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[C. L. Cham.)
THE QUEEN V. MOSIER.
(C. L. Cham.
ness' bedroom without slacking his speed. It was about twenty or thirty minutes after he came in before he went out again. This was the time that he went out after be bad returned from waking Hunter. Witness asked Mosier what was the matter? He replied to hurry and come down and he would tell; he said tell him then; and he then said Dr. Hunter had been nearly killed dead; someone had attacked bim. He told Mosier to go and waken Dr. Hunter, and then to go and get the borse and cutter to go to Queensville. McMaster, when he went down stairs after hearing of Dr. Hunter's being beaten, found Landy, Atkinson and Mosier down stairs. He does not remember looking at bis watch, but it was almost daylight. When he got to Dr. Hunter's the lamp was lighted. On his cross-examination he said that if Mosier bad gone out in the ordinary way he would bave heard him. He did bear some noise in the yard, and thought it was Mosier attending to his work. Wben be saw Dr. Hunter at his own house he was lying on the sofa and seemed unconscious. On bis re-examination he said it was between seven and halfpast seven when he saw Mosier ready with the horse to go out.
John Dennis said he remembered the 7th January. He saw Dr. Hunter about fifteen or twenty minutes past six that morning He was lying about five or six rods from bis own door. He bad gone to Dr Hunter's to enquire for bim, and was told he bad gone to McMaster's half an bour before. He then went towards McMaster's, but while yet on the steps of Dr. Hunter's house heard dismal groans, and when he came down the steps he saw a black object lying on the
He turned him over and saw it was Dr. Hunter lying on his face. He was bleeding from the mouth and dose. He attempted to raise him but could not, and then ran to his house for Mr. Landy and went to call Mr. Allen, and came back when Landy came out, and they went and carried the Dr. to bis own house, with difficulty. The Dr. appeared to drag bis feet as if trying to walk. He was unable to walk and they carried him to bis bouse. He complained of being badly burt somewhere about the back of the neck. He soon after returned to his own house, which is the same side of the street as Dr. Hunter's, but west of it and further from Main street. Landry went in for a minute, as he was not quite dressed. They then went to McMaster's, and they met Atkinson and tben Mosier. It was not more than twenty minutes from the time they first saw Dr. Hunter on the sidewalk till they got to McMaster's house, where they stayed not more than five or ten miputes.
On bis cross-examination he says when they met Mosier they told him wbat had bappened to Dr. Hunter, and he seemed to be very much surprised, as much as any one could be who bud pot heard it.
McMaster, on his being recalled, says he judged it to be from twenty to thirty minutes after Mosier returned from waking Dr. Hunter that he went out the second time, and it was about fifteen or twenty minutes from the time he wakened Dr. Hunter until he returned. He says he thinks it was after the ringing of the town bells that Mosier went out the second time. He says be is tolerably sure it was after the
ringing of the bells that Mosier went out the second time.
Landy corroborated the statement of Dennis. He thinks it was twenty minutes past six when they got to McMaster's after taking the Dr in, and he thought from what he saw that Hunter's life was in danger, and he says they met Mosier and told him about their finding Dr. Hunter and carrying him to his house.
James Allen says that John Dennis came to his bouse, koocking at the door, and be asked me to come out quick; that Dr. Hunter was killed. Dennis then left, and he went into his room to put on his clothes, but before he had finished Dennis came again and called me to come quickly, and he went to Dr. Hunter, and saw the Dr. there.
D. B. Read, Q. C., (Harrison with him) or behalf of the prisoner, after reading the evidence, contended that the proceedings and examinations bad taken place in the county of York, but that the warrant had been issued in the city of Toronto. That, under the provisions of the statute 29 & 30 Vict. cap. 45, the judges of the superior courts had a revisory power given to them, and were bound to examine the proceedings, "and to the end that the sufficiency thereof to warrant such confinement or constraint may be determined by such judge or court." That upon such examination it would appear that there was no evidence against the prisoner to warrant bis commitment, and that he ought to be discharged.
