Obrázky stránek
PDF
ePub

1838.

PARSONS

บ.

PITCHER.

rule, the practice on motions for new trials may be referred to.

The directions to the taxing officers, of Hilary Term, 4 Will. 4, clearly were intended to apply to proceedings that are common to both plaintiffs and defendants. Such has been the understanding of the Masters; and there can be no reason why it should not be so. The party who presents his bill for taxation is required to state upon the face of it whether the demand is above or below 201.

TINDAL, C. J.-The general rule, as I understand it, is, that costs are not allowed upon a rule for a review of a taxation: where the motion is founded upon any general principle, the party cannot have costs; but, where it is founded upon the particular facts of the case, he may have costs, but not unless he asks for them at the time. I think this rule must be made absolute to review the taxation as far as regards the costs of the former rule; but not as to the other ground, it not appearing that the Master's attention was not called to the fact of the demand being under 20%.

The rest of the court concurring

Rule absolute accordingly.

Wednesday,
May 9th.

To induce the

court to permit

a plaintiff who has incorrectly

POENSGEN and Others v. CHANTER and GRAY.

WILDE, Serjeant, on a former day in this term, obtained a rule calling upon the defendants to shew cause

joined in the action one who was no party to the contract, to discontinue without paying costs, it must be clearly shewn that he was induced by the defendant's conduct to believe that the contract was entered into with the two, and that the mistake did not arise from his own negligence.

why the action should not be discontinued as against the defendant Gray, without costs. The affidavit upon which the motion was founded, stated, that the action was brought to recover a sum of 950l. which had been paid by the plaintiffs on an agreement entered into by them with John Chanter under the name, style, and firm of "John Chanter & Co.," and signed by him, "John Chanter, for self & Co.;" that the deponent (plaintiff's attorney) had been informed that Gray was a partner with Chanter, and had a printed report or testimonial in which it was stated that the invention to which the contract related had been patented by John Chanter and John Gray (which printed report had been left with the deponent by Chanter himself); and that it was not until after the issuing of the capias, and the same had been lodged with the sheriff, that he learned that Gray was not a party to the contract.

Sanders shewed cause.-He submitted that there was no foundation for the application in its presents form; there not appearing to have been anything in the conduct of the defendant Chanter calculated to deceive or mislead the plaintiffs as to who were the parties with whom they contracted; and that the circumstance of Chanter having been held to bail was of itself sufficient to disentitle the plaintiffs to any favour at the hands of the court.

Wilde, Serjeant, in support of the rule. The contract was entered into by Chanter in the name of Chanter & Co., and under circumstances, as appears by the affidavit, calculated to induce the plaintiffs to suppose that Gray was one of the parties they contracted with. If the court are satisfied of this, they may in their discretion do that which the

rule prays.

TINDAL, C. J.-The plaintiff has a right to discontinue; but at the peril of costs, which the court are in their discretion impowered by the 8 Eliz. c. 2, to award to the

1838.

POENSGEN

v.

CHANTER.

1838.

POENSGEN

v.

CHANTER.

defendant. A plaintiff is never allowed to discontinue without paying costs, unless it be made clearly to appear that the step is rendered necessary by the misconduct of the defendant. The question therefore in the present case is, whether we can see clearly that the suing out the writ against the two defendants, Chanter and Gray, was the result of some act or representation of the defendant Chanter. Had it appeared that any application had been made to Chanter for the name of his partner, and that he had induced the plaintiffs to conclude that Gray was the party, there would have been good ground for the application. But all that appears, is, that a prospectus was left with the plaintiffs by Chanter, in which the names of Chanter and Gray appeared as the patentees, and that the contract that was afterwards entered into between the parties, was signed "J. Chanter & Co." I cannot say that this was such a misleading of the plaintiffs as to entitle them to discontinue without payment of costs.

PARK, J.-The plaintiffs should have possessed themselves of better information before they ventured to swear that Chanter and Gray were indebted to them. It does not appear to me that they were misled by Chanter. They have been too hasty, in proceeding on a mere surmise. It is by no means an unusual thing, though it certainly is not a practice to be commended, for traders to add " & Co." to their names, without any foundation.

BOSANQUET, J.-—I am unable to see with sufficient certainty that the plaintiffs were misled by any culpable conduct on the part of the defendant Chanter. It appears that the paper left by him with the plaintiffs contained the names of two firms: they ought to have known who they were contracting with: that very circumstance was enough to provoke inquiry.

