EXCHEQUER. be trustees for the particular society. It is difficult, also, to see how the Act can be applied to the whole body. The Conference has its powers; but how far those powers extend to deal with property in particular chapels is not yet settled; in fact, any such authority has been expressly disclaimed. It will be better, therefore, that the trustees be appointed under the Charitable Trusts Act. The declaration will be, that the appointment of new trustees at the meeting of the 13th Jan. 1851, assumed to have been held under the provisions of Peto's Act, is not a valid appointment; the proposed new trustees will be appointed; and there will be a vesting order as to the trust property in the continuing and new trustees, apon the production of affidavits as to fitness and acceptance of the office. In this case Messrs. Harold, Charles, and Gerard Potter had for some time carried on business in co Partnership, when, the former desiring to retire, a deed was made by which he assigned all his share of the partnership effects to the others for 19,000l., and they in turn covenanted to pay that sum by instalments. In addition to this, Harold Potter, in consideration of 29,000, tranferred the goodwill in the business to Charles P. alone. The question was as to the stamp to be impressed on the deed, it being conceded that an ad calorem duty of 10s. per cent. was to be paid on the 19,000, and an additional 28. 6d. per cent. on the ovenant to pay that sum at a future day; but it was contended that no ad valorem duty was payable on the 20,000, for that a goodwill was not property within the meaning of the schedule to the Stamp Act, title "conveyance," and that an assignment of a goodwill was not an assignment of property. Phinn, for the Commissioners of Inland Revenue. Hindmarsh, for H. Potter. Cur. adv. vult. JUDGMENT. June 15.-POLLOCK, C.B.-There is a case in which we have to give judgment in reference to the claim of the Stamp Office to impose an ad valorem duty where the transfer is of a goodwill in a business. The case was stated for our opinion by the Commissioners of the Inland Revenue, and they have presented to our attention an indenture of the 26th Sept., in the year 1853, by which many other matters were transferred apon some dissolution and readjustment of a partnership; and among other things the indenture further witnessed, that in pursuance of the said recited agreement, and in consideration of the premises, and also in consideration of the covenant for the payment of the sum of 20,000% and interest thereon to the said Harold Potter, as hereinafter mentioned, the said Harold Potter doth by these presents bargain, sell and assign, all that the trade, business, or share or proportion of him the said Harold Potter in the trade or Lasiness of paper making and paper staining, carried on by the said parties hereto in copartnership together as aforesaid, and the goodwill of the same trade or business, and all benefit and advantage thereof; and the question is whether an ad valorem duty is payable upon the price of that goodwill of the business so transferred in the deed which I have read. We are of opinion that the assignment of the share of the goodwill of the trade in this case is an assignment of the property within the meaning of the Stamp Act, and liable to an ad valorem duty. The 55 Geo. 3, c. 184, sched. I., imposes the ad valorem duty on any sale of my goods, lands or tenements, annuities or any other effects, real or personal, heritable or moveable, or any night whereby the land or other things are sold. If EXCHEQUER. subject of a sale, though there is nothing tangible in it, it is merely the advantage of the recommendation of the vendor's connection, and it is a price to abstain from all competition with the vender. Still it is a valuable thing belonging to himself, and which he may sell to another for a pecuniary consideration; and we think that no judicial construction has been put on this Act by decided cases by which we are bound. In the case of Warren v. Howe, 2 B. & C. 283, the court decided that an assignment of a judgment-debt did not require an ad valorem stamp as a mortgage of property, because it did not fall within the definition of a mortgage; and that it was not within the law as to conveyances, for that only applied to such descriptions of property as are usually the subject of sale. Now the goodwill of a trade does fall within the description in Blandy v. Herbert, 9 B. & C. 396, where there was an assignment of a policy of insurance, on which no loss had accrued, and Lord Tenterden held that it could not be considered as property, within the meaning of the first clause as to conveyances. In the case of Caldwell v. Dawson, 5 Exch. 1, this court held that the assignment of a policy was within the clause as to mortgage; and, on contrasting the two clauses, though one differs a little from the other, every description of the property appears to us to be included in both. Since that decision we do not doubt that the assignment of a judgment-debt or a policy of insurance is within both the one clause and the other. The case of Belcher v. Brymer, 6 B. & C. 234, where two persons agreed, the one to assign all his interest in a certain contract, and all debts to which the partnership concern were entitled, and that the share of the one should be deemed to be 50,000l., 30,000% of which had been paid, and the action was brought upon a covenant to pay the remainder, the court held, entirely upon the authority of Warren v. Howe, that this was not property within the meaning of the Act of the 55 Geo. 3; but if the case was to go to a new trial, Lord Tenterden said the point ought to be more solemnly raised. But, the case of Warren v. Howe having in effect been overruled, that case cannot be considered as an authority. The case of Lyburn v. Warrington, 1 Stark. 162, is the only other authority to be considered. There there was an agreement that the plaintiff should carry on the trade as a butcher in favour of the defendant, who was to be admitted into the house then occupied by the plaintiff, and the business was to be carried on by the plaintiff in the defendant's name for ten years. The defendant was to have possession of all the house but one room, and the fixtures. There was a covenant to pay 10007. down, and 10007. by ten quarterly payments. The objection was taken that an ad valorem stamp was required, under the 48 Geo. 3, which is in similar words; because the interests and possession of the house must have been given within the ten years, and was included, and the transaction was to be considered as a sale of his interests. Lord Ellenborough at Nisi Prius held that, as the house and fixtures were to be auxiliary to carrying on the business, and as there was no mention of any distinct substantive property exclusive of the trade, the case did not fall within the clause of the Stamp Act. It is clear that the case was never presented to his Lordship's mind as a purchase and sale of goodwill; we cannot therefore consider this as an authority, and we think that goodwill falls under the description of property. Were it otherwise, in cases where the goodwill operates as an increase of the value of real property, as in the sale of a well-accustomed shop, the revenue might be easily defrauded, by dividing the price of the real estate and the goodwill into two portions, and paying duty on the former only. We are of opinion that the commissioners were right in imposing the duty on this, the price of the transfer of the trade. June 15 and July 7. Where the defendant had demurred to the declaration, In this case the defendant demurred to the declaration. Upon the demurrer judgment was given in favour of the plaintiff; an