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man, Nov.

ac.

GAZETTES.-FRIDAY, Oct.26.

aud. ac.- Isaac William Walton, Haymarket, hotel keeper,

Nov. 6 at half-past 12, London, aud. ac.-Charles Christie, BANKRUPTS.

Vauxhall-walk and Broad-street, Lambeth, timber merchant,

Nov. 6 at 12, London, aud. ac. - James Harris, CommercialJOSEPH THOMAS, Catherine-street, Strand; White Hart- road, Lambeth, and Cornbury-place, Old Kent-road, Surrey, street, Drury-lane; and Finsbury-square, dealer and chap- and Charlton, near Woolwich, and Plamstead, Kent, potter,

at 2, and Dec. 7 at 12, London: Off. Ass. Nov. 6 at 1, London, aud. ac.-William Sheldrake Francis Whitmore; Sols. J. & J. H. Linklaters & Co., Sise-lane, Sparks, New Bond-street, waterproofer, Nov, 6 at balf, Bucklersbury.- Pet. f. July 2.

past 12, London, aad. ac.-Thomas Ledyard Evill and WILLIAM EDWARDS, Cross-street, Finsbury, dealer and Thomas Dowglass, Vigo-street, Middlesex, cloth manuchapman, Nov. 1 at half-past

. 12, and Dec. 6 at 11, facturers, Nov. 7 at half-past IT, London, aud. ac. London: Of. Ass. Johnson ; Sol. Norton, New-street, Pemble Browne, Grosvenor-street, Bond-street, Middlesex, Bishopsgate.-Pet. f. Oct. 18.

and Charlton, Kent, wine merchant, Nov. 6 at half past II, ARTHUR GREENHILL, Harrow-on-the-Hill, dealer and London, aud. ac.-

-Samuel Wm. Partridge and Daniel F. chapman, Nov. 6 at 11, and Dec. 4 at 1, London: Off. Okey, Paternoster-row, booksellers, Nov. 7 at 11, London, Ass. Johnson; Sol. Jarvis, 23, Chancery-lane.- Pet. f. aud. ac.- -Wm. George Brown, Dartford, Kent, clothier, Oct. 25.

Nov. 7 at 11, London, aud. ac.- John Abraham Rippon, SAMUEL JONAS, Houndsditch, and New-street, Gravel- Lowth-cottages, Wellington-road, Camberwell, cigar manu

lane, Houndsditch, draper, Nov. 13 at 12, and Dec. 5 at facturer, Nov. 6 at 12, London, aud. ac.-Antoni Forrer, half-past 1, London: Off

. Ass. Graham; Sols. Redfern & Regent-street, jeweller, Nov. 6 at half.past 12, London, aud. Son, Leek; Shuttleworth, 14, Gray's-inn-square.- Pet. f.

-T. Hutchings, Park-street, Westminster ; Great Grimsby, Oct. 13.

Lincolnshire; and Anston, Yorkshire, railway contractor, CHARLES MOORE, Rochester-road, Kentish-town, car- Nov. 5 at 12, London, aud. ac.-Robert Martin and David

penter, Nov. 13 at half-past 11, and Dec. 5 at 1, London: Wardlaw Scott, Great St. Helens, London, merchant, Nov. 6 Off. Ass. Graham ; Sol. Holt, 3, Chatham-place, Black-1 at 1, London, aud. ac.-Wilmot James Nokes, South-street, friars.--Pet. f. Oct, 17.

Spitalfields-market, potato salesman, Nov. 6 at 11, London, RALPH RICHARDSON, Caterham, Surrey, dealer and aud. ac. - Thomas Toynbee, Slough, Buckinghamshire, horse

chapman, Nov. 14 and Dec. 4 at 1, London: Off. Ass. dealer, Nov. 5 at 12, London, aud. ac.- Frederick Divers, Graham ; Sols. B. & T. Price, 17, Moorgate-street, City. Great Bell-alley, Moorgate-street, licensed victualler, Nov. 6 Pet. f. Oct. 14.

at half-past 11, London, aud. ac.-William Epworth Tuke, CHARLES CLAYTON, Wolverhampton, Staffordshire, Mark-lane, wine broker, Nov. 6 at 11, London, aud. ac.

