made as above stated, and thereupon two letters were given in evidence the first from the defendant to the plaintiffs, offering to supply them with coals at 4s. 6d.

mitted, that that point could not be made, no notice having

been given that it would be disputed.

Rule nisi.
BORODEL AND ANOTHER v. NELSON-Tried before Talfourd,

J. at Guildhall: verdict for plaintiff, damages 517. 14s. 7d.

a ton for three years, from the 29th Nov. 1801; the Shee, Serjt. moved for a rule to show cause why a suggestion remained so lost, and the plaintiff has been unable

should not be entered on the roll for depriving the plaintiff
of his costs under the London Small Debts Act, 15 Vict.
c. 77, s. 119. Maule, J. had made an order that the bill of
costs, the subject of the action, should be taxed; and, if re-
duced below 50%, that the parties should have the same
rights as they would have had under the Small Debts Act.
The verdict was reduced upon taxation to 414. No applica-
tion had been made at the trial for a certificate. Sects. 119
and 120 were referred to. [JERVIS, C.J.-Sect. 120 adopts
the language of the New County Courts Act; but sect. 119
does not take away from attorneys their common law privi-
lege to sue in their own courts.]
J. Brown, in the same case, moved for a rule to show cause
why the order of Maule, J. should not be set aside, on the
ground that his Lordship had made the order on the suppo-
which could not now be done in consequence of the death

other from the plaintiffs to the defendant, agreeing to
take coals from the defendant for three years, at the
price named, from the 1st Oct. 1851-that alteration
being made in consequence of some coals having been
supplied from that date, for which the defendant had
charged 5s. per ton, and which the plaintiffs now
wished to include in the contract for coals at the
lower rate. It was then objected that that varied the
contract; and that no answer being given to it by the
defendant, no mutuality was proved, and the plaintiffssition that a certificate might be obtained after the trial,
were nonsuited.

Atherton, Q.C., now moved for a rule, calling upon the defendant to show cause why the nonsuit should not be set aside. If there had been no answer, it would have been sufficient to prove the letter and the subsequent dealings. (JERVIS, C. J.-No; those dealings would be a parol assent, and won't do.]

But I submit that both letters show the same contract.
The second letter means that the plaintiff's consented
to take coals for three years as offered, and fur-

ther stipulated that the coal delivered since 1st Oct.
should be charged for at 4s. 6d. [CRESSWELL, J.
But that is a new term in the agreement, and it is not
shown to have been accepted.]
Rule refused.

Gether v. CappeR.-Bovill moved herein for a rule, calling on the plaintiff to show cause why an order, made by Cresswell, J. at chambers, striking out a plea pleaded in this case, should not be set aside, and the plea allowed. It is an action by a shipowner against a charterer to recover freight, the shipowner seeking to recover at a rate above 90s. per ton. By the charter, the vessel was to proceed from her port of loading to Southampton, and there discharge; and the plaintiff was to be paid as large a freight as he could prove was paid for vessels on the same voyage at the time of passing Elsinore the said freight not to be less than 90s. per ton, to be paid half in cash and half in a four months' bill on the delivery of the cargo. The plaintiff averred that a larger sum than 90s. per ton was paid for freight, under such circumstances, to other vessels; but he did not fix any definite sum as the freight he claimed. It contended that the defendant has a right to require the plaintiff to make some fixed and determinate claim; and a plea to that effect was pleaded. The learned judge, however, though the plea had been allowed in the abstract, thought it bad, and therefore struck it out, stating that it was open to defendant to show that no larger sum than 90s. a ton was paid under another plea. It is now proposed to add the plea in its present form, or to plead "nor did the plaintiff give notice to the defendant what is the rate of freight he claims." Rule nisi.

PATERGATE AND ANOTHER V. MILNE AND SMITH.-This cause was tried before Alderson, B. at the last Assizes for Surrey, and the plaintiff nonsuited. Shee, Serjt. now moved for a rule calling on the defendant to show cause why the nonsuit should not be set aside, and a verdict entered for the plaintiff. It was an action for goods sold and delivered, work and labour, and materials supplied, and on an account stated. At the trial it turned out that there was a written agreement between the parties, in the handwriting of one of the defendants, and signed by the plaintiff alone. This was put in evidence, and objected to for want of a stamp; and the plaintiff thereupon was nonsuited. The case will be reported next week. Rule refused.

