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In such a case, regarding the question on the ground of authority simply, we can only inquire, which, from the circumstances under which it was used, is entitled to the greatest weight. We think it will be found, that in most, if not all of the cases, when we meet with the strongest language against granting relief, there was no sufficient evidence of any mistake having occurred; or else there were other controlling circumstances, going of themselves to settle the case, so that even if those same courts had held mistakes of law to be remediable under proper circumstances, and if the pretended mistake had been distinctly proved in these cases, they would have decided them precisely as they actually did decide them. Now, where a judge has made up his mind that the decision should be a certain way, let there have been a mistake or not, the question of mistake becoming thus little more than a speculative one, he might very possibly, in respect to it, express himself in language which he would find it exceedingly hard to stand by, in a case where the party seeking relief had justice on his side throughout, and the mind of the judge was subjected to the pressure of the single, naked question, whether a mistake of law, undeniably shown, should be allowed to divest one man of his indisputable property and rights, and to establish or confirm in another the possession of property to which he as clearly has no honest right. In regard to the decisions on the other side, some of them were put expressly upon the ground of mistake, and many of the others, if we correctly apprehend them, were actually decided upon that ground, and without such mistake the decision must have been the other way. On the whole, in view of all the cases on the subject, of the language used in them, and the circumstances under which it was used, we cannot but regard the actual preponderance of authority as unequivocally in favor of the doctrine, that mistakes of law may afford good cause for relief. C. M.
Selections from 9 Adolphus & Ellis, Part 1; 1 Perry & Davison, Part 4; 6 Nevile & Manning, Part 5; 6 Scott, Part 5; 4 Meeson & Welsby, Part 5; and 5 Meeson & Welsby, Part 1.
ARBITRATION. (Enlargement of time.) An arbitrator who had power to enlarge the time for making his award by indorsement on the order of reference, made the following indorsement:—“I direct that a rule of this Court shall be applied for by counsel's hand, to enlarge the time of making my award.” No such rule was applied for; but the parties subsequently attended meetings before the arbitrator, and made no objection to the regularity of the enlargement: Held, first, that the indorsement was itself a sufficient enlargement of the time: but secondly, that if it were not, the irregularity had been waived. Hallett v. Hallett, 5 M. & W. 25.
2. (Award, when sufficiently final–Proof of allegation of award made.) Where an action of assumpsit, the declaration in which contained a count upon a promissory note for 22l. 11s. 9d., and a count upon an account stated for 30l. was referred to arbitration, and the arbitrator found that the plaintiff had good cause of action for, and was and is legally entitled to have, claim, and recover of and from the defendant the sum of 22l. 11s. 9d., being the amount of the promissory note mentioned in the pleadings in the said cause: Held, that the award was bad, inasmuch as it did not dispose of the issue upon the account stated. (2 C. & M. 722.) In an action upon the award, the declaration stated that the original action was referred by a rule of Court to A. B., who duly made his award of and concerning the premises so referred to him, and did thereby find, &c. The defendant pleaded that the said A. B. did not duly make and publish his award of and concerning the premises referred, in manner and form, &c.: Held, that the production of the award and the rule of Court was sufficient prima facie evidence to support the issue on the part of the plaintiff, until the validity of the award was impeached by evidence dehors on the part of the defendant. (11 East, 193.) Gisborne v. Hart, 5 M. & W. 50. BILLS AND NOTES. (Presentment of foreign bill payable after sight.) A bill of exchange was drawn in duplicate on the 12th of August at Carbonear in Newfoundland, payable ninety days after sight, on S. & Co. in England, for the freight of a voyage from Liverpool to Carbonear. The bill was not presented for acceptance to S. & Co. until the 16th of November. Carbonear is twenty miles from St. John's, with daily communication between those places; and from St. John's there is a post-office packet three times a week to England, the average voyage being about eighteen days: Held, that the jury had properly found that the bill was not presented for acceptance within a reasonable time, no circumstances being proved in explanation of the delay. Straker v. Graham, 4 M. & W. 704. 