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THE the Weco JAV POGOMENTS and DEROWNRDERTS, SAMUEL CARREN Peterse Incetu Temple, Esq., D.C.L., Recorder

CERTIFICATES.
GAZETTES.-FRIDAY, Nov. 2.

To be allowed, unless Cause be shewn to the contrary on or

before the Day of Meeting. BANKRUPTS.

Wm. Trego, Gunter's-grove, West Brompton, and MoorePHINEAS COHEN, Artillery-passage, Spitalfields, dealer London.-Joseph Player, Winchester-buildings, Broad-street,

park-terrace, King's-road, Fulham, builder, Nov. 20 at I, and chapman, Nov. 16 and Dec. at i, London: Off

. mining agent, Nov. 22 at 11, London.—John Jennings, TetAss. Stansfeld; Sol. Buchanan, 1, Guildhall-chambers, Ba. bury, Gloucestershire, linendraper, Nov. 20 at 11, Bristol.singhall-street.-Pet. f. Nov. 1.

John Augustus Noel, South Shields, wine merchant, Nov. 29 RICHARD GOODHIND, Ludgate-hill and Crown-court, at 12, Newcastle-upon-Tyne.--Solomon Clegg and James Fox,

Cheapside ; Tichborne-street, Haymarket ; and Manchester, Newcastle-upon-Tyne, woollen manufacturers, Nov. 27 at half. dealer and chapman, Nov. 16 at 11, and Dec. 13 at 12, past 11, Newcastle-upon-Tyne.- Matthew Lichegary DunsLondon: Off. Ass. Bell; Sols. Sole & Co., Aldermanbury. Ford, Exeter, cutler, Nov. 21 at 11, Exeter.-John Steele, -Pet. f. Oct. 31.

Manchester, manufacturer, Nov. 23 at 12, Manchester.DOMENICO TOMASSINI, Tottenham-court-road, dealer Lloyd Bayley and Samuel Millner Barton, Manchester,

and chapman, Nov. 12 at 11, and Dec. 10 at 12, London : smallware manufacturers, Nov. 22 at 12, Manchester.-Lewis Off. Ass. Bell; Sol. Roscoe, 14, King-street, Finsbury. - Henry Meakin and John Farrall, Shelton, Stoke-upon-Trent,

Pet. f. Oct. 29. WILLIAM LEDGER, Doncaster, dealer and chapman, 10, Birmingham.-A. S. Hodges, Glastonbury, Somersetshire,

Staffordshire, earthenware manufacturers, Nov. 26 at half-past Nov. 17 and Dec. 15 at 12, Sheffield : Off. Ass. Brewin; photographer, Nov. 27 at 11, Bristol.—John Crippin, Rock Sols. Stamp & Jackson, Hull.- Pet. d. Oct. 23. THOMAS HUNTER, Liverpool, dealer and chapman, Nov. Ferry, Cheshire, and Liverpool, ferry proprietor, Nov. 26 at

11, Liverpool. -John Burton Rhodes, Wakefield, Yorkshire, 19 and Dec. 10 at 11, Liverpool : Off. Ass. Cazenove; Sol. shoemaker, Nov. 23 at 11, Leeds. Wm. Holmes, Wilsden,

Banner, Liverpool.-Pet. f. Oct. 29. WILLIAM CUMMING, Newcastle-upon-Type, whitesmith, John Henry Mills, Horton, Bradford, Yorkshire, stuff mer

Bradford, Yorkshire, worsted spinner, Nov. 26 at 11, Leeds. Nov. 13 at 11, and Dec. 14 at 12, Newcastle-upon-Tyne : chant, Nov. 23 at 11, Sheffield.—Samuel Wilkinson, BradOff. Ass. Baker; Sols. Chartres, Newcastle-upon-Tyne; ford, Yorkshire, machine maker, Nov. 23 at 11, Leeds.-W. Shield & Harwood, 10, Clement's-lane, Lombard-street.