application was then made to change the venue, when the following order was We were for the first time to consider this clause, we do not feel any doubt that it was meant to apply to any sale for a sum of money, and of any subject of made:property of that which belonged to a person exclusive of others, which would be the subject of bargains. "Upon hearing the attorneys, &c. I do order that The trade, or the goodwill of a trade, sometimes the venue be changed to Middlesex; that the costs of enhances the value of real property-as a well-accus- the application to set aside the demurrer, and to tomed tavern or shop will, on account of the habit of amend and change the venue, abide the result of the persons to frequent it, sell for much more than other demurrer; that defendants shall within seven days places will; and the duty on the conveyance of the pay 60% into court, and shall pay the costs of the day, house where the business is carried on, or pro tanto as if any, to be taxed. Dated 31st March 1854. the goodwill of a business or profession, without any interest in land connected with it which may be the (Signed) "W. H. MAULE." The 60%. was paid accordingly; and when the cause EXCHEQUER. came on to be tried there was a difficulty about the pleadings, and the learned judge, Parke B., recommended that a juror should be withdrawn, and no further action brought. That was agreed to, and accordingly there was an entry made on the postea, a juror withdrawn, and no further action to be brought. The plaintiff would have had a difficulty to recover (supposing he could have recovered upon the facts) in consequence of the shape of the pleadings. The question was whether, this money being now to be paid out of court, the plaintiff was entitled to have the costs of the demurrer, as it was the demurrer only on which he had succeeded. He was not entitled to recover the remainder of the money paid out of court, because he had not succeeded at the trial. Upon an application being made by the defendant to Parke, B. at chambers, to take the money of court, he refused to make an order unless the defendant paid the costs of the demurrer. Subsequently a rule was obtained, to show cause why the sum of 607. should not be paid out of court to defendants or their attorneys, after deducting therefrom the costs of the application to set aside the demurrer, and to amend and to change the venue, and the costs of the day at the Chester assizes (if any), and why the order of Parke, B. should not be rescinded or varied accordingly. Milward now showed cause.-The 60l. was paid into court to cover anything that might be found due to the plaintiff, and it has been found that nothing is due to him; therefore we are entitled to have this money paid out to us without deduction. The judgment of Lord Abinger, C.B. in Harries v. Thomas, 2 M. & W. 32, shows the effect of withdrawal of a juror, the which is merely that the parties are left in statu quo. He referred also to The Mayor of Macclesfield v. Gee, 13 M. & W. 470; Edwards v. Bullock, 6 Q.B. 383, 412; Reg. Gen. Hil. T. 1853, r. 62; Holland's 2nd ed. of Common Law Procedure Act, 169; Chitty's Forms, ed. 1840, p. 78. T. Jones, in support.-It is clear that the plaintiff is entitled to the costs of this demurrer upon which he succeeded. What was the state of the record at the time when the juror was withdrawn? When a juror is withdrawn, the issues in fact are not alone disposed of, but the assessment of damages is also withdrawn from their consideration. It is said on the part of the defendant that the effect of the 3 & 4 Will. 4, repeal the Statute of Gloucester; but it is remarkable that the word "judgment" is used on all occasions where costs are awarded. And 3 & 4 Will. 4, c. 42, must be read in accordance with the usage as to the Statute of Gloucester, and must reasonably mean that when there is judgment for the plaintiff he shall also have his costs. But the substantial question under the circumstances of this case is whether, be the law what it may, the parties have not concluded themselves by the arrangement made as to all further questions. He cited Partridge v. Gardiner, 18 L. J. Ex. 315; Scott v. De Richpore, 11 C. B.; Gibbs v. Ralph, 14 M. & W. 804. Cur. adv. vult. c. 42, and the Common Law Procedure Act, s. 81, is to JUDGMENT. We have con PARKE, B.-This case, which stood over, was argued before the Lord Chief Baron, my brothers Platt and Martin, and myself. It was a question respecting an order that I made, that a sum, the costs of a demurrer upon which the plaintiff had succeeded, should be deducted from the sum of money that had been paid into court by the defendant to abide the event of the trial; and the question was whether, under the circumstances of the case, plaintiff was entitled to the costs of the demurrer. ferred together. I believe my brother Platt is not quite satisfied; but the majority of the court, the Lord Chief Baron, my brother Martin, and myself, are of opinion that, under the statute for the further amendment of the law, the 3 & 4 Will. 4, c. 42, that Act clearly and distinctly, quite irrespective of the termination of the suit, and not at all depending on the assessment of damages, gives to the plaintiff the right to have his costs upon the demurrer; for the words of the statute are expressly that he shall have judgment for the demurrer and his costs, and that is not affected by the ultimate termination of the suit. Then the only remaining question is whether the agreement that took place before me at Nisi Prius is to be considered as being a waiver on the part of the plaintiff of his title to the costs of the demurrer, which he is clearly entitled to by the statute. That is rather to be determined by myself than anybody else; and I, speaking for myself, am satisfied that it was not so-that it was an agreement merely to determine the suit as a cause to be triedthat there was to be an end of it, and no waiver on the part of the plaintiff of his right to the costs. Therefore, as we all concur in the view, as I have given my opinion on that part of the case, the order is to stand and the rule will be discharged. [Milward. Then as to the costs.] Not with costs, inasmuch as it is somewhat a new point, the general rule is, when a judge's order is appealed against and discharged, it is with costs. - MARTIN, B.-Therefore you have got very well off: it was quite an oversight. There is no doubt, if this had been mentioned at the time of the trial you would have been glad to have given up the costs. Discharged without costs. BANKRUPTCY. BANKRUPTCY. LEEDS. (Before Mr. Commissioner WEST.) An affidavit in support of a petition to annul an adjudication of bankruptcy sworn before the solicitor to the petitioner, held bad. J. E. Watkinson executed an assignment for the benefit of his creditors, and subsequently obtained an adjudication of bankruptcy on his own petition founded upon a declaration of insolvency. A creditor petitioned the court to annul the adjudication, to allow a creditor's petition to be filed, and another adjudication substituted. On the hearing. Wavell, for the bankrupt, took the objection that the proceedings were irregular, the affidavit in support of the petition having been sworn before the solicitor to the petitioner. He cited Hopkin v. Hopkin, 22 L. J. 728, and Ex parte Wright, 3 M. D. & De. G. 320. The COMMISSIONER.-The objection can be disposed of by having the affidavit resworn. Warell.-By rule 23 of the new bankruptcy rules all affidavits in support of petitions or motions must be filed two clear days before the day appointed for the hearing. The court has no power to permit this affidavit to be amended. The COMMISSIONER.