Lord Petre v. Eastern Counties Railway Company, 1 Earl Shrewsbury v. North Staffordshire Railway Com- ERLE, C. J.-This rule must be discharged. The action was for goods sold and delivered upon a written contract for sale. The words of the agreement were "Kelner to Baxter, Calisher, and Dales. I propose to sell stock, &c., for 9001." The defts. as members of the projected company accepted this offer, and signed their names. The difficulty arises because the plt. addressed this proposal to the defts. on behalf of the company, and the question to be decided is whether there is anything on the face of the agreement to limit the personal liability of the defts. If the company had been in existence at the time the agreement was signed, the defts. might have pledged its responsibility; but the document becomes wholly inoperative, if not binding on the parties themselves. The company was at that time a nonentity; and when it afterwards came into existence, it was a new creature just acquiring rights and liberties. The proposal to form a company does not create that company. Two consenting parties are necessary to a contract, therefore the mere ratification of the purchase by the company subsequently did not make a new contract. The cellar containing the stock sold to the defts. was given up by the plt. on the day the agreement was signed, and the plt. parted with that stock without doubt on the strength of the deft.'s liability. When a clear intention is expressed in writing, no evidence can be admitted to prove that the intention was exactly the reverse of what has been written. WILLES, J.-I am of the same opinion. As to whether evidence was admissible in order to prove that the liability was not intended to fall upon the defts., the argument in support of the rule amounts to this, that defts. knowing that the agreement was binding upon them meant nevertheless that they should not be bound. This is clearly an irrational mode of considering liabilities; they expected a successful speculation, and did not prepare for a disastrous result. Immediate delivery followed the signing of the contract, and there was nothing to compel the company to be liable, unless the plt. agreed with them upon a new contract; the consent of the other party concerned was necessary to make the company liable upon their ratification. The responsibility of executors and administrators is a different matter; this point is discussed in the case of Gunn v. The London and Lancashire Assurance Company, 12 C. B., N. S., 694. It is impossible that mere ratification can destroy the liability of the original contractors. The defts. by adding words about the company to their signatures could no more get rid of their liability than a man buying oats and hay could clear himself by saying that he purchased for his horses. Evidence can only be admitted when a mistake is made in a document, or the real transactions are not fully represented. BYLES, J.-I felt at first some doubt, because the contract appears on the face of it to be on behalf of the company. The rule of law is, however, that people contracting as agents are personally responsible, where no other responsibility is created. Here the defts. personally bound themselves until the company was formed, and afterwards the company ratified the contract. The ratification, however, can have no effect unless the plt. agreed to it. It was argued by Mr. Seymour that the terms of the contract might mean that the consideration for the goods was the promise that the company should pay. It is quite true that, even if the consideration did not appear, the contract would be good under the Mercantile Law Amendment Act, but it [C. P. is impossible to throw over the consideration when it is clearly expressed. KEATING, J.-At the time of the contract the company was non-existent. There can be no contract unless the parties are liable upon it. The length to which the courts will go is explained in Furnival v. Coombes, 5 M. & G. 736. Rule discharged. Attorneys for the plt., Linklaters, Hackwood, and Addison. Attorneys for the defts., Edmands and Mayhew. Thursday, Nov. 15. ARMITAGE v. Jessop. Execution-Costs of-Action in Superior Courts for a sum not exceeding 201.-19 & 20 Vict. c. 108, s. 30. By the 19 & 20 Vict. c. 108, s. 30, it is enacted that where an action of contract is brought in one of the Superior Courts to recover a sum not exceeding 201 and the deft. suffers judgment by default, the plt. shall recover no costs unless a court or judge shall otherwise order: Held, that this section does not deprive a plt. of the costs of execution. This was an action brought in the Superior Courts to recover the sum of 167. 5s. The parties resided in the same town, and on the plt. delivering his declaration the deft. wrote to his attorney stating that he was ready to pay the debt, but that if any application were made for costs he should oppose it. He then allowed judgment to go by default for want of a plea. No application was made for costs, and nothing more took place; nor was there any further communication between the parties for a month, at the end of which period the plt. issued execution for the debt (16/. 