Jamieson Anson, Leeds, cloth merchant, Nov. 23 at 11, Leeds. Pet. f. Oct. 29. JOHN JAUNCEY RANDLE, Walsall, Staffordshire, li- Nov. 24 at 12, Sheffield. Thomas Hemingsley, Willenball,

-Wm. Leedham and Wm. Alfred Wild, Sheffield, opticians, censed victualler, Nov. 14 and Dec. 5 at half-past 10, Bir Staffordshire, cut-nail manufacturer, Nor. 26 at half-past 10, mingham : Off. Ass. Whitmore; Sols. Saunders & Son,

Birmingham. Kidderminster; Motteram & Knight, Birmingham.-Pet. d. Nov. 1.

To be granted, unless an Appeal be duly entered. JOHN PLUMBE, Southport, Lancashire, dealer and chap

Henry K. Furnell and Albert Kahl, Fenchurch-street, in. man, Nov. 19 and Dec. 10 at 11, Liverpool: Off. Ass. warehouseman. - Alfred Gibson, Great St. Helens, London,

surance brokers.-William C. Goode, High-street, Borough, Morgan; Sols. Johnson, Southport and Ormskirk; Frod. sham, Liverpool.-Pet. f. Oct. 29.

shipbroker.-Robert Gof, New London-street, merchant

Raffaelle Monti, Great Marlborough-street, and Princess. MEETINGS.

street, Hanover-square, sculptor.-Malcolm Inglis and Eyton George Prince and James Prince, Regent-street, and Carl. Bond, Old Broad-street, merchants. — James Burford the ton-street, Regent-street, wine merchants, Nov. 14 at 1, Lon elder and James Burford the younger, St. Neot's, Huntingdon, last ex. - Thomas Routledge and Joseph Routledge, Lett's donshire, builders.-

John Grover, Strand, envelope maker. Wharf, Commercial-road, Lambeth, saw mills proprietors,

Charles Horsnell, Chelmsford, ironmonger.-T. Hutchins, Nov. 15 11, London, aud. ac. joint est., and aud. ac. sep.

Hungerford, Berkshire, butcher.- Thomas Philps, Greenest. of Thomas Routledge.--William Hart, Old-street, st. lanes, Highbury park, carpenter.—Edward Hall, Greenwich,

Leicester Luke's, licensed victualler, Nov. 20 at half-past 12, Lon licensed victualler.-Wm. Smith, Princes-street, don, aud. ac. – John Deane, Liverpool, chemist, Nov. 13 square, engineer.-Frederick Hellyer, New Brompton, near at 11, Liverpool, aud. ac.- - Andrew Dempster, Liverpool, Chatham, Kent, wood carver.- -Samuel Manning, Cornwall. stonemason, Nov. 16 at 11, Liverpool, aud. ac. Francis road, Hammersmith, builder.-Wm. Tyree, Blackfriars-road, Lloyd Bayley and Samuel Milner Barton, Manchester, shoe manufacturer.-Louis Ahlborn, Liverpool, toy dealer.smallware manufacturers, Nov. 23 at 12, Manchester, aud! Wm. Backhouse, Latham, Lancasbire, timber dealer. ac. ; Nov. 30 at 12, div. · Thomas Deans, Blackburn, Lancashire, draper, Nov. 16 at 12, Manchester, aud. ac.;