-Suppose that I choose to dispense with the affidavit? Wavell. It is impossible in this case. The court would then have no evidence that the debt of the cre ditor petitioning was subsisting prior to the deed on which it is sought to found another bankruptcy. Evans, for the petitioner. The solicitor before whom the affidavit is sworn is empowered to administer the oath by Act of Parliament. There is no rule prohibiting him from swearing this particular affidavit. In common law an affidavit to hold to bail may be sworn before the solicitor to the deponent. Wavell. That is an exception specially provided for. By the new common law rules an affidavit of service of process cannot be sworn before the plaintiff's solicitor. Evans.-There the proceeding is in a cause in court. Here the petitioner is not in court until his petition for adjudication is filed. Wavell.-In a recent case before Mr. Commissioner Ayrton, he held that affidavit of proof of debt sworn before the solicitor to the bankruptcy was bad. Bond (amicus curiae.)-That decision was directly opposed to Ex parte Milner, 3 Deac. & Ch. 235, where it was held that the solicitor to the bankruptcy was a proper person to swear the affidavits of proof of debts against the estate, being bound to see the estate protected from unfair claims; but the general practice, except in such a case, is to go before a solicitor not concerned. The COMMISSIONER.-The language of Wood, V. C. in Hopkin v. Hopkin is strong as to this objection, being one of substance, and not of form. I must decide against the affidavit in this case. The question of the adjudication was arranged. First and second bankruptcy-Distribution of assets- Where an uncertificated bankrupt again commences business, and a creditor (who has proved part only of his debt under the bankruptcy, and afterwards sued the bankrupt for the residue and obtained a cognovit), knowing that the bankrupt is trading again, lies by until a second bankruptcy, he shall not be permitted to come in and take his dividend under such second bankruptcy until the subsequent creditors are paid in full. The facts of this case were as follow:-In May 1840 a fiat in bankruptcy was issued against the bankrupt, Joseph M'Lintock, under which Mr. William Shepherd was chosen and appointed sole assignee. Several creditors proved their debts, among whom were the Yorkshire District Bank, who carried on business at Barnsley and elsewhere, and who proved for 34981. At the date of the fiat, the bank held a bill accepted by the bankrupt for 6564, which was then running. They did not include this bill in their proof; but when it became due they brought an action upon it against the bankrupt, who, on the 7th Aug. 1841, gave them a cognovit for the debt and costs. The bankrupt never obtained his certificate, nor was any dividend ever declared under the fiat. Mr. Shepherd, the assignee under the fiat, was the attorney of the bank in the action. The bankrupt and Mr. Shepherd both resided in Barnsley, and soon after the date of the cognovit the bankrupt recommenced trading in that town. The evidence was somewhat contradictory as to Mr. Shepherd's first knowledge of this trading, but he admitted in his affidavit that he knew it as early as July 1851. In Sept. 1852 the bankrupt executed an assignment, and on the 18th Oct. 1852 Mr. Shepherd, as attorney for the bank, gave notice to the bankrupt and his attorney that the bank would sign judgment on their cognovit at the expiration of Michaelmas Term then next. On the 10th Nov. 1852 (without waiting until the end of the term), judgment was signed. BANKRUPTCY. In the mean time, viz., on the 28th Oct. 1852, a petition for adjudication of bankruptcy had been filed against the bankrupt by a creditor, whose debt had been contracted subsequently to the first bankruptcy, under which he had again been adjudged bankrupt. His balance-sheet showed new debts to the amount of upwards of 50007., and his estate had already realised 1800l. The bank had proved on their judgment for 10007. and upwards, under this second bankruptcy, but the payment of their dividend had been stayed by an order of the court. The bank now gave notice of a motion for payment of their dividend, and the assignees presented a petition, stating the above facts, and praying that the bank might not be allowed to receive any dividend under the second bankruptcy until the creditors whose debts had been contracted subsequently to the first bankruptcy had been paid in full. The motion and petition came on to be heard together. North (for the bank, in support of the motion and against the petition).-The bank were not bound to prove their whole debt under the first bankruptcy, but were entitled to sue the bankrupt on the bill. The affidavits show that for a long time the bankrupt only traded in a small way, and the bank would hardly have been warranted in proceeding against him. Moreover he traded after the first bankruptcy in the name of "Joseph M'Lintock and Co.," and Mr. Shepherd denies all knowledge of his having been in business again before July 1851. Bond, for the assignees, contrà.-The balance-sheet shows conclusively the extent of the bankrupt's trading; and Mr. Shepherd, the attorney for the bank, having been the assignee under the first bankruptcy, might at any moment have summoned the bankrupt, and examined him as to his property. Instead of this, he allowed him to go on until he had obtained property from new creditors, and now sought to take advantage of his own laches, and share with them. This would be unjust, and was contrary to several decisions. The earliest case was Troughton v. Gittey, Ambl. 630; and in Ex parte Bourne, 2 Gl. and J. 141, Lord Eldon had laid it down broadly that where creditors lay by, and allowed a bankrupt to contract new debts, the new creditors had a right of priority. This doctrine had been recently upheld by V. C. Stuart, and an appeal by the Lords Justices in Tucker v. Hernaman, 22 L. J. 487, 791, Ch., where the old case of Troughton v. Gittey was cited with approbation, and the official assignee was ordered personally to pay the costs of the appeal. These cases might be strengthened by several decisions upon the 127th sect. of the repealed Bankrupt Act, 6 Geo. 4, c. 16, which provided that under a second bankruptcy, if the estate did not pay 158. in the pound, the bankrupt's certificate should only protect his person, but his future estate should vest in the assignees, who might seize it in like manner as they might have seized property which he possessed at the issuing of the commission. But, although this was so provided by express enactment, the courts, both of law and equity, had held that, if the assignees laid by and suffered the bankrupt again to trade unmolested until a third bankruptcy, the assignees under such third bankruptcy should take his after-acquired property in preference to those under the second. Ex parte Jungmichael, 2 M. D. & D. 471; Ex parte Butler, Ib. 731; Butler v. Hodgson, 4 Bing. N. C. 298. These cases uphold the principle laid down by Lord Camden in the case in Ambler; and on their authority he submitted that the bank were not entitled to receive any dividend out of the subsequently-acquired property of this bankrupt until his more recent creditors had been paid in full. North, in reply. Mr. Commissioner WEST (after having taken time to consider the case) thought it must be governed by the decisions of Lords Camden and Eldon, in the cases cited, and that the bank can only come in after the creditors under the second bankruptcy. It was true that the time was not so long as in Tucker v. Hernaman; but the principle was the same, and it was only consonant with justice that the bank, who by lying by had clothed the bankrupt with a sort of false credit, as if he had obtained his