dealer and chapman, Nov. 8 and 29 at 11, Birmingham: Henry Lockey Edridge, Monmouth-road, Bayswater, builder, Off. Ass. Bittleston ; Sols. Fowler, Wolverhampton; C. & Nov. 6 at half-past 11, London, aud. ac. - Albert King, ChisH. Wright, Birmingham.-Pet. d. Oct. 24.

well-street, Finsbury, wholesale grocer, Nov. 7 at 12, London, DAVID PRATT, Birmingham, thimble manufacturer, Nov. aud, ac.- John Mitchell, Great Bourton, Oxfordshire, railway

10 and 29 at 11, Birmingham: Off. Ass. Christie ; Sol. contractor, Nov. 6 at 12, London, aud. ac.- Benjamin Kent, Webb, Birmingham.-Pet. d. Oct. 22.

Norfolk-street, Strand, hotel keeper, Nov. 6 at half-past 12, WALTER MOŠS, Ripley, Derbyshire, dealer and chapman, London, aud. ac.-George Wild, Oxford-street, grocer, Nov.

Nov. 6 and 27 at 10, Nottingham : Off. Ass. Harris; Sols. 7 at 11, London, aud. ac. - John Divers, Talbot-court, EastDunnicliff, Derby; Motteram & Knight, Birmingham.- cheap, licensed victualler, Nov. 6 at 1, London, and. ac.Pet. d. Oct. 6.

Andrew Burn, Sackville-street, Piccadilly, and Caroline-place, JOHN NICHOLSON, West Derby, Lancashire, surgeon, Pancras-vale, tailor, Nov. 6 at 12, London, aud. ac.-E. Over, Nov. 9 and 30 at 11, Liverpool : Off

. Ass. Turner; Sols. Barossa-terrace, Cambridge-road, Bethnal.green, oilman, Nov. Thompson & Wrigley, Liverpool. - Pet. f. Oct. 24.

7 at 1, London, aud. ac.-George John Humphreys, CrownWILLIAM LLOYD, Newton-in-the-Willows, Lancashire, court, Old Broad-street, underwriter, Nov. 9 at 1, London,

butcher, Nov. 8 and 29 at 11, Liverpool : Off. Ass. Turner; aud. ac. - David Edwards the younger, Landport, Portsea, Sol. Yates, jun., Liverpool.-Pet. f. Oct. 10.

Southampton, corn factor, Nov. 13 at 2, London, and, ac.JOHN BOWERMAN, Tiverton, Devonshire, grocer, Nov. Robert Wall, Piccadilly, saddler, Nov. 15 at 2, London, aud.

5 and Dec. 6 at 1, Exeter: Of. Ass. Hirtzel; Sols. Tucker, ac.-William Gilbert, Vine-place, Old-street-road, batcher, Tiverton; Stogdon, Exeter.-Pet. f. Oct. 25.

Nov. 15 at 11, London, and.ac.-Frederick Duncan, Liver. GEORGE RIDGE and THOMAS JACKSON, Sheffield, pool, merchant, Nov. 5 at 11, Liverpool, and. ac.-John

dealers and chapmen, Nov. 10 and Dec. 15 at 12, Sheffield : Crosthwaite, Liverpool, merchant, Nov. 8 at 11, LiverOff. Ass. Brewin; Sols. Smith & Sons, Sheffield.-Pet. d. pool, aud. ac.-James Stevenson, Liverpool, provision dealer, Oct. 23, and f. Oct. 24.

Nov. 8 at 11, Liverpool, aud. ac. ; Nov. 16 at 11, div.-W. CHRISTOPHER BECKET, Manchester, dealer and chap- Oulton, Liverpool, chemist, Nov. 8 at 11, Liverpool, aud. ac.; man, Nov.

and Dec. 6 at 12, Manchester : Off. Ass. Nov. 16 at 11, div.-John Railton and James Pavey, ManHernaman ; Sol. Livett, Manchester.---Pet. f. Oct. 17.

chester and Colne, Lancashire, manufacturers of mousseline de MEETINGS.