COLTMAN, J., concurred.

Rule absolute, on payment of costs.

DoE d. JAMES Knott v. LAWTON and Others.

THIS was an action of ejectment brought by the lessor of the plaintiff to recover possession of an undivided moiety of certain premises in the occupation of the defendants. After issue joined, the following case was, by consent of the parties, submitted for the opinion of the court:

[merged small][merged small][ocr errors]

in a devise, are sufficient to

my estate,"

pass a fee, un

less accompanied

by words of restraint.

The testator,

possessed of the fee, after directing payment of his

debts and funeral and

testamentary giving a legacy

expenses, and

of 11. to his

eldest son, John, whom he appointed his executor, made

"James Knott, of Lees, in the parish of Under Lyne, in the county of Lancaster, by his last will and testament, signed with his hand, attested and subscribed in his presence by three credible witnesses, and bearing date the 2nd February, 1824, after directing payment of his debts and funeral and testamentary expenses, and giving a legacy of 17. to his eldest son, John, whom he appointed his executor, made a devise in the following words:-'I give and bequeath to my sons James and Joshua my estate that I now occupy, together with the factory and all the edifices and appurtenances thereon, except the house I now occupy, and five yards for a passage, being together eighteen yards in front, and about twenty yards back, with the cottages thereon, occupied by Daniel Clegg and Mr. Cleverty, and all other conveniences thereon, which I give to my daugh- the factory and ters Martha and Alice jointly, share and share alike.'

"The testator then devised to his daughter Martha a smithy, and to his daughter Alice a plot of land and building thereon occupied by certain persons named; and, after charging the estate heretofore given to my sons,' with certain payments particularly specified, in a subsequent part of the will he bequeathed to Joshua 'that estate or tenement lying and being at Hartshead, occupied by R. F., which I hold under lease from the

a devise in

the following

words:-" I

give and bequeath to my Joshua my

sons James and

estate that I

now occupy, together with

all the edifices

and appur

tenances thereon, except the

house I now Occupy, with the cottages

[ocr errors]

occupied by C.

and D., which

give to my daughters

Martha and

Alice jointly, share alike."

share and

He then devised to his

daughter Martha a smithy, and to Alice a plot of land and building thereon occupied by certain persons named; and, after charging the "estate heretofore given to my sons" with certain payments particularly specified, in a subsequent part of the will he bequeathed to Joshua "that estate or tenement lying and being at H., occupied by R. F., which I hold under lease from the Earl of Stamford, during the term of my lease:"-Held, that, under the first devise, James and Joshua took a fee in all except the house and cottages; and that the daughters took a fee in those.

1838.

DOE

d.

KNOTT

บ.

LAWTON.

Earl of Stamford and Warrington, during the term of my lease.'

"The said James Knott was at the time of making his will seised in fee-simple of all the premises described in the first of the above devises, and died seised thereof in September, 1826, without having revoked or altered his said will, leaving his said son John his heir-at-law, and his said sons James and Joshua, him surviving.

"The daughters Martha and Alice both survived the testator. Martha is still living: but Alice died in August, 1836, leaving her husband, James Mellor, and one son born of the marriage, her surviving.

"John Knott, the testator's eldest son and heir-at-law, died in the life-time of Alice, intestate as to his real estate, and without leaving lawful issue: and thereupon James Knott, the lessor of the plaintiff, being the testator's second son, became and was the heir-at-law as well of the testator James Knott as of the said John Knott.

[ocr errors]

"The defendants were the tenants in possession of the premises which were so devised as above mentioned by the testator to his daughters Martha and Alice jointly, share and share alike:' and the defendants, disclaiming the title of the lessor of the plaintiff, claimed to hold the said premises adversely to the lessor of the plaintiff, and as tenants thereof to the said James Mellor and the said Martha, or one of them.

"The lessor of the plaintiff contended, that, under the above devise, the daughters of the testator, Alice and Martha, took as tenants in common (g) only estates for life in the devised premises; and that, upon the death of Alice, the lessor of the plaintiff, as heir-at-law as aforesaid, became and was entitled to the undivided moiety of the said premises; or that the lessor of the plaintiff was entitled thereto, or to part thereof, as joint devisee in fee

(g) The question whether the daughters took as tenants in com

mon or as joint tenants, was not raised on the argument of the case.

« PředchozíPokračovat »