certificate, should suffer the consequences of their laches. This was the circumstance on which all the cases had been decided. The evidence as to the extent of his trading was contradictory; but the balance-sheet, and the amount of assets realised, were conclusive on that point, and those who might be said to have trusted him on account of the bank having forborne to enforce their security, ought not to suffer for the omission of the bank or their advisers. Order according to the prayer of the petition. Re WATKINSON. An affidavit in support of a petition sworn before the solicitor to the petitioners is irregular. This was a petition by a creditor, praying that the adjudication, which had been made on the bankrupts own petition, might be annulled, in order that the petitioner might file another. A material affidavit in support of the petition had been sworn before the solicitor who had attested the petition, as "solicitor for the petitioner in the matter of this petition." Wavell objected that this affidavit could not be re An agreement that rent shall not accrue until the premises are complete, does not preclude a lessor from recovering for use and occupation, if the lesser enters actually or constructively. Debt for use and occupation of a dwelling-house, and for money due on an account stated. Plea, never indebted. The plaintiff was a builder at St. Leonard's; the defendants were brewers in the same place. Aa agreement for a lease was made and signed by them, but no lease ever executed. The defendants did at enter, but underlet; and it was proved that they ha admitted a tenancy. By the agreement the rent was to be 554, till a licence for a public-house should be obtained, and 657. afterwards. The claim was fe half a year of the advanced rent. The certificate for the licence was admitted as evi dence that a licence had been granted. The defendant's case was, that, as by the written agreement no rent was "to be paid until the house is completed," and as a sink, drain, and water-cl were in an incomplete state, no rent had accrued. It was objected for the plaintiff that the defentant could not go into evidence of these deficiencies ut le the general issue, but that they ought to have bee pleaded specially. But WILLIAMS, J. thought they might be shown in reduction of damages. The defendant also failed in proving a mortgage, owing to the absence of the attesting witness. WILLIAMS, J. directed the jury that the agreement did not preclude the plaintiff from recovering reasonable sum for the occupation, if the defendat chose to occupy the premises, whether the alteratiota were made or not. Verdict for plaintiff: 301. for half-year's rest Foote and E. Powell, for plaintiff; Kerr, for dele dants. Kerr, by leave, subsequently (June 3) moved to enter a nonsuit on the ground that the learned judg ruling was incorrect; but the court upheld it. COURT OF QUEEN'S BENCH. Westminster, Tuesday, June 6. (Before WIGHTMAN, J.) TAYLOR v. WADE. Assault and battery. Not guilty. After the plaintiff had closed his case, and S Serjt. had finished his opening speech for the defeam dant, Wood, for plaintiff, applied for leave to call a wit ness for the plaintiff, who could not be found before. WIGHTMAN, J.-I think he ought to be called. Verdict for plaintif Wood, for plaintiff; Shee, Serjt. for defendant. Guildhall, Thursday, June 8. When a ship is advertised to sail by a certain Quare, what is a reasonable time for its sailing! ad whether more than a contract to sail within a rex: mable time from the date is implied? The declaration stated that, in consideration the plaintiff would ship certain goods on board a ship be longing to the defendants, and pay freight, &c., th defendants would receive and convey the said goods in the said ship, which was then described as to sail forthwith, to wit, on or about the 21st Jan., to a certa port, &c. Averment, that the goods were shippe Breach, that the ship did not sail by the appoint day. Pleas.-1. Non assumpserunt; 2. That the plait did not ship the said goods; 3. That the plaint released the defendant. On these pleas issue was joined. At the trial an advertising card of the defendants" was put in, from which it appeared that the ship ti question was to sail forthwith. The defendants bat also stated at the time of the contract that it was tended that the ship should sail from the 18th to the 21st Jan. The goods were shipped from the 121 the 18th Jan. The ship did not sail till the 28th Marca, E. J. Wheeler (described as an eminent ship-?chant in the city) said: If a ship is advertised to s by a certain day, she should sail at the outside three or four days from the day stated; and, with the card put in, she should sail immediately. On cross-examination.-I have known ships fre NISI PRIUS. quently two months after their time in sailing, but ERLE, J. suggested that on this evidence the delaration was not proved; as the contract alleged was, that the ship should sail on or about the 21st Jan., and the contract proved was that she was expected to sail about that time. Watson applied to amend the declaration by inserting words to the effect that the ship was to sail within a reasonable time. ERLE, J.-That may be done; that is, within a reasonable time from the delivery of the goods. Declaration amended accordingly. It afterwards appeared that the plaintiff had a partner, who had not been joined; therefore, Nonsuit. Watson, Q. C., for plaintiff; Shee, Serjt., for defen Guildhall, Friday, June 9. This was an action for money lent by the deceased, Pleas-1, Never indebted; 2, Payment. To prove the loan, the following document was put "Nov. 1847. This document was signed by the defendant, and Thomas, Serjt. for defendant, objected to its admis- Collier, contrà.-We have paid the penalty under COLERIDGE, J.-I think so, and see nothing in the bjections. Thomas, Serjt. retired from the case on an intimaon from the court. Some deductions were allowed; Verdict for plaintiff for 411., with certificate. Collier and Maynard, for plaintiff; Thomas, Serjt. r defendant. MEESON V. OLIVER. Telegraphic messages-Contract-Commission. emble, telegraphic messages are admissible evidence. broker cannot recover on a quantum meruit for the sale of a ship unless the contract be signed by vendor and purchaser, and the sale in all other respects be complete. Work and labour. Plea, never indebted. This was an action to recover commission for nego- A question was raised whether a telegraphic mes- EXCHEQUER CHAMBER. Commission is payable when the agreement is com- On cross-examination. It is understood among commission is not earned. T. Jones, for the plaintiff.-Unless there is a usage usage. Bovill, for the defendant.-The bargain was not T. Jones, for plaintiff; Bovill, for defendant. Westminster, Friday, June 16. Tort-Principal and agent-Wrong defendant. EXCHEQUER CHAMBER. engraved by John Ryland." This map was produced by a Mr. Stewart, a magistrate, who had bought it twelve years before, and in whose custody it had ever since been. The question was, whether this document was receivable in evidence. There was a second point, as to the admissibility of another document, as to which it will be seen that no decision was given. N. Palmer (Worllege with him), for the plaintiff in error (the defendant below).-This map was improperly admitted in evidence. It is not an original mapit is only a copy-and is stated to have been corrected; and the magistrate who produced it was not of necessity the keeper of this document. A county history has been rejected. [MAULE, J.