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![handle is hein.slavery/ssactsengr0004 and id is 1 raw text is: BARLOW V. OSBORNE [1858]
that by arresting Bacon on that writ they would be arresting him under circum-
stances which would make it impossible that they should detain him on the Plaintiffs'
valid writ, that was culpable negligence and breach of duty towards the Plaintiffs.
I concur, for the reasons which I have stated, with the Court below in the opinion
that the direction so given correctly expounded the law, and consequently that the
bill of exceptions cannot be maintained, and that judgment must be entered up for
the Defendants in Error.
There is, however, one formal matter in which the judgment below is erroneous.
On the plea of not guilty to the second breach the jury. found for the Defendants.
The damages were properly assessed on the first breach only. Judgment was given
for the Plaintiffs accordingly to recover the sum so assessed, but no judgment was
entered on the issue found for the Defendants on the second breach. This, however,
is immaterial as to the question whether a venire de novo ought to be awarded. The
finding of the jury is sufficient to warrant the judgment given; but it ought to have
been followed by a judgment, that, as to the breach of duty secondly complained of,
the Defendants should be discharged without a day. This, however, which is in
truth mere matter of form, may be set right by your Lordships now directing the
record to be amended in that particular. I therefore move your Lordships that this
be done, and that judgment be given for the Defendants in Error.
Mr. Dowdeswell.-On the part of the Defendants in Error, 1 have to apply to your
Lordships to allow interest from the date of the judgment in the Court of Exchequer
Chamber, pursuant to the Act of the 3 and 4 Will. 4, c. 42.
[556] The Lord Chancellor.-You are entitled to that. Is it necessary for this
House to make any order upon it? Can it not be done in the Court below? You are
entitled to it either in this House or below.
Record amended, and judgment given for Defendants in Error. Lords' Journals,
28 Aug. 1857.
EDWARD BARLOW,-Appellant; EDWARD COM OSBORNE and Others,-
Respondents [February 11, 12, 1858].
[Mews' Dig. xiv. 1382, 1383. S.C. 27 L.J.Ch. 308; 4 Jur. N.S. 367; 6 W.R. 315;
and, below, sub nom. Osborne v. Foreman, 8 De G. M. and G. 122. Adopted in
Ewing v. Waite, 1866, L.R. 1 Eq. 441. Considered in In re Bartlett; Newman
v. Hook, 1880, 16 Ch.D. 561. And see In re Oriental Bank Corporation, 1887,
56 L.T. 868; and Sale of Land by Auction Act, 1867 (30 and 31 Vict. c. 48), s. 7.]
Opening Biddings-Public Auction-Private Sale- Party.
The practice of opening biddings (which is one of doubtful advantage) is not
applicable to a sale of property by private contract.
Property was directed to be sold b§ the Court of Chancery. The advertisement
announcing the sale described it as a sale by private contract. The sale
was to be made subject to receiving the sanction of the Vice-Chancellor, and
subject to certain conditions, among which were these: that persons intend-
ing to purchase were to send in sealed tenders, which would be opened by the
Chief Clerk to the Vice-Chancellor, under whose order the sale was made; that
the Chief Clerk, after the lapse of four days, would certify who was the pur-
chaser; and that this certificate was in due course to be signed and filed,
and become binding without farther notice or expense to the purchaser:
Held (affirming the order of the Court below), that though this was described as a
sale by private contract, it had all the incidents of a sale by auction, and
therefore that the practice of opening biddings might be applied to it.
Under the new practice introduced by the 15 and 16 Vict. c. 80, ss. 32, 33, 34,
and the General Orders of the Court of Chancery of July 1851, and (Nos
49-51) of October 1852, the contract, in a sale of this kind, does not become
absolutely binding until after a lapse of eight days from the filing of the
certificate. Within that period an application may be made for an order
to open the biddings.
Such application inay be made by a person who is not a party to the proceed-
ings.
[557] A purchaser who has received back his deposit, under an order to open
biddings, is not thereby precluded from objecting to such order.
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VI H.L.C., 556](ViewImageLocal?handle=hein.slavery/ssactsengr0004&div=1&collection=&method=preview&ext=.png&size=3)