22 Court of Common Pleas.-Paine v. Hathaway. the speaking, its determination and sentence, but the month and it is the determination or sentence of the proper book, or docket, or record, which he year of his so doing, upon law. It is the conclusion which naturally shall sign; which day of the month or year follows from the premises of law and fact. It shall also be entered upon the margin of the is the province of the court to apply the law roll or record, when the judgment shall be so to the facts. The judgment springs into ex- entered; and such judgment as against puristence when this application of the law to the chasers bona fide of a valuable consideration, facts is actually made by the court. Such shall in consideration of law be judgments application is, technically speaking, the judg- only from such time as they shall be signed, ment in a given case. thing more than the award of the court, for or whereof they are entered." The judgment is no- and shall not relate to the first day of the term against either party. This, in contemplation of law, is a judgment rendered, even though statute which required that the record of judgPrior to the Revised Statutes, we had no no record should ever be signed, or filed, or ment should be filed before execution issued; the judgment docketed. Under the former nor was it necessary under the practice in practice of the Supreme Court, a rule for England; yet under our practice, the judgjudgment ni.si.was first entered; after the ex- ment roll was required to be filed with the piration of four days therefrom the judgment became absolute, though no record was ever filed. Under the present rules, it is perfect from the entry of the rule for judgment, subject to be vacated in the event of a motion in arrest, within four days. Under the 29th rule, it becomes absolute after two days from the entry of the rule. judgments, creditors, purchasers, or mortgagees, until the record thereof shall be filed and docketed; 2 R. S. 284, § 12; yet under the statute, neither the signing or filing of the record is essential to the validity of the judgment, except as the foundation for proceedings upon the judgment; nor is the docket essential, except for the purpose of a lien land, and securing a priority of lien as against purchasers and incumbrancers. upon clerk before the execution issued, 20 J. R. 309, 10 Wend. R. 544. Although under our Revised Statutes it is declared, that no judgment shall be deemed valid, so as to authorize any proceedings thereon until the record shall have been signed and filed, 2 R. S. 284, 2 ed. § 11, and that no judgment shall affect The docket of a judgment is merely an in-real, or have any preference as against other any lands, tenements, real estate or chattels dex invented by the court for their own ease and the security of purchasers, to avoid the necessity of turning over the rolls at large. It never was essential to the validity of the judgment between the parties. The practice of docketing judgments in England first obtained in the court of Common Pleas where the docket was formerly entered in a separate roll, called the Docket Roll; but in the King's Bench the docket was nothing more than a note on parchment, or paper, containing the christian and surnames of plaintiff and defend- contemplate a judgment antecedent to the The very language of the statute seems to ant, the damages recovered, with the term, and signing number of the judgment roll. This was re-eting; for it speaks of a judgment before the or filing of the record, or to the dockquired to be done by the attorney on entering doing of either of these acts. or bringing in of the roll. Before the docket English statute of 29th Car., above cited, nor Neither the the judgment bound the land. At common law, a judgment, when entered cation to the judgment as between the parties. the provisions of our statute, have any applithe roll, related back to, and was a judg- It has been repeatedly held that the former ment as of the first day of the term. If the statute was only made for the benefit of purjudgment was signed in any part of the term, chasers, and that none but a purchaser should or in vacation, it always related back to the be permitted to say that a judgment was signed first day of the term of which it was entered, as of any other day than that of the first day notwithstanding the death of the defendant of the term of which it was entered; that before judgment actually signed. It is true without signing it was good between the that this relation of judgments to the first day ties. Duke of Norfolk's case, 1 Salk. 401, of term, was taken away as against purchas-7 Mod. R. 2. 2 L'd Raym. 819. It has also ers under the statute of 29th Car. 2, ch. 3, § been held, that as the English statute only re14, by which it was enacted "the judge or lated to purchasers, that as between creditors officer who shall sign any judgment, shall, at a judgment entered in vacation related back the signing of the same, set down the day of to, and was a judgment as of the first day of upon par this demand was liquidated, it could have been set off under the notice, without any reference to the pleas. For these reasons, we think the justice erred in disallowing the set off. Court of Common Pleas.