WETTON. HODD.-This cause was tried before Jervis, C.J. at the last sittings in Guildhal verdict for the plaintiff, 3281. O'Malley, Q.C., now moved for a rule calling on the plaintiff to show cause why the verdict should not be reduced by the sum of 1207, to a sum of 2081. It was an action by the indorsee against the acceptor of two bills of exchange. The bills were drawn by defendant on one Thomas Leake. Presentment and notice of dishonour of the bills were averred in the declaration, and traversed by the defendant; and upon this issue the question at the trial turned. The bill on which there was dispute was in this form:-"Three months after date pay to my order 3001. valne received." Addressed to Thomas Leake, Chobham. When the bill was produced in court, it appeared on the face of it to be accepted by Leake, and payable at a banker's. Proof was given that when the bill was presented at the banker's it was dishonoured. Leake proved that the acceptance was a forgery, that the bill had never been presented to him, and he had never seen it. The learned judge put it to the jury that the bill was a forgery. It was objected for the defendant, that there had been no presentation of the bill to Leake, to whom There was no specific averment in the declaration that the bill in question had been presented to

it was addressed.

Leake; but there was, that notice of dishonour had been given to him. The proof was that the bill was presented to the bankers, but not to Leake. [JERVIS, C.J.-There is no doubt that, whether the acceptance by Leake was forged or not, it was on the bill before it was indorsed to the plaintiff. You may take a rule.]

Saturday, April 22.

Rule nisi.

HERNAMAN AND OTHERS, ASSIGNEES OF BURGESS, *. BARBERAtherton, QC, moved for a rule to set aside a

nonsuit by Platt, B. Declaration in trover for conversion of goods of the bankrupt, with counts for money had and received. The defendant had sold goods under a bill of sale by the bankrupt conveying all his property to him, and this action was brought by the assignees. The defendant gave notice that he should dispute the act of bankruptcy, and the trading. At the trial, it was objected on the part of the defendant that no good petitioning creditor's debt had been proved, and Platt, B. nonsuited the plaintiffs. It was now sub

of Mr. Justice Talfourd.

Rule nisi.

Rule nisi; both rules to come on together.
STOKES V. MARVEL-J. M. Cooke moved for a rule to show
cause why the proceedings in this action should not be
stayed, and costs be paid by the defendant up to July last on
the lower scale. The plaintiff, an attorney in the Isle of
Wight, had brought an action against the defendant, a
tradesman, and was about to proceed to trial, when he
and the plaintiff met, and agreed to settle. 101. had been
paid into court. The defendant was to pay 51. more, and costs
to be taxed. The plaintiff's attorney insisted that this meant
costs on the higher scale, and the attorneys on either side
afterwards agreed to refer it to Mr. Westmacott, the town
agent for the defendant. JERVIS, C.J.-Why does not Mr.
Westmacott settle whether the costs are to be taxed on the

higher or lower scale? It is pretty clear he think they
ought to be paid on the higher scale.

Rule refused.

BOYD V. POWER.-Milward moved for a rule calling upon
the plaintiff to show cause why a prohibition should not
issue to the judge of the Co. C. at Liverpool. The defendant
had formerly resided at Liverpool, but had removed to Ire-
land three years ago. He was the master of a ship; and the
summons had been served upon him at Llanelly in Wales,
out of the Liverpool district, under the power given to the

judge by the Act. It was now contended that, as the de-
fendant was at Llanelly temporarily on business of his ship,
and not residing there, the service was bad. He referred to
the 43rd Co. C. rule.
Rule refused.

HOPKINS . TANCRY.-Lush moved for a rule to enter a
nonsuit, or for a new trial, either on the ground of misdirec-
tion, or verdict against evidence. The plaintiff had pur-
chased a horse of the defendants at Tattersal's sale, without
a warranty being stated. The horse was afterwards sent to
a trainer, who said he saw something about his leg, and
advised his not being trained. He was then sold as unsound,
having a swelling in one leg. That swelling afterwards
went down, and the present owner of the horse swore he had
hunted him, and that he was sound now. On the Sunday
previous to the sale at Tattersal's the defendant had stated to
the plaintiff that the horse was sound. It was now contended
that that was no part of the contract, the horse being sold by
Tattersal, and no warranty being stated.

Rule nisi.

COURT OF EXCHEQUER.
Reported by C. J. B. HERTSLETT, Esq. Barrister-at-Law.

ERROR FROM THE EXCHEQUER.
June 17, Jan. 12, and Feb. 1.
CROWE v. CLAY.

account of the said sum of 421. 5s. 2d., parcel, &c.; and the plaintiff afterwards lost such bill out of his possession, and from thence hitherto the same has to produce it, and ceased to have any power of control over it; and the defendant has never since such loss found such bill, nor known where it was to be found, nor had any power or control over it.