TUESDAY, Nov. 6. Nov. 23 at 12, div.-Martin Brown and Robert Ingham,

BANKRUPTS. Rawtenstall, Lancashire, power-loom cloth manufacturers, EBENEZER TEARLE and MATTHEW CHOPPING, Nov. 13 at 12, Manchester, aud. ac.-David Ainsworth, Larkhall Brewery, Larkhall-lane, Clapham, brewers, Nov. Manchester, warehouseman, Nov. 14 at 12, Manchester, aud. 14 at half-past 1, and Dec. 22 at 12, London : Off. Ass. ac.--James Ogle Holmes, Sunderland, and Young Lowson Cannan; Sols. Linklaters & Hackwood, 17, Sise-lane, Marshall, Roker, Durham, timber merchants, Nov. 23 at Bucklersbury.--Pet. f. Nov. 5. half-past 11, Newcastle-upon-Tyne, aud. ac., and Nov. 28 at CHARLES GEARY, Shoreditch, dealer and chapman, Nor. half-past 12, div. sep. est. of Young Lowson Marshall.-T. 14 and Dec. 21 at half-past 12, London: Off. Ass. WhitFiddes Meyrick, Wolverhampton, commission agent, Nov. 12 more; Sols. Ashurst & Co., 6, Old Jewry. - Pet. f. at half-past 10, Birmingham, aud. ac.—Thomas Edwards, Nov. 2. Shrewsbury, builder, Nov. 12 at half-past 10, Birmingham, WILLIAM SMITH HICKMAN, Susses-chambers, Duke. aud. ac.—John Fell and John Learoyd, Huddersfield, York- street, St. James's, dealer and chapman, Nov. 16 at 12, shire, woollen manufacturers, Nov. 15 at 11, Leeds, aud. ac. and Dec. 13 at 1, London: Off. Ass. Johnson ; Sols. Mar. joint est., and aud. ac. sep. est. of John Learoyd.-William ten & Co., Commercial-chambers, Mincing-lane.-Pet. f. Jennings, Bradford, Yorkshire, linendraper, Nov. 15 at 11, Oct. 25. Leeds, aud. ac.-Fred. Dimsdale, King's Arms-yard, Cole- EDWIN HENRY SPARK, High-street, Islington, dealer man-street, dealer in iron, Nov. 23 at 1, London, div.-R. and chapman, Nov. 16 at half-past 12, and Dec. 13 at 2, Goodacre, Nottingham, grocer, Nov. 27 at half-past 10, Not. London: Off. Ass. Johnson ; Sols. Mason & Sturt, 7, tingham, aud. ac. and div.-Thomas Freer, Leicester, wine Gresbam-street.-Pet. f. Oct. 30. merchant, Nov. 27 at half-past 10, Nottingham, aud. ac. and ROBERT JOHN WARD, Croydon, common brewer, Nor. div.-William Brodrick Mitcalfe, Taunton-place, Regent's. 13 at 1, and Dec. 11 at 12, London : Off. Ass. Graham; park, dealer in mining shares, Nov. 23 at 11, London, div.- Sols. Russell & Burgon, 23, Martin's-lane, Cannon-street. Clifford Firth and John Archer, Liverpool, brokers, Nov. 21 Pet, f. Oct. 29. at 11, Liverpool, div. sep. est. of John Archer, (not div. joint THOMAS LEWIS, Bath, builder, Nov. 20 and Dec. 18 at est., as advertised in last Tuesday's Gazette).-Wm. Broad. 11, Bristol: Off. Ass. Acraman; Sols. Messrs. Cruttwell, hurst and William Marshall Broadhurst, Sheffield, table- Bath ; Bevan & Girling, Bristol.-Pet. f. Oct. 29. knife manufacturers, Nov. 24 at 12, Sheffield, div.

[For continuation of Gazette, see p. 441]. 2

;10

....

CONTENTS. London Gazettes..

436 ceedings and award in former action by tenant of Leading Article

437

plaintiff - Allegation of ownership of plaintif).. 1015 Notes of the Week..

439 Reg. v. The Justices of Ely:-(Alehouse licensePublic Examination of Students

439 Appeal- Order to pay costs-9 Geo. 4. c. 61, Business of the Courts

439 8. 27-12 & 13 Vict. c. 45, s. 18-Estreat of reEcclesiastical Courts-Michaelmas Term Sittings 439 cognisances by subsequent sessions —3 Geo. 4, Frauds by Bankers .... 439 C. 46, 8. 2)

1017 NAMES OF THE CASES REPORTED.

May v. Footner.-(Declaration in trespassPower

to amend form of action-Common-law ProceROLLS COURT. dure Act, 17 & 18 Vict. c. 125, s. 96)..

1019 By G. Y. ROBSON, Barrister at Law. Worthington o. Wiginton.-(Will-Election) 1005

COURT OF Common Pleas.