D. Mc Michael, for the crown, argued that the return showed that the magistrate had ordered that the prisoner should enter into his own recognizance for $500 to appear at the next Assizes to be held in and for the county of York, on the 8th day of April next, to answer to any indictment which might be then and there preferred against him, wbich he had refused, but asked to be committed to the next court of competent jurisdiction, on bail, and was therefore committed. That the prisoner bad now all that he was entitled to have, for the statute only authorized the judge to bail the prisoner, not to discharge him. That the 5th section of this act was only in furtherance of the 3rd section, and gave no revisory or other power greater than it conferred That it was not the intention of the legislature to make a judge in chambers & court of review from the proceedings of magistrates. That this intention, and the construction he put upon the 3rd and 6th sections was to be in ferred from the fact that the statute gave an appeal from the court into which the proceedings were to be returned by the judge to the Court of Appeal, but did not give it from the decision of a single judge. That the duty of justices of the peace was pointed out in the Con Stat. C cap. 102, sec. 57; and he is authorized to determine, upon the evidence, whether the accused shall be committed for trial, bailed or discharged That the judge ought not to interfere with his deci. sion. That the power of this police magistrate to deal with this question was clear from ss. 357. 360 of the 29 & 30 Vic. cap. 51. He was ez oficio a justice of the peace for the whole county, and could issue any warrant or try and investigate any offence in a city when the offence has been committed in the county in which such city lies, or which it adjoins.
C. L. Cham.]
The Queen v. MosiER-AIKINS v. NelsON-RE JACKES.
J. Wilson, J.-On the question of jurisdiction Adopting the views expressed, I cannot help it is clear, from s. 357 of the 29 & 30 Vic. c. 51, holding that a judge is bound to the examine that the police magistrate is ex-officio a justice proceedings anterior to the warrant, to see that of the peace in and for the county of York; and, they authorize it, and if they do not that he is by s. 360, a justice of the peace for a county in bound to determine whether they warrant the which a city is may try and investigate any case detention, and if not to discharge him in a city, when the offence has been committed In this case the prisoner is so far in voluntary in the county or union of counties in which such custody, for all he was required to do was to city lies, or which such city adjoins. The police enter into bis own recognizance. He refused magistrate had therefore jurisdiction, &c, both and was committed. I find him in prison, and so in the county and city, and the proceedings are entitled to the benefit of the act, in strict right. legal in this respect.
By stat. 22 Vic. cap. 102, s. 57, when all the Our late statute 29 & 30 Vic. cap. 45, is evidence upon the part of the prosecution against chiefly taken from the imperial statute 66 Geo.
the accused has been heard, if the justice be of III. cap. 100, but the 5th section is new. Writs opinion that it is not sufficient to put the accused of certiorari had in practice been issued in vaca- party upon his trial for any indictacle offence, tion by order of judges in chambers in this
he shall forth with order him to be discharged as province previous to the passing of this act, but to the information then under enquiry; but if in the learned Chief Justice, in the case of The Queen the opinion of the justice the evidence is suffi v Burley, 1 U. C. L. J. N. S. 34, for extradition,
cient to put the accused party upon his trial for doubted the power of judges to order these writs an indictable offence, although it may not raise in vacation, and it was proper that all doubts such a strong presumption of guilt as would inshould be removed respecting this practice. In
duce such justice to commit the accused for trial tbat same case it was intimated that, in the without bail, &c., then such justice shall admit opinion of some of the judges, every man com
the party to bail, &c In this respect the police mitted on a criminal charge had the right to magistrate has complied with the provisions of have the opinion of one of the Superior Court
the statute. He did not think it was a case judges pass upon the cause of his commitment where the presumption of guilt was so strong as by an inferior jurisdiction.
to induce him to commit the prisoner for trial
without bail, but still a case for which he thought In my view of this clause it bad reference to
bail ought to be required. both these opinions. Before this act was passed,
I agree with the police magistrate that it was when by the return of the habeas corpus and the
a case which justified him in requiring bail. proceedings upon which a prisoner stood committed, it appeared that the commitment was illegal, it had been the practice for judges in chambers to discharge him.
