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Appeal to the Judicial Committee of the
By the 24 H. 8. c. 12. ss. 2. 5, 6, 7, 8., all
causes within the spiritual jurisdiction, re-
lating to wills, to matrimony and divorce,
and to tithes, oblations, and obventions,
were to be determined in the King's courts ;
and where, in such cases, the appeal used
to be made to the see of Rome, it was
thenceforward to be carried from the arch-
deacon's court (if commenced therein) to
the bishop's court, and from the bishop's
court to that of the archbishop, whose de-
cision was to be final. By s. 9., in case
any such cause should touch the King, the
appeal from any of the said courts was to
be made to the upper house of convocation
for the province.
By the 25 H. 8. c. 19. ss. 3, 4., no appeal
was to be made to Rome in any cause arising
within this realm ; but all appeals were to
be made in the manner limited by the 24
H. 8. c. 12. for causes of matrimony, tithes,
oblations, &c. An ulterior appeal was
given, for lack of justice in the archbishop's
courts, to the King in Chancery; and, on
such appeal, a commission under the great
seal was to issue to such persons as the
King should name, to hear such appeal.
The judicial committee of the privy-council
was substituted for such commission, by the
statutes 2 & 3 W. 4. c. 92. s. 3., and 3 & 4
W. 4. c. 41. s. 3. :-
Held, that, if the crown presents a clerk
to a vicarage in its gift, and the ordinary
refuses to admit him, on the ground that he
maintains unsound doctrine, and, on a du-
plex querela brought in the archbishop's
court, the judge, for the same reason, pro-
nounces sentence confirming such refusal to
admit, - the appeal lies to the judicial com-
mittee of the privy-council, and not to the
upper house of convocation. Ex parte The
Bishop of Exeter, in re Gorham v. The Bishop
of Exeter, 102.
Service of Declaration and Notice.
Joint-tenants.]-Service of a declaration
of property and income-tax, under the 5 &
6 Vict. c. 35., conditioned for the due col-
lection and payment of the sums assessed
under the act, are not liable in respect of
moneys collected by him without legal au-
thority,—that is, before he is furnished with
the duplicate assessment and warrant to
collect, as mentioned in the 172nd section
of the statute. Kepp v. Wiggett, 35.
2. The condition recited that A. “ had
been duly nominated and appointed a col-
lector for the year ending, &c.; and that
duplicates of the assessments had been de-
livered and given in charge to him, with a
warrant or warrants for collecting the same:''
- Held, in an action against the sureties,
for A.'s default, that they were not estopped
by these recitals from shewing that there
had been no complete appointment of A.
as collector, and that the duplicate assess-
ments and warrant to collect had not been
delivered to him. Ib.
IJI. Between Parties to Deeds.
In covenant upon an annuity-deed, -
Held that the defendants (executors) were
estopped from pleading that the deed was
made fraudulently and collusively between
the testator and the plaintiff, for the pur-
pose of multiplying voices, and subject to a
secret trust and condition that no estate or
interest should pass beneficially to the
plaintiff by the indenture. Phillpotts v.
as a witness, and refuses to permit the pro-
duction of a document which his attorney
has brought into court in obedience to a
subpæna duces tecum, but which the latter
also declines to produce; the plaintiff, hav-
ing done every thing that could be done to
make apparent the impossibility of using
the primary means of proof, is entitled to
resort to secondary evidence of the con-
tents, and is not precluded from so doing
by his omission to serve the client with a
subpæna duces tecum.
And see Bill of Exchange, II. 2.
III. Commission for Eramination of Witnesses
1. Oath of Commissioners dispensed with. ] -
Where a commission issues for the exa-
mination of witnesses in a foreign country,
the oath of the commissioners may, under
special circumstances, be dispensel with.
Boelen v. Melladew, 898.
2. Form of Oath of Witnesses in Denmark.]-
By the law of Denmark, none but burgo-
masters have power to administer oaths ;
and the mode of administering an oath to a
witness, is, by causing him to hold up
fingers of his right hand, and declare that
he will speak the truth. A commission
having failed, for want of the observance of
these formalities,- the court, on payment
of all costs, allowed a second commission to
go, addressed to burgomasters. Ib.
tiffs, at the request of the defendant, would
sell and deliver iron to C. on credit, the
defendant promised the plaintiffs to gua-
rantee to them the price of the said goods
to the amount of 2001.:- Held, that the
consideration and the promise were well
his bands as factor. Dixon v. Stansfeld,
2. A. & Co., who carried on business at
Hull, as merchants, factors, ship and in-
surance-brokers, and general agents, had
had various dealings, as factors, with B. &
Co., of London. Whilst these dealings were
going on between them, B. & Co. wrote to
A. & Co., requesting them to get a policy
of insurance effected for them on the ship
Exporter, for a voyage from the Downs to
South America, and thence to the West Indies.
