SCOTLAND.-Feb. 25. Salaries of the Judges. (a) The Lord Advocate moved the second reading of this bill, which after opposition, was carried by a majority of 139 to 21. Law Reports. QUEENS' BENCH. Feb. 11. Sittings in Nisi Prius. BURGESS v. PIERCE. Excessive levy under writ of execution issued upon a warrant of attorney. This was an action brought to recover compensation in damages on account of the defendant having issued execution on a warrant of attorney, and made a levy on the goods of the plaintiff for a much larger sum than was due. The plaintiff had given the defendant a warrant of attorney for 461., payable by instalments. The plaintiff had paid off nearly the whole, if not the full, amount due, when the defendant put an execution into his house|| for 11. 78. 6d., which sum the plaintiff did not owe, and being then unable to pay, the officer remained in possession 19 days, when 241. 7s. 6d., being the debt and costs, was paid under a protest. The plaintiff's case was made out by evidence. - Verdict for the plaintiff, damages 24. 78. 6d. OUCHTERLONY v. OWEN.-Feb. 21. Principal and Agent-Commercial Case. This action was brought to recover a sum alleged to be due to him by the defendant, for money advanced for premiums and for commission on certain policies of insurance. pur The plaintiff is an insurance broker, and was applied to by a Mr. Gordon, to effect insurances to the amount of 10,000l. on the ship Moira, which the plaintiff refused to do until Mr. Gordon brought an authority for that pose from the defendant, who was the captain of the ship. Upon having this authority, the insurances were effected by the plaintiff, and the premium and commission, amounting to 7941, were paid by him, and which sum the plaintiff had requested the defendant to repay, but the defendant refused, and told him to proceed against Mr. Gordon for the amount as he had been the person for whom the plaintiff had done the work. Mr. Gordon having become insolvent, he was unable to pay, and it was contended for the plaintiff that the defendant having created Mr. Gordon his agent, he had no right to turn round on the plaintiff, and say he trusted Mr. Gordon, and therefore he must look to him for payment; but that when the principal was known the creditor might proceed against him and not against the agent. Mr. Jervis, for the defendant, relied upon the authority of "Thompson v. Davenport," (a) Ante, p. 262. 9 Barn. & C. 78.; and as, in this case, it was evident Mr. Ouchterlony had trusted Mr. Gordon, he was the party liable. He also stated there had been a charter-party entered into between the defendant and Mr. Gordon for the conveyance of troops to India for the East India Company, in the profits of which transaction Mr. Owen was to participate, and before the ship sailed the defendant requested Mr. Gordon to effect an insurance on the ship for him, which was done by Ouchterlony, who, it was evident, treated Gordon as the responsible party, inasmuch as a bill of parcels for the amount of the premium and commission was sent in to Mr. Gordon by the plaintiff. During the absence of the ship on her voyage, Mr. Gordon became insolvent, and Mr. Ouchterlony became the assignee of his estate. On Mr. Owen's return, the affairs of the ship were intrusted to the management of Messrs. Rickards and Co., and there was a settlement of Mr. Gordon's accounts with Mr. Owen by Mr. Ouchterlony on one side, and Messrs. Rickards on the other, in which settlement the very account now sought to be recovered was included, without any claim made on Mr. Ouchterlony's behalf. Mr. Ouchterlony subsequently arrested Mr. Gordon for the amount of these premiums among other sums, and a cognovit was given by Mr. Gordon for the amount, and, finding he was not likely to recover against Mr. Gordon, the plaintiff had brought the present action against Mr. Owen. Mr. JUSTICE COLERIDGE summed up the evidence to the jury, and told them that the law in his opinion was as laid down by Lord Tenterden in "Thompson and Davenport," which would probably decide the verdict in favour of the defendant. He also requested them to say, first, whether the plaintiff had dealt with Mr. Gordon knowing him to be the agent of Owen; secondly, whether Mr. Gordon had been paid in account by Mr. Owen and thirdly, whether Mr. Ouchterlony had been paid by any one at all. The Jury returned a verdict for the defendant, and found that Mr. Gordon had been the party credited by the plaintiff; that Mr. Gordon had been paid in account by Mr. Owen, and that Mr. Ouchterlony would have been paid had not Gordon been insolvent. Lord Tenterden, C. J. in the case Thompson v. Davenport, expressed his opinion, that he took it to be a general rule, if a person sells goods, supposing at the time of the contract he is dealing with a principal, but afterwards discovers that the person with whom he has been dealing is not the principal in the transaction, but agent for a third person, though he may in the mean time have debited the agent with it, he may afterwards recover the amount from the real principal; subject however to this qualification, that the state of the account ; power between the principal and the agent is not altered to the prejudice of the principal. On the other hand, if at the time of the sale the seller knows, not only that the person who is nominally dealing with him, is not principal but agent, and also knows who the principal really is, and notwithstanding all that knowledge, chooses to make the agent his debtor, dealing with him and him alone, then according to the cases of Addison v. Gandasoequi, 4 Taunt. 