By W. Paterson and W. Mills, Barristers at Lay.
VICE-CHANCELLOR KINDERSLEY'S COURT.
By C. MARETT, Barrister at Law.

Briant o. Pilcher.-(Landlord and tenant - Indem

nity by mesne landlord against rent payable to Saunders v. Saunders.---(Parties-Witness)........ 1008

superior landlord-Payment of rent by sub-lessee VICE-CHANCELLOR STUART'S COURT.

not a condition precedent)..

1020 By T. F. MORSE, Barrister at Law.

Barrick o. Buba.- (Commission to examine witnesses Alston o. The Eastern Counties Railway Company.

-Hostile country)..

1020 (Railway company-Lands Clauses Consolidation Wilde v. Waters.-(Trover for fixtures-Incoming Act-Possession by company under sect. 85-NO

and outgoing tenant)..

1021 tice-- Title)..

1009 Knight o. Pocock.-(Practice-Summary Procedure Fisher v. Moore. - (Will - Construction Time of

on Bills of Exchange Act, 1855, (18 & 19 Vict. vesting-"Survivors'')...

1011 c. 67, ss. 1, 7)-Amendment of indorsement on In re The Lincoln Primitive Methodist Chapel, and

writ15 8.16 Vict. c. 76, 3. 20)...

1022 in re The Charitable Trusts Act, 1853, and the

EXCHEQUER CHAMBER. Trustee Act, 1850.-(Charity--Trustees, appoint

By H. MACNAMARA and G. FRANCIS, Barristers at Law. ment of new-Charitable Trusts Act, 1853– Trustee Act, 1850—Sir S. Romilly's Act-Vest

Rees v. Watts.-(Set-off-Mutual debts--Adminising order)

1023 1011

trator- 2 Geo. 2, c. 22)
VICE-CHANCELLOR Wood's Court.

COURT OF EXCHEQUER.
By Matthew B. BegBIE, Barrister at Law.

By W. M. Best, Barrister at Law.
Kemp o. The West-end and Crystal Palace Railway The Attorney-General v. Roberts and Ellis.--(16 8.
Company.—(Railway company-Entry on land

17 Vict. c. 107, 8. 263– Information-Costs of - Omission in the book of reference) ... 1012 Crown)

1024 Wright v. Lord Maidstone.-(Instrument lost or de

Eames v. Smith.-(17 418 Vict. c. 125, 8. 31-Instroyed-Demurrer). 1013 sufficient stamp-New trial)

1025 Manby o. Bewicke.—(Security for costs)..

1015

ADMIRALTY PRIZE COURT.
COURT OF QUEEN's Bench.

By J. P. Deane, D.C.L.
By G. J. P. Smith and W. B. BRETT, Barristers at Law. The Baltica.-(Transfer to a neutral, war being im.
The Baroness Wenman v. Mackenzie. — (Soil and

minent, and the title of vendor not absolutely fishery-Action by reversioner - Evidence- Pro

divested, invalid)

1025

THE JURIST.

Co., and payable to one Needham, and by him indorsed

to Taylor, who indorsed it to the plaintiff. The deLONDON, NOVEMBER 10, 1855.

