ture and sham pleas might be treated as nullities. The third branch, when process was served on Sunday, or directed against the goods or person of an embassador, the same is declared void by statute. And also when a proceeding is expressly directed to be taken by statute, its omission amounts to a nullity-as under the statute Westminster 2nd, where a fi. fa. could not issue on a judgment under certain circumstances without a sci. fa. to revive it, Garratt ▼. Hooper, 1 Dowl. 28, and when a plea in abatement was filed without an affidavit verifying the truth of it contrary to the statute 4 & 5 Ann, cap. 16, sec. 11. In these cases the proceedings were held to be nullities and could not be waived.

I think the principle applicable to this case resembles that established in the case Alsager v. Crisp, 9 Dowl. 353. In reference to that case Mr. Macnamara says at page 5, "so when a step is perfectly well taken according to the supposition on which it is founded, but which supposition is not correct, it is only an irregular proceeding; as where plaintiff erroneously supposing that defendant had not entered an appearance, entered one for him, and then acting on the hypothesis, served notice of filed declaration on defendant himself in the country, though defendant had appeared by attorney, such service was holden not a nullity but an irregularity, and per Williams, J., "I cannot assent to that view of the subject (that it was null) because everything was done perfectly well on one supposition, that the appearance had not already been entered by the defendant. It was a step wholly appropriate to proceedings in a cause when the facts would have allowed it." It seems to me to consider this other than irregularity would be contrary to the principles laid down by Williams, J. The doctrines laid down in Holmes v. Russell, 9 Dowl. 487, and acted on in other cases, also sustain the view that the defect in this proceeding is an irregularity and not a nullity. In that case Coleridge, J., said, if the objection can be waived, it is not a nullity, but an irregularity. Now the statute (Common Law Procedure Act) does not forbid the entering of the judgment of non pros., except in a particular way, as it seems to do the issuing of the fi. fa. without a sci. fa. to revive a judgment. Another statute also forbids the serving a plea in abatement without an affidavit verifying the same. The section of the Common Law Procedure Act expressly authorises the entering of such a judgment. Of course it points out the proceedings which should be had in the cause before the entering of the judgment, which I assume were not all taken here any more than in the case of Alsager v. Crisp, or in Holmes v. Russell. But assuming that the issue had been joined in time to have made the giving the notice a proper one at the time it was given, the notice itself and the subsequent entry of judgment, I presume, were perfectly regular, and to use the language of Williams, J., the entry of the judgment "was a step wholly appropriate to proceediugs in a cause where the facts would have allowed it."

The case of Holmes v. Russell, 9 Dowl. 487, already referred to. seems to me to have been a stronger one against the judgment than this. There the defendant was an accommodation endorser of a bill of exchange, the time of the payment of

[C. L. Cham.

the bill had passed and he presumed it was paid. No knowledge of any of the proceedings by the plaintiff was conveyed to the defendant until execution was levied on his goods. He did not however apply promptly after that to set aside the proceedings. It was urged on his behalf that the proceedings were a nullity and there could be no laches. The judge held that he could have waived the irregularity-saying, suppose he had notice that the appearance had been entered for him and had taken the declaration out of the office and pleaded, he then could not have objected that there was a defective service of the writ. The objection might therefore be waived. Now in the case before us, if the plaintiff had applied to the court to obtain an enlargement of the time for going to trial on entering into the peremptory undertaking, and failing to bring had again enlarged the time for going to trial and the case down pursuant to his undertaking, he had failed to take the case down pursuant to the second undertaking, if defendant then obtained a rule for judgment as in case of a nonsuit it cannot be seriously urged that plaintiff could fail back on the objection, that giving the notice to bring down the case to trial in the first instance, was a nullity, and that any judgment or proceeding following that, though perfectly regular in itself, was tainted with the original defect so as to be entirely void. I think the authorities shew that in this case the objection could be waived, and if so, it cannot be considered a nullity.

The modern rule seems to be that whenever there is any doubt upon the matter, it will be safer to treat the defect as an irregularity rather than as a nullity. From the decisions and rules of the court, it may be gathered that there is an evident tendency amongst the judges to consider defects merely as irregularities.

I have looked at the cases referred to by Mr. Gwynne, and I do not think they would warrant me in deciding in his favour. The most recent one, of Brooks v. Hodgkinson, 4 H. & N. 716, merely affirms in effect that a proceeding taken contrary to the express provisions of an act of Parliament is a nullity, such (as in that case) arresting the defendant, where the sum recovere 1 did not exceed £20; when the statute 7 & 8 Vic. cap. 96, sec. 57, expressly declared that no person should be taken in execution on such a judgment. The language of Watson, B., was quite appropriate : "The writ is not merely irregular, but absolutely void, because it has issued contrary to law." I have already stated that I do not see that the Common Law Proce lure Act says that no such judgment as has been had in this cause shall be entered. It makes provision for the entry of such judgments, and the real cause of complaint is, that the plaintiff made a mistake in supposing that the proper time had arrived for giving the notice from which the judgment was to follow.

In Dickinson v. Eyre 7 Dowl 721, the entry of judgment in an interpleader proceeding as a judgment obtained in the ordinary way was held to be a nullity, because no such proceeding was known by the practice of the court or authorized by the statute.

Doe McMillan v. Brock, 1 U. C. Q B. 482.The effect of this decision, as I understand it, is, that where a rule nisi for judgment as in case

C. L. Cham.]

of a nonsuit is discharged on the peremptory undertaking, on payment of costs, the giving of notice of trial without the payment of the costs, may be treated as a nullity. But if a trial had been had, damages assessed, and judgment entered, I do not think the defendant could have delayed making his application for several terms to set aside the judgment against him, and then have expected to succeed on the ground that the notice of trial was a nullity.

In Forrester v. Graham, 20 S. 369, when the writ was not returned, nor an affidavit of service filed, the learned Chief Justice, Sir J. B. Robinson, considered the common bail and declaration filed a nullity. The late Sir J. B. Macaulay said the first common bail was irregularly filed.

Bank of Upper Canada v. Vanvoehis, 2 Prac. Reports, 382, 384, I decided on the authority of Holmes v. Russell, 9 Dowl. 487, that when defendant was served with a specially endorsed writ, to which he entered an appearance, yet plaintiff signed judgment against him without serving a declaration and issued execution thereon, I could not consider the proceeding a nullity. The defendant not having applied to set aside the proceedings in a reasonable time after having had notice of the execution against him, could not succeed in setting aside the judgment.

Kerr et al., Bowie, 3 U. C. L. J. 150: An application to set aside a judgment because it was not properly signed, the writ not being a specially endorsed writ, nor a case in which it could be so endorsed and judgment signed. As the writ was not produced nor a copy of it, Sir J. B. Robinson refused to make the order sought for, saying, if the case was not one for a specially endorsed writ the application to set aside the judgment should have been made sooner.

I must view this case as one in which the judgment was entered on 26th March, 1866. The plaintiff became aware of that fact a few days after, if not on the day on which the judgment was entered, and he now applies, on the 16th March, 1867, to set aside this judgment. Unless the signing of the judgment is to be considered as a mere nullity there is no occasion for my interfering. I have not been able to bring my mind to the conclusion, that the entering of this judgment is a nullity, and therefore the summons must be discharged.

But even if the plaintiff's application could be sustained on the ground on which he has put it, and that he is not now concluded by his own laches as to the time of making the application, the facts disclosed by the affidavits shew that he has already made one application to a judge in Chambers and obtained an order to set aside this judgment, but has not acted on that order. Any excuse that he might have to urge for not taking out the order was no doubt brought before the court in opposing the application to set aside the order, and if the court would not recognize the excuse as sufficient to sustain the order, I do not see how I can properly hold that the same ground being now put before me would authorize me to act as if the plaintiff was not to be held bound by the fact of omitting to take out his order, so as to require me to hold him to have elected to take that course.

Having once applied to a Judge in Chambers, and obtained an order setting aside this judg

[Eng. Rep.

ment, it does not seem to me to be consistent with the practice of the court to permit him to harass the defendant with repeated applications to the same end. I should feel inclined to hold that on this ground also the application must fail.