—If a particular copy of a county history had been kept by a person having authority, then it would have been in the nature of a declaration.] Yes; but that is not so here. There is nothing to show who Kirby was. It does not appear that the map was made for public purposes, but rather for his own profit. [MAULE, J. Is there any evidence of custody?] None; but Mr. Stewart said, "I bought it twelve or fourteen years ago, and have had it ever since." He cited Weeks v. Sparke, 1 M. & S. 679; Duke of Beaufort v. Smith, 4 Exch. 450; Evans v. Taylor, 7 A. & F. 617; Pollard v. Scott, 1 Peake N. P. C. 26; Rex v. Melton, 1 C. & K. 58; Evans v. Getting, 6 C. & P. 586. Couch (Byles, Serjt. with him) for the defenant in error, the plaintiff below.─[MAULE, J.-Do you put this forward as reputation, or as evidence of an old document coming from the proper custody?] As reputation. I am entitled that the date of this map should be taken to be that which appears on its face. [COLERIDGE, J.-If I brought into court à deed relating to your estate, that would not be accepted as evidence of the date alone, I apprehend.] Yes; an instrument must be taken to be prima facie of the date it bears: (Davis v. Lowndes, 6 M. & G. 527.) As to the custody, all that is required is that the document comes from such custody-that there is no reasonable cause of suspicion that it has been tampered with. How could the custody of a document 100 or 200 years old be traced? [MAULE, J.-You argue as if this was the original map, E. James, Q.C., for the plaintiff, contended, that as whereas it only purports to be a copy of an original Cater was the defendant's clerk, and had conveyed which was made in 1766. COLERIDGE, J.-Youthe coals to the defendant's premises, the defendant, know it has been decided that the copy of a not having repudiated Cater's acts, and having reletter taken by a copying-machine is not an original. ceived the coals, must be considered as having But even take it that you have a map with 1766 on adopted his agent's tort, and so be liable. But it, have you anything more? Would a map in a Lord CAMPBELL, C.J.-The plaintiff must be non-county history, which had been in your possession suited. Nonsuit. Leave to move refused. Some confusion had arisen from the similarity of the defendant's name and that of the clerk; and it appeared that the plaintiff had supposed the clerk to be the defendant. On this, EXCHEQUER CHAMBER. ERROR FROM THE EXCHEQUER. HAMMOND v. BRADSTREET. Held, that it was inadmissible in evidence, the statement This was an action brought for taking a distress twenty or thirty years, supposing the makers to be JUDGMENT. : COLERIDGE, J.-The decision of this case depends on the admissibility of two documents which were tendered in evidence at the trial, and received after objection made. If either was inadmissible, a venire de novo must be awarded. One question argued before us was, Did the map in question come from prcper custody? In one sense it did, for it was produced by a gentleman, a magistrate, who bought it twelve years ago; but the fact of it being in the custody of the party who had such lawful possession of it does not at all vouch for its accuracy, nor that it is what it professes to be. It is wholly unlike the case of a deed purporting to be a conveyance of land. If such a deedis found in the custody of the party who, if it were The issues joined were on the pleas: first, that the such conveyance, would have the right to it, and kept defendants did not take the goods modo et forma; amongst his title-deeds, such custody tends to show and, secondly, that they took them in the parish that it is what it professes to be. But, assuming it to of Gorleston-with-Southtown, in the county of be what the inscription upon it declared it to be-a Suffolk, absque hoc they took them in Norfolk. To map prepared in 1766, in part from an older map in this plea, in order to have a return of the goods 1736, by Joshua and William Kirby, sons of Jolin replevied, an avowry was added that the goods Kirby, who made the survey in 1736-at the utmost, were taken by the defendants, the overseers of the this is only a declaration by Joshua and William that parish of Gorleston-with-Southtown in the county of they believed the boundaries to be as described by Suffolk, under the authority of the 43 Eliz. The him, or that they were described by them. What plaintiff, to prove that the goods were taken in Nor- circumstances were given in evidence to render such folk, tendered in evidence a map printed on paper declaration admissible? The relation of Joshua and Thomas Harrison.-I negotiated with the plaintiff from an engraved copper-plate, and having on the William to John Kirby would not have that effect. for the purchase of the ship General De Witt, and face of it, as part of the general impression, the fol- They do not appear to have been deputed to make the signed the contract. I refused to complete the pur-lowing printed words and figures, that is to say, map by any persons interested in the question; nor Case, on account of a clause inserted by the defendant after I had signed it. "New map of the county of Suffolk, taken from the did they have any knowledge of their own on the suboriginal nap published by John Kirby in 1736, who ject, nor were they in any way connected with the distook an accurate survey of the whole county; now re-trict so as to make it probable that they had such published, with corrections and additions, by Joshua knowledge. The grounds upon which ancient pedigrees and William Kirby, sons of the author, 1766, and are received in evidence are, therefore, wanting in this Thomas Meeson, the plaintiff, was then called, and said: I am a commission-agent at Liverpool, and the defendant is a large shipowner there. The defendant called on me and said, he hoped I would make money for him, saying he would be glad to are offers from me. I said to him, "I shall look to you for my commission." He said, "Very well, I'll to that; try and get me a purchaser." The vener of the ship always pays the commission. 1 per eat, is the usual commission. I have never lost my commission where the purchaser has acceded to the eiler's terms. I have never had commission where there was no signed contract. It did not appear that the defendant had signed the contract. Joseph Lachlen, a ship and insurance broker. EXCHEQUER CHAMBER. case. We think, therefore, the map was inadmissible. Reported by JOHN THOMPSON, Esq., Barrister-at-Law. ERROR FROM THE COURT OF QUEEN'S BENCH. Jan. 19 and May 10. (Before JERVIS, C.J., POLLOCK, C.B., PARKE and OSWALD V. THE MAYOR, &c. OF BERWICK-UPON- Error by the defendant below upon the judgment of the Court of Q. B. The following was the form of the record in the court below. as in the declaration is alleged to have been made on the said 9th Nov. in the said year 1843. That the said D. Murray, to wit, on the 16th Jan. 1842, and afterwards, accounted for and paid to the plaintiffs all the money by him as such treasurer in the declaration mentioned, and by virtue of his said office of treasurer of the said borough recovered or received before the said 9th Nov. in the said year 1843, or whilst he was such treasurer as aforesaid under and by virtue of the said elec tion in this plea first and secondly assigned, and that the whole of the money for the nonpayment of or nonaccounting for which this action was brought and is now attempted to be maintained was recovered and received by the said D. Murray after the said 9th Nov. in the said year 1843, and after the said election of the said D. Murray in pursuance of the said statute made and passed in the seventh year of the reign of her present Majesty as in this plea afore said, and this the defendant is ready to verify, &c. the said election, or under any annual or other future Municipal corporation-Treasurer-Bond-Surety- Covenant upon a bond in the Scotch form against a surety of the treasurer of the municipal