-Paine v. Hathaway. the preceding term. Robinson et al, v. Tonge Dunn et al, 3 Peere Wms. R. 399, our statute extends to incumbrances as well as purchasers. The statute only alters the common law as to the class of persons therein named, and as to the relation of the lien upon real estate. The common law rule as to the judgment debtor, except as thus modified, still remains in force; as against him a judgment when docketed, is a judgment as of the first day of the term in which it is entered. If we apply this rule to the case at bar, although the judgment was not docketed until the 25th day of August, 1843, yet, as the first day of that term was the 11th day of August, it was as between the parties a judgment rendered when the suit was commenced. It must, at all events, as between them, be regarded a valid judgment from the date of the rule. Notwithstanding our 29th rule, it is absolute from the date of the rule for all purposes except that of a motion in arrest. As the act of 1840 fixes the costs at $20, nothing remained to be done for the ascertainment of the amount. It was most strenuously insisted on the argument of the cause, that this was not a demand which could be set off, as no action could be maintained upon it. We think otherwise. This is one of that class of demands where the law imposes an obligation to pay, and implies a contract to do so. For contracts implied by law are such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party; and thus it is that every person is bound, and hath virtually agreed to pay such particular sums of money as are charged upon him by the sentence of the court, or assessed by the interposition of the law; for it is a part of the original contract entered into by all mankind who partake of the benefits of society, to submit in all points to the municipal constitutions of that state of which each individual is a member. Whatever, therefore, the law orders one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge. It is upon this implied agreement, that a plaintiff has a right to institute a second action, founded merely on this general contract, to recover such damages or sums of money as are assessed by a jury, or adjudged by the court, to be due from the defendant to the plaintiff in a former action. If this is a demand arising upon an implied contract, as our statute of set off extends to such demands, as well as to demands arising upon express contracts, as He was right in not compelling securing security for costs, even if the plaintiff was an infant. For although the language of the statute is, that where a suit shall be commenced in any court, the defendant may in certain cases compel security for costs; yet the whole of this statute, taken together, evidently was only intended to apply to courts of record, having clerks and regularly licensed attorneys; for it directs that the security shall be filed with the clerk of the court, and notice given to the attorney. The whole of its provisions seem directed solely to courts of record-justices' courts not being courts of record, and of limited jurisdiction, cannot take any thing by implication: as the statutes, defining their jurisdiction, give no such power, we are of the opinion that a justice is not clothed with it. ODDITIES CS GREAT MEN.-The greatest men are often affected with the most trivial circumstances, which have no apparent connection with the effects they produce. A gentleman of considerable celebrity always feels secure against the cramp when he places his shoes, on going to bed, so that the right shoe is on the left of the left shoe, and the toe of the right next to the heel of the left. Dr. Johnson used always, in going up Bolt court, to put one foot upon each stone of the pavement; if he failed, he felt certain the day would be unlucky. Buffon, the celebrated naturalist, never wrote but in full dress. Dr. Routh, of Oxford, studied in full canonicals. An eminent living writer can never compose with his slippers on. A celebrated preacher of the last century could never make a sermon with his garters on. A great German scholar writes with his braces off. Reiseg, the German critic, wrote his commentaries on Sophocles with a pot of porter' by his side. Schlegel lectures, at the age of 72, extempore, in Latin, with his snuff-box constantly in his hand; without it he could not get on. Lord Byron composed his Don Juan under the influence of Hollands and water. 1 In Chancery.-Day v. Day-Perrott v. Novelle. ENGLISH CASES. IN CHANCERY. Before Sir KNIGHT BRUCE, Vice Chancellor. INFANTS-SETTLEMENT-JURISDICTION. A court of equity has no authority to sanction an arrangement affecting property settled upon infants, even though it be of opinion that such arrangement would be beneficial to them. was, therefore, filed for the purpose of obtaining this sanction. Bacon, for the plaintiff.-The effect of this plan will be to give Mrs. B. Day and her children an absolute interest in oneninth part of the property, instead of a mere contingency in, possibly, a greater part, or even the whole; but, on the other hand, there is the possibility, that, by her dying during the lifetime of the last tenant for life, she and her children might take nothing. The payment of the fund would, of course, not take place until the death of the last tenant for life under the testator's will; but subject to that event, the interest of Mrs. Day in the one-ninth would be vested in the trustees of her settlement. The parties, therefore, ask the sanction of the court to this arrangement. Sir KNIGHT BRUCE, V. C.-This seems very like asking the Court to pass an act of Parliament. Something of this sort was attempted in Peto v. Gardner, 2 You. & C. C. C. 312 Jur. 969, and I held that I had no jurisdiction. I do not hesitate to say, that I think such an arrangement as that proposed would be for the benefit of the infants, but I consider that I have no jurisdiction to sanction it. It is in effect to unsettle property already subject to the terms of a settlement, and that parliament PERROTT v. NOVELLE.