574; and Patterson . The same, 15 East. Rep. 62.; the seller cannot afterwards, on the failure of the agent, turn round and charge the principal, having once made his election at the time when he had the of choosing between the one and the other. In the same case, Bayley, J. expressed his opinion that, when a purchase is made by an agent, the agent does not of necessity so contract as to make himself personally liable; but he may do so. If he does make himself personally liable, it does not follow that the principal may not be liable also, subject to this qualification, that the principal shall not be prejudiced by being made personally liable, if the justice of the case is that he should not be personally liable. If the principal has paid the agent, or if the state of accounts between the agent here and the principal, would make it unjust that the seller should call on the principal, the fact of payment, or such a state of accounts, would be an answer to the action brought by the seller, when he had looked to the responsibility of the agent. But the seller, who knows who the principal is, and instead of debiting that principal, debits the agent, is considered, according to the authorities which have been referred to, as consenting to look to the agent only, and is thereby precluded from looking to the principal. But there are cases which establish this position, that although he debits the agent who has contracted in such a way as to make himself personally liable, yet, unless the seller does something to exonerate the principal, and to say that he will look to the agent only, he is at liberty to look to the principal when that principal is dis covered. ED. EXCHEQUER CHAMBER.-Feb. II. WRIT OF ERROR. JONES v. Wait. Deed of Separation between Husband and Wife. -A Promise to pay Money made by a Trustee for the Wife, in consideration that the Husband would execute a Deed of Separation from his Wife-Whether the actual signing "such a Deed by the Husband constitutes on his part a sufficient consideration to support the Promise made by the Trustee-Writ of Error from the Common Pleas. The original action was brought upon an agreement, whereby the defendant in that action undertook to pay a sum of 3661. in consideration that the plaintiff would execute a deed of separation from his own wife. In the court below it was contended, for the defendant, that separation between married persons was looked upon with disfavour by the courts, as being against the policy of the law and the interests of the public; and that although there were many instances in which such separations were allowed, and in which agreements collateral to them had been enforced, yet that a promise to make such a separation had a direct tendency to the total or partial revocation of the nuptial obligation, and that such a promise could never, therefore, constitute a sufficient consideration to support a promise to pay money. Upon the same side instances were given of cases where the performance of an act was legal or even commendable, and in which, nevertheless, a promise to pay money in consideration of such performance was not only void, but illegal. The most familiar example given under this head was that which arose out of the exercise all hands to be highly commendable, and even incumbent as a duty upon the elector to exercise the right which the law conferred upon him; but a promise to pay him a sum of money in consideration of his voting even for the candidate who was otherwise the object of his choice and estimation, was an illegal promise, and incapable of being enforced. The judgment of the Court of Common Pleas was to the following effect of the elective franchise. It was admitted on That as there were confessedly separations in matrimony which were legal, and as nothing appeared in the present. instance to show that it was in any degree in opposition to the law, the presumption must be in favour of its legality, and in such circumstances the promise to sign the deed of separation would constitute a good and sufficient consideration to support the promise to pay. That if a deed of separation had been actually executed, and if the husband being party to that deed had promised to pay a sum of money to a trustee for the wife, such a promise would be binding upon the husband; as would also a promise like that now in question, if made by a person who was an actual trustee for the wife; And that the actual signing of such a deed would constitute upon the part of the husband || it should take place with the approbation of a sufficient consideration to support such pro- the trustees; in which latter case the Court, mise upon the part of the trustee. in Rodney. Chambers, 2 East, 283. held it legal, on the ground of such approbation being registered.