To this plea the plaintiff demurred; and, on argus ment in the court below, the court, after taking time to consider, gave judgment for the plaintiff, consider ing the above plea bad in substance. To this decision the defendant brought his writ of error,

Dowdeswell, for the plaintiff in error, the defendant below. This is a good plea; it affords a good and substantial answer to the action. It is well estab lished, that in an action on a negotiable bill of exchange the plaintiff must be the holder at the time he sues upon it; and if he has lost it, he cannot main. tain an action upon it. In the case of Hansard v. Robinson, 7 B. & C. 40, the Court of Q. B., in giving judgment, points out the inconvenience and injustice which may arise if the plaintiff in such a case could recover, and throw on the defendant the consequences of remedy of the loser of the bill is in equity, where he the plaintiff's negligence; and shows that the proper might call on the party liable on the bill, on due indemnity, to give him another bill, or pay him the amount. In the case of Ramuz v. Crowe, 1 Exch. 167, this law was extended to the case of a bill payable to the drawer's order, although not indorsed at the time of the loss,

as the bill had been in the case of Hansard V. Robin-
son; the right to have the bill on payment, and the
possible inconvenience and embarrassment to a man
being called upon to pay on the loss of the bill, being
of the same kind in the two cases. The acceptor is
entitled to have the bill given up to him for his own
security, and the loser ought not to be able to throw
the result of his carelessness upon an innocent party.
The indorsement by the defendant, and the time of the
loss of the bill, are facts within his knowledge, and he
ought to have replied them in answer to the plea. He
cited Kearslake v. Morgan, 5 T. R. 513. In the case
of Belshaw v. Bush, 22 L. J. 24, C. P., to an action of
debt on simple contract, the defendant pleaded that
after the accruing of the debts and causes of action,
and before suit, the plaintiff drew a bill on one A. B.,
who accepted the bill, and delivered it to the plaintiff
for and on account of the said debts and causes of
action, and that the plaintiff received it from A. B.
on such account; that the plaintiff, before suit,
indorsed the bill to C. D., who was still the holder,
and entitled to sue A. B. therein;-and that plea was
held a good answer to the action. He also referred to
Ford v. Bach, 11 Q. B. 873; Holdipp v. Otway, 2
Wm. S. 1036, N. C., 6th ed.

Plea-Acceptance by defendant of a bill-Lost bill.
In an action for goods bargained, sold, and delivered,
the defendant pleaded, as to 421. 5s. 2d., parcel, &c.
that before action, he accepted a bill of exchange for
that amount drawn on him by the plaintiff, payable to Atherton, Q.C., for the defendant in error, the
plaintiff's order five months after date; that the plain-plaintiff below. The plea is bad for not containing
tiff took and received such bill for and on account of
the said sum of 421. 5s. 2d.; and that the plaintiff after-
wards lost such bill out of his possession, and from
thence hitherto the same has remained so lost, and the
plaintiff has been unable to produce it, and ceased to
have any power or control over it; and the defendant
has never since such loss found such bill, nor known
where it was to be found, nor had any power or control
over it:

an allegation that the bill of exchange, which the plaintiff relies on as an answer to the claim, had been indorsed by the plaintiff so as to confer a title on a third party to sue on it. There being no such averment, the defendant alone could recover from the plaintiff. It is also bad for not stating that the bill had arrived at maturity when lost. The defendant in an action is bound to disclose in his plea such a defence as is, in substance, an answer to the plaintiff's Held, reversing the decision of the court below, that the claim, although he may have difficulty in proving it. plea was a good plea to the action. He cited Price v. Price, 16 M. & W. 292.

The declaration stated that the plaintiff sues the defendant for money payable by the defendant to the plaintiff for goods bargained, sold, and delivered by the plaintiff to the defendant; and for that the plaintiff, on the 1st April 1852, by his bill of exchange, now overdue, directed to the defendant, required the defendant to pay to the plaintiff's order 281. 38., two months after date; and the defendant accepted the said bill, but did not pay the same.

The defendant pleaded, secondly :-As to 421. 5s. 2d, parcel, &c., the defendant says that, before action, the plaintiff, by his bill of exchange, directed to the defendant, required the defendant to pay to the plaintiff's order 421. 58. 2d. five months after date; and the defendant accepted and delivered to the plaintiff, who took and received, such bill for and on

Cur. adv. vult. COLERIDGE, J.-His Lordship stated the pleadings. The present case is not one of an action upon a lost bill, but on a demand for the amount for which the bill was given. A bill given for and on account of money due on simple contract operates as a conditional payment, which may be repudiated at the option of the creditor, if the bill were unpaid at maturity in his hands, in which case he may rescind the transaction of payment, and sue on the original contract: (see Griffiths v. Owen, 13 M. &. W. 58, 64; Williams v. Jarman, - 13 M. & W. 128, 181.) If the bill be lost, the condition on which the payment may be repudiated does not arise, and the defendant, if compelled to pay the original debt, would be subject to inconvenience of a like kind as if compelled to pay