-12th July, 1845. By a settlement made on the marriage of Mr. and Mrs. Day, certain personal property was vested in trustees, upon trust to pay the interest to the husband for his life, and, after his decease, upon trust to pay the interest to the wife for her life, and, after the decease of the husband and wife, upon trust to divide the principal among the children of the marriage as the husband and wife should jointly appoint, and, in default of such appointment, to divide the same among the children in equal shares. Mr. Day also by the settlement, covenanted with the trustees, that, if any property should, during the coverture, devolve upon himself or his wife of the value at any one time of 3001. he would settle and assure the same upon the like trusts as those before declared of the property thereby settled. A relative of the wife, by his will, after giv-alone has authority to do it. ing various legacies, bequeathed the residue of his estate and effects to several parties in succession for life, and declared, that, on the death of the tenant for life, the same should be divided in equal shares between and among the children of his, the testator's brother Richard, who should be then living. Mrs. Day was one of the nine children of this brother Richard, and Richard was now living. As one or more of the tenants for life was also surviving, Russell and Mylne, on behalf of the dean arrangement was entered into by the fa- fendant, moved, that the plaintiff might be mily, and other persons interested in the ordered to give security for costs. The testator's estate, by which it was proposed bill was filed on the 3d May, and the plainand agreed that the residue given by the tes- tiff described himself as a civil engineer, tator's will should be considered as now residing at 15 Mornington place, &c., and divisible, and that Mrs. Day, as one of the that he was a native subject of the kingdom nine children of Richard, should be de- of France, where he has generally resided. clared entitled to one-ninth of the whole. The affidavits in support of the motion Mr. Day having entered into the covenant stated, that, on 31st May, on inquiring at in his marriage settlement, and this property 15 Mornington Place, a servant informed far exceeding the value of 3001. could not, the defendant that Louis Jerome Perrot without the sanction of the court, concur the plaintiff had formerly lodged there, but in the proposed arrangement. The Bill that he had given up his lodgings three SECURITY FOR COSTS. A foreigner, describing himself in his bill as of a particular place in England, but as generally residing in France, ordered to give security for costs, on affidavit that he had quitted his lodging, and that his usual abode was in France, and that his visit to England was only for temporary purposes. In Chancery.-Shaw v. Hill. weeks ago, and had gone back to France, |fice of secretary. It was further charged where he was residing. The affidavits that Hill had since received various sums further stated, that the plaintiff was a civil of money on account of the society, which engineer, and resided at Vaugirard, near Paris, where he had an establishment, and that such place is that of his usual residence; and that he visits England occasionally, and only for temporary purposes. That, to the best of the deponent's belief, the plaintiff is not, and never was a housekeeper in England; but, that, when he visits this country, he resides at an inn, or hotel, or in lodgings. he had not paid to the treasurer, nor had he accounted for them to the directors; and that the defendant Swain, who had refused to join in the suit had colluded with Hill for the purpose of preventing the society from compelling Hill to pay what was due. The bill prayed that the defendant Hill might be restrained from acting as or pretending to be secretary of the said society, and from collecting or receiving the debts of the said society; and that the defendant Swain might also be restrained from collecting or receiving the debts of the said soci Sir KNIGHT BRUCE, V. C.-His honor made the order for the usual security for costs, or, in the alternative, that the plain-ety. By the answer, it was insisted that Hill tiff should pay 1007. into the hands of the Register (the defendants consenting) as such security. SHAW v. HILL. 24th April, 1845. INJUNCTION-LOAN SOCIETY. When by the rules of a society, a salaried officer is bound to pay money received by him by virtue of his office to the treasurer of the society, and he retains such money in discharge of arrears of his salary, alleged by him to be duc, the Court will restrain him from further acting as such salaried officer. was still secretary, for he had never been legally discharged. By the 13th rule the secretary was not to be discharged without sufficient reason, and without the consent of three-fourths of the shareholders, or without three months' notice. None of these requisites had been complied with. The sums he had received, it was insisted, he had a right to retain in satisfaction of his claim for arrears of salary; but he was ready, and thereby offered to account for the same. There was still an existing partnership, and the question was one simply of account. Hislop Clarke, for the plaintiff. C. P. Cooper and Watson, for the defendant. The bill was filed by the plaintiff and seventeen others who with the defendant Swain, were the shareholders in a loan and discount society, and, with the other defendant Hill, had been the shareholders from Sir KNIGHT BRUCE, V. C.