-ED. The Court was also of opinion, that as a matter of fact a deed of separation had been at the time of the agreement actually drawn up, although not actually executed, and that the defendant in that action was intended to be the trustee under that arrangement. The Court, therefore, gave judgment in favour of the plaintiff. This day the case was heard in error before the Judges of the Queen's Bench and the Barons of the Exchequer, when Lords DENMAN and ABINGER were of opinion that the judgment of the Court below should be reversed. The other judges were of opinion that the judgment should be affirmed, and who being the majority, Judgment was affirmed accordingly. COURT OF EXCHEQUER. MONK V. DYKE. Proof that defendant was a lodger in a house not sufficient to support a plea of justification to an assault by means of the defendant's possession of a dwelling-house. Trespass. Plea justifying assault, that defendant was possessed of a dwelling-house, and plaintiff forced himself into it, for which de injuria, and issue joined. At the trial it apcause defendant turned him out-Replication peared that the defendant was in fact a lodger in the house wherein the assault took place; and the point being reserved, Mr. Crowder now argued in support of the verdict, that the plea was proved by evidence of the defendant's being a lodger; a house might consist of one or more rooms, and it was enough if the plea alleged on the face of it that which might be considered with the proof. It is not necessary to state all the possession on which the defendant relies, but such a portion only as is necessary to maintain the action; it is tantamount to taking possession of one or more rooms a proof of occupation of any part of a dwelling-house is dwelling-house. enough to support a plea of possession of a Sed per Curiam-The plea is clearly unsupported by the proof: the defendant's argument goes to the length of saying, that a man in possession of a single brick might plead possession of a house. The rule must be made absolute to enter a verdict for the plaintiff. Hilary Term, 1839. Engagements between husband and a third party as a trustee for the wife in a Deed of Separation, are valid, and may be enforced also in a court of equity, although that court will not enforce articles of separation, or at least until it has seen whether from the circumstances of the case, there is or is not a probability of the man and wife being reconciled; but not unless a trustee be interposed between them. A sentence in the Ecclesiastical Court for the restitution of conjugal rights is a reason for the Court of Equity for refusing its assistance in such cases; and, in general, if such an agreement between man and wife is not fit to be enforced, the Court will, on a cross bill, order it to be delivered up, though there may be cases in which that Court will not grant relief to either party. See Worrall . Jacob, 3 Mer. 267; Fletcher v. Fletcher, 2 Cox, 99. See also Elworthy . Bird, 2 Sim. & S. 372; Compton v. Collinson, 2 Bro. C. C. 877. A deed of separation is avoided by the husband and wife again living together, Scholey v. Goodman, 8 Moore, 350; and in order that a deed of separation should be valid, it must provide for an immediate and not for a future separation at the will of either party.lar, because in the first place it did not follow See St. John v. St. John, 11 Ves. J. 526; Durant . Titley, 7 Price, 577; Hindley v. Westmeath, 6 Barn. & C. 200; Westmeath 7. Westmeath, 1 Dow, P. C. 519; except only where, in the deed providing for any future separation, it is made necessary that Sittings in Banco. JONES v. HAINES. Irregularity in Practice-Uniformity of Process Act-Necessity for rigidly adhering to the Forms in the Schedule. Mr. Wallwyn on a previous day moved to set aside the service of the copy of the writ, and all subsequent proceedings of the plaintiff for irregularity. It appeared that the body of the copy of the writ served was to the effect that the action was brought "on the case promises," and it was objected that it was irregu the exact formula given in the schedule to the Act for uniformity of Process. It rather embodied two forms; that "on the case," and that on "promises," which were certainly quite distinct actions, and as this, by its duplicity, might as well mean one as the other, it was bad for that reason, as also for uncertainty. The rule nisi having been granted, Mr. Humfry to-day shewed cause in support || of all the estate, real and personal, and to of the service, and urged that in such cases of merely clerical errors, the Court would not be too astute in detecting inaccuracies, but would rather lean towards the enforcing of the process of the Court. The defendant could not have been deceived at all. PARKE, B.