the bill. Accordingly it was held at Nisi Prius, in Woodford v. Whitely, Moo. & M. 517, that a debt paid by a lost bill could not be recovered, and the like law was assumed. And so in the case of Mercer v. Cheese, and Price v. Price, 4 Man. & G. and 16 M. & W. It appears therefore, the loss of a negotiable bill, given on account of a debt, is an answer to an action for the debt, as well as to one on the bill. It was objected to the plea in the present case, that it did not show the bill was overdue, and that the loss of a bill not due was immaterial, if the loss is shown to be subsisting at the time the action is brought. To entitle the plaintiff to sue, he ought to be the holder of the bill, and the bill ought to be due; and there seems no reason why a defendant may not rely on a defect of the plaintiff's title in either of these respects, leaving the other unnoticed. It may well be that a person who has given a bill on account of a debt, may be able and willing to pay the debt, if he can withdraw the bill from circulation, and may object to pay only on the ground that the bill is not forthcoming, without objecting to its not being due. The present plea therefore is a sufficient bar to the action, as it discloses a state of facts inconsistent with the plaintiff's right of action; it therefore shows a defence in substance, and is consequently good on general demurrer. The judgment of the Court of Ex. must be therefore reversed. Judgment reversed.

་

Wednesday, Jan. 25.

... WILKIN AND ANOTHER v. MANNING. Insolvent debtor-Omitting debt of a creditor from schedule.

Where a defendant, being indebted to a plaintiff, petitions, under the Insolvent Acts, 5 & 6 Vict. c. 116, ss. 7 and 9, and 7 § 8 Vict. c. 96, s. 22, for his protection, and omits the debt due to the plaintiff from his schedule, by and with the knowledge and consent of the plaintiff, and through his contrivance and procaring, the debt is barred. The effect of such an omission by the insolvent of any debt in his schedule is to defeat the object of the Acts of Parliament, to

the form of the statutes in such case made and pro- | to be the effect of this fraud on the plaintiff's right
vided, presented by the defendant to her Majesty's to sue for his debt. If this had been an action on
Court for Relief of Insolvent Debtors in England, the a new security for old debts, the defendant would
defendant being then a resident, and having for six not have been liable, on the authority of those cases
calendar months previously resided within the juris- in which it has been held that a warrant of attorney
diction of the said court, and thereupon afterwards, and cognovit given under similar circumstances to
and before the commencement of this suit, namely, on these, under the form of the Insolvent Act, of which
the 22nd Jan. 1850, a final order for protection and the principle is the same as under the Protection In-
distribution was made in the matter of the said peti-solvent Act, could not be enforced. That is the case
tion by J. J. Harris, a commissioner of the said Court
for Relief of Insolvent Debtors, duly authorised in
that behalf." Then the defendant says, "the several
debts in the declaration mentioned, and every of them,
and every part thereof, were contracted before the day
of filing the said petition in the said Court for the
Relief of Insolvent Debtors;" and he further says,
"that no description whatever of the said debts or
debt, or causes of action, or of any or either of them,
so in the said declaration alleged to have been due
from the defendant to the plaintiffs, and to have
accrued to the plaintiffs in manner therein mentioned,
or of the plaintiffs as creditors in respect thereof, was
contained or inserted in the schedule annexed to the said
petition, nor were the plaintiffs named or mentioned in
the said schedule as creditors of the defendant for and
in respect of such debts and causes of action; and
that the said debts and causes of action, and the
names of the plaintiffs as creditors in respect thereof,
were, and each of them was, omitted from and out of
the said schedule, by and with the full knowledge and
consent, and by and through the contrivance and
procurement of the plaintiff." To that there is a
general demurrer. The demurrer raises the question
whether, where the defendant has petitioned under
the Insolvent Act, 5 & 6 Vict. c. 116, ss. 7 and 9, and
the 7 & 8 Vict. c. 96, s. 22, for his protection, and has
omitted the debt due to the plaintiff from his schedule,
by and with the knowledge and consent of the plain-
tiff, and through his contrivance and procuring, the
debt is barred. Upon this plea it must be assumed
that, in the procuring the omission, there was not any
actual fraudulent intention on the part of the
plaintiff; and in the absence of that circumstance

deceive the court and the other creditors, and to make we have to decide whether the designed omission the insolvent commit perjury. In legal contemplation, of the debt would necessarily be a fraud on it is a fraud upon the court and creditors. other persons, and then what the effect would Declaration for money paid, &c. Plea-That, after be on the right to sue for that debt. Under the accruing of the said debts and causes of action, the 7 & 8 Vict. c. 96, s. 22, the insolvent is and before this suit, a petition for the protection of required to annex a schedule to his petition in the defendant from process was duly presented by him to form required by the Act, which is to be verified by the Insolvent Court; that afterwards, and before this his affidavit. The petition states that the schedule suit, a final order for protection and distribution was contains a full and true account of his debts, and by made; that the several debts in the declaration were section 4 all the property of the insolvent is vested in contracted before the filing of the said petition; and the assignees to be nominated by his creditors. By that no description whatever of the said debts, &c., in section 9 of the 5 & 6 Vict. c. 116, future effects acsaid declaration, or of the plaintiffs as creditors inquired after the final order also vest in them, subject respect thereof, was contained or inserted in the to the orders of the court; that is, the court may order schedule annexed to the petition; and that the debts such portion as the court may think fit to be taken by and names of the plaintiffs as creditors were omitted them. By section 22 of this Act, and section 10 of with the full knowledge and consent, and by and the 5 & 6 Vict. c. 116, such final order may be made through the contrivance and procurement of the which is a bar to all future actions for the debts plaintiffs. Demurrer to that plea. named in the schedule, as was decided by this court in the case of Jacobs v. Hyde, 2 Exch. Rep. 508, the result is, the Legislature intended all the insolvent's creditors to be named, and that they should be exactly on the same footing, and all his effects (those before the final order absolutely, and those after sub modo) to be applied to their benefit, and then that the insol- | vent should be a free man. The necessary effect, therefore, of the omission by the insolvent of any debt in his schedule is to defeat this object, and to make the insolvent commit perjury, and to deceive the court and the other creditors; and although it gives the scheduled creditors a larger share of the present effects, it injures their right to an equal distribution of his future effects. The plaintiff must be supposed to have contemplated the necessary effect of his own act, and to have meant a false representation on oath to be made to the court and the creditors of the nonexistence of his debt, and to preserve the power to sue for it; and in legal contemplation this is a fraud upon the court and creditors; and, as a matter of fact, one cannot suppose any innocent purpose for which such an omission could be made, unless he means to abandon it and give it up altogether. What, then, ought

Prentice appeared in support of the demurrer. There is no allegation of fraud here at all, and the difficulty is to see how the plaintiffs' debt can thus be annihilated. Can the defendant be allowed to set up his perjury to support his plea? He swore to the accuracy of his schedule with the alleged omission. Phillips v. Pickford, 19 L. J. 171, C. P.; Howard v. Bartolozzi, 4 B. & Ad. 555, were cited.

Quain, contrà, referred to 5 & 6 Vict. c. 116, ss. 7 and 9 ; and 7 & 8 Vict. c. 96, s. 22; Stracey v. Blake, 1 Ma& W. 168; Carpenter v. White, 3 B. Moore, 231; Tabrom v. Freeman, 2 Cr. & M. 451; Chitty on Contracts, 685, 670; Harrhy v. Wall, 1 B. & Ald. 103; 1 Cr. & M. 748. Cur. ade, vult.

. JUDGMENT.

Feb. 28 PARKE, B.This was an action for money paid by the plaintiff to the use of the defendant; and the defendants pleaded a plea which is demurred to, that after the accruing of the said several debts and causes of action in the said declaration mentioned, and before the commencement of this suit, namely, on the 20th Oct. 1849, a petition for the protection of the defendant from process was duly, and according to

of Tabrom v. Freeman, 3 C. M. & R. 451; Jackson v. Davison, 4 B. & Al. 691. Upon the question, whether an old debt can be enforced, in the case of Howard v. Bartalozzi a different intimation of opinion was given, or an opinion intimated it may be, by Lord Denman and myself; but ultimately the case went down to a new trial, and the verdict was for the defendant, and that verdict was not afterwards disturbed. The present question is, whether this old debt could be enforced. We think it falls within the same principle: to permit the plaintiff to recover it against the defendant would be to give effect to a fraud on the court and the creditors, which the law ought not to allow. The case of Steinman v. Magnúš, 11 East, 391, appears to have been decided on this principle. Also Carpenter v. White, 8 Moore, 281; and Holmes v. Viner, 1 Esp. Nisi Prius, 181, where Lord Kenyon held that, where upon a general com position with creditors the plaintiff compounded one debt and kept back another, it would be a fraud on the other creditors to permit him to sue for the latter debts, and defeat the object of the composition, which was intended by the creditors to discharge the insolvent from all his debts, as well as oppression of the debtor who had given up all his property to form a fund for their benefit. And the like principle was applied to the case of a private composition, in Britten v. Haines, 5 Bing. 460. The same principle applies to the case of a distribution of the insolvent's effects under the statute. If it would be, as we think it is, and as it has been shown to be, a fraud on the court, and the creditors, and do them a wrong, to allow the original debt to be enforced by a court of justice. the court cannot permit that to be done. The plea is a good plea, and a bar to the action. Judgment therefore will be for the defendant.

Judgment for the defendant.

IRISH REPORTS.

ROLLS COURT. Reported by W. ST. LEGER BABINGTON, Esq., Barrister at-Law.

Saturday, Feb. 18.
Re COLLIS.
Attorney-Costs-Business done at and before parlia-
mentary election-Jurisdiction to order taxation
67 Vict. c. 73, and 12 and 13 Vict. c. 53.
Where, at and before a parliamentary election, an at-
torney was employed to assist in procuring the return
of a candidate :

Held, that the Court had jurisdiction to order his bill
of costs for such services to be taxed. The Court
also restrained the attorney from proceeding at law
for his costs pending such taxation;
And refused to direct the Taxing Master to tax sepa-
rately the costs incurred previously to and at the elec-
tion, or to distinguish between the items for services
rendered in a professional capacity, and those which
might have been rendered by a person not an at-
torney.

