estate did not realise 158. in the pound, and the bankrupt did not obtain his certificate, the assignees might claim to participate in subsequently acquired property, in priority to creditors under a second fat. But the courts held that, though this was provided by statute, the first assignees lost their priority, if they allowed the bankrupt to trade as though he had obtained his certificate. Ex parte Jung Michael, 2 Mout. Deac. & De Gex, 471; Ex parte Butler, id. 731; Butler v. Hodgson Bing. N. C. 298. This case is strictly within the rule laid down by the courts, and the bank has yielded priority to the subsequent creditors. The case is July 21.-The COMMISSIONER.-I am of opinion that the bank must come in subsequent to the credi tors under the second bankruptcy. The point as to the debt not having been proved under the former bankruptcy is of no consequence. governed by the judgment of Camden, L. C., in Troughton v. Gilley, and the strong opinion expressed by Lord Eldon in ex parte Bourne. It is consonant in principle with natural justice. By permitting the bankrupt to trade without molestation, the bank clothed him with a false credit, by which others who trusted him might be injured, which is the feature by which all these questions are distinguished. The balance sheet is conclusive as to the extent of the trading which must have been within the knowledge of the bank. In Tucker v. Hernaman, the facts were stronger than in this case. There the second trading extended over a period of thirty-five years. But the circumstances of the present case are in my opinion sufficient to bring it within the rule laid down by the older cases cited, and the motion on the part of the bank must be dismissed, and the petition of the assignees granted. The costs of the assignees must be paid out of the estate. Circuit Reports. Reported by EDMUND POWELL, Esq. Barrister-at-Law. Where a witness refuses on religious scruples to be The prisoner was indicted for concealing the birth of a child. A Miss Atcherley, who was said to be a member of a society called the Plymouth Brethren, had been subpoenaed to give evidence before the grand jury, but had not been examined before the magis trate, nor was her name on the back of the bil When directed to be sworn, in order that she might go before the grand jury, she refused, stating that she had conscientious objections, and believed that all oaths were prohibited by Scripture. The grand jury came into court, and stated that. unless they had additional evidence, they should ignore the bill. The prosecuting counsel (Mr. Holdsworth), on being asked by the court whether the evidence expected from the witness was material or not, stated that, as far as he could learn after an interview with her, her evidence would not be material. WIGHTMAN, J., after asking the witness whether she was or had ever been a Quaker or a Moravian, and receiving a negative answer, remonstrated with her; and, after endeavouring in vain to induce her to be sworn, committed her to prison during the term of the assizes. He also commented strongly on the obstruction to public justice arising from such cantumacy. REG. v. HARVEY. It appeared that the deceased, a girl of twenty-one, had on the 16th of last May been last seen going towards her home about four in the afternoon, and was discovered next day in a field near Torrington. in a state of almost complete insensibility, from which she never entirely rallied, arising from severe blows on the skull. It was proposed by Slade, Q. C., and Karslake fct the prosecution, to give in evidence various statements affecting the prisoner, which she had subse quently made as to the perpetration of the injanes J. O. Rowse, a surgeon at Great Torrington, deposed to the originally mortal nature of the wounds whi he was called in to examine. He then said: "It deceased she was in a hopeless condition, and ask her if she believed herself to be so; and she distinctly answered 'Yes.'" On cross-examination the witness qualified this statement, and said "I was desired by Mr. Slowly, the master of the union, to tell her she was in a hopeless condition. I felt her pulse first. I think the words I used were, Do you know you are in a hopeless condition and likely to die?' I thought sometimes she might have lived twelve months, but entertained no ultimate hope of her recovery. I am |