As I have already remarked, it does not very clearly appear on what ground the first application was made-if on the same as that now presented, then permitting the repetition of the application on the same grounds would hardly be consistent with the practice of the court; if not on the same grounds, and these grounds were then known to the plaintiff, but he deliberately chose not to act on them, then he is equally in fault. Leggo v. Young et al., 17 C. B. 549, is an authority on this latter point. On the whole I think this summons must be discharged with

costs.

Summons discharged.

ENGLISH REPORTS.

KEARNEY V. TOTTENHAM.

New assignment-Joint trespass—Assault and imprisonment. A. and B. were charged jointly and in one count with assault, battery, and imprisonment of the defendant. A. pleaded a justification as a justice of the peace. Trespasses, including an assault, battery, and imprisonment, were proved to have been done by A. and B. jointly, and afterwards on the same day another imprisonment, but without an actual battery, done by A. alone, to which last the justification alone applied.

Held (reversing the decree of the Court of Common Pleas), that no new assignment by the plaintiff was necessary, and that the judge was right in telling the jury to confine their attention to the joint trespass only.

[Ex. Ch. (Ir.) June 30; July 1. 15 W. R. 1020] This case came before the Court upon appeal from the decision of the Court of Common Pleas. It was an action of trespass, in which Rose Kearney was plaintiff, and Arthur Loftus Tottenham and Phelim McGowan were defendants. The summons and plaint consisted of one count, namely, that the defendants assaulted and beat the plaintiff, and gave her into the custody of a policeman, and caused her to be imprisoned in a police barrack, to the plaintiff's damage. The defendant, Arthur Loftus Tottenham, pleaded, first, that he did not commit the trespasses in the plaint mentioned, or any of them as alleged; and, secondly, that the alleged trespasses were committed after the passing of Act 12 Vict., for the protection of justices in Ireland from vexatious actions, and that the defendant was at the time of the committing of the alleged trespasses a justice of the peace for the county of Leitrim, and that the alleged trespasses were committed by him in the execution of his office, and averred that more than six months had elapsed between the committing of these acts and the bringing of the action. He also pleaded a similar plea averring the absence of the statutory notice of action.

The defendant M'Gowan pleaded that he did not commit the trespasses in the plaint mentioned, or any of them as alleged.

Upon these defences the following issues were taken-1st. Whether the defendants or either of them committed the trespasses in the plaint complained of, or any of them as alleged. 2nd. Whether the said alleged trespasses or any of them was committed by the defendant Arthur

Loftus Tottenham in the execution of his office as justice of the peace as in 2nd and 3rd pleas alleged.

The facts proved at the trial were as follows: The plaintiff, Rose Kearney, was tenant of a house and yard to the defendant Tottenham. The defendant M'Gowan was Tottenham's bailiff, and as such came to the plaintiff's house on the 25th of August, 1863, and said he was authorized to open a pass in the plaintiff's wall and through her yard for a person who lived in the next house. She refused to permit him to do so, and went to Tottenham to complain. Tottenham desired her to permit the pass to be made, or he would send her away. After this interview M'Gowan and another person came and attempted to throw down the wall, whereupon the plaintiff resisted them, and in doing so was assaulted and beaten by M'Gowan. The police then arrived, and on being shown a letter by M'Gowan they arrested the plaintiff and took her to the barrack, where she was confined for three hours. After this time had elapsed, she was taken before Tottenham in his magisterial capacity and committed to prison again. A letter of authority from Tottenham to M'Gowan to throw down the wall, and the record of a former action of quare clausum fregit for the same trespasses, in which damages had been recovered by the plaintiff from the same defendants, were read on behalf of the plaintiff.

Evidence on behalf of the defendant having been given, the learned judge directed the jury to leave out of their consideration everything that happened after and including the arrest of the plaintiff by the police, who had arrested her in execution of what they considered their duty, without the direction of the defendants, and that if they believed that the plaintiff was assaulted and beaten before that time by M'Gowan, they were to find for the plaintiff against both defendants, the defendant Tottenham being responsible for the acts of McGowan.

Counsel for the defendant Tottenham called on the learned judge to direct the jury that if they believed the defendant, in the execution of his duty as a justice of the peace, committed the plaintiff to prison, the plaintiff not having new assigned, they should find for the defendant. The judge having refused to do so, the jury found for the plaintiff in both issues.

The Court of Common Pleas having granted a conditional order for a new trial, which was made absolute in Trinity Term, 1865, the plaintiff now appealed from that decision.

The question for the Court of Appeal was whether the direction of the learned judge was right, or whether, under the circumstances, it was necessary for the plaintiff to have new assigned.

[Eng. Rep.

issue. The defendant accepted the issue that the very same trespasses complained of were done by him as a justice of the peace. 2. But even under the old law no new assignment would be necessary. If the declaration was perfectly general, and two trespasses were proved, both answering to the description of the trespasses in the declaration, then a new assignment was necessary; but here the plaint is specific in this: that a joint trespass is alleged, and an assault, battery, and imprisonment described. Here there are not two trespasses proved which answer to the description of those in the plaint. The trespasses which the defendant justifies as a magistrate are not joint-trespasses, but single and committed by himself alone. And the trespasses so proved do not include a battery, which is here alleged. The defendant has not proved a battery which needed this justification, and to which it was applicable. If we had new assigned here we must have admitted a battery justified, and a joint-trespass justified; and we could not prove another battery and another joint-trespass, as there was only one. Defendant might have asked for particulars of the trespasses if he had any doubt: Nicholl v. Glennie, 1 M. & S. 588; Greene v. Jones, 1 Wm. Saund. 299b; Barnes v. Hunt, 11 East, 451; Freeman v. Crofts, 4 M. & W. 4; Hall v. Middleton, 4 Ad. & El. 107; Cocker v. Crompton, 1 B. & C. 489; Cheasley v. Barnes, 10 East, 80; Moses v. Levi, 4 Q. B. 413; Rogers v. Spence, 12 Cl. & Finn. 719; Atkinson v. Matthews, 2 T. R. 176; Oakley v. Davis, 16 East, 82.

Armstrong, Serj., and Carson, for the defendant. The fact of two defendants being sued does not specify the trespass in any way, because each is entitled to regard himself as the defendant in a separate action with a separate summons and plaint, charging him individually with the trespasses complained of And the fact that there is only one battery proved does not alter the case, as every imprisonment imports a battery: Phillips v. Howgate, 5 B & Ald. 220. Imprisonment is the gist of the action. [PIGOT, C. B.-If you had pleaded only to the imprisonment, your plea would be bad ] But if an imprisonment only were proved the plaintiff would recover. There is a distinct action for assault and battery, and there might have been a count for it here. But the question of false imprisonment is put on the record by charging assault, battery, and false imprisonment. The defendant has proved and justified and imprisonment which imports an assault and battery, and, as there is no new assignment, was entitled to a verdict: Bannister v. Fisher, 1 Taunt. 357. The identity of the trespasser is not in issue here. Nothing is in issue except the doing as a magistrate.

Cur. adv. vult.

July 1. FITZGERALD, B., delivered the judgment of the Court-I have been unexpectedly called upon to deliver judgment in this case, but I think I can state in a few words the reasons for our decision, which is that the decision of the Court of Common Pleas should be reversed. The case was in effect this. Two distinct' im

ing after the defence, and, therefore, by the issue i here tendered the identity of the trespassers in

were proved to have been made upon the same day, one a joint imprisonment by the two defen

Scott, the wife of the said John Scott, if she survives him, during her natural life," conveying the said farm by metes and bounds, to him, in fee simple, "excepting and reserving, nevertheless, the entire use and possession of said premises unto the said John Scott and his assigns, for and during the term of his natural life; and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor." The habendum was to have and to hold the premises "after the decease of said John Scott," to him, the said J. W. Scott, his heirs and assigns, &c.

After the father and son commenced their joint possession under this deed, they quarelled, and the father turned the son out by action of ejectment, and kept the sole possession in himself till he died, his wife Patience having died before him. Before his death, to wit, 26th February 1861, he made a formal will in which he revoked all former wills, and " particularly a certain will and testament (in form as a deed), recorded in the recorder's office of said county of Erie, in Deed-Book A. p. 716 witnessed by Marion Hutchinson and George H. Cutler; and I hereby give and assign as the reason of revoking and making void said will that my son John W. Scott and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will." He then goes on to devise the land in question to his daughters, Nancy Holliday, Anna Sanford, Parney P. Turner, and his son Abner Scott, the plaintiffs in this action.

These devisees succeeded to the possession hut lost it by an action of ejectment brought against them by John W. Scott, and this is a second ejectment brought by them to regain the possession. If the deed of 22nd Nov. 1849 vested the title in John W. Scott, the subsequent will was inoperative of course, so far as concerned this land; but if the deed vested no present interest, and was intended to operate as a testament, it was very expressly revoked and repealed by the subsequent will, and plaintiff's devisees under this will have no title.

The testator called and treated the deed as a will, but not until after he had quarrelled with bis son and turned him out of possession. When he made the instrument he called it an indenture and permitted his son to record it as a deed. His treatment of it as a will therefore, proves nothing.

But what is the effect of the reservation clause above quoted? Undoubtedly, a life estate was reserved to the grantor, with the entire use and possession of the premises, and of course the instrument could not take effect as a "conveyance until after his death, and such was the declared intention.

The learned judge construed the latter clause of the reservation as a protection of the life estate; but it needed no protection, for it remained in the grantor, being excepted out of the grant as fully as it was capable of existing. But if these pregnant words were added with some such mistaken notion of the parties, and it is quite possible they were, they are an emphatic declaration that no interest should be considered as presently conveyed to interfere with the life estate; whilst the habendum is equally express

[U. S. Rep.

that the estate intended to be conveyed to John W. Scott should commence at the death of the grantor. Without straining or unduly emphasizing any of these words, it is impossible to doubt that, if any effect whatever is to be given to them they limited the fee to take effect in futuro. At common law this can only be done when a particular estate, to take effect presently, is granted, not reserved, to support the fee. If the question was upon John W. Scott's title under the deed, without any subsequent will in the case, and we should be obliged to say that as an attempt to create a freehold in futuro without the grant of a particular estate to support it, the deed was void, we might perhaps support it as a covenant to stand seized to his use. I say perhaps, because the case has not been fully considered in that aspect, and the reason why we do not so contemplate it is, that there being a subsequent will, it becomes a mere question of interpretation whether the former instrument was testamentary in its character or not. If it was testamentary, then it ought not to be construed as a covenant to stand seized, there being a later will. Had there been no later will, the deed, though testamentary, might perhaps have been supported as such a covenant. We come, then, to the real question, was the deed essentially a testamentary instrument?

Swineburn defines a testament to be a just sentence of our will touching that we would have done after our death. And because-" some there be who do censure this excellent definition to be defective, though unworthily," he makes a full exposition of the meaning of every word in the definition. The only distinction he makes between a testament and a will is the distinction between justa sententia and legitima dispositio. But the essence of both is that it is a disposition to take effect after death and this is adopted by Judge Redfield, the latest comentator, in his work on the law of Wills, p. 5.

In the case of Habergham v. Vincent, 2 Vesey, p. 204, the question was whether two instruments, one in form a will, and the other in form a deed, did not together constitute a will, and the case was greatly considered. It was first argued before Lord Thurlow, who took a long time to consider of it, and then directed a case to be stated for the opinion of the court of King's Bench. In consequence of too short a statement in sending this case to law, the second instrument was there considered a deed, and the other questions were ruled accordingly. Afterward, when the case came before Lord Chancellor Lowborough, he said he felt so strongly that this instrument (the deed), was to be construed as testamentary that he must have the assistance of two of the judges to sit with him at the argument; and accordingly, Mr. Justice Buller and Mr. Justice Wilson, in accordance with a custom which sometimes is practised in the high Court of Chancery, sat with the Chancellor and delivered separate though concurring opinions. Mr. Justice Buller in his opinion said:" When this case was argued in the King's Bench no one of the cases quoted here by the Attorney General was mentioned or alluded to. I freely confess," he added, "they did not occur to me. But those cases have established that an instrument in any form whether a deed poll or indenture, if the