fendants pleaded that they and Needham had entered

into certain bets upon the amount of hop duty that It is a matter of no small importance to a commer- would be payable in 1854, and that the bill was given cial community that the rules of law which govern for the balance of money due upon such bets, and that mercantile transactions should be founded on principles the indorsees respectively had notice of the premises, at once reasonable and intelligible. To no part of our and that there was no value or consideration for the mercantile law does this remark apply with greater note. At the trial of the cause, Coleridge, J., told the force than that which relates to the transfer of jury that it was necessary for the defendants to estanegotiable instruments *. It is obvious that the busi-blish either one of three propositions—first, that the ness of our merchants and traders would be most seri- plaintiff had notice of the origin of the note when he ously impeded if it were necessary for them, pre- took it; or, secondly, that the plaintiff gave no value viously to taking bills of exchange or promissory notes, for the indorsement; or, thirdly, that the note was to make inquiries as to the consideration which had overdue when he took it. No evidence was given passed between prior parties whose names might ap- 1 by the defendants to establish any of these facts, and pear upon them. The law, therefore, primâ facie pre- the jury found a verdict for the plaintiff. A rule was sumes that a bill or note is given on a sufficient con- afterwards obtained for a new trial, on the ground that sideration. This presumption, however, may be re- the judge had misdirected the jury as to the onus of butted, but the onus of proving a want of consideration, proof. The Court ruled that there had been no misas a general rule, lies on him who impugns it. An direction; and Lord Campbell, C. J., in giving judgillustration of the exceptions to this rule is afforded by ment as to whether, in cases of this kind, it lies upon the recent case of Fitch v. Jones, (1 Jur., N. S., part 1, the plaintiff or the defendant to give evidence of value, R: 854; 24 L. J., Q. B., 293). In that case an action said, “ This depends upon whether there is a presumpwas brought on a promissory note drawn by Jones & tion of law that there was no consideration, which the

* Mr. Serjeant Byles, in his excellent work on Bills of plaintiff is bound to rebut. Where fraud or illegality Exchange, (6th ed., p. xii), calculates the value of bills and is established there is such a presumption, because in notes stamped in a single year in this country at 300,000,0001. such cases the law supposes that the original party,

10

not being able to sue upon the instrument himself, has of the bill to his own use. When these facts had been handed it over to another to sue upon it for his benefit. proved on behalf of the defendant, the plaintiff's counsel This presumption so raised by the law must be rebutted contended that he was entitled to the verdict, as it had by the holder shewing affirmatively that he gave value. not been proved that Chandler had indorsed the bill It is not quite correct to say that the onus of proving without value, or that the bill had been obtained from value is cast upon the plaintiff; but the plaintiff, being the defendant by fraud. Wightman, J., however, was presumed to stand in the shoes of the party from whom of opinion that enough had been shewn to cast upon the he took the instrument, and to be his agent for the pur- plaintiff the onus of proving that he had given value pose of carrying out the fraudulent or illegal intention, for the bill, in order to entitle him to a verdict. The is bound to get rid of that presumption. But where plaintiff then called a witness, who proved that he there is a mere absence of consideration, no such pre- gave Chandler 431. for the bill, and that the plaintiff sumption arises, and therefore there is no occasion for indorsed away the bill, and about a week before it the plaintiff tó rebut it.” And Erle, J., said, “It is became due he asked the defendant whether he would perfectly clear, that, as a general rule, all affirmative be prepared to take it up; and the plaintiff then for the pleas by way of excuse by a party primâ facie liable first time heard from the defendant that he had been upon a promissory note must be proved by him; and swindled out of it, and would not pay it. The jury on this is in terms an affirmative plea. An exception this evidence found that the plaintiff had given no bonâ exists in a class of pleas of considerable importance, fide value for the bill. The Court above held that Wightwhere it is alleged against the holder of a negotiable man, J., was right in ruling that it lay with the plaintiff instrument that it is founded on illegality, and that to prove that he had given value for the bill after the he took it without consideration. If the illegality is defendant had established, that contrary to good faith proved, it raises a presumption that the holder took Chandler had indorsed it away. Lord Campbell, C. J., the instrument without value, and so the burthen of in delivering the judgment of the Court, said, “ Since proving value is cast upon the plaintiff, so far as this, the New Rules the judges have, with entire approbathat it no evidence be given on either side, the pre- tion, directed juries, that where the bill was illegal in sumption that he took it without value prevails