corporation of Berwick-upon-Tweed, for the default of the principal in paying over moneys received. The declaration stated-That, before the 6 & 7 Vict. c. 89 ("An Act to amend the Act for the regulation of municipal corporations in England and Wales"), to wit, on the 15th Jan. 1842, a certain deed poll was made by the defendant, and sealed and delivered to the plaintiffs, which said deed poll is in the words and figures following: "We, David Murray, John Campbell Renton, James Jeffreys Oswald, William Murray, and John Johnston, considering that, at special meetings of the council of the borough and town of Berwick-uponTweed, held, &c., for the purpose (amongst other things) of electing a treasurer, it was agreed that the salary of the future treasurer should be, &c.; and that the treasurer should find sureties to the council in the sum of 20004; and that at every quarterly and adjourned meeting of the council, and also at any special meeting, if then required to do so, the treasurer should present a correct account of the cash in his possession; and, lastly, that the treasurer should be appointed for the remainder of the year ending the 9th Nov. next, if it should so long please the council; and considering that, at such meetings of council as aforesaid, they nominated and elected me the said D. Murray to be their treasurer upon the conditions aforesaid; and seeing that it was agreed that I the said D. Murray should find security or caution for the payment of all such sums of money as I might receive in consequence of my said appointment as treasurer aforesaid; therefore the condition of this obligation is such that I the said D. Murray, and we the said J. C. Renton and J. J. Oswald, W. Murray, and J. Johnston, as cautioners, sureties, and full debtors, with and for the said D. Murray, hereby become firmly bound and obliged, as we do hereby bind and oblige ourselves, our and each and every of our heirs, &c. jointly and severally, well and truly to pay unto the mayor, aldermen, and burgesses of Berwick aforesaid, or to their successors in office, all such rents, sum and sums of money, principal, interest, and penalties, and other moneys whatsoever as I the said D. Murray shall or may recover or receive in virtue of my said appointment as treasurer as aforesaid during the whole time of my continuing in the said office in consequence of Sixth plea. That the said election of D. Murray to be treasurer in the said deed mentioned, and also the election of the said D. Murray to be such treasurer under and by virtue of the said election by the said council at the meeting of the said council holden on the 9th Nov. 1842, as in the said declaration mentioned, were made under and in pursuance of the 5 & 6 Will. 4, c. 76; and that on the 9th Nov. 1843 the said D. Murray ceased to be such treasurer as aforesaid under and by virtue of the said elections or either of them; and the defendant further says that after the 6 & 7 Vict. c. 89, to wit, on the 9th Nov. in the said year 1843, the said D. Murray was, in pursuance of the 6 & 7 Vict. c. 89, elected by the said council to be the treasurer of the said council, to hold the said office of treasurer during the pleasure of the said council, the said election in this plea last mentioned being the same election of the said D. Murray Demurrers to the sixth and seventh pleas. Upon the argument in the court below judgment was given for the plaintiffs below upon both demurrers, and the pleas held bad, whereupon the defendant below brought a writ of error. Thursday, Jan. 19.-The writ of error now came on for argument; but it was admitted that the 7th pi could not be supported, and the argument was consi to the validity of the 6th plea. Unthank (H. Hill with him), for the plaintiff error.-First, Does the bond extend the liability the sureties beyond the first year of office? By 5 & 6 Will. 4, c. 76, s. 58, the town council were fo quired in "every year" on the 9th Nov. to appoint a fit person to be treasurer of the borough, a take such security for the due execution of his o as the said council. should think proper. This pre vision was in operation when the bond was given and therefore no appointment of treasurer could cotinue beyond the following 9th Nov. According to Lord Arlington v. Merricke, 2 Wms. Saund. 414. liability of the surety upon the bond given by te treasurer of the borough would not continue beye. the year of office. The language of the bond is to le read with reference to the appointment; and, thoug the first part of the bond may seem to extend the liability of the sureties beyond the first year of office. yet the subsequent clauses are confined to the year a appointment. This is very similar to the case of the Liverpool Water Works Company v. Atkinson, 6 Eas 507, which shows that the obligation of the suretes is confined to the first appointment for the year. the COURT: How do you distinguish this case fr Augero v. Keen, 1 M. & W. 390?] At best, the laguage of this bond is equivocal, and it is to be c strued in favour of the sureties rather than otherwise The court below seems to have thought that th words "or other future elections" meant someth more extensive than the preceding words, annual election," and contemplated the very char of the law that afterwards took place. The & Will. 4, c. 76, s. 60, enacts that the treasurer shall a such times during the continuance of his office, t within three months after the expiration thereof, in such manner as the council shall direct, deliver his accounts, and provides remedies in case of detank After the first two years of office of Murray as tha surer, the 6 & 7 Vict. c. 89 passed; and sect. 6 of th Act, after reciting that the office of treasurer is a office of great trust, and that an annual appoitr to such office is inconvenient, enacts that on the 4 Nov. next after the passing of the Act, the cou shall appoint a fit person to be treasurer, who s thenceforth hold his office during the pleasure of a council for the time being. The office of treasur therefore, became changed from an annual one to at the will of the council for the time being. A it is submitted that upon the appointmeat treasurer under this Act, the council ought to har taken a fresh bond; and that the obligation the sureties under the old bond was discharged by th change. The sureties were parties to a bond for a annual appointment, and for no other appointment. Is bond contains the bargain of the parties with refe to an office to which the appointment was an arra one by statute, and the parties did not contempl any change in the law. It is true that a party m have been elected treasurer for three or six m only under the 5 & 6 Will. 4, c. 76, s. 58, or he might reciting that the office of treasurer for boroughs was at any period have been deprived of his office for mal- one of great trust, and that an annual appointment versation; but any appointment to the office must to such office was inconvenient and unnecessary, it determine before the 9th Nov. in every year, when a was enacted "that so much of the 5 & 6 Will. 4, fresh appointment was required by the statute. c. 76, as enacted that the town council should in Sect. 58 also provides that, "in case of a vacancy in every year appoint a treasurer, should be repealed, the office by death, resignation, removal, or other- and that the council of every borough should, on wise, the council of the borough may appoint an- the 9th Nov. then next appoint a fit person not other fit person in the place of the person so making being a member of the council to be the treasurer such vacancy;" and it is submitted that the words of the borough, who should thenceforth hold his office or other future election" has reference to an appoint-during