CHANCERY CHAMBERS. It is true that the power to determine upon
(Reported by Mr. CHARLES MOBB, Student-at-Law.) the sufficiency of the proceedings to warrant such confinement is not given in direct words,
AIKINS V. NELSON. but it is certainly by the plainest implication. The kabeas corpus and its return show the immediate
Notice of motion-Endorsement on of name and place of busi.
ness of Solicitor by whom given_Leave to amend. cause of the detention, which may on its face
(Chambers, Jannary 11, 1867.] all right, but section 5 of the act goes further, and anthorizes the issue of a writ of certiorari
This was an application to open the biddings, for the production before the judge of all and
made at the sale of lands in this suit. singular the evidence, depositions, convictions,
It was objected that the notice of motion was and all proceedings had or taken touching or
not endorsed with the name and place of bueiconcerning such confinement or restraint of
ness of the solicitor by whom it was served, in Jiberty. Why? “To the end that the same may
accordance with order 43, sec. 2, and, this being be viewed and considered by such judge or court,
the first proceeding in the cause on the part of and to the end that the sufficiency thereof to
the applicant, order 32 of the orders of Sept 10, warrant such confinement or restraint may be
1866, did not apply. determined by such judge or court."
THE JUDGES' SECRETARY considered the obThe third section of the act has reference to jection good, but gave leave to amend the notice the truth of the facts stated in the return to a
of motion and bring on the application again writ of habeis corpus Before the 59 Geo. III. forth with, upon payment of costs.
See Rice v. there was no way of enquiring into the truth of
Webb, 2 Hare, 511; Hill v. Maguire, V. C. Esten, the facts as stated in the return. They might February, 1862. be good as stated but untruo in fact. It was so here until last year, but with no practically bad
RE JAOKES. result, for we have had no case in which a false return has been suggested. Now, the truth of
Land belonging to infants-Renewal of iease nf-12 Vic. cap.
72-Imp. Act 11 Geo. 1V. and 1 Wm. IV. cap. 65, sec. 16, the facts in the return law can be enquired
The Court of Chancery can act, in selling or leasing infants' into in the maner pointed out by the 3rd estates, under the stat. 12 Vic. cap. 72, only when it " is section. I do not, however, see, as has been of opinion that a sale, lease, or other disposition of the contended for here, how the fifth section is to be
same, or any part thereof, is necessary or proper for the
maintenance or euucation of the infant, or that by reason construed as referring to this, or in aid of it of any part of the property being exposed to waste, &c., only It appears to me tbat it has a different his interest requires or will be substantially promoted by object to the one which bas been already men
Upon a petition, styled in the matter of the infant and in tioned.
the matter of 12 Vic, cap. 72, and 29 Vic. cap. 28, for the
RE JACKES-Gault v. SPENCER-MITCHELL v. Lee.
sanction of the court to a renewal of a lease made by the on præcipe by the defendants, it appearing by infant's ancestor and containing a covenant for renewal,
the bill that the plaintiffs were resident out of Held, that none of the ciicumstances being alleged under which the court is empowered by the statute to act, the
the jurisdiction. He read affidavits showing that court had no authority to make any order.
the plaintiffs were the owners of unencumbered Semble, the court has authority under Imp, act 11 Geo. IV.
real estate of the value of $800, situate within and 1 Wm. IV. cap. 65, sec. 16, to sanction such a lease, but the lease must be produced to the court, in order that
the jurisdiction, and cited White v. White, Ch. it may judge of the propriety of its terms.