59.) and the costs of the execution. The deft. thereupon took out a summons at chambers, and Smith, J. made an order requiring the plt. to repay to the deft. the costs of the execution. Grantham subsequently obtained a rule calling on the deft. to show cause why this order should not be set aside, on the ground that the deft. was liable for the costs of the execution. Day now showed cause.-The deft. is not entitled to the costs of this execution. He issued it without notice and without answering the deft.'s letter. [ERLE, C. J.-Why did not he pay the debt-if he owed it?] I suppose he was waiting for the application for costs. If the plt. intended to issue execution he should have said, in answer to the deft,'s letter, that he did not intend to apply for costs, but Smith, J. took that he should issue execution. time to consider before he made the order, and in his discretion considered it an abuse of the authority of the court, and I submit that, as he had all the facts before him, the court will not disturb his decision unless they have some fresh materials before them. He referred to the 13 & 14 Vict. c. 61, s. 11, and the 19 & 20 Vict. c. 108, s. 30, and contended that, under those sections, the plt.'s right to any costs was taken away, and therefore he was not entitled to the costs of the execution. the Court. Grantham, in support of the rule, was stopped by ERLE, C. J.-I am of opinion that this rule should be made absolute. The plt. had a debt due to him of 161. 5s., and he brought this action for that amount, and indorsed on his writ that he claimed 167. 5s. and 17. 17s. for costs, with a notice that if C. P.] BRACEWELL v. WILLIAMS. [C. P. upon the first consideration, but bad upon the second. There was in this case a demurrer to the third plea of the first count of the declaration, and the deft. had also demurred to the second count. The first count: For that plts. by judgment of this court recovered against deft. 7061. 78. 3d. debt and 4 costs in an action brought by plts. against deft., and plts. for compelling payment by deft. of the said debt had before recovery of the said judgment caused to be duly issued out of the Court of Bankruptcy (then having jurisdiction in that behalf) a traderdebtor summons under the 78th section of the B. L. C. A. 1849, requiring the deft. to appear in the said court as to the said debt, and the deft. thereupon signed an admission out of court in form provided by the 84th section of the said Act, confessing that he was indebted to the now plts. in the said sum of 7061. 7s. 3d. And the plts. incurred certain costs of the said summons and proceedings thereon; and thereupon the said proceedings in bankruptcy being pending, in consideration that the plts. would accept payment of the said debt of 7067. 78. 3d. and would not prosecute the said proceedings in bankruptcy, the deft. promised the plts. to pay the said costs so recovered and the costs of the said proceedings in bankruptcy on a day elapsed before this suit; and everything has been done and happened and all times elapsed requisite to entitle the plts. to recover against the deft. in respect of the matters hereinafter stated; yet the deft. has not paid the costs of the said proceedings in bankruptcy. the deft. intends to contest the claim, but not other- | Held, that an action for breach of contract was good wise, he must appear. The deft. says, "I will pay you 161. 58., but you are not entitled to costs;" the plt. admits this, and so far all was right, and if the deft. had paid 164. 5s. into court there would have been an end of the matter. He, however, refused to do that, and the plt. delivered his declaration. The deft. suffered judgment by default, and it is agreed on both sides that the deft. owed the plt. 164 5s., and owed it all along. The suit was begun on the 13th April, and after judgment signed on the 18th May the deft. writes that he was always ready to pay, and gives notice that he intends to oppose any application for costs. In the interval after that the deft. would have been quite right if he had paid the debt, but I see no reason why the creditor should be obliged to employ an attorney to write back and say that he will receive the 167. 58. There is no difficulty if the debtor is willing to pay the debt. Instead of that he writes that letter that he is ready to pay the debt, but not the costs, and then nothing is done for one month, and on the 16th June an application is made for the order to set aside the execution, the costs of which were 31. 5s. I think the creditor has done what the law authorised him to do, and nothing more. Those are the facts, and so stands our judgment. The question of law is clear; before the last statute the debtor recovered his debt, but no costs. That was under the original County Court Act, but the costs of the execution belonged to the plt. Then came the 19 & 20 Vict., which says that he shall not recover any costs. I am clearly of opinion that that enactment that he shall not recover any costs does not take away his right to the costs of execution, and it has been so decided in this court. Therefore, both on the law and on the facts, I think that the plt. is entitled to our judgment. WILLES, J.