-Whatever the time of its foundation down to Decem- may be the defendant Hill's claim, whether ber 1844. It stated that Hill had acted as just or unjust, or whether or not he has secretary; that, by the 6th rule of the so- ceased to be secretary, he has no right to ciety, it was provided, that if a shareholder hold these moneys. It was part of his duty became security for a borrower, who after- to hand them over to the treasurer. If he wards made default in his payments, and has claims he must enforce those claims in did not, after seven days' notice, pay the a legal way. I think he ought not to be amount due to the society, the share or permitted to receive the moneys. Without shares belonging to the surety should be giving any opinion as to his claim, I have sold to make good the same; that, by the come to the conclusion, that the plaintiff's 8th rule the secretary was to receive all undertaking to abide by such decree or ormoneys, and he was to pay them over to the der, if any, for a dissolution of the parttreasurer, and was to conduct the corres-nership of the society or association in the pondence, and prepare an annual balance pleadings mentioned, and in respect thereof, sheet. It was then charged that Hill had as the court may make, let the defendant become security for a borrower, who had made default; and that, notice had been served on him according to the 6th rule, the shares of Hill had been sold to pay the amount due, and he had ceased to be a shareholder and had been dismissed from his of Hill be restrained from collecting the moneys due and payable to the society, and from representing himself to be secretary or agent for the said society or association; and let the defendant Swain be restrained from collecting or receiving the debts of English Cases.-Court of Queen's Bench. the said society or association. But this of them die without issue, then, on the deorder is not to interfere with any right cease of their respective husbands and which Hill or Swain may have to receive themselves, their fortunes to revert to their any dividends or profits accruing on their surviving brothers, share and share alike." respective shares, if any. The will, with the memorandum, was proved by the executors. Ann Boydell married the plaintiff Joseph Eaton, but no settlement was made of her property. Thomas Boydell and William Boydell died The undertaking was given on behalf of the plaintiff's, and the order was accordingly made. EATON V. BARKER.-May 28th and 31st, in the lifetime of Elizabeth Eaton, who died 1845. WILL-CONSTRUCTION-" SURVIVING." A testator, by his will, directed his daughters' fortunes thereby bequeathed to be settled, to the intent, that, should any of them die without issue, then, on the decease of their respective husbands and themselves, their fortunes should revert to their surviving brothers, share and share alike. A daughter died in the lifetime of three brothers, leaving a husband, who survived the three bro thers-Held, that the husband was entitled to his wife's fortune absolutely. in 1837, without issue, leaving her brothers Josiah, John, and James surviving. The plaintiff took out letters of administration to his deceased wife, and, on the death of the survivor of the three brothers, Josiah, John, and James, filed his bill against the personal representative of the surviving trustee of Thomas Boydell's will, and against the representatives of those three brothers, praying that he might be absolutely declared entitled to 2515l. 19s. 3d. stock, the fortune of his deceased wife, and then standing in the name of the personal representative of the surviving trustee of the will. Wigram and Jolliffe for the plaintiff.— The words of this will are merely prefatory, and no trust was created. But, assuming that a trust was created, yet the gift to the daughter being clearly a vested interest, was not devested, for the contingency upon which it was to be devested, namely, the event of the brothers surviving her and her husband, had not occurred. Harrison v. Foreman, 5 Ves. 207. Swanston, Russell, Stinton, Burdon, and Micklethwaite, for the several defendants. Thomas Boydell, by his will, dated in 1795, devised and bequeathed his freehold and leasehold estates to two trustees, upon trust to settle and assure the same unto and to the use of his sons Thomas, Josiah, William, John, and James, in such parts and shares, and under and subject to such charges, in favor of his daughters, and for payment of his debts, (if any) as his personal estate would not extend to pay, as were set down or mentioned in the memorandum or paper writing thereunto annexed and subscribed by him. And he thereby expressly directed, that the annuities and legacies intended for his said daughters should be secured to them respectively upon and for the estates mentioned and intended Sir KNIGHT BRUCE, V. C.-My present to be charged therewith. In the memo- impression is, that the words "surviving randum referred to, the testator gave cer- brothers" mean brothers "then living." tain legacies to his daughter, and then pro- If they do, the sentence would run thus: ceeded thus:-" And, that my sons may "to the intent, that, should any of them die not be laid under any unnecessary restraint, without issue, then, on the decease of their I give them the several estates hereinbefore respective husbands and themselves, their specifically mentioned to their own proper fortunes to revert to their brothers then use and disposal, as circumstances may re-living." If that be the true interpretation, quire, for ever; trusting, from the brotherly the gift over is ineffectual, because there is affection that has always appeared to sub- no brother now living, and the husband is sist between them, that they will not dis-alive, so that the gift to the daughters pose of the same to the prejudice of each would not be devested. With this view it other, should any of them die without issue. will not be necessary to consider the quesAnd as to my daughters, I also trust that tion of trust or no trust. [The case stood they will not dispose of themselves in mar- over for some time.] riage without consulting my executors, and getting their assistance in drawing up pro Sir KNIGHT BRUCE, V. C., on a future per articles, to the intent, that should any day, observed-The opinion I gave on |