Act for building a church; for the payment of which, and interest thereon (when borrowed at interest), the statute gave the church-rates as a security. Judgment for the demurrer.

REG. v. JUSTICES OF SURREY. Costs-Parish officers. There is no absolute rule binding the Court to give costs to the successful party, although it is not usual to do so where the subsequent proceedings have arisen from the mistake of the judge or inferior court. Upon appeal, the Sessions had confirmed the order upon a frivolous objection to the notice of appeal; and a rule nisi for a mandamus to enter continuances and hear the appeal was subsequently obtained. The parish officers of the respondent parish instructed counsel to oppose the rule; but it was made absolute, and the appeal was subsequently heard and the order quashed: Held, that the appellants were entitled to more the Court calling upon the parish officers to pay the costs of the mandamus; and, under the circumstances, the Court made the rule absolute. Baldwin shewed cause against a rule calling on the parish officers of Oxted to pay the costs of an application for a mandamus, to enter continuances and hear an appeal. (See the facts supra, vol. 6.) The parish officers had no doubt opposed the rule for a mandamus in vain, and the justices did not appear. [Lