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five defendants with several offences on different days; and in the four following counts, it charged four of those defendants, together with four others, with similar offences on other days. A verdict having been found for the Crown, the Court of Exchequer held that there was no ground for arresting the judgment, for the defect (if any) might be cured by the mode in which the judgment was entered up.
16. WILKINTON V. ANGLO-CALIFORNIAN GOLD-MINING Com
PANY. 18 Q. B. 728. STEWART v. SAME, 18 Q. B. 736. Joint-Stock Company_Right of Subscribers to Shares to have Certificates
Executing Deed of Settlement. The first of these cases was an action by the plaintiff, a subscriber for twenty shares in the defendants' company, against the defendants, for refusing to give the plaintiff certificates of such shares. The defendants pleaded that the plaintiff had not executed the deed of settlement, or any deed referring thereto; and on demurrer to this plea, the Court of Queen's Bench held the plea good, and that a subscriber for shares in a joint-stock company, completely registered under stat. 7 & 8 Vict. c. 110, is not entitled to certificates under sect. 51, till he has executed the deed of settlement, or a deed referring thereto.
In the second case, which was also an action for refusing to give the plaintiff certificates of his holding shares, the declaration only alleged a willingness on the plaintiff's part to execute the deed of settlement.
The deed of settlement contained (inter alia) a rule that the share of any subscriber for part of the company's capital, who should not execute the deed within three months from its date, should be forfeited if the directors think fit, no provision being made for giving the subscriber notice to execute, or notice of intention to enforce the forfeiture. The plaintiff was a subscriber, but his shares were declared forfeit under the rule, without any such notice, and the Court of Queen's Bench held that the action could not be maintained.
17. BOYLE v. WISEMAN. 11 Exchequer, 360.
Libel-Secondary Evidence-Preliminaay Question of Fact. It is the province of the judge at Nisi Prius to decide all preliminary questions of fact upon which the admissibility of the evidence depends. This was an action of libel, for certain libels published in the Univers, and afterwards in the Tablet and another paper. The plaintiff, in order to prove the publication of the libel, tendered secondary evidence of the contents of a letter written by the defendant. On the part of the defendant, a document was produced as the original, and Mr. Baron Platt having, at that stage of the cause, refused to receive the evidence, the Court of Exchequer held that they were bound to hear the evidence on both sides, and to decide whether the document offered was the original or not; and that, if it was, the secondary evidence was inadmissible.
18. Ex PÁRTE NAPIER. 18 Q. B. 692. Mandamus to the East-India Company to pay Salary of a Military Oficer.
This was a rule for a mandamus to the East-India Company to pay Sir Charles Napier a certain sum of money, claimed by him as due for pay whilst an officer commanding forces of her Majesty and the East-India Company in India, and the Court of Queen's Bench refused the rule, holding that an officer has no such legal right, by statute or otherwise, to his pay, as entitles him in the absence of any specific undertaking or acknowledgment) to a mandamus calling upon the Company to discharge arrears, though he has always received his pay from the Company, and their practice has been to discharge it monthly.
“A legal obligation," said Lord Campbell," which is the proper substratum of a mandamus, can only arise from common law, from statute, or from contract. Of course the obligation here contended for cannot arise from the common law, and is not vested in contract. We have therefore to see whether there are any enactments of the Legislature by which it can be supported. It was not contended that an officer in the Queen's army at home could apply to us for a mandamus on the ground that his pay is improperly withheld from him, and the application is entirely founded on certain statutes respecting the EastIndia Company and the government of the dominions belonging to the Crown in India." His Lordship then commented on these statutes (33 Geo. 3, c. 52; 53 Geo. 3, c. 155 ;-4 Geo. 4, c. 81 ; 3 & 4 Wm. 4, c. 85 ; 7 Win. 4 & 1 Vict. c. 47 ; 3 & 4 Vict. c. 37), and held that they created no such legal obligation.
*** See Gibson v. East-India Company, 5 New Cases, 26 ; Gidley v. Lord Palmerston, 3 Brod. & B. 275 ; Rex v. Directors of East-India Company, 4 B. & A 1. 530; Rex v. Lords of the Treasury, 4 Ad. & E. 286; Reg. v. Lords of the Treasury, Re Smyth, 4 Ad. & E. 976; Reg. v. Same, Re Hand,
VOL. I. NO. II.
4 Ad. & E. 984; Reg. v. Commissioners of Woods and Forests, 15 Q. B. 772; Reg. v. Lords of the Treasury, Re Queen Dowager's Annuity, 16 Q. B. 357.
19. PEREZ V. OLEAGA. 11 Exchequer, 506. Practice-Common Law Procedure Act, 1854—Pleading-Equitable Defence
-Mistake in drawiny up Contract in Foreign Language. This was an action for the non-performance of an alleged agreement to load a ship for a voyage to Manilla, with a guaranteed freight of not less than 5,5001., and the Court refused to allow the defendant to plead, by way of equitable defence, that the real contract was, that the ship should earn freight at such a rate per ton, that, if filled, she would obtain 5,5001., and that by mistake of the person who reduced the contract into writing in the Spanish language, which he imperfectly understood, it was described as an absolute guarantee that the ship should have a freight of 5,5001. Quære, whether the subjectmatter of the proposed plea might be given in evidence under a denial of the contract.
