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She always insisted that it was the defendant's child, and the allowance was still paid.

In July, 1861, it was withdrawn by the defendant's attorney.

In September, 1861, she took out a bastardy summons against the defendant, upon which he appeared and attended, and an order was made upon him for payment of a weekly sum for the support of the second child.

In November, 1861, this order was quashed on appeal; but the plaintiff, being then an inmate in a workhouse, and not being able to retain an attorney, had to appear in person.

In February, 1862, the present action was brought. The plaintiff was examined, and swore positively that the defendant was the father of the second child, and that she had not had intercourse with any one else until after its birth ; nor was there evidence that she had.

On the other hand, the defendant swore positively that he had not had intercourse with her after his marriage, nor was there evidence (other than the plaintiff's) that he had.

There was no other positive or express evidence than this, that the plaintiff's charge against the defendant as to the second child was false.

There was no evidence of any other molestation after the annoyance upon which the withdrawal of the weekly sum had been threatened in 1860, except that charge; and

COCKBURN, C. J., ruled that the continuance of the payments was a waiver of the right to withdraw the allowance on account of any prior breach (a).

At the close of the case for the plaintiff,
Mills submitted that there was no evidence that the

(a) This was in accordance with the decisions as to waiver of breach of condition for re-entry on non

repair or non-insurance or the like, and was doubtless correct. Vide Doe d. Bullar v. Jones, 5 Esch. 498.




plaintiff had molested the defendant by coming to or near bis house, and that the rest of the plea was bad, because the scope of the agreement restricted it to that particular kind of molestation which the parties had contemplated and referred to at the time, and which related to the first child; and that it could not be deemed to refer to any future child. It might as well be contended that it would apply to an action for any past or future debt.

COCKBURN, C. J., thought that the condition in the agreement would be broken by a false and fraudulent charge made, as the plea alleged it to have been, only for the purpose of molestation; but, if necessary, he would reserve the point.

Mills then opened a case for the plaintiff, founded on the truth of the charge of paternity as to the second child.

At the close of the case,

COCKBURN, C. J. (to the jury).—The plaintiff is entitled to recover under the agreement, unless the defendant makes out that she molested him, by falsely imputing to him that he was the father of the second child (a). And

(a) In Gibbons v. Voullons, 8 debt would clearly be no breach. Com, B. Rep. 483, it was held, that But although in cases of covenant on a covenant by creditors, in a against claims of others it is lawful deed of composition, not to "mo- claims which are meant, i.e. claims lest" the debtor, “contrary to the for which there is legal ground intent of the deed,” an action (Young v. Raincock, 7 C. B. 300), against him for a debt included in yet in cases of contracts not to mothe deed was a breach. But that lest, of course only a groundless suit, was because, looking to the scope whether for an old claim or a new of the deed, it was impossible to one, could be a breach. As, howdoubt that suing him for the old ever, the contract can only include debts was the very species of mo matters existing at the time, or lestation intended. A part, how- matters unlawful per se, and the ever, from express contract, the charge in this case related to a new mere suing a man even maliciously matter, and was prima facie lawful, and without reasonable ground is it is conceived the direction was no cause of action (Davis v. Jen- right, that it would not be a breach kins, 11 M. & W. 745); so that in unless it was a false and fraudulent that case suing the debtor for a new charge. VOL. III.





not only falsely, but fraudulently and knowing it to be a false charge (a).

The first question for you is, whether, in fact, the defendant was the father of the child ?

Secondly, even if he were not, did the plaintiff really believe bim to be so, or was the charge wilfully false ?

Of course, if the defendant never had intercourse with her after his marriage, it was wilfully false.

Was it wilfully false? That question is for you on the whole of the evidence, without regard to the decision of the magistrates, one way or the other.

The jury could not agree, and eventually

juror withdrawn.

(a) This would be so, whether a bastardy summons be a civil or criminal proceeding. If criminal, it could be no cause of action apart from express contract, unless malicious and without reasonable or

probable cause; if civil, it would not be a cause of action, even although malicious and without reasonable cause, apart from express contract: it is a civil proceeding, for the defendant may be examined.

Court of Common Pleas, Westminster, coram Byles, J.

in a




NEWALL. A deed signed THIS was an action brought by the company against in blank is not executed ; and the defendant as a shareholder, to recover the amount of a calls, the point

por first call of 5s. per share on 500 shares in the company. arises under

The declaration, in the usual statutable form, alleged If a party exe. that the defendant was the holder of certain shares in the cutes a deed under a false company, and that certain calls had been duly made, &c. representation as to its effect Pleas : 1. Never indebted. or contents, it is avoided by 2. That the defendant only agreed to become a sharefraud.

holder conditionally upon his obtaining a certain sum of money, which at the time of the commencement of the action he had not obtained.

3. That he was induced to enter into the agreement and 1862. to execute the deed by the fraud and covin of the

The Consols plaintiffs.


ASSOCIATION Shee, Serjt., for the plaintiffs.

NEWALL. Giffard for the defendant.

It appeared that the defendant is a weaver and pattern designer and overlooker of a silk factory at Leek, in Staffordshire; and the plaintiffs' case was, that when the company was projected the defendant approved of it very much, and agreed to take 500 shares at 11. a share, and also put his name down for 500 shares for his wife, and that he afterwards signed and executed the deed of settlement of the company, under which he was liable to be called upon to pay an instalment of 5s. per share. The plaintiffs’ agents proved the execution of the deed by the defendant, and the deed was put in evidence. The schedule contained the signatures of the directors and shareholders. It was proved that the calls were due.

This was the plaintiffs' case.

In support of these pleas the defendant stated that there was not the number of 500 shares opposite where he wrote his name when he wrote it, and that although he said he should like some shares in the company, yet he said he could not take them unless some money which he was expecting was paid to him. The plaintiffs' agents told him he need not take the shares unless he liked, nor unless his money came to him as he expected. They further told him that the company would soon pay 20 per cent., like the Westminster Joint-Stock Bank, and pay also a handsome bonus, and persuaded him to sign his name to a document, the nature of which was concealed from him, and which he believed only to be a list of names of persons proposing to take shares, and did not know to be the deed of settlement. His money did not come as be expected, and when he was written to about



1862. the shares, he wrote refusing to take them, and repudiating

having anything to do with them. It appeared, on looking THE CONSOLS INSURANCE at the names of the directors, that one of them was that

of “ Peter Morison.” The learned counsel for the defendant contended that the defendant's plea of fraud was made out, that he was an illiterate man who had been deceived, and induced to sign his name by false representations, and that he was not bound by his signature. And also that under the plea of never indebted he was entitled to the verdict, as he had not really executed the deed.

Byles, J., at first doubted, but ultimately acceded to this latter view.

The learned Judge, in summing up, left it to the jury to say, first, whether the defendant had executed the deed, because if, when he wrote his name, the figures “ 500" were not opposite his name, but placed there afterwards, he had not in law executed the deed (a); and, secondly, whether, when he wrote his name agreeing to take shares, it was conditionally that he got paid the money he expected ; if so, the condition not having been performed, the agreement would not be binding upon him—as to this, there was a legal difficulty, which would arise afterwards, as to a verbal condition varying his written agreement; and, thirdly, whether the nature of the instrument he was signing was concealed from him, and whether he was told that his signature would not bind him to take the shares. This would be fraudulent, and go to the root of the contract (6). Their finding on these issues must depend on the amount of credit they attached to the respective witnesses.

The jury found a verdict for the defendant.

(a) See Swan v. The Australian · Company, Excb., T. T. 1862.

(6) See Wright v. Campbell, Vol. II., p. 393.

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