CHAP. V. PRECAUTION discretionary jurisdiction over costs, to give, or withhold, or increase, or diminish them entirely, according to the judicious ARY MEASURES. conduct of the parties. (f) Thus, if a bill for an account or for a discovery be filed against a factor or agent, or other party, without first properly applying to him in a civil manner for an account; (g) or if a suit for dower has been instituted by a widow, without first applying to the heir to have it assigned, or if, on the other hand, he vexatiously refuse to assign it after proper request; or if a bill of interpleader be filed, without first applying for an indemnity, or if a party be guilty of any other vexatious conduct, he may not recover costs, though in other respects he succeed. (h) So, although an executor be always ready, and offer to pay a legacy, yet, if he qualify his offer by imposing terms which he has no right to require, the suit for the legacy will not be deemed unnecessary, and the costs must be paid out of the residue to which the executor may be beneficially entitled. (i) We will, therefore, in this and the succeeding three chapters consider those "precautionary measures" which frequently are absolutely necessary, and at all times advisable for parties to adopt before they precipitately plunge into litigation,-considerations which are important and interesting to every member of society who may wish to know and safely practise and fulfil his relative rights and duties even in the ordinary course of life. In the present chapter we will consider the principal steps to be taken in various situations before there has been even an inception of injury. It cannot be attempted to state all the various situations of difficulty which may arise even in the ordinary intercourse with society. The first and most general precaution is, in the first instance, to secure evidence in support and proof of the right or injury, or of the defence; and then the steps to be taken may be generally arranged under two heads, first, cases independently of contract; and secondly, cases of contract. Of the former, (f) See in general 2 Mad. Ch. Prac. 546; and sometimes a party, by instructing or allowing his counsel to make an unfounded or too severe an attack on the character of his opponent, or of even his solicitor, will induce a Court of Equity to visit him with costs; see the case, post. (g) Weymouth v. Boyer, 1 Ves. jun. 416; 1 Mad. Ch. Prac. 216; Collyer v. Dudley, 1 Turner & Russ. 421. So if a plaintiff is entitled to a discovery, and goes first to the defendant to ask for accounts which he in justice has a right to, then if the defendant refuse and the plaintiff is thereby compelled to file a bill for a dis covery, the defendant ought not to have (h) 2 Mad. Ch. Pr. 543 to 573; and (i) Walter v. Paley, 1 Russ. R. 375. ARY MEASURES. CHAP. V. the instances are principally where it may be advisable to give PRECAUTION notices not to give credit to a wife, child, servant, agent, or partner, or of a bill or note having been obtained by fraud, or felony, or lost, or not to harbour an apprentice or servant, or not to trespass, or notices previous to a claim on a hundred, and notices to ascertain any event in which the party is interested. III. Securing evidence of the Injury.(j) Those connected with contract are cases in which it may be necessary to take steps to perfect a right on a contract, as notices by purchasers and mortgagees, and trustees of purchasers, or assignments of real property or personalty, either absolutely or as collateral securities; and on behalf of landlords, and notices to qualify certain legal liabilities. Then will be shown how to perform conditions precedent, or to make formal requests, and then are considered certain measures to be observed by expected defendants, so as to anticipate and prevent the liability to an action; and lastly, the very important precautions and rules to be observed by executors and administrators in the administration of assets. It will be our object in this chapter to consider all measures of this nature, first, independently of contracts, and, as respects the person, personal or real property; and secondly, as regards the perfection of rights founded on contracts; thirdly, on behalf of expected defendants; and fourthly, precautions of executors and administrators. III. Perhaps of all the precautionary measures that can be Right or of the adopted when there is the remotest probability of litigation, that of securing, in the first instance, evidence to establish the right, or the injury, or the grounds of defence, is the most important; for if not in possession of adequate evidence, parties should consider themselves in the same situation as if the essential facts had no existence (k). Such evidence should therefore be ascertained and well considered in the first instance, for after open disagreement, and still more after the commencement