20. LEECH v. LAMB. 11 Exchequer, 437. Practice-Certificate for Special Jury-Meaning of the Term “ immediately”
in the 6 Geo. 4, c. 50. This cause being tried by a special jury at the Spring Assizes, 1855, a verdict was found for the defendant. The defendant's counsel then asked the judge to certify for the special jury, and he consented; but the associate omitted to indorse the certificate on the record. In the following term, a rule nisi was obtained for a new trial, which was not disposed of until Trinity vacation. On taxation of costs, it was discovered that the certificate was not indorsed on the record ; and on application to the judge on the 14th of August, he signed the certificate. The Court of Exchequer held that the certificate was too late, and the Court set it aside.
21. JOHNSON v. DIAMOND. 11 Exchequer, 431. Practice-Common Law Procedure Act, 1854-Garnishment-Costs.
The plaintiff having obtained judgment against one Courtis, obtained a rule to proceed against Diamond, as garnisher, under the 64th section of the “ Common Law Procedure Act, 1854.” A writ accordingly issued, and the plaintiff having declared, the defendant demurred to the declaration, and obtained judgment without mention of costs. The Court was of opinion that the costs are in the discretion of the Court; but if liberty is given to issue the writ, without any order as to costs, the successful party is entitled to them.
22. Blew v. STEINAN. 11 Exchequer, 441, Practice-Debt above £20 reduced below £20 by Payment after Action
Judgment—Execution—Ca. sa, for the whole Amount-Irregularity. The defendant, being indebted to the plaintiff in a sum above 201., before judgment paid to the plaintiff a sum sufficient to reduce the debt below 201. The plaintiff having signed judgment, and issued a ca. sa. for the whole amount, the Court of Exchequer held that the ca. sa. was not a nullity, but an irregularity, and the rule was discharged, on the plaintiff paying the costs.
23. BARKER v. THE MIDLAND RAILWAY COMPANY.
18 Com. B. 46. Railway Company-Right of, to exclude Vehicles from their Station-yard.
This was an action by the plaintiff, an omnibus proprietor, who carried passengers and their luggage for hire to and from a railway-station of the defendants, for a refusal by the defendants servants to allow him to drive his vehicle into the station-yard. There were demurrers and cross-demurrers raised by the pleadings, and the Court decided in favour of the defendants, on the ground that no duty was shown on the defendants' part to permit the plaintiff to come upon their land.
24. CLOSMADEUC V. CARRELL. 18 Com. B. 36. Stamp-What sufficient Evidence to raise a Presumption that an Instrument
not produced was duly stamped, so as to let in Secondary Evidence of its Contents.
This was an action on a charter-party. The charter-party being unstamped, was within the fourteen days allowed by the 5 & 6 Vict. c. 79, s. 21, for stamping such instruments without payment of a penalty, delivered at the office of the sub-distributor of stamps at Cardiff, for the purpose of its being transmitted to London to be stamped, the proper amount of stamp-duty and postage being left with it. The clerk in that office, to whom it was delivered, proved that he sent to London all documents left with him for that purpose, but he had no recollection of the document in question. The clerks in the office in London were unable to say whether or not the document reached their hands; but they said that if it did, it would in the usual course be returned to the district office in the country. The clerk at Cardiff could not say
whether the document was returned to him or not; but he stated, that on search being made for it, no trace of it could be discovered. The Court of Common Pleas held that this sufficiently raised a presumption that the document was stamped, so as to let in secondary evidence of its contents.
25. KENNET AND Avon NAVIGATION COMPANY V. WITHERINGTON.
18 Q. B. 533.
Statutory Privilege to interfere with Property, first making Satisfaction
Continuance of Privilege after Expiration of the Power, as limited by Statute, to make the Satisfaction.
By the Kennet Navigation Act, the undertakers were authorized to make and maintain such navigation, and from time to time to alter their dams and weirs for that purpose, and to enter and make works upon lands for the purpose of the undertaking, first making satisfaction to the owners, as commissioners under the Act should direct. By a subsequent clause, any persons injured by the works were to receive compensation, to be assessed by the commissioners. The commissioners were named in the Act, and power given them to appoint successors from time to time. The navigation was made, and, as part of it, a dam across a river was enlarged. Subsequently all the commissioners died, without having appointed successors. The company afterwards raised the dam, to the injury of a mill-owner below. In an action of trespass in the Queen's Bench, where the right so to enlarge the dam came in question, it was held by Wightman, Erle, and Crompton, JJ., on the authority of Lister v. Cobley (7 Ad. & E. 124), that the power to alter the dam still existed, even though the mill-owner should no longer have any means of obtaining compensation, as to which they gave no opinion. Lord Campbell, C.J., however, dissented; holding that, the compensation clause having become incapable of execution by extinction of the commissioners, the powers which the Act had conferrred upon the company to cause injury to other persons could no longer be exercised.