This case, which came before the court upon a petition presented by Mr. George H. Kinderley, had been argued on a former day by Hamilton Smythe, Q.C., and Raymond, for the petitioner; and De Moleyns for the respondent.

The facts of the case appear sufficiently in the judgment of the court.

Feb. 18.-The MASTER of the ROLLS.-The petition in this case has been presented by Mr. George Herbert Kinderley, an English gentleman, who was a candidate for the representation of the borough of Tralee at the last general election in 1852, in opposition to

His HONOUR, however, refused to modify the order the indebitatus counts; and where, inasmuch as no in that respect.

REPORTS.

Cases decided in the County Courts.

ESSEX.

HALSTEAD, March 25, 1854.
(Before DAVID CATO MACRAE, Esq., Deputy-Judge.)
BRIDGE v. DRURY AND ANOTHER, Executors of
WILLIAM BROWN.

Effect of.

Held, that if it appear on the face of a written agree-
ment, or be capable of being ascertained that the
subject matter of the agreement was of the value of
201. at the time it was entered into, it is inadmissible
in evidence without a stamp.

Held, that where work has been performed under an
agreement in writing, which requires a stamp, and
a plaint is brought in the common form for the
work done, a payment into court does not render the
agreement admissible without the usual stamp.
Smoothby, attorney, for plaintiff.
Shepherd, attorney, for defendants.
Smoothby cited the following cases and authorities.
Payment into court admits everything which the
plaintiff must have proved to recover it :

Mr. Maurice O'Connell, and who seeks that the bill
of costs furnished to him by Mr. Maurice Joseph
Collis, an attorney of that town, for services rendered
previously to and at that election, may be referred to
the proper officer for taxation; and he also prays for
an injunction to restrain Mr. Collis from proceeding,
pending the taxation, with an action at law which he
has commenced to recover the amount. I have care-
fully considered the case, and looked into the autho-
rities bearing upon it. There are two questions in
the case-first, did the relation of attorney and client
exist between Mr. Kinderley and Mr. Collis? and,
secondly, is the bill taxable? If the relation of
attorney and client did not exist, I should have no Agreement-Stamp-Payment of money into court-
power to direct the bill to be taxed. The case of
Allen v.
Aldridge, 5 Beav. 401, is a leading authority
on the question which is here involved. There it was
decided that the fees of a steward of a manor
who is a solicitor, but acts in the character of
a steward only, are not taxable under the
6 & 7 Vict. c. 73 (corresponding to the Irish Act,
12 & 13 Vict. c. 53); and, to make a bill taxable, the
business must be connected with the profession of an
attorney-business in which the attorney was em-
ployed because he was an attorney, or in which he
would not have been employed if he had not been an
attorney. I have no doubt that Mr. Collis, in this
case, was employed because he was an attorney, and
that he might act in his capacity of an attorney; and
therefore Mr. Collis made his demand as an attorney.
His Honour then, referring to the items in the bill of
costs, proceeded to say-The first item is clearly
taxable; it is the ordinary charge of 6s. 8d. made by
an attorney for attendance on Mr. Murphy, the con-
ducting agent of Mr. Kinderley, when he was retained
by him to assist in procuring Mr. Kinderley's election.
But, if I had any doubts on the question, they
would have been removed by the case of Re Andrew,
22 L. T. Rep. 114, decided in the Rolls Court in
England, in last Michaelmas Term, and to which 1
have been referred during the argument. In that case
Mr. Andrew was a local attorney, residing in Lincoln,
and had been employed, previously to and at the
general election of 1852, by Sir Montague Chol-
mondley, in attending to his interests in the Registra-
tion Courts of the county, and also, immediately
previous to the election, in communications with his

committee, and also in canvassing for him, and generally for the purpose of promoting his return as a Member of Parliament; and for these services, precisely similar to those rendered by Mr. Collis, he brought his action; and in that case it was decided by Sir John Romilly that a court of equity had jurisdiction to refer the bill for taxation. I shall therefore in this case direct Mr. Collis's bill to be referred to the proper officer for taxation, and I shall also restrain him from proceeding with the action at law which he has commenced. With regard to the question raised under the statute of 2 Geo. 4, c. 58, defining the fees which it shall be lawful for a candidate at an election to pay his agents, I shall give no opinion, but will leave it to the Taxing Master to decide.

De Moleyns asked that the Taxing Master might be directed to tax separately those costs incurred previously to the election, and those incurred at the election-distinguishing the costs claimed by Mr.