of litigation, the wrong-doer will have become guarded and less communicative, and probably will decline any admission, and if he should be certain that two witnesses (gene (j) See end of chapter a repetition. statements a suit is precipitately commenced without first ascertaining the evidence, and sufficient inquiry into the detail of proofs is not made until just before the trial, after much expense has been incurred, and then it will appear that for want of adequate evidence the suit is not sustainable. This is grossly absurd and culpable negligence. rally essential in the Criminal Courts to establish the guilt of perjury) cannot prove the fact so as to convict him on an indictment for perjury, he will perhaps, in his answer to a bill of discovery, be hardy enough wilfully to deny, or to so mis-state the facts, or, as is very generally the case, he will so qualify his admission that his answer cannot be safely read in evidence against him. (1) Hence it may frequently be of the utmost importance to secure an admission, or evidence of the requisite facts in the earliest stage. How to effect that desirable object must depend on the various circumstances of each particular case, and the character of the parties interested therein. It may justifiably be effected even by stratagem, though no one would willingly or unnecessarily resort to measures of that description, and sometimes a jury would even suspect the veracity of evidence so obtained. (0) CHAP. V. PRECAUTION ARY MEASURES. sures in cases &c. IV. Persons are frequently placed in a peculiar situation of risk IV. Other preof loss or injury, and when it may be expedient to adopt and cautionary meato secure evidence of having adopted preventive measures to independently of contract, by avoid it, such as giving a public or private notice, or taking giving Notices, some other step, and which the law allows and requires, provided the party giving the notice has an interest in the subject, and that the character of another be not thereby unnecessarily libelled or affected, and that the means adopted be the best or the only one that could be resorted to; though if these be not observed, the party giving the notice may subject himself to an action or indictment for a libel. (m) 1. If a wife have illegally absented herself from her husband's 1. Notice not to trust a wife. (n) house, or conducted herself extravagantly when there, (o) and is likely to endeavour to obtain necessaries or goods on the credit of her husband, he may, and should, in order to protect himself from liability, give a public notice prohibiting third persons from trusting her on his credit; and it is advisable also in such a case to give and be prepared to prove a particular and private notice or prohibition to every tradesman and person who had been accustomed to deliver goods to the wife on credit; for otherwise, unless in cases where the wife has been guilty of (1) Advertisements in newspapers are very frequently seen, stating, that if a named person will apply at, &c. he will hear of something to his advantage, and when he appears his residence will be ascertained and himself served with a subpœna. This is an innocent ruse. (m) Brown v. Croome, 2 Stark. Rep. 297. (n) Id. ib. (0) Etherington v. Parrot, 2 Ld. Raym. 1006; 1 Salk. 118, S. C.; Montague v. Benedict, 3 B. & C. 631; Holt v. Brien, 4 B. & Ald. 252; ante, 60. CHAP. V. PRECAUTION adultery, the husband may be liable until the tradesman has ARY MEASURES. received actual notice: (p) and though no notice is absolutely necessary when the wife has been guilty of adultery, (q) yet it is always expedient to give the same. (r) If such a notice have been given, and the husband receive back his wife, he thereby revives her authority to contract on his credit for necessaries, and impliedly revokes his previous notice. (s) When the husband has causelessly turned away his wife, or improperly refused her necessaries, a general notice, or even a special prohibition, is of no avail, and necessaries may be delivered to the wife in defiance of such notice, so as to fix the husband. (t) 2. Notice not to trust a son or daughter. Suggested form of notice when a wife has absented herself. Suggested form of notice where a wife still resides with her husband. The notice when given should not unnecessarily calumniate the wife or any third party. It may be in the form in the note. (u) 2. So with respect to a son or daughter who has been allowed by the father or mother to obtain goods on his or her credit, and it becomes necessary to determine such authority, a similar private notice to each tradesman or person who has been in the habit of delivering goods on the credit of the parent, should be given, or he will continue liable. But as a child has not, like a wife, a general credit or power to fix his parent with liability even for necessaries, no public or general notice is absolutely necessary, for any fresh tradesman would trust the child on his own credit at his peril, but only to those who by the direction or authority of the parent have previously delivered goods on credit to his child. (v) (p) Bolton v. Prentice, 2 Stra. 1214, in notes; Child v. Hardiman, 2 Stra. 875; Liddlow v. Wilmot, 2 Stark. 