R. 48. [Chambers, January 16, 1867.] Spencer contra, cited Lillie v. Lillie, 2 M. & K. G. Murray presented a petition in the matter
404; Lord Lucan v. Latouche, 1 Hogan, 418 ; of the above pamed infants, and in the matter of
Lord Auldborough v. Burton, 2 M. & K. 401. 12 Vic. cap. 72, and 29 Vic. cap. 28, setting
Smart, for defendant Ketchum, cited Marsh v. forth that the infants were seized of certain
Beard, Ch. R. 390; and Harvey v. Smith, Ch. R. lands, which had been leased by their ancestor
392. for twenty-one years, with a covenant for renewal THE JUDGES' SECRETARY, after consideration, for a further term of twenty-one years ; that the granted the order setting aside the orders for lessor, their ancestor, had died intestate ; that security for costs. Costs of the application to the term granted by the first lease bad now ex- be costs in the cause. pired, and praying the sanction of the court to å renewal lease in accordance with the covenant therefor, and the appointment of a guardian to
ENGLISH REPORTS. the infant heirs, to execute the saine on their behalf. Tue Judges' SECRETARY - This is not a case
MITCHELL V. LEE. for applying under the 12 Vic. cap. 72. This Attachment-Rent-Prejudice of collateral securities-C'mon court can act under tbat statute, and sanction
mon Law Procedure Act, 1851. sales or leases of an infant's estates oply when
A debt may be attached under the Common Law Procedure
Acts, although there may be collateral remedies for its it “is of opinion that a sale, lease, or other dis- recovery, which are extinguished or kept in abeyante position of the same, or of any part thereof, is during the attachment. necessary or proper for the maintenance or
(Q. B, Jan. 17, 1867.] education of the infant, or that by reason of any This was an interpleader under the following part of the property being exposed to waste and circumstances :dilapidation, or to depreciation from any other The plaintiff, a judgment creditor, obtained an cause, his interest requires or will be substan- order calling on a tenant of the judgment debtor tially promoted by such dispositions," and none to appear and show cause why he ebould not pay of those circumstances are alleged to exist in to the plaintiff the rent due to the judgment the present instauce. Nor has the act 29 Vic. debtor. cap. 28, any bearing on the subject.
The present defendant, who was a mortgagee Under the Imp. act 11 Geo IV. and 1 Wm.
of the property, gave notice to the tenant to pay IV. cap. 65, sec. 16, the Court of Chancery bas
the rent to him, and now applied to set aside the
order. power, “where any person, being under the age of twenty-one years, might, in pursuance of any
Tomlinson for the defendant.-This 'case is not covenant, if not under disability, be compelled
within the 61st section of the Common Law Proto renew any lease made or to be riade for the
cedure Act, 1854, which contemplates ordinary life or lives of one or more person or persons, or
debts and not rents. The remedy against the for any number or term of years absolutely, or
garnishee was not intended to interfere with the determinabie on the death of one or more person
ordinary relation of landlord and tenant, for in or persons,” to authorise such infart, or his
such case the rent is not only recoverable by an goardian, by an order, “ to be made in a sum
action for use and occupation, but there is also mary way, upon the petition of such infapt, or
the right of the lord to distrain, which may be his guardian, or of any person entitled to such
prejudiced by being suspended. In cases of colrenewal, from time to time to accept a surrender
lateral remedies for debts these would not be of such lease, and to make and execute a new
transferred and must be either extinguished or lease of the premises comprised in such lease.
held in abeyance while the debt is bound. Nothing (McPherson on Infants, pages 313 and 314) and
can be attached that the judgment creditor cannot this act is in force here. On the petition being
bold as beneficially as the judgment debtor : amended, and styled in the matter of the infants
Newman v. Rook, 4 C. B. N. S. 134, per Willes, and of this statute, an order may be made; but
J., " the operation of the statute is to give the the proposed lease must be submitted, that the judgment creditor the same rights exactly as the court may judge whether its terms are proper.
judgment debtor bimself had." All the authorities show that rent is not attachable by the cus
tom of London, to which this Act was assimi. GAULT V. SPENCER.