the pleasure of the council for the time ment other than an annual one under sect. 58; for the being." The plea averred that Murray was elected bond must be applied to the then existing state of the treasurer on the 9th Nov. 1843, under and in purlaw. Assume an appointment on the 9th Nov. for suance of the last-mentioned statute; and the arguthree months; then, when that expired, assume the ment on behalf of the plaintiffs in error was, that this re-election until the 9th Nov. following-that would was not an election within the true meaning of the be such an election as would satisfy the words of the deed declared on, so as to render the defendant, who bond, "or other future election." Or, suppose that was a surety, liable for the nonpayment by Murray the treasurer were to become an alderman, that ipso of the money received by him under or by virtue of foto would vacate the office of treasurer; and sup- his office, created by or consequent upon such last pose that afterwards he was reappointed treasurer, election. There is no doubt as to the rule of that is another instance that would satisfy the words law to be applied to cases like the present. It was or other future election." [JERVIS, C.J.-Suppose laid down in Lord Arlington v. Merricke, and has that the 6 & 7 Vict. c. 89, had made the appointment been professed to be adhered to ever since. If the for life, would this bond have been good?] It is sub- deed declared on had recited the election of Murray mitted that it would not. The sureties in effect say in the beginning of 1842, as being under the 5 & 6 by the condition that, as long as you continue to Will. 4, c. 76, and been generally for the due payappoint D. Murray to the office according to the ment by Murray of all money received by him during existing law, we will be sureties for the due execu- his holding the office of treasurer, then, according to tion of his office. The 6 & 7 Vict. c. 89, contains no the rule laid down in the above case, the obligation provision as to accounting by the treasurer. [MAULE, J. created by the deed would not have extended to any -Sect. 60 of the 5 & 6 Will. 4, c. 76, enacts that the money received by Murray after the 9th Nov. 1842; treasurer shall account at such times and in such but it was quite competent for the town council, by manner as the council shall direct. He must, there- using apt words for the purpose, to take a security fore, account since 6 & 7 Vict. c. 89, as the council creating an obligation upon the surety to secure the directs. JERVIS, C. J.-The limitation of three due payment by Murray of all moneys received by months in the 5 & 6 Will. 4, c. 76, s. 60, after the him as treasurer so long as he should be elected to expiration of the office, was put to give jurisdiction and hold the office. There is nothing illegal in the over a non-existing officer.] town council taking such continuing security; and the real and only question in the present case is, whether they have done so by the deed declared on. It is my opinion that they have. I apprehend there could have been no doubt that, if the election had continued to be annual, the obligation created by the deed would also have continued. The words of the deed are express that the liability of the defendant should continue during the whole term of Murray's continuing to fill the office in consequence of the then late election, or under any annual or other future election. These words seem to be as precise and clear as words can be. By the statute 6 & 7 Vict. c. 89, however, the election and office ceased to be annual, and the office became one to be held at the pleasure of the town council. The office, however, remained the same, with all its duties and emoluments unaltered; and the only alteration made was, that, instead of being an annual office, it became one from which Murray was removable at the pleasure of the council. I fully agree that, if any additional or increased risk would have been thereby cast upon the defendant (the surety), his liability would have been determined; but in my opinion no such additional or increased risk was created. On the contrary, assuming the town council to do their duty (and I have no right to assume that they would not), I think it was an alteration much to the advantage of the surety, by giving the council a more direct and immediate control over the principal (Murray). So also, if it could be collected from the terms of the deed that the liability of the surety was to be conditional upon Murray holding an annual office, the responsibility would have ended on the 9th Nov. 1843, and the plea would have been good; but no such intention is to be collected from the terms of the instrument. Indeed, if it had appeared that the consideration for the covenant by the defendant was to have been the continued appointment of Murray to the annual office, I should have thought that the liability was determined; but nothing of the kind appears from the statement of the deed as set out on the pleadings. The only question, therefore, as it seems to me, is, does the case fall within the words of the deed? This instrument provides not merely that the defendant should be answerable for the due payment by Murray, of all money received by him in consequence of his first or any other "annual election," but in consequence or by reason of any other "future election" of him. Now Murray has been elected treasurer by a future election, not an annual one, and the case therefore falls directly within the words of the deed. In my opinion also, it falls within its spirit, which I think was, that the defendant should continue a surety so long as (or as the deed itself expresses) during the whole time Murray remained treasurer of the borough, and whether his election was annual or otherwise. I therefore see no reason why full effect should not be given to the words of the deed. My judgment is in accordance with what I consider to be the true rule of law in regard to the construction of every written contract, viz. to give effect to the plain and ordinary meaning of the words and language used, according to their common sense and signification, as they would be understood by a person of intelligence ing the document. For these reasons I think the judgment of the Q.B. ought to be affirmed. Manisty, for the defendants in error.-The judgment of the court below ought to be affirmed. The effect of the bond is to be collected from the language of it; and it would be difficult to find more apt terms to express the meaning which the obligees contend ought to be given to it, viz., that the obligation of the sureties continues notwithstanding the passing of the 7 & 8 Vict. c. 89. The office of treasurer is a necessary incident of every municipal corporation, and the effect of the bond is that the sureties are to continue liable so long as D. Murray continues in the office of treasurer, whether by virtue of an annual or any other appointment. This is the correct interpretation of the words "or other future appointment," which manifestly contemplate something beyond what the law required when the bond was given. Augero v. Keen, 1 M. & W. 390, is precisely in point, and shows that the sureties in this case are still liable. There Lord Abinger, C.B. observed during the argument that "the words in the bond 'said office,' respect its nature, not its duration." The case of Frank v. Edwards, 8 Exch. 214, is also an authority for the continuance of this obligation. There a permanent assistant overseer, appointed by vestry, gave a bond with two sureties, in pursuance of 59 Geo. 3, c. 12, conditioned that he should at all times, during the continuance of his said appointment, faithfully account for the collection of the rates, &c., and duly execute all the duties of the office; a few days afterwards a warrant of his appointment as assistant overseer was executed by the magistrates; he continued to perform the duties of assistant overseer for some years, when, the duties having become lessened, in consequence, among other things, of the appointment of a relieving officer, the vestry came to a resolution that he should continue his office at a reduced salary; and it was held that this resolution did not amount to a revocation of the original appointment, and that the sureties were not discharged from liability under the bond. As to the argument relative to the accounting of the treasurer, that is of no avail; for the change made by the statute of Victoria leaves the duty of counting as it stood under the statute of 5&6 Will. 4, and the provisions of the bond contemplate and provide for the same thing. Unthank in reply. Cur, adv. vult. MARTIN, B.