1 Barn. & C. 4; Roscoe on Evidence, 5th Edit., 45.) Paying money into court precludes the party from objecting to the insufficiency of the evidence, and of course to the want of a stamp: (Philips on Evidence, 10th Edit. vol. I, p. 534.) An agreement is admissible in evidence unless it appears upon the face of it that the subject matter referred to by the parties is of the value of 204 and upwards: (Feltham v. Cartwright. 7 Scott, 695 Melanotte v. Teesdale, 13 M. & W. 216; Cox v. Bailey. 6 Man. & Gn. 193; Pemberton v. Vaughan, 10 Q. B. 84; Hill v. Ranson, 5 Man. & Gn. 789.)

:

JUDGMENT.

The DEPUTY JUDGE said-This was an action against the executors of Wm. Brown, deceased, for work and labour, alleged to have been done under an agreement, a memorandum of which had been made in writing, and signed by the testator. The memorandum was in the following form, and unstamped: "I hereby agree to pay to Mr. James Bridge one pound four and to pay for harrowing and rolling, if done according shillings per acre for ploughing my land three times,

particular contract is admitted, if any particular contract is relied on it must be proved in the usual manner and subject to the usual restrictions. The plaintiff's claim, therefore, fails, because there is an agreement in writing, which it is essential for him to put in evidence and prove, but which is inadmissible for want of a stamp. The plaintiff, therefore, must either elect to be nonsuited or otherwise judgment for the defendant.

GLAMORGANSHIRE.

CARDIFF, March 17, 1854.
(Before THOMAS FALCONER, Esq., Judge.)
GEORGE BIRD v. DAVID BROWN.
Seamen's Advance Notes-Construction-Stat. 13 & 14
Vict. c. 93

B. discounted an advance note made payable "to the
order of W. C. three days after the ship leave Penarth-
road, provided he sails in that ship," and afterwards
brought an action on the note. On the part of the
plaintiff an official statement was put in to show that
when the vessel finally left England W. C. was not
on board.

Held, in the absence of evidence to the contrary, that such official statement afforded a presumption that W. C. was not on board when the vessel left Penarthroads, and the plaintiff was accordingly nonsuited. Tripp for plaintiff.

Cathcart for defendant.

This was an action on two seamen's advance notes for the sums mentioned in the notes. They were both given in October, 1853. The terms of the notes were: "Three days after the ship Lord Elgin' leaves Penarth-roads, pay to the order of W. C., provided he sails in the said ship from Penarth aforesaid, and is then duly earning his wages, or is previously discharged with the consent of the master, the sum of, &c., being one month's advance wages according to agreement." The notes were proved to have been discounted, and the receipts of the seamen were proved to have been signed and were duly endorsed.-Mr. Saunders, a shipwright, stated that he recollected the "Lord Elgin" at anchor in the Penarth-roads, in the month of October last. He went to her to survey her for damages caused by a collision, and that she was not then fit to go on her voyage.-Mr. Manning, another witness, stated that the vessel was damaged in the Penarth-roads, when lying at anchor there, and that she was taken to Bristol, and was detained there for repairs until the early part of December, and then proceeded on her voyage. And, in addition to this evidence, what is well known in this court, under the the 12th of December;" and from it, it appears, that "schedule G.," is produced: it is dated-“The Holmes,

--

to the custom of the country." Signed, William Brown. one of the seamen named in our notes had deserted, and
It was objected, on behalf of the defendants, that this the other had entered Her Majesty's service. Now, the
document was not admissible in evidence for want of a stat. 13 & 14 Vict. c. 93, sect. 88, provides that the
stamp ; and it appearing from the evidence that the master of every "foreign-going ship" shall, before finally
land to be ploughed, &c., at the stipulated price of leaving the United Kingdom, "sign and send to the
11. 4s. per acre, amounted to at least 80 acres, it was
manifest that the subject matter of the agreement, at in a form to be sanctioned by the Board of Trade
nearest shipping master a full and accurate statement,
the time it was entered into, was of the value of 20. (namely, schedule G.), of every change which takes
The plaintiff's attorney urged, that in order to render place in his crew before finally leaving the United
a stamp necessary, the value should have appeared Kingdom." By the 93rd section it is provided that
upon the face of the agreement, but I am of opinion if, in case any such change in a crew before leaving
that this was not necessary, and that the objection is the United Kingdom, as hereinbefore mentioned, such
fatal. It is enough to sustain the objection if it be statement thereof is not signed and sent as hereinbefore
capable of being ascertained, and is in fact ascertained directed, the master shall be liable to a penalty not
by the evidence produced before the court, that the exceeding five pounds. Then the 61st section provides
subject matter of the agreement was of the value of 207. that the person discounting an advance note may,
at the time it was entered into. The rule is clearly" after the expiration of ten days from the final de-
laid down by Parke, B., in Taylor v. Steel (16 M. &
that, "according to the more recent decisions, it must
W. 668); where his lordship states in his judgment
appear on the face of the instrument. or with reference
to the subject matter be capable of being ascertained,
that the agreement was of the value of 201. at the time
It was also urged by the
court admitted the agreement, as if it had been pro-

it was entered into."