. It is its inception, or where the immediate indorser to the therefore the plaintiff's duty to give evidence of his plaintiff obtained possession of it by fraud, the want of having paid value.” The learned judge continued, consideration as between him and the plaintiff may be “ A party, without violating the common law, may presumed.” In Harvey v. Towers (6 Exch. 656) it make such a wager, and may pay the money if he lose appeared that the defendant had accepted a bill in pay; it; and if, instead of paying the bet, he gives a note ment of some mining shares which he had been induced promising to pay at a future date, he still violates no to purchase through the representation of the drawer, statute. I think that the effect of this plea is, that and evidence was adduced to shew that the shares were the maker gave this note to the payee without any worthless and the transaction fraudulent. Upon this consideration whatever, and therefore that it is not evidence, the defendant submitted that the onus of tainted with illegality or fraud.”

proving that there was a consideration for the bill lay The law, as it at present stands, was first so esta- upon the plaintiff. The judge, however, expressed an blislied in Bailey v. Bidwell, (13 M. & W. 73). In opinion that proof of fraud did not cast upon the that case the plaintiff, who was the indorsee of a pro- plaintiff the burthen of proving consideration, inasmissory note, brought his action upon it, and it ap- much as the affirmative of the issue was on the defendpeared at the trial that the note had been given by the ant; but the Court of Exchequer, on motion for a defendant to one Bailey consideration of his not new trial or to enter a nonsuit, held that the learned opposing a petition which the defendant had presented judge who presided at the trial was mistaken, and to the Court of Bankruptcy under the 5 & 6 Vict. directed a nonsuit to be entered. Pollock, C, B., in c. 116. On behalf of the defendant the proceedings in giving judgment, says, “ I agree with what Lord the Bankruptcy Court were put in, and Parke, B., Campbell said in Smith v. Braine, that no principle ruled, that as the defendant had established that the can be extracted from the cases on this subject before note was illegal in its inception, the plaintiff was the New Rules. But it is now settled, that if a bill be bound to prove consideration. On a motion to review founded in illegality or fraud, or has been the subject his Lordship's ruling, the Court held that it was cor- of felony or fraud, upon that being proved the holder rect. Parke, B., there says, “It certainly has been, is compelled to shew that he gave value for it. That since the later cases, the universal understanding, that was established in Bailey v. Bidwell; and subseif the note were proved to have been obtained by quently by the Court of Queen's Bench in Smith fraud, or affected by illegality, that afforded a presump- v. Braine, in a considered judgment. It has been tion that the person who had been guilty of the ille contended, that, as a matter of pleading, that view gality would dispose of it, and would place it in the cannot be supported. I think, however, that as a hands of another person to sue upon it, and that such plea must contain everything necessary to constitute proof casts upon the plaintiff the burthen of shewing a good defence, and as the mere fact of fraud would that he was a bonâ fide indorsee for value. That has been not afford any defence unless the holder took the bill .considered in later times as settled; and that being so, it without value, it was incumbent on the defendant to was perfectly right in this case to cast upon the plain- allege that fact in his plea; and the question is, on tiff the burthen of proving that he gave value for the whom is cast the onus of proving it?" It follows, note.". This last-cited case is an example of a bill therefore, from the recent decisions, that where the being illegal in its inception. The two following cases defendant establishes the fact that the bill has been are instances in which the bill was tainted with fraud. affected by illegality or fraud in its inception, or has In Smith v. Braine (16 Q. B. 244) the plaintiff, as in- been the subject of felony, or has been lost, it lies on dorsee, brought an action against the acceptor of a bill; the holder to shew that he gave a bona fide consideraand it appeared at the trial that the defendant's mother tion for it. It appears also that the cases of Paterson had drawn the bill for the defendant's accommodation, v. Hardacre, (4 Taunt. 114); Hungate v. Brown, (1 and indorsed it in blank; that the bill was delivered to Moo. & R. 445); Brown v. Philpot, (2 Moo. & R. one Morton for the purpose of getting it discounted; 285); and the other cases decided before the New Rules, that Morton delivered it to one Chandler for the same cannot now be considered as law*. purpose; and that Chandler promised to pay the * In Paterson v. Hardacre, Lord Mansfield, C. J., held, amount of the bill to Morton, less 5l., which he was to that whenever a defendant meant to avail himself, as a defence receive for his trouble, but that he applied the proceeds ' against an action brought upon a bill of exchange, of the cir.

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