-I am entirely of the same opinion. I will only add that sect. 123 of the C. L. P. A. 1852 expressly enacts that, "in every case of execution, the party entitled to execution may levy the poundage fees and expenses of the execution over and above the sum recovered;" which are the very words used in the statute referred to (19 & 20 Vict. c. 108, s. 30), and it is clear that the costs of the execution do not come within what is recovered. The case of the Marquis of Salisbury v. Ray, 29 L. J. 226, C. P., is a decision that the costs of execution are not acces sory to the judgment. There the plt. issued a fi. fa., to which the sheriff returned nulla bona, and the plt. then issued a ca. sa. indorsed to satisfy the same debt and the costs of the abortive fi. fa., and it was held that he was not entitled, under the above section, to recover the costs of the abortive writ of fi. fa.; or, in other words, that the costs are accessory to the particular writ of execution, showing that they are not part of the recovery, but of the execution. Second count repeats the first part of first count, alleging the debt and proceedings taken by the plts. And thereupon on 3rd Jan. 1865, in consideration that plts. would, until time appointed for payment as hereinafter mentioned, conduct proceedings so as to avoid as far as possible injuring deft's credit, deft. promised to pay the said debt and costs of the said proceedings. The third plea to the first count was: That the alleged ad nission was signed after the issuing of the said summons before the day appointed therein for appearance of the deft, in the said Court of Bankruptcy, and was filled in the said court on the said day appointed for such appearance; and that the deft. tendered and offered to pay to the plts. and the plts accepted payment of the said debt and demand as in the said first count mentioned, within seven days next after the signing and filing of the said alleged admission, to wit, on the day next after the filing thereof. Jones, Q. C. appeared for the plts.-By sects. 78 to 85 of the B. L. C. A. 1849, provision is made for compelling payment of debt and costs under a trader-debtor summons. Here the plts. allege they were entitled to costs; the deft. had promised to pay them upon condition that no further proceedings should be taken, and the plts. agreed to refrain from further proceedings upon the deft.'s undertaking to pay. The deft. in his third plea states in substance that he ought to be discharged from the whole of his engagement, because he has fulfilled part of it. With regard to the second count, the consideration is sufficient to establish the contract. R. G. Williams for the deft.-Under the 84thsection an admission signed out of court has the same effect as an admission signed on appearance. By the S1st section, if payment is not made in seven days after signing the admission, the debtor is held to have committed an act of bankruptcy. The plea shows that the deft. paid the debt in the seven days, so therefore no further proceedings ought to be taken. Sect. 85 provides for costs, but this cannot be said to be a proceeding in bankruptcy. If this mode of obtaining costs is included in the words "prosecution of proceedings," I allow the plea must be bad; but I submit that the proceedings in bankruptcy must be at an end if payment of the debt be made in the seven days. The consideration mentioned in the second count is extraordinary. (The deft.'s counsel was stopped by the Court on this point.) ERLE, C. J.-I am of opinion that the consideration in the first count is good, and that the third plea omits to answer a part of the breach alleged. I PROB.] DUNN v. Dunn. [PROB. do not think the second count good, for intimidation | the transaction of the 20th May 1861. I cannot can be no consideration. reject his oath on the mere appearance of the paper. The other Judges concurred. The deft. was then allowed to withdraw the Judgment for the plts. on the first count, and for the notice delivered with his pleas, that he only intended defts. on the second count. Attorney for the plts., Naters. Attorneys for the deft., Johnson and Weatheralls. Where a will appeared to have been re-executed, but the The testatrix, Mary Dunn, spinster, late of Folkestone, in the county of Kent, died in Dec. 1865. In 1837 she duly executed a will, by which she appointed the plt. her nephew sole executor and universal devisee. She retained possession of the instrument until 1861, when she delivered it up, together with the title-deeds of the property, consisting of certain freehold houses at Folkestone, to the plt.; and the question involved in the present suit was whether what took place on that occasion was a re-execution of the will, the testatrix having then signed it a second time, and two witnesses having likewise at the same time subscribed it. to cross-examine witnesses, and called R. Fowle, who corroborated the plt. Sir J. P. WILDE.