-Oh yes he may; he says this will do as well for one as for another form, and that let him adopt whichever he may think it is meant, you can turn him round and say, that you meant to sue him in the other form, and shape a judgment as for want of a plea. We cannot do better than adhere rigidly to the forms laid down in the schedule. They are very plain, and there can be no mistake; but if we are to allow amendments and alterations, we shall give rise to a great laxity of practice, which cannot but prove detrimental to all parties concerned. The rule, therefore, must be made absolute. Rule absolute accordingly. PREROGATIVE COURT. WOOD & OTHERS v. GOODLAKE & OTHERS. In the matter of the Will of James Wood, (Continued from p. 270.) give it to his executors and their heirs in equal proportions, subject to his debts and to any legacies or bequests he might thereafter make. This was, therefore, a complete disposition of the whole estate to "his executors," those executors not being named in the paper. The third paper was dated in July, 1835, (there being no day of the month affixed,) and was alleged to be in the handwriting of the deceased, and to be signed by him; and it purported to give a legacy to the corporation of Glocester to the amount of 60,000!. reciting that he had, by a former codicil, given to the same corporation a legacy of 140,000l. There were traces in the evidence of other testamentary papers, which had been executed by the deceased, independent of the codicil referred to in the paper of July, 1835 (and which was not forthcoming)-namely, a will executed in 1823 or 1824; another testamentary paper had been seen in 1833; and it was in evidence that the deceased had complained that he had lost certain testamentary papers, which had been carried away without his knowledge. The history of the deceased it was necessary to advert to. He had been a draper and banker for many years at Glocester, as well as his father and grandfather before him; he was a man of some peculiarity and eccentricity of character, extremely par Sir H. JENNER in delivering judgment said, simonious, and by that parsimony, and attenthe case came before the Court under very tion to business, with certain adventitious extraordinary circumstances, whether it was circumstances (such as the bequest of proconsidered with reference to the character of perty from other persons), he had amassed at the deceased-to the immense amount of the his death a property, real and personal, of the property at stake-to the amount of the pro- value of nearly a million of money. He was perty alleged to have been disposed of by the unmarried; he had two sisters, who both preinstruments to the manner in which the deceased him; one of them died unmarried in papers appeared to have been dealt with both 1824; the other, Mrs. Willey, died in 1833, a before and after the death of the deceased, widow, without child. The nearest relations and to the way in which the probate of the of the deceased, at his death, (as far as the Court had been attempted to be obtained;- Court had any knowledge,) were two second all these circumstances, together with the cousins, both of whom were parties in this nature and extent of the evidence, made it a suit. One was Mrs. Elizabeth Goodlake, the case of a more complicated nature than had other Mr. Edward Hitchings. The interest ever come before the notice of the Court. of Mrs. Goodlake had been admitted by the The question to be determined arose with re- parties who propounded the papers of the 2d spect to certain testamentary papers which and 3d of December, 1834. The interest of had been propounded as the will of the de- Mr. Hitchings had not been admitted by the ceased, Mr. James Wood, of Glocester, who other parties; but he had been admitted as a died on the 20th of April, 1836, aged about contradictor to the will; he was, therefore, 80. The papers were three in number; two just as much entitled to the protection of the of them bore date on the 2d and 3d of De-Court as if he had established his interest. cember, 1834, and were propounded as together containing the will of the deceased, both being drawn up by Mr. Chadborn, the confidential solicitor of the deceased, and who was appointed in one of the papers an executor and universal legatee. That paper purported to appoint four gentlemen executors, and to "desire" that they would retain to themselves all the personal property subject to debts and such legacies as he should afterwards direct. That paper was signed