lated. Com. Dig. tit. Attachment D.; Locke's
Practice of Foreign Attachment, p. 40; BranSecurity for costs-Plaintiffs out of jurisdiction possessed of real property within.
don's Law of Foreign Attachment, p 35. A plaintiff, who is resident out of the jurisdiction, will not Manisty, Q. C., for the plaintiff, contra.
bu ordered to give security for corts if he is pngserred of unencumbered real estate of sufficient value, situate within COCKBURN, C. J.—Though it may be hard op the jurisdiction.
a person who has a collateral security for a debt [Chambers, January 26, 1867.]
that bis power of enforcing it should be lost M088 moved on notice for an order setting while the debt is tied up, the language of the Act aside two orders for security for costs obtained is too strong to allow us to take into considera
Eng. Rep. ]
MITCHELL V. Lee-GLADMAN V. Johnson.
tion such a result in construing the words used. shop one Sunday morning He attempted to The Act says that “ All debts owing from the enter the shop by the front door. hut finding it garnishee to the judgment debtor may be attach- locked, he went through the yard to the back ed, and this is a debt, although the landlord has door. As he was leaving the house and crossing also, in addition to his right of action, certain the yard, a dog belongiug to the defevdant flew summary and extraordinary remedies. Possibly at bim and hit him, and did the injuries comit may be inconvenient that he should be prevent- plained of. ed from putting them in force, but we cannot The defendant's wife assisted the defendant in consider this in our interpretation of the Act. the management of the milk business. BLACKBURN, J.-I am of the same opinion.
It was proved that, four years before this Mr. Tomlinson bas been unable to shew any spe
accident happened the same dog had bitten a boy cific lien or claim on these sums of money, so as
damed Gibson, and on that occasion Gibson's aunt to bring the case witbin the 29th section of the
went to the defendant's premises and gave an Common Law Procedure Act, 1860; and there
account of the accident to the defendant's wife. fore, as far as that point is concerned, his client
The defendant's wife denied that any such commust be barred. Besides this, the objection is
munication had ever been made to her. raised, that such a proceeding does not apply to
It was objected by the counsel for the defenrent on the ground that there is in such a case a
dant that the communication could not be taken collateral remedy for its recovery by distress.
to have been made to the defendant, and that No doubt inconvenience may arise, not only in
there was no evidence to prove the scienter. It this case but in others, such as a warrant of
was also proved that on another occasion the dog attorney to sign judgment. In tbis and similar
bad torn a person's dress. instances, there is a collateral remedy which is
The learned judge thereupon nonsuited the not transferred, but only suspended, and incon
plaintiff, with leave to him to move for a rule to venience may arise from such remedy being sus
enter the verdict for £15 (the damages agreed pended, but all we have to copsider is che work
upon) if the Court should be of opinion that ing of the Act, and that, I quite agree, embraces
there was any evidence from which the jury the present case.
could infer that the defendant was aware of the MELLOR and Lush, J. J., concurred.
savage nature of the dog.
On a former day. Rule absolute, cbe claim to be barred and Prentice, Q. C., bad obtained a rule accordexecution to issue against the garnishee. | ingly.
T. Jones, Q. C., now showed cause, and con
tended tbat notice to the wife of wbat had taken HLADMAN V. Johnson.
place was not notice to the husband ; that the
Court could not infer that she had communicated Dangerous animal-Scienter-Evidence-Knowledge of hus. band inferred from notice to wife.
wbat she had been told to her husband. If a The plaintiff was bitten by a dor belonging to the defen.
person bad stated to the defendant's wife that he dapt; the dog had, four years before, bitten a boy, and, on served a writ on the defendant, that would not another occasion, torn a person's dress. These facts were be evidence that the defendant knew that the communicated by the aunt of the boy bitten to the defendant's wife, on the defendant's premises, but there was no
writ had been served Nor could the defendant's evidence that the wife had communicated them to her wife have been asked whether she communicated husband.
this statement to the defendant: 16 & 17 Vict. Hell, that there was some evidence from which a jury might infer that the defendant knew of the savage nature of the
C. 83, s. 3; O'Connor v. Mojoribanks, 4 M. & G. dog.
435. It must also be shown that the defendant
[C. P., Jan. 11, 1867.1 knew that the dog was accustomed to bite manDeclaration.-For wrongfully keeping a savage
kind: Thomas v. Morgan, 2 Cr. M. & R. 496. dog, which bit the plaintiff, knowing the same to
Here the evidence only refers to two cases. be of a fierce and savage nature.
[WILLES, J.--The plaintiff need only show that Pleas.--1. Not guilty
the dog indicated an intention to bite.] 2. Tbat the dog was properly secured in a
Prentice, Q. C., in support of the rule.--There place where the plaintiff bad no right to go; that
was some evidence that the defendant was aware the plaintiff was trespassing and came within of the savage nature of the dog ; notice to the wife reach of the dog ; aud tbat the injury complain
is always sufficient. The case is governed by the ed of was occasioned by the negligence of the
case of Stiles v. The Cardif Steam Navigation plaintiff
Company, 12 W. R. 1080, 33 L J. Q. B. 310. Joinder of issue.
Bovill, C.J.--I am not prepared to assent to The cause was tried before Smith, J., when it the proposition put forward by Mr. Prentice, appeared that the defendant occupied premises that notice to the wife would in all cases be sufwhich consisted of a house fronting the road, at ficient. Here the wife attended to the milk busithe back of wbicb was a yard, where there were ness; the dog was kept in the yard, when Gibson some sheds and outbuildings. He carried on the was bitten by the dog on a former occasion his business of a dairyman in the bouse, which was aunt went to the defendant's premises in order to ordinarily entered by his customers through a make a complaint to the defendant; the defendoor fronting the road. The defendant carried dant's wife appeared, and the formal complaint on the business of a corn-dealer in the yard at was made to lie; it was contended that that comthe back of the house, and the entrance to the plaint should have been communicated to the yard was from a lane at right angles to the main defendant; but I think that there was evidence road.
from which a jury might have inferred that that The plaintiff bad been in the habit of purchas- complaint had been communicated to the defening milk at the defendant's shop, and went to the dant, and that the scienter was proved.
GLADMAN V. JOHNSON-HUFFER V. ALLEN AND ANOTIER.
Willes, J.--I am of the same opinion. If [ from which arrest he was compelled to pay the had bad to try this case, I should have taken the sum of £35 19s. 3d. same course as that taken by the learned judge To this count the defendants demurred. at the trial. There was some slight evidence to 2nd. count. That the defendants, by the judge show the ferocious character of the dog, and that ment of the Court, recovered the sum of £28 the defendant was aware of that character. I Os. 9d., and £4 costs, making the sum of £32 think the verdict must be entered for the plain- 0s. 9d., and that the plaintiff paid to the defen. tiff The dog had bitten one person before, and dants the sum of £10 on account of the said hild torn the dress of another; those are the debt and costs, and the defendants wrongfully focis; and that is some evidence that the dog was and maliciously, and without reasonable or probaccustomed to bite mankiod. Then was there able cause caused a writ of ca. sq. to be issued any evidence of the defendant's knowledge ? the for the sum of £32 Os. 9d., and the plaintiff to aunt of the boy who was bitten saw the defen- be arrested ; to discharge himself from which dant's wife, at the defendant's house, and com- arrest he was compelled to pay the sum of £35 municated the facts to her, the wife in the 193. 3d. absence of the husband was the proper person to To this second count, the defendants pleaded lock up the dog. That complaint was delivered & 7th plea, that the plaintiff was estopped from in the character of a message, and it was the alleging the payment of the sum of £10, because duty of the wife to make known to her husband such payment was made after action brought, the circumstances of the case. I caonot say
and before judgment was signed, and that after that there was no evidence to prove the scienter, such payment it was considered by the judgment and therefore the rule to enter the verdict for the of the said Court in the said action that the dedefendant must be made absolute.
fendants should recover against the plaintiff the Keating, J.--I am of the same opinion. The
whole of the debt and costs, amounting to evidence was very slight, so slight that it appear
£32 Os. 9d. ed to my brother Smith that it ought to be with.