4. & Co. procured the insurance to be ef-
fected, and B. & Co. remitted them the pre-
miums,—the policy remaining in the hands
of A. & Co. : -Held, that A. & Co. were not
entitled to hold the policy as a lien for the
general balance due to them, as factors, from
B. & Co. Ib.
And see SALE, 2.
Conveyed by Railway-See RAILWAY Com-
HUSBAND AND WIFE.
Liability of Husband for his Wife's Funeral.
The husband is liable for the necessary
expense of the decent interment of a wife
from whom he has been separated, -whe-
ther the party incurring such expense is an
undertaker or a mere volunteer Ambrose
v. Kerrison, 776.
See EstOPPEL, III.
See LANDLORD AND TENANT, II.
INQUIRY, WRIT OF.
See County-COURT, V. 2, 3, 4.
Construction of, and how declared on.
1. A. & Co. wrote to B., “We are doing
business with C., and we require a guaran-
tee to the amount of 2001., and he refers us
to you for one.”
B. replies, “In reply to
yours, I beg to say that I have no objection
to become security for C., and subjoin the
following memorandum to that effect.” The
subjoined memorandum was, — “I hereby
engage to guarantee to A. & Co. the sum of
2001., for iron received from them for C. as
annexed :"-Held, a good consideration to
support an assumpsit. Colbourn v. Dawson,
2. Semble, that, if necessary, evidence was
admissible to explain the meaning of the
words " for iron received." Ib.
3. A declaration upon this guarantee
stated, that, in consideration that the plain-
I. Discharge of.
1. By an order of adjudication by a com-
missioner of the insolvent debtors court,
purporting to be made pursuant to the 1 & 2
Vict. c. 110, ss. 76, 78, the prisoner was ad-
judged to be discharged as to all the debts
in his schedule, at the expiration of siz
months from the date of the vesting order,
except as to four debts, which the commis-
sioner found to have been contracted by
means of a breach of trust, and as to which
the prisoner was ordered to be discharged
at the expiration of sixteen months from the
date of the vesting order :- Held, that,
whether the commissioner had or had not
jurisdiction to make the latter part of the
order, the first part was no discharge as to
the four excepted debts. Ex parte Violett,
2. Plea of discharge-See PLEADING, VI.
s. 36., is, by motion for a scire facias, and
not by a motion for a rule to shew cause why
execution should not issue against such
shareholder. Hitchins v. The Kilkenny and
Great Southern and Western Railway Com-
pany, In re Emery, 160.
2. Form of Affidavit. ]—A scire facias will
not be granted upon an affidavit merely
stating that judgment has been obtained
against the company, and that two writs of
fi. fa. issued against them, had been returned
nulla bona. Ib.
JUDGMENT BY DEFAULT.
See County Court, V. 2, 3, 4.
II. What Rights of Action of the Insolvent
pass to his Assignees.
1. A., being sued by B., retained C., an
attorney, to defend him. By C.'s negli-
gence, a judgment was obtained against A.,
upon which he (being then in custody) was
charged in execution for a large sum and
was put to expense, in endeavouring to pro-
cure his release, and to reverse the judg-
ment, by writ of error :-Held, that this was
not a cause of action which passed to A.'s
assignees, upon his insolvency. Wetherell
V. Julius, 267.
2. A., a beneficed clergyman, brought case
against his attorneys, for having, through
their negligence and want of skill, permitted
a writ of sequestrari facias to remain in force
against him longer than was necessary,
whereby A., during that time, lost the rent,
tithes, and profits of his living :-Held, that
this was a cause of action which passed to
A.'s assignees, upon his insolvency. Ib.
JUDGMENT AS IN CASE OF A
See Practice, I.
See BANKRUPT, I. 3.