by the deceased, but was not attested by any witness. The second paper, dated the day following, was executed by the deceased in the presence of three witnesses, and purported to dispose He was the more entitled to the Court's protection, because he had offered an allegation pleading his relationship to the deceased; which the Court, thinking he had been too late, had rejected. Mr. Hitchings had ap pealed to the Judicial Committee, who had been of opinion that this Court had not done right in rejecting the allegation, and had directed it to be suspended till the hearing of the cause. These two persons, then, Mrs. Goodlake and Mr. Hitchings, appeared in the characters of next of kin, the interest of one being admitted, and that of the other not being admitted, but he being admitted a contradictor; and if the Court should be of opinion that the will is not proved, they would be entitled, in the event of their establishing their relationship, to the whole personal property, amounting to 700,000l. or 800,000. It did not appear who the deceased's heir-at-law was; the deceased had stated that his heir-at-law was in America. (To be continued.) INSOLVENT DEBTORS' COURT. INSOLVENTS ON BAIL. rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure in your bailiwick as the said C. D. or any person in trust for him, was seised or possessed of, on the said day of in the year of our Lord (a), or at any time afterwards, or over which the said C. D. on the said day of (a), or at any time afterwards, had any disposing power which he might, without the assent of any other person exercise for his own benefit, to hold to him the said goods and chattels as his It has been the custom since the passing of lands, tenements, rectories, tithes, rents, and goods and chattels, and to hold the said proper the statute abolishing arrest for debt in cases hereditaments respectively, according to the where insolvents had been liberated on bail nature and tenure thereof, to him and to his until their hearing, when they were heard assigns, until the said two several sums of upon their petitions, and ordered to be dis-£ and £, together with interest on the said two several sums of £- and £charged from the gaoler, in whose custody at the rate of four pounds per centum per they might happen to be, to allow them to go annum, from the said day of (b), at large at once without waiting for the order shall have been levied. Therefore we comof adjudication, which was obtained after-mand you, that without delay, you cause to be wards. delivered to the said A. B. by a reasonable price and extent, all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beasts of the plough, and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure in your bailiwick as the said C. D. or any one in trust for him, was seized or possessed of, on the said day of -(a), or at any time afterwards, or over which the said C. D. on the day of (a), or at any time afterwards, had any disposing power which he might without the assent of any other person exercise for his own benefit, to hold the said goods and chattels to the said A. B. as his proper goods and chattels, and also to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns, until the sad two several sums of £- and £, together with interest as aforesaid, shall have been levied, and in what manner you shall have executed this our writ make appear to us at Westminster, immediately after the execution thereof, under your seal and the seals of those by whose oath you shall make the said extent and appraisement, and have you there then this writ. Witness, Thomas Lord Denman, at Westminster, the day of in the year of our Lord. This day Mr. Commissioner Law declared, that he should not pursue the course: the men must continue in custody. They were in custody when they appeared, and the gaolers were not to take notice of a verbal order. He should therefore not pronounce the discharge on the insolvents who were on bail until the adjudications were prepared in writing in the office of the court. FORMS OF WRITS. No V-Writ of Elegit on an order for pay- wards the said A. B. came into our said court before us at Westminster, and, according to the form of the statute in such case made and provided, chose to be delivered to him all the goods and chattels of the said C. D. in your bailiwick, except his oxen and beast of the plough, and also all such lands, tenements, No. VI.-Writ of elegit on a rule for payment of money and costs made in an inferior Court and removed into Queen's Bench. VICTORIA, by the grace of God, of the United Defender of the Faith, to the Sheriff of kingdom of Great Britain and Ireland, Queen, greeting. Whereas lately in [insert the style of the court], by a rule of the said court, entitled, &c. [as the case may be], the sum of (a) The day on which the costs of removing the rule of the inferior court into the Court of Queen's Bench were taxed. |