2. (Consideration.) To a declaration in debt on a promissory note for 24l., dated 3d January, 1837, made by the defendant, payable twelve months after date to the plaintiff, the defendant pleaded that one J. W., before and at his death, was indebted to the plaintiff in 24l. for goods sold, which sum was due to the plaintiff at the time of the making of the promissory note in the declaration mentioned; that the plaintiff, after the death of J. W., applied to the defendant for payment, whereupon, in compliance with his request, the defendant, after the death of J. W., for and in respect of the debt so remaining due to the plaintiff as aforesaid, and for no other consideration whatever, made and delivered the note to the plaintiff, and that J. W. died intestate, and that at the time of the making and delivery of the note, no administration had been granted of his effects, nor was there any executor or executors of his estate, nor any person liable for the debt so remaining due to the plaintiff as aforesaid; and the defendant averred that there never was any consideration for the said note except as aforesaid : Held, that the plea was a good answer to the declaration. (1 C. & J. 231. See Serle v. Waterworth, 4 M. & W. 9.) Nelson v. Serle, 4 M. & W. 795. 3. (Notice of dishonor, evidence of from subsequent admission— Pleading.) On an issue joined in an action by indorsee against maker of a promissory note, on the fact of presentment, a promise made by the defendant to pay the bill, after it became due, is prima facie evidence to prove the issue. Crowon v. Worthen, 5 M. & W. 5. CONSPIRACY. (Indictment for, when too general.) An indictment charged in the first count, that the defendants unlawfully conspired to defraud divers persons, who should bargain with them for the sale of merchandise, of great quantities of such merchandise, without paying for the same, with intent to obtain to themselves money and other profit. The second count charged that two of the defendants, being in partnership in trade, and being indebted to divers persons, unlawfully conspired to defraud the said creditors of payment of their debts, and that they and the other defendant, in pursuance of the said conspiracy, falsely and wickedly made a fraudulent deed of bargain and sale of the stock in trade of the partnership for fraudulent consideration, with intent thereby to obtain to themselves money and other emoluments, to the great damage of the said creditors. Held, 1, That the first count was not bad for omitting to state the names of the persons intended to be defrauded, as it could not be known who might fall into the snare; but that the count was bad for not showing by what means they were to be defrauded. ' 2, That the second count was bad for not alleging facts to show in what manner the deed of sale was fraudulent. (2 Stra. 999; 1 East, 583; 2 B. & Ald. 204.) Peck v. The Queen, 1 P. & D. 508. CONTRACT. (Cannot be repudiated in part, on ground of fraud.) A. engaged to convey away certain rubbish for B. at a specified sum, under a fraudulent representation by B. as to the quantity of the rubbish which was to be so conveyed : Held, that in an action for the value of the work actually done, A. could recover only according to the terms of the special contract; although when he discovered the fraud, he might have repudiated the contract, and sued B. for deceit. (3 Camp. 351; 9 B. & C. 59 ; 1 Ad. & E. 40.) Selway v. Fogg, 5 M. & W. 83. HUSBAND AND WIFE. (Action by husband, when wife to be joined in.) Lands were demised to A. & B. his wife for twenty-one years. A. afterwards granted a lease of them to C. for nine years: Held in an action brought by A. alone, for an injury to his reversionary interest, that the allegation that the reversion belonged to him was well supported, and that the wife need not be joined in the action; but that even if she ought, the objection should have been taken by plea in abatement. Wallis v. Harrison, 5 M. & W. 142. INFANT. Assumpsit to recover the amount of a tailor's bill, for clothes supplied to the defendant's testator in his lifetime. Plea, infancy of the testator. Replication, necessaries; on which issue was joined. On the trial it appeared that the testator was a minor at the time when the goods were supplied, but it was proved that he had an allowance of 500l. a year, besides his pay as a captain in the army. The learned judge at the trial was of opinion that if the minor had a sufficient income allowed him to supply him with necessaries suitable to his condition for ready money, he could not contract even for necessaries upon credit: Held, that this was a misdirection. Burghart v. Hull, , 4 M. & W. 727. LIMITATIONS, STATUTE OF. (When it begins to run on contract of indemnity.) A right to sue upon a contract of indemnity against the costs of an action is first vested when the