-The case is a very remarkable one. The circumstances of it are these: that this lady, having made what appears to have been a perfectly good will so long ago as 1837, kept it by her, and never appears to have revoked, or from anything that transpired in the evidence to have been dissatisfied with it; that in 1861 it is supposed she went through the process of a second execution, and it is said that if she did go through that process of a second execution, the sole legatee being one of the attesting witnesses, has, by that transaction, forfeited his interest under the will. What was the transaction of 1861? On the face of the paper it appears that the name of the testatrix has been a second time attached to the will, and it have been likewise attached to it, one of them being also appears that the names of two other persons the name of the plt. with the word "executor " after it-it is not "witness," and he places his name at the only place he could well put it. It is said that this was a re-execution of the instrument. may or may not have been so. On the face of the paper one of the parties appears to have signed, not as a witness, but as executor; and when the witnesses are sworn they both say that the transaction testatrix was desirous to hand over the possession of the 20th May 1861 was simply this: that the of her will and title-deeds to her nephew for safe custody, and that she was anxious to do it in the presence of witnesses. And that that was the nature of the transaction was shown by the fact that she did bring down the will and title-deeds and hand them to her nephew, and that he took them away with him. That is not disputed, and it cor roborates the account of the two witnesses, the last distinctly swearing that the testatrix at the time said that she wanted to give her will to her nephew, and that she did not wish to do so without a witness. I see no reason to doubt it. I hold, therefore, that It Robinson, Serjt. (with him Dr. Tristram) for the what took place on the 20th May 1861, was not a replt., the executor. execution, and that the will is entitled to probate. The only question that remains is the question of costs. I do not think that this is a case in which had been made to Mr. Fowle, he would have told costs should come out of the estate. If application other hand, I think there was enough on the face of any one the story he has told to-day; but, on the the paper to give rise to dispute on the subject, and therefore the court will make no order as to costs. Dr. Spinks for the deft., the heir-at-law. Thomas Dunn, the plt., was examined. He deposed that, having gone down to Folkestone on the 20th May 1861, he visited the testatrix; that she expressed a desire that he should take charge of her will and title-deeds; that R. Fowle, a friend of the testatrix, was called in to witness the delivery of the documents; that he and Fowle then signed it, the testatrix signing afterwards, and that he when the litigation arises from the appearance of Dr. Spinks.-It has been always considered that then put the will in an envelope which he indorsed the paper and the act of the testator, it is a case for "This is the last will and testament of Miss Mary costs out of the estate. All the costs incurred must Dunn, 20th May 1861." He took the will and title-have been incurred to satisfy the court, and the deeds away with him and retained possession of them until the death of the testatrix. The signatures to the will of 1837 were then proved, and the plt.'s case closed. Dr. Spinks submitted that the plt.'s case was incomplete, and that R. Fowle should also have been called. Sir J. P. WILDE.-The position of the case is this: The plt. says the will was well executed in 1837, and he proves it. He proves the handwriting of the testatrix and of the three persons who attested the instrument. It is suggested that on the 20th May 1861 a re-execution took place, but that is the case of his opponent. He has done enough to explain deft. as heir-at-law and next of kin would have been entitled to put the party on proof without costs. Robinson, Serjt.-The witness Fowle lived in the ferred to by him. same place as the deft., and might have been re Sir J. P. WILDE.-I do not think I should give costs out of the estate. Div.] MAWFORD v. MAWFORD-ALTONE v. DELMANNY-CARWELL v. Gees. [NISI PRIUS. Saturday, Nov. 17. MAWFORD v. MAWFORD. Wife's petition-Counter-charges by husband-Denial by petitioner of certain acts of adultery, and refusal to answer as to others-Decree. A wife, the petitioner, was called as a witness in support of the allegation of cruelty. On cross-examination by the resp., she denied certain acts of adultery with which he charged her, but declined to answer as to others: The Court, notwithstanding, made the usual decree, she having proved her case, and no evidence having been produced in support of the counter-charges by the husband. This was a wife's petition for dissolution of marriage on the ground of the husband's adultery, coupled with cruelty. The resp. filed an answer denying the allegations, and also pleaded countercharges of connivance and adultery. Dr. Spinks (with him Wills) for the petitioner. The resp. appeared in person. The marriage was in 1863, and the parties cohabited at Walford-road, near Wisbeach, where the resp. carried on the business of a shoemaker. The petitioner having been called as a witness in support of the charge of cruelty, which included the wilful communication of a venereal disease, the resp. proceeded to cross-examine her in respect both of his own and her alleged adultery. She denied having been guilty of certain acts of adultery with which he charged her, but she declined to say whether she was not then pregnant by her father's groom, who had gone to Manchester. The resp. asked that the question might be repeated through the court. WILDE, J. O. refused. On re-examination by Dr. Spinks the question was repeated, but the petitioner still declined to answer. The charges in the petition were abundantly made out. The resp., who also submitted himself for examination, denied the charges generally, but produced no evidence either in support of his own denial or of the counter-charges against the petitioner. WILDE, J. O.-I am of opinion that the case is made out by the petitioner. She has proved acts of disgusting and unmanly cruelty on the part of the resp.; and as regards the adultery it has been frequent, and has been abundantly proved to have been committed under circumstances most degrading to the wife. Neither has he in any way mitigated grossness of his conduct by the manner in which he has conducted the case and the questions he has put to his wife in the witness-box. But that of course has nothing to do with the merits of the case. It has been made out, and I must make the decree nisi with costs. As to the charges against the wife, there was no evidence whatever of them. the COURT OF QUEEN'S BENCH. Friday, Nov. 16. (Before BLACKBURN, J. and a Common Jury.) ALTONE v. DELMANNY. Letter not read-Reference to by counsel. Where a letter is proposed to be put in evidence and the other side agrees to it, but it never in fact is handed to or read by the officer of the court, counsel cannot in his address to the jury refer to or read extracts from such letter. This was an action for slander, and the declaration alleged that the deft. had called the plt. a "filou," "voleur," and a "cochon." Plea, the general a issue. The deft. admitted making use of the words, but denied that he had any intention of imputing a mere vulgar abuse; and that on the continent such felony to the plt.; that the words were uttered as epithets were commonly used without any particular meaning being attached to them. Salter (with whom was Purcell), for the plt., then proposed to put in a letter from deft. to plt., with a view of showing that deft. was actuated by malice towards the plt., and did really mean to cast imputations on his (plt.'s) character. Huddleston, Q.C., on the part of the deft., admitted the letter, and, to save time, was willing to consider it as in; but the letter was never actually handed in to the officer of the court, nor was it read by him. Salter, in his reply to the jury, proposed to read some extracts from this letter, but BLACKBURN, J. stopped him, and refused to allow any reference to the contents of a letter which had never been read by the officer of the court. Nor would he now let it be read-it was too late. (Before BLACKBURN, J., and a Common Jury.) CARWELL v. GEES. Interrogatories-Evidence. When interrogatories have been administered in a cause, they cannot afterwards be used on the trial with a view to contradict the person to whom they were administered, on his examination in court; on the ground that such would be an inquiry into the client's instructions to his attorney, which are privileged communications. Declaration alleged, inter alia, that the plt. delivered to the deft. forty-four cows, to be sold to the best advantage and the proceeds accounted for afterwards; that the deft. negligently sold the said cows, and did not account for the proceeds; and concluded with a count in trover. Pleas-1. Never. indebted, payment, and set-off. 4. That deft. did not receive the cows on the terms alleged. 5. That he did dispose of them to the best advantage. 6. That he did account to the plt. for the proceeds. 7. (To the count in trover), not guilty. The plt. in this action was a dairyman at Lambeth-walk, and the deft. was a salesman in Newgate NISI PRIUS.] COOPER v. TATHAM-BARNES v. PARKER. market. It appeared that in the month of Aug. 1865 plt. had in his possession sixty-three cows, of the value of from 23. to 251. each. In that month, however, the rinderpest made its appearance, and the deft. then got away seventeen of those cows, which he sold on commission and accounted for to the plt. Some of the remaining cows began to show symptoms of rinderpest, and a veterinary surgeon having been called in, he advised plt. to get rid of the whole of them as soon as he could. Deft. then took the remainder away, and for these he had never accounted to plt.; and it was to recover their value that the present action was brought. Plt., having been called in support of these facts, was asked in cross-examination by Keane, Q. C. whether he had always been of the same opinion as to the number of cows taken away by deft. Plt. replied, yes. Whereupon Keane, Q. C. proposed to refer to the interrogatories that had been administered in the cause, with a view to showing that in these plt. had mentioned a different number. BLACKBURN, J. observed that the interrogatories would be prepared by the attorney, and the witness could hardly be held responsible for what they con tained in. Keane, Q. C. apprehended that the attorney would hardly be considered to have invented what was put in the interrogatories, but would act on the client's instructions. BLACKBURN, J.