To this 7th plea the plaintiff demurred, and beld; there was some evidence, and therefore the replied that the judgment was obtained by fraud. rule must be made absolute
This replication was demurred to by the de. Suitu, J.-I am glad that the Court can come
fendants ; but the replication and the demurrer to the conclusion that there was evidence; the
were withdrawn. only question is as to the defendant's knowledge Hayes Serjt. (Granthan with him) for the deof the savage nature of the dog. I regret that
fendants.-As the defendants recovered judg. the law should make it necessary that that should
ment for the whole debt subsequent to the paybe proved; but as that is the rule, I do not
ment of the sum of £10 by the plaintiff, he is regret that its stringency should be to some ex
estopped from averring the payment of such sum, tent mitigated. In my opinion there was some
or from denying that the whole amount was due. evidence from which the jury might infer that the
The course that he should have adopted was to scienter was proved.
have applied to have the judgment set aside, for, Rule absolute.
while the judgment stands uncontradicted, it shows conclusively between the parties that the
whole debt of £28 Os 9d. was due. HUFFER V. ALLEN AND ANOTHER.
Gilding v. Eyre, 9 W. R. 946, 31 L. J. C. P.
174, 10 Č. B. N. S. 592, is materially different Practice-Common Law Procedure Act, 1852, s. 27- Pay. from the present case, as there the payment was ment before judgment—Estoppel.
made after judgment was signed. An action for maliciously and without reasonable or prohable cause siguing jndgment for a larger sum tban was
The plaintiff here might have appeared to the due at the time when judgment was rigued is not main- writ, and pleaded the payment of the £10, after tainable so long as th- judgments has not been set aside, the commencement of the action. [Kelly, C. B.
(Ex., Nov. 14, 1866.) - The plaintiff having failed to appear, judgment Declaration.--That the plaintiff was indebted
is signed, and properly signed, against him; you to the defendants in the sum of £28 Os. 9d., that
sny then, that he cannot now come and complain the defendants commenced an action against him
of what has taken place, until he has, by due by serving him with a writ specially indorsed for
course of law, had the record corrected by the that amount; that before appearance was enter
Court. The plaintiff is going against the estabed, and before judgment was signed the plaintiff lished principle, that a judgment while it stands paid to the defendants the sum of £10 on account
uncontradicted is conclusive. of the said debt; that after such payment the Henry Matthews (J. O. Griffiths with him) for defendants wrongfully and maliciously, and with- the plaintiff. -- This action is maintainable. The out any reasonable or probable cause, caused judgment which is alleged in the first count, is judgment to be signed against the plaintiff for an irregular judgment, and the plaintiff is theredefault of appearance for the full amount of the fore pot estopped from disputing it. The judgdebt of £280s. 9d. with costs, without giving ment sbould have been signed only for the becredit for the sum of £10, and thereby the de- lance due, and not for the whole amount claimed : fendants wrongfully, and maliciously, and with- Ilodges v. Callaghan. 5 W. R. 532 2 C. B N. S. out any reasonable or probable cause, caused 306, 26 L. J. C. P. 171. Willes, J , there says, a judgment to be signed for a sum exceeding The plaintiff ought to represent the Court as £20 exclusive of costs, and wrongfully and pronouncing judgment in his favour only for maliciously, and without any reasonable or ibe sum which is really due to him.” [Bramprobable cause, caused a writ of ca. 8a. for the well, B. – This is not an irregular judgment bum of £28 0s. J. and costs, to be issued, and except in point of morality; that is to say, it the plnintiff to be arrested; to discharge bimself is warranted by the proceedings by which it