-This is a writ of error upon a judgment of the Court of Q.B. Upon the argument, the eventh plea was abandoned by the learned counsel for the plaintiffs in error, and the only question argued before us was the validity of the sixth plea. The arguments and judgment in the court below are ported in 1 E. & B. 295, and that court was of opiion that the plea was bad, and gave judgment for he plaintiffs below. I am of opinion that this judgent was right and that it ought to be affirmed. By he statute 5 & 6 Will. 4, c. 76, s. 58, it was enacted hat the council of every borough should, in every ear, appoint a fit person, not being a member of the ancil, to be the treasurer of the borough, and that hey should take such security for the due execution him of his office as they should think proper. This was the enactment which was in force when Murray was first elected treasurer, and continued to be so at The time of his second election in Nov. 1842. The tatute 6 & 7 Vict. c. 89, received the royal assent on be 24th Aug. 1843, and by the 6th section, after VO XXIII.-No. 593. JUDGMENT. EXCHEQUER CHAMBER. be clear, from the language of the condition of the bond, that the council should take prospectively a security for the good conduct of the treasurer as long as he continued in oflice in consequence of any recent or future election by the council, for any period or tenure whatever? The language, "during the whole time of my continuing in the said office in consequence of the said election or any annual or other future election," admits of no other interpretation, as it seems to me, if construed in its ordinary acceptation. The question then is, whether such a construction is consistent with any declared intention of the parties, to be collected from the recitals or any other parts of the instrument. In Lord Arlington v. Merricke, and the long series of cases of which that is the leading one, the intention was regarded as apparent in the recital, that the suretyship was to last for one year only. As this was inconsistent with certain words used in the condition if construed indefinitely, it was allowed to control them by confining their generality within the limits expressed or necessarily to be implied in the recital. But, in the present case, looking to the whole instrument, it is plain, in my judgment, that the apparent intention of the parties is carried into effect by construing the words of the condition according to their ordinary acceptation. And if this be so, even if it should be shown, which I by no means concede, that the liability of the sureties has been increased by the re-election durante bene placito, under the statute 6 & 7 Vict., it is plain this could not justify the court in relieving them. MAULE, J.-With respect to the question, namely, whether the sureties continue liable under the circum stances disclosed in the 6th plea, it appears to me that the sureties are not liable, and consequently that the judgment of the Court of Q. B. ought to be reversed. It is clear that it was the intention of the parties that the liability of the sureties should not be limited to the first year. It is manifest, from the words which they have used, that they contemplated a continuance in office beyond the first year; but I think that they are to be considered, and that parties in general are to be considered, as contracting with reference to the whole state of the law that exists at the time of the contract. I by no means affirm or think that by sufficiently expressed words people may not bind themselves under a state of law which does not exist at the time of the contract entered into, if they choose so to express and do express themselves, so as to leave that pretty clear. But, generally speaking, persons are to be considered as contracting upon the assumption that the law will remain such as it is; that with respect to an office to be appointed to in a certain manner, the appointment shall continue to be in the same persons, and be of the same quality and the same duration. There would be nothing, that I am aware of, illegal, if the parties to this contract had said that the sureties should continue liable, notwithstanding any change that might be made by any Act of Parliament in the tenure or nature of the duties of the office of treasurer; only I say people are not to be presumed to have so contracted unless they express themselves so. The ordinary presumption is, that people contract with reference to the law as it stands at the time of the contract, and one reason of that presumption would be this, that it would be very indiscreet and foolish to do otherwise. What those who think that the judgment of the Court of Q.B. was right must think is this, that the parties to this contract contemplated that some alterations might be made with respect to the office of treasurer, and intended that, notwithstanding that alteration, the liability of the surety should continue the same. Now, discreet and sensible people would be extremely unlikely to do that, even with the qualification that the liability should continue notwithstanding an alteration in the office; provided that such alteration did not affect the liability of the sureties. I think any discreet and prudent person would say-Let me judge for myself; let me see the Act of Parliament which is to alter the nature and tenure of the office, and let me judge; not leave it to others to judge whether as surety for an officer with such duties, and to be so appointed, I choose to continue my liability with respect to him. I think no discreet person would so bind him self in the manner in which it is said these suretics did bind themselves. If, however, any person for some direct consideration had thought fit so to bind himself, I think he would have expressed it by some other means than by means of an inference to be gathered from this simple word "other." Now it appears to me, that, although for certain purposes as was stated in the court below, an office may be said to continue the same, if its duties continue the same, although the tenure may be altered, I do not think that, for the purpose of this discussion and the construction of this deed, that can properly be affirmed; for I think that the main object with respect to this deed being to give surety for the conduct of the officer, the office certainly does not continue the same with respect to the point of view in which it would be looked upon by the parties to this instrument; read-although the duties may continue the same, it does not continue the same, if the liability of the sureties or the risk of the sureties may be increased; and it appears to me very clearly that the alteration that is made by the statute of Victoria in the mode of WILLIAMS, J.-I am of opinion that the judgment ought to be affirmed. The intention appears to me to |