III. Messengers' Fees.
The trade-assignee of a petitioner under
the insolvent debtors acts, 5 & 6 Vict. c. 116.
s. 1. and 7 & 8 Vict. c. 96. s. 4., is not liable
personally for the messengers' fees and ex-
penses, in the absence of an express con-
tract. Hamber v. Hall, 780.
LANDLORD AND TENANT.
I. Relative Rights and Duties.
There is no implied duty in the owner of
a house which is in a ruinous and unsafe
condition, to inform a proposed tenant that
it is unfit for habitation : and no action will
lie against him for an omission to do so, in
the absence of express warranty, or active
deceit. Keates v. The Earl of Cadogan, 591.
II. Contract of Tenancy.
1. In assumpsit, the first count stated,
that A. and B. were tenants of certain cham-
bers to one C. at a certain rent, payable
quarterly; and that, in consideration that
A. and B. would underlet the chambers to
D. at a certain rent, payable quarterly, D.
promised A. and B. that he would pay the
said rent to C., and that, if he should not do
so, he would indemnify A. and B. in respect
thereof, and pay the same to them: and the
Execution against a Shareholder.
1. How obtained.]-The proper course to
obtain execution against a shareholder of a
public company, under 8 & 9 Vict. c. 16.
breach assigned was, non-payment by D. of
the rent due from A. and B. to C.:-Held,
that, whether the declaration meant to allege
the contract to have been, that D. should
pay C. the rent due from A. and B. to C., or
the rent due from D. to A. and B. under the
demise which was the consideration for his
promise, it was not to be taken as alleging
that D.'s promise to pay C. was to extend
further than his liability to pay rent under
his own tenancy to A. and B. Smith v.
2. The seventh plea stated, that, before
the rent became due from A. and B. to C.,
it had been agreed between A., for and on
behalf of himself and B., and with his au-
thority, and D., that D. should deliver up
the possession of the chambers to A., and
that, in consideration thereof, D. should be
discharged from further liability for rent;
and that D. did accordingly deliver up pos-
session to A., which he on behalf of himself
and B. accepted: Held, that this plea set
up a good defence by way of executed con-
ments claimed, and their application. The
Electric Telegraph Company v. Brett, 838.
2. In case for the infringement of a patent
"for improvements in giving signals and
sounding alarums in distant places, by means
of electric currents transmitted through me-
tallic circuits,” the breaches alleged in the
declaration were, that the defendant had
used and counterfeited the said inrention :
the evidence was, that the defendant had
used or counterfeited part only. The spe-
cification described nine several improve-
ments : — Held, that the declaration, in
speaking of the said invention, was to be
understood as charging the using or coun-
terfeiting of the said nine improvements,
and that it was sufficiently proved by shew-
ing that one of them had been used. B.
3. The patentees’ invention was described,
as well in the title of the letters-patent, as
in the specification, as an invention of “im-
provements in giving signals and sounding
alarums in distant places by means of elec-
tric currents transmitted through metallic
circuits." The defendant, it appeared, ar-
rived at the same results by using a circuit
not wholly or continuously metallic through-
out, but by using the earth, to an extent
nearly amounting to the half, as the con-
necting medium between two portions of
the metal. It appeared in evidence, that,
after the grant of the letters-patent, it had
be discovered that a large portion of the
wire through which the electric current re-
turned to the battery might be dispensed
with, by plunging into the earth the two
ends of wire which would have been joined
by the parts left out, the electric current
passing from one end of the wire to the
other as effectually as if a continuity of wire
had been kept up:-Held, that, though a
circuit upon this principle would not be
wholly metallic, yet, inasmuch as it was so
in all that part which formed the substance
of the patentees' claim, viz., that part which
gave the signals, it amounted to an infringe-
ment of the patentees' right. Ib.
4. The patent was, for an improved me-
thod of giving signals, by means of several
III. Tenancy from Year to Year-See
Covenant to pay Rates.
Where a lessee covenants to pay rates
and taxes, no demand is necessary, to consti-
tute a breach, so as to entitle the lessor to
avail himself of the proviso for re-entry.
Davis v. Burrell, 821.
And see Estoppel, I.
I. Construction of Specification.
1. A claim for a patent for improvements
in the mode of doing something by a known
process, is sufficient to entitle the claimant
to a patent for his improvements, when ap-
plied either to the process as known at the
time of the claim, or to the same process
altered and improved by discoveries not
known at the time of the claim, so long as
it remains identical with regard to improve-