Collis as an attorney, and those claimed as an agent plaintiff's attorney that the payment of money into or by the official statement of the change of the crew

for other services which might have been rendered by

a person who was not an attorney.
This application was resisted by Raymond. Mr.
Collis had, in an affidavit made by him in the action
to support an application for substitution of ser-
vice, described all the services for which he claimed
compensation, without distinction, as professional.
The MASTER of the ROLLS refused to accede to this
application. He had ordered the whole demand to
be referred to the officer, and he would exercise his
discretion in the matter.

De Moleyns then sought that it might be part of the order that Mr. Collis should be at liberty to proceed in an action at law to recover compensation for the services rendered by him as an agent, and not as an attorney.

parture of the ship from her last port of departure in
promised by the note with costs." And the same sec-
the United Kingdom, sue for and recover the amount
tion provides, that the seaman "shall be presumed to
have gone to sea with the ship, and to have duly earned
and to be duly earning his wages, unless the contrary
is proved either by the production of his register ticket,
caused by his absence, made and signed by the master
as hereinafter required (namely, “schedule G.”) or in
some other manner." Each note is made payable three
days after the vessel sailed from the Penarth-roads,
provided the seaman sails in her and is then earning
his wages, but the plaintiff could not sue on it until
after the expiration of ten days from the final departure
of the ship from her last port of departure; and this
word final is important. The schedule G. is to be
signed and sent before finally leaving the United
Kingdom, and this schedule may be evidence in
answer to the claim of the holder of the note to rebut
the presumption otherwise authorized, namely, that
the seaman named in the note is duly earning his
wages. The vessel left Penarth-roads in October, but
a vessel is thus explained:-"If a ship, warranted
she did not then sail upon her voyage. The "sailing"
to sail on or before a particular day, quits her moor-
ings on or before the day limited in the warranty,

perly stamped ; but I am of opinion that the payment
into court did not have that effect. In an action in the
courts at Westminster, where there is a special count on
a contract, and a plea of payment into court is pleaded
to it, the contract stands admitted on the record, and
there is no occasion to produce it in evidence, and
therefore no objection can be taken to the want of a
stamp; but where in those courts the declaration is on
the indebitatus counts, and there is a plea of payment
of money into court to those counts, the effect of the plea
is merely to admit that the defendant is indebted to
the plaintiff in respect of causes of action of the descrip-
tion declared on to the extent of the money paid in
(See Kingham v. Robins, 5 M. & W. 94; Stephenson
Harris, 5 Man. & Gr. 53.) I am of opinion that the of
v. The Corporation of Bury, 1 Q. B. 154; Goff v.
state of circumstances in the present case is analagous
to that where there is a plea of payment into court to

Paget, solicitor, appeared for the plaintiff, and Blanshard, barrister-at-law, for the defendant. The plaintiff claimed 41. 15s. for damages sustained by him in consequence of the defendant entering his house on the 4th day of October last, and taking a quantity of wool which had been given him to work by Mr. Lund, of Keighley. It appeared the plaintiff got ten stones of wool from Mr. Lund, and was to get other work from any other person, so as to make the ten stones last as long as he could. At the time the inspector went to the plaintiff's house, the wool had been in his possession about a month. The defendant had been reinstructed to request the plaintiff to finish his work. When the defendant went to the plaintiff's house, the Jacomb attended on behalf of the defendants, the latter and his wife were at work, and also one Matthew

This case was one of replevin. The plaintiffs were James and George Robinson, and others, occupiers of Smithy-place, Thongsbridge, and Lower Mytholmbridge Mills.

Floyd appeared on their behalf.

Wade, who had been employed by the plaintiff to finish Mr. Lund's wool, The defendant took Mr. Lund's wool away, and gave the plaintiff eight days' notice to finish and take in his work. On the following day, the plaintiff went to Mr. Lund, and received a note from his book keeper to the defendant, to deliver up the work. This was refused, and in order to have some justification for his conduct, the defendant, on the 10th of October, laid an information before the justices against Wade, the plaintiff's servant, for having in his possession embezzled materials.

This case was heard by the justices at Keighley, on the 13th, and dismissed. Proceedings where then taken in the County Court by the plaintiff for damages, and the judge, after a three hours', hearing, gave the plaintiff the full amount claimed, with expenses.

Amendment of summons-A plaint to recover the market price of goods not duly delivered by railway | A person purchasing cattle without a clearly underaltered to entitle a plaintiff to damages by inserting "for value of goods not delivered" Goods tendered 1.by railway company, too late for market, in consequence of their negligence, ought not to be altogether refused by the party to whom they are sent, but they might be received and sold for what they would fetch, and the damages sustained would be the differenceSo decided in this case.