87. (q) Morris v. Martin, 1 Stra. 647; Mainwaring v. Sanders, Id. 706; Rex v. Flinton, 1 B. & Adolp. 227 ; ante, 60. (r) Norton v. Fagan, 1 Bos. & P. 226; Govier v. Hancock, 6 T. R. 603. (s) St. John v. St. John, 11 Ves. 536; Harris v. Morris, 4 Esp. R. 41. (t) Harris v. Morris, 4 Esp. R. 42; Selw. Ni. Pri. 5 ed. 275. (u) CAUTION not to trust Mrs. E. B. Whereas Mrs. E. B. my wife, has illegally absented herself from my house, situate at, under circumstances which exempt me from liability to pay for any necessaries or goods she may obtain, or to perform any engagement she may enter into, I hereby give Notice, that any person who may trust her with any necessaries or goods or money will do so at his peril; and that I am not, nor will be liable in any respect to pay for or repay the same, or to perform any engagement of the said E. B. Dated, &c. Or, (Caution, &c. as above) A. B. of, &c. Whereas I have found it expedient and necessary myself to purchase all necessaries and goods for my wife and my family and establishment at, and not to suffer Mrs. E. B. my wife to purchase goods or to contract on my behalf: Now therefore I hereby give Notice that Mrs. E. B. my wife, is no longer authorized by me to make any purchases or contract on my behalf, and that I will not be responsible for the performance of any engagement she may enter into. Dated, &c. A. B. of, &c. (v) Ante, 65. ARY MEASURES. 3. With respect to agents and servants, it is clear that if a CHAP. V. person has been frequently allowed to purchase goods on credit, PRECAUTIONor do other acts for a principal, and his authority has been put an end to, notice of such revocation must be given, for otherwise 3. Notice of authority of agent the principal will continue liable for subsequent acts, though or servant havdone without actual authority, but upon the supposition and ing ceased. presumption of a third person that the authority actually continued, at least until it be generally known that the agency has ceased. (w) In giving a notice of this nature care must be observed to avoid any libellous expressions, or any terms calculated to injure the character of the factor or agent, or servant, or even to insinuate that he is not trustworthy; and when it is believed that he has acted faithfully, it will be advisable to add words to that effect. (w) The terms may be as in the note. (x) 4. Upon the determination of a partnership by consent or by effluxion of time, it is usual and always expedient for the respective partners to concur in signing and giving public notice thereof, lest by fraud or other unforeseen circumstance a retired partner may be afterwards subjected to liability for a subsequent debt or engagement contracted by the other in the name of the late firm. If after the dissolution persons who have previously sold goods or given credit to the firm should, for want of such notice, deliver goods to one of the late partners, who falsely assumes or appears still to act for the firm, all the former partners will be liable, as if the partnership still continued, unless it can be established that there was collusion. between the fraudulent partner and such creditor. (y) It is usual to concur in a notice in the subscribed form, (≈) and for each 4. Notice of disnership, or not to give credit to solution of part a partner. (w) Nickson v. Brohan, 10 Mod. 110; Rusby v. Scarlett, 5 Esp. Rep. 76; Harrison, 12 Mod. 46; Moll. 282. V. (1) CAUTION.-Agency of Mr. C. D. for A. B. determined. Notice is hereby given, that Mr. C. D. of is no longer authorized by me, Suggested form A. B. of, to draw, accept, or indorse any bill or note, or purchase or sell goods, or contract on credit or otherwise on my behalf, or to transact any other business for me as my agent or otherwise; but I nevertheless certify my entire approbation of his conduct whilst he was in my employ. Dated, &c. A. B. (y) Parkin v. Carruthers, 3 Esp. R. 248; Carter v. Whalley, 1 Bar. & Adolp. 13; Heath v. Sanson, 2 Bar. & Adolp. 291; and Ex parte Goulding, 8 Law J. 19. () Take Notice, that the partnership lately subsisting between us as (Coal-merchants) at -, has on this day of by mutual consent been dissolved; and that by the like consent all debts due from or to our late firm will be paid and received by the undersigned A. B., by whom our said business will in future be carried on upon his sole credit and account. Dated this day of Witness to the signatures of the said parties, G. H. A. D. 1833. C. D. E. F. of notice of an agency having been discontinued. Suggested form of public notice of dissolution of partnership in Gazette and newspapers. |