laines, Nov. 7 at 12, Manchester, aud. ac. sep. est. of John William Raven and Joseph Raven, Fish-street-hill, whole. Railton.- Joseph Grimshaw, Bolton-le-Moors, Lancashire, sale stationers, Nov. 8 at half-past 11, London, last ex.- licensed victualler, Nov. 13 at 12, Manchester, aud. ac. ; Matthew James Popplewell, Clement's-lane, and Robert Goff, Nov. 20 at 12, div.-William French, Bedlington, Durham, New London-street, merchants, Nov. 13 at 2, London, last brewer, Nov. 16 at half-past 11, Newcastle-upon-Tyne, and. ex.- David Leopold Lewis, Salters-hall-court, Cannon-street, ac.- John Hall, Newcastle-upon-Tyne, corn factor, Nov. 14 merchant, Nov. 14 at 2, London, last ex.-Anthony Gibson, at half-past 1, Newcastle-upon-Tyne, aud. ac.-W. Geldart, Lloyd's Coffee-house, Royal Exchange, underwriter, Nov. 6 North Shields, ship owner, Nov. 14 at half-past 1, Newcastleat 12, London, last ex.--Betty Baron, Henry Wm. Knowles, upon-Tyne, aud. ac.-George Rochester, Bishopwearmouth, and James Heyworth, Bacup, Lancashire, manufacturers, Durham, woollendraper, Nov. 14 at 1, Newcastle-upon-Tyne, Nov. 7 at 12, Manchester, last ex. of H. W. Knowles.and. ac. Thomas Routledge and Joseph Routledge, Com. William Kemp, Guildford, draper, Nov. 8 at 11, London, mercial-road, Lambeth, saw-mills proprietors, Nov. 16 at II, aud. ac.-William Batley, Northampton, engineer, Nov. 8 London, div.-Thomas George Shaw and Joseph Lane, Old at half-past 1, London, aud. ac.-James William Wooldridge, Broad-street, London, and Manchester, wine merchants, Wickham, Southampton, farmer, Nov. 5 at 11, London, aud. Nov. 16 at half-past 11, London, div.-Vincent Snook and ac.-William Edghill Coles, Strand, dealer in waterproof John Thomas Snook, King-street, Hammersmith, linenclothing, Nov. 5 at 11, London, aud. ac.—Job Wm. Meears, drapers, Nov. 16. at half-past 1, London, div.-F. Blackwell, Croydon, Surrey, chemist, Nov, 5 at 11, London, aud. ac.- Peterborough, Northamptonshire, currier, Nov. 16 at 1, Lon. Isaac Brown, Tooley-street, Southwark, licensed victualler, don, div.-Wm. Jennings, Bradford, linendraper, Nov. 16 at Nov. 5 at 2, London, aud. ac.-Henry Beatley, Isle of Ely, 11, Leeds, div.-John Fel and John Learoyd, Huddersfield, Cambridgeshire, ironmonger, Nov. 6 at 11, London, aud. ac. woollen manufacturers, Nov. 16 at 11, Leeds, div.-Joseph - Thomas Kerley, senior, St. Mary Extra, Southampton, Meeke, Sheffield, draper, Nov. 17 at 12, Sheffield, div.--Joku butcher, Nov. 7 at 11, London, aud. ac.-William Scudds, David Neill and Henry Sanderson, Liverpool, ship brokers, Blackheath-park, livery-stable keeper, Nov. 7 at 11, London, [For continuation of Gazette, see p. 433].

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CONTENTS. London Gazettes......

424

VICE-CHANCELLOR Wood's COORT. Leading Article

425

By MATTHEW B. BEGBIE, Barrister at Law. Notes of the Week..

427

Barrow v. Methold.-(Will - Construction—" PreConsolidation of Statute Law Commissioners' Report 427

mium of assurance)

994 Equity Sittings Papers and Cause Lists, Michaelmas

Bulkeley v. The Earl of Eglinton.-(Appointment of Term

429
new trustees- Costs)

994
NAMES OF THE CASES REPORTED.
Jones v. Welch.-(Partnership)

994 COURT OF CHANCERY.

In re The Crystal Palace Railway Company.-(Lands By T. EDWARDS, Barrister at Law.

Clauses Consolidation Act-CostsInterest) 995 Goldsmith v. Russell.-(Voluntary conveyance against

In re Cheshunt College, and in re The New River creditors - Pleading-Outlawry-Insolvency).... 985 Company's Act, 1852.-(Lands Clauses ConsolidaDesborough v. Harris. — (Interpleader Assurance

tion Act -- Re-investment Copyholds - Costs company-Insolvency-Mortgagor and mortgagee) 986

Jurisdiction).....

995 ROLLS COURT.

In re Holden's Estate.-(Railway company-Costs).. 995 By G. Y. ROBSON, Barrister at Law.

Chappell o. Sheard.—(Copyright-Trade-mark-Évi. Morland v. Isaac.-(Debtor and credilor-Life as

dence)

996 surance - Beneficial ownership)..

989

COURT OF QUEEN'S BENCH.
VICE-CHANCELLOR STCART's COURT.

By G. J. P. Smith and W. B. BRETT, Barristers at Law.
By T. F. MORSE, Barrister at Law.
Tickner o. Smith.-(Executor- Wilful neglect and

Wodehouse v. Farebrother.-(Common-law Procedure default in payment of legacies-Costs).

990 Act, 1854, sect. 83—Plea-Defence on equitable Tatham o. Parker.-(Equitable mortgage-Sequestra

grounds)

998 tion-Mortgagee prior to the suit, right of, to re

COURT OF COMMON Pleas. ceive back rents in the hands of sequestrators).... 992 Clark v. Perry.-(Common-law Procedure Act, 1854,

By W. PATERSON and W. Mills, Barristers at Law. sects. 60, 67–Attachment of debt in the hands of Bourne v. Seymour.–(Construction of contract by garnishee~Equitable and unascertained debt-In

bought and sold notes-Practice-Right to begin junction). 992 on argument of several demurrers).

1001

t

THE JURIST.

ordered by the defendant to go and clear out the drain,

no doubt he would have rendered his master liable. LONDON, NOVEMBER 3, 1855.

What difference does it make, that instead of his do

mestic servant the defendant employs Pearson, a comOur attention has been directed by the recent case mon labourer, to do the job? The defendant might of Sadler v. Henlock (1 Jur., N. S., part 1, p. 677; 24 have superintended the job and given directions until L.J., Q. B., 138) to the doctrine of respondeat superior the work was completed; and if so, Pearson was his in cases where, through the negligence' of persons em- servant pro hac vice, and the defendant liable as master. ployed either as servants or contractors, an injury has consistently with the case of Peachey v. Rowland, (13 mesulted to third parties. We propose, therefore, to C. B. 182), and the other cases, I think the relationship review some of the cases which illustrate this doctrine, of master and servant existed, and for the mischief that and to point out the principle by which they are arose from the negligence of the servant respondeat governed. In Sadler v. Henlock the defendant bad em- superior.” Coleridge, J., observed that the defendant, ployed a person of the name of Pearson to inspect and by employing a person of skill in doing the particular clear out for him a drain which ran under the public work he is employed to do, relieved himself from acroad, and had paid him 58. for the job. Pearson, in tually superintending the particular work, but that order effectually to clear out the drain, had broken up the fact of employing a skilled person did not release the soil of the highway; and it was alleged, that in him from the effect of such person's negligence, any consequence of the negligent manner in which he had more than if he employed a domestic servant. Crompfilled it up again, the plaintiff's horse was thrown ton, J., seemed to think that the true test in such down, and his knees broken. It appeared that the cases was, “whether the employer had any control defendant had never employed Pearson on any other over the persons employed; and whether the payment occasion, and that he was a person well skilled in was by the day or piece could make no difference." cleaning drains. The defendant did not personally in- “ The defendant,” continued his Lordship, “in this terfere in the work, nor did he in any way direct in case could, during the progress of the work, overlook what manner the drain should be cleared out. The and direct what was to be done, and the manner of plaintiff had a verdict in his favour, and leave was doing it, and it would be rather against common sense reserved to the defendant to move to enter a nonsuit to say that a man employed in that way is a conor a verdict, in case the Court should be of opinion tractor. It is only on the ground of the relationship that the defendant was not liable for the acts of of employer and contractor being different from that Pearson.

of master and servant that I can understand the au“The real question," said Lord Campbell, C. J., in thorities.” The verdict, therefore, was allowed to giving judgment,“ is, what was the relation that sub- stand. sisted between the defendant and Pearson.

It follows from the above case that the principle Whether the defendant is liable or not for the negli- which ought to guide us to a right conclusion in cases gence depends upon whether Pearson is to be consi- of this nature is dered as his servant at the time. If a domestic servant First, what is the relationship that exists between in the regular employment of the defendant had been the employer and employed. If it be that of master and servant, then the employer is liable; if that of em- Ansell to fill it in, leaving him to do it as he pleased, ployer and contractor, then he is not liable.

in a proper or improper manner, and that he did it in Secondly, that the true test to ascertain the relation such a way as to commit a nuisance, from which a ship between the parties is, whether the employer has private injury resulted to the plaintiff. .. With any control over the person employed; that is, whe- respect to Randleson v. Murray, (8 Ad. & El, 109), ther the employer has the power of superintending the the occurrence there does not appear to have taken work, and directing it to be done in such manner as he place in a highway. .... But Randleson v. Murray pleases. It is obvious that in cases where he has not was not the case of a public wrong." In Randleson v. such power, but the employed agrees to do the work, Murray, which was a case in which a master porter and the mode of performing it is under his absolute was employed by a warehouseman to remove a barrel control, the relationship that exists between the parties from his warehouse, the master porter employed his is that of employer and contractor.

own men and tackle, and through the negligence of Thirdly, whether the party employed is competent the men the tackle failed and injured the plaintiff. and skilful is no true criterion; for in all cases of The Court, in giving judgment in that case, held the master and servant, of employer and contractor, it is defendant liable, on the express ground of the master for the interest of employers that they should engage porter and the other men all standing in the relationthe services of competent and skilful persons, and it is ship of master and servants. This is clear from the to be presumed that they naturally would do so. In judgments of the learned judges. Littledale, J., says, Peachey v. Rowland, (13 C. B. 182), the case men- “ It seems to me to make no difference whether the tioned by Lord Campbell, the facts were these:-The persons whose negligence occasions the injury be serdefendants, who were builders, had erected some houses vants of the defendant, paid by daily wages, or be by the side of a highway, and had contracted with brought to the warehouse by a person employed by Messrs. Scott & Redkin to do the brickwork, and with the defendant.” The distinction which Maule, J., enone Ansell to fill in the earth of a drain conducting deavoured to draw between Peachey v. Rowland and from the houses to the main sewer, running under the Randleson v. Murray does not interfere with the prinhighway. The road had been opened, and the earth ciple laid down by Crompton, J., and the other judges, afterwards filled in upon the drain above the level of in Sadler v. Henlock. It is the same principle which the road, and so left without light or signal. The governs Knight v. Fox and Overton v. Freeman. In plaintiff drove his cart against it, and received the in the former case the defendant was held not to be liable, juries of which he complained. It appeared from the on the ground that the relationship subsisting between evidence that one of the defendants had been upon the the defendant and the wrongdoer was not one of premises four or five days before the accident, when the master and servant, but of employer and contractor. earth upon the drain was much in the same state as it In that case Parke, B., says, “The act complained of was when the accident occurred, but it appeared he was not an act done by Cockrane (the wrongdoer) had no control over or anything to do with the way in in the character of a servant of the defendants.” And which the earth was filled in. Jervis, C. J., on the Alderson, B., says, “ The real question, and the only authority of Knight v. Fox (5 Exch. 721) and Overton one, is, whether the negligent act by which the injury v. Freeman, (21 L. J., C. P., 52), ruled that the de- was occasioned to the plaintiff was the act of Cockrane fendants were not liable, and this ruling was upheld as the defendants' servant; for if it was, they are reby the Court of Common Pleas.

sponsible to the plaintiff for the injury she has susThe first question in this case would be, according to tained. But the evidence shews that when that neglithe principle we have deduced from Sadler v. Henlock, gent act was occasioned by Cockrane he was acting as what is the relation subsisting between the employer sub-contractor.” And in Overton v. Freeman, Maule, and employed? Is it that of master and servant, or J., says, “One mode of inquiring whether the deemployer and contractor? To answer this question, it fendant is liable in cases like the present is to see is necessary to ascertain whether the defendants had whether the act was done by his servant. If the perany control over Ansell

. It appeared that they had son who committed the act be so considered, the denot. The relationship subsisting, therefore, between fendant will be liable; but he cannot be so considered if the parties being that of employer and contractor, the he is a sub-contractor.” And the party causing the indefendants clearly were not liable; and on this ground jury not being the servant of the defendant, the plaintiff this case, as stated by Lord Campbell, is perfectly con- was nonsuited. In both these last-cited cases the act sistent with Sadler v. Henlock. That this was the occasioning the injury being a nuisance was held to correct ground of the decision can be gathered from an make no difference in the liability of the defendant; observation of Jervis, C.J., in the course of the argu- and Parke, B., in Knight v. Fox, explained that such ment, where, in distinguishing this case from Burgess v. distinction could exist only where the nuisance was Grey, (1 C. B. 578), he said, “ In Burgess v. Grey there connected with a man's house or with his fixed prowas an admission by the defendant that he had not aban- perty. And this is consistent with the judgment of doned his control over the work.” Maule, J., however, Rolfe, B., in Reedie v. The London and North-western in delivering his judgment, put the case on the ground Railway Company, (4 Exch. 256); and the reason given of Ansell having committed a nuisance, from which a why such a liability should attach in such a case is private injury resulted. He said, “The true view is, lucidly stated in the following words :-"His liability" that the evidence here in substance shewed that the (that is, of the owner of real property) “must be defendants had nothing at all to do with the filling in founded on the principle, that he has not taken due of the earth. It shewed only that they had employed care to prevent the doing of acts which it was his duty to prevent, whether done by servants or others. If,

NOTES OF THE WEEK. for instance, a person occupying a house or a field should permit another to carry on there & noxious trade, so as to be a nuisance to his neighbours, it may Strahan and Bates at the Central Criminal Court on the

Upon the trial of Sir John Dean Paul and Messrs. be that he would be responsible, though the acts com- 26th and 27th ult., for having unlawfully made away plained of were neither his acts nor those of his ser- with and pledged certain securities intrusted to them vants. He would have violated the rule of law, sic as bankers under the 7 & 8 Geo. 4, c. 29, s. 49, it was utere tuo ut alienum non lædas."

contended on their behalf, that having, as bankrupts, It is upon the principle of qui facit per alium facit made a disclosure of the whole transaction before the per se that the master is responsible for the acts of his sect. 62. It appeared, 'however, that they themselves

Court of Bankruptcy, they were protected under servant, and it is easy to understand that such a maxim proffered the disclosure to the Court of Bankruptcy, and cannot apply to the case of employer and contractor: also that it was not full or true as to the specific offence the act of a party over whom the employer has no now charged against them. The learned judges (Aldercontrol cannot in any way be considered as the act of son, B., Martin, B., and Willes, J.) thereupon refused the employer. This maxim is thus cited and applied by made for leave to plead double, by pleading this de

to reserve the point. A previous application had been Parke, B., in his judgment in Quarman v. Burnett, (6 M. fence and also a plea of “not guilty," but it was refused, & W. 499)—“That person is undoubtedly liable who as being altogether without precedent. stood in the relation of master to the wrongdoer-he who selected him as his servant from the knowledge of or CONSOLIDATION OF THE STATUTE LAW. belief in his skill and care, and who may remove him for misconduct, and whose orders he was bound to re

EXTRACTS FROM THE APPENDIX TO THE RE. ceive and obey; and whether such servant has been ap

PORT OF THE COMMISSIONERS. pointed by the master directly,or intermediately through

(Concluded from p. 419). the intervention of an agent authorised by him to appoint servants for him, can make no difference. But

It was not, however, completed in time, and the Lord the liability by virtue of the principle of relation of table of the House of Lords in an imperfect state, in

Chancellor was compelled to lay the Report on the master and servant must cease where the relation August, 1853. The actual printing and circulation of itself ceases to exist; and no other person than the the Report was delayed until, I think, the month of master of such servant can be liable, on the simple January, 1854, in the hope that Mr. Coode would comground that the servant is the servant of another, and plete his work, and on the faith of repeated promises his act the act of another. Consequently a third per- Chancellor's patience being exhausted, the rest of the

from him that he would do so; but at length, the Lord son entering into a contract with the master, which Report was printed off and circulated, with a note by does not raise the relation of master and servant at all, Mr. Coode that “the Digest of the Acts for the Relief is not thereby rendered liable; and to make such person of the Poor was contained in separate volumes, and liable, recourse must be had to a different and more ex. would be circulated as soon as the letter-press was cor

rected." tended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury printing of this digest had been originally authorised

Notwithstanding that the motives for which the which arises by the act of another person in carrying | (namely, as a specimen of a peculiar mode of digesting into execution that which that other person has con- the statute law) had by this time almost ceased to exist, tracted to do for his benefit." Such also were the yet further time was still extended to Mr. Coode, even views expressed by Lord Tenterden and Littledale, J., till considerably after the Commission (which was only in Laugher v. Pointer, (5 B. & Cr. 547), and acted appointed for a year) had expired. But finally learn

ing from the Queen's printers, about the end of May, upon in Milligan v. Wedge, (12 Ad. & El. 737); Rap- 1854, that the work was still in an imperfect state, and son v. Cubitt, (9 M. & W. 710); Martin v. Timberley, that Mr. Coode was continuing to send partial additions (7 Jur., part 1, p. 150); and Winterbottom v. Wright, or alterations, which would probably involve much (10 M. & W. 109); and also in the courts of America. additional expense, without any definite prospect of the See the judgment of Mr. Chief Justice Shaw in Sproul the Lord Chancellor to direct the printers not to pro

work being completed, I thought it my duty to advise v. Hemmingway, 14 Pick. 71).

ceed any further with it. It seems, however, from Ellis v. The Sheffield Gas On the above-mentioned motion being made, I obConsumers Company, (2 El. & Bl. 767), that where tained from the printers, and caused to be returned to the relationship of employer and contractor subsists, the House of Commons, the sheets of the work in the and the contract is illegal, and the act done in pursuance state in which it was when suspended. The House has of such illegal contract occasions an injury to a third not thought fit to order it to be printed, I believe. person, the employer is liable for the damage done. the Board has not been merely to defend myself against

My object in laying the foregoing observations before And Erle, J., there said, “The act of the person who is any personal charges, expressed or implied, but it has here called the contractor was the act done by him appeared to me that the other members of the Commisunder the special direction of the defendants; and that sion were entitled to be put in possession of the circumappears to me to distinguish this case from those in stances respecting the Expurgatory List, both because which the employer was held not liable for the act for having neglected to publish it, and on the other for

they may on the one hand be considered responsible done by the contractor not in accordance with his con- having published it, especially as the words “ Statutetract."

law Commission” have been printed on the cover,
though, in fact, neither the late nor the present Board
are in any way responsible for it.
June 13, 1855.

H. BELLENDEN KER.

1855.

[The following paper is one of the Reports which have not represent the existing state of the law at all. The

been prepared by me for the use of the Lord Chancellor, law at present consists of the old acts, with the addition in discharge of the duty which I have undertaken ( as of all the judicial legislation (as it may be termed) of was explained by his Lordship to the Board on the 7th the last two centuries; and if the old acts are repealed, February) of examining and reporting on all the Law the decisions on them must fall with them, and the new Bills introduced in either House of Parliament. The act will have to be construed anew; or if it be said that Lord Chancellor has desired that it should be printed the old decisions are to be still applicable to the new for the use of the Board, because many of the practical act, that will be in reality equivalent to saying that points which have recently been discussed by the Board this new act shall be to all intents and purposes the come under consideration in the course of it.-H. BEL. same thing as the old acts; and if so, it will not be LENDEN KER.]

easy to ascertain

the use or the effect of this repeal and Note on the PERSONAL ESTATES OF INTESTATES BILL, judicial decision on the subject there could be no justi,

re-enactment. Even if there had not been a single

fication for deliberately re-enacting what is admitted [H. L., No. 126. Brought from Commons.] on all hands to be very ill-drawn and very imperfect. It will be convenient to consider this bill under two Unless it is to be improved, and the deficiencies supdifferent aspects :

plied, it should at least be left untonched; but in a 1. As a specimen of consolidation or rewriting of the case like the present the impropriety is much greater. statute law.

What would be thought of a proposal to repeal the 2. With reference to the alterations of the law which Statute of Frauds, and then to make a new law in the it is intended to effect.

old words, without any reference to all that has been 1. Viewing the bill as a specimen of consolidation, contributed to the law on the subject by the decided and setting aside for the present all consideration of cases? the alterations of the law introduced in it, it is to be

It has been stated on behalf of the bill, that, “ if observed, in the first place, that the whole statute law passed, it will save much trouble to every one who has by which the distribution of the personal estates of occasion to refer to the acts relating to the personal intestates in England amongst the next of kin is regu- estates of intestates, for he will see at a glance in one lated is comprised in one act, the 22 & 23 Car. 2, c. 10, short bill the whole law, without having to refer to with one alteration made by the 1 Jac. 2, c. 17, s. 7, several acts scattered over many volumes." It will be and one probably unnecessary declaration in the Sta- evident, however, from the preceding remarks, that this tute of Frauds, 29 Car. 2, c. 3, s. 25, that the first-men- bill will not shew at a glance the whole law, and will tioned act should not affect the right of husbands to only mislead any one who is induced to suppose that it administer to their wives' estates*. This being the does; and it will, in fact, afford no assistance either to case, the necessity for any consolidation at all of that the general public or to the professed lawyer. law is not very apparent.

2. The foregoing observations have been made on the One advantage, however, might be derived from re- bill, regarding it as a specimen of consolidation or new pealing and re-enacting the statute law in a case like exposition of the existing law; but it is also intended the present, namely, the improvement of the language to effect some changes in the law, and these it next bein precision and conciseness, and the incorporation of comes necessary to consider. those decisions by which the meaning of the terms in

It is stated that the object of the bill is, first, to abothe old acts has been ascertained and fixed.

lish the customs of London and York and other places; The acts of 22 & 23 Car. 2, c. 10, and 1 Jac. 2, c. 17, secondly, to deal with the personal estate of an intestate are extremely ill-drawn and verbose, and by no means mother who advances a child, in the same way as the provide in distinct terms for all the varieties of cases statute now does with that of an intestate father who which have arisen and may arise in the course of ad- advances a child; and, thirdly, to treat as an advanceministering the estates of intestates. Upwards of thirty ment the inheritance which under the custom of bopages of Williams on Executors (part 3, book 4) are rough English descends to the youngest son*. filled with the decisions by which, in the course of two Setting aside for the present any inquiry as to the centuries, deficiencies have been supplied and doubts expediency of these alterations, it is proposed to consolved, until at length the law has been worked out in sider the mode in which this bill attempts to effect a tolerably complete and distinct manner. It might them. therefore be thought useful and proper to combine all

1. As to the abolition of the customs, no mention at the law thus elaborated in one well-drawn, clear, and all of these customs is to be found in the bill, but it is complete statute. It appears, however, on examining nevertheless alleged that they are repealed thereby, on the present bill, that its framers did not even attempt the following grounds:-The act of 22 & 23 Car. 2, to produce either a well-drawn or a complete enactment, c. 10, of which this bill is for the most part & reprobut contented themselves with merely repealing the old duction, contains a clause, “ that this act, or anything statutes, and then enacting them over again in the old herein contained, shall not any ways prejudice or hinwords, without effecting any improvement, without der the customs observed within the city of London, or omitting one word of the quantity of verbiage, or in- within the province of York, or other places having corporating one of the great number of explanatory or known and received customs peculiar to them, but that supplementary decisions of which the old acts have the same customs may be observed as formerly, any. been the subject.

thing herein contained to the contrary notwithstanding." It is conceived that such a bill is, in fact, not only

This clause is not repeated in the present bill, and it useless, but very dangerous, and that it would be con- seems to be considered that this omission is sufficient to trairy to all principle to pass it. For, under the cir- effect a repeal of the customs in question. It is, howcumstances above stated, it is clear that this bill does ever, on the contrary, submitted that this is no repeal

of the customs at all; or, at any rate, that it would be * It would appear from the table of contents prefixed to a matter of serious doubt whether it is a repeal or not. the bill, that parts of two other acts are included in the congo. It is a known rule of construction that enactments of a lidation-29 Car. 2, c. 31, s. 25, and 1 Jac. 1, c. 17, s. 7; bat general nature do not repeal private or local laws to which these are only misprints for the acts already mentioned. It they do not specially refer: the exception, therefore, may be added here, that the description given in this table of in the act of Car. 2 was probably superfluous, though the contents of the 6th clause is quite inaccurate, and even unintelligible.

* Gavelkind should apparently have been added.

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