-No doubt they would, and it is for that very reason that you cannot inquire into them, as that would be to pry into a client's instructions to his attorney, which are privileged communications. Keane observed that it was quite a common practice to make such a use of interrogatories. BLACKBURN, J.-I am not aware that it is; but if it is so, the sooner it is abolished the better. At present, however, I rule that interrogatories served upon either party cannot be given in evidence. The deft.'s case was, that he was to do what he liked with the cows, and that they really were not worth anything; but in cross-examination he admitted that some of them had realised something. The plt. had a verdict for 2641. | [NISI PRIUS. it was never in fact paid. On the 30th Aug. 1865these same goods, which still remained in the son's house, were seized by the sheriff under an execution against the son-in-law, and the father-in-law (the plt.) now claimed them under the bill of sale. The plt. having given evidence in support of the above facts, was cross-examined with a view to showing that he had never taken possession of the goods, but he maintained that he had. He admitted, however, that a chiffonier and a bedstead had been added after the bill of sale was given, but these he explained were put in place of something else that had been removed. Griffiths for the plt. At the conclusion of plt.'s case, Prideaux, who appeared for the deft.. submitted that with respect to the bedstead and the chiffonier, the plt. could have no claim to them, as they were not there at the time the bill of sale was given. [BLACKBURN, J.What cases have you on which you ground that proposition?] I rely upon the general legal principle that a bill of sale does not apply to futureacquired property. [BLACKBURN, J. — That no doubt is the general rule, but where one thing is substituted for another and agreed to by the parties, that does not alter the operation of the bill of sale.] Verdict for the plt. Attorneys for the plt., Bicknell and Bicknell. COURT OF EXCHEQUER. (Before MARTIN, B. and a Common Jury.) Affidavit-Proof of signature-Evidence. An affidavit, from whichever side it emanates, cannot be used as evidence even against him by whom it is sworn, without proof of the handwriting. Action by the indorsee against the acceptor of a bill of exchange. Plea, traverse of the acceptance. Flt. was called and the bill shown to him, but he did not know the deft.'s handwriting. Foard, for the plt., then proposed to put in an Chambers, Q. C. and F. H. Lewis were for the plt. office copy of the affidavit, sworn by deft. before Keane, Q. C. and Joyce for deft. Attorneys for the plt., Lewis and Lewis. Attorneys for the deft., Stevens and King. Saturday, Nov. 17. COOPER v. TATHAM. Bill of sale-Future-acquired property. Although the general rule of law is that a bill of sale does not apply to future-acquired property, this does not apply to the case where some of the things are removed and others put in their place, if agreed to by the person entitled under it. This was an interpleader issue to try the property in certain goods that had been seized by the sheriff under an execution, and were now claimed by the holder of a bill of sale over the same. The person to whom the goods originally belonged was the plt.'s son-in-law, and it appeared that in the month of June 1864, the son-in-law being in want of money, the plt. advanced him 35l. for which he got a bill of sale over his son-in-law's furniture. The money was to be repaid on the 22nd Sept., but obtaining leave to defend the action and filed in the Ex., in order to prove deft.'s admission in the cause. MARTIN, B. refused to admit it as evidence against the deft. without proof of his handwriting. The question had occurred once before in that court; and he then thought, and was still of opinion, that an affidavit could not become evidence against any person without some proof of his handwriting, and that no matter where it came from. How could he know that the affidavit was not a forgery, and that some person had not filed a false affidavit and forged the name appended to it, unless the signature was proved? He did not see that, without proof of the writing, it could be evidence against any man. had come from the office of the Ex., it proved It was urged that, as it was duly stamped and itself, but the learned Judge refused to admit it. Ultimately the deft.'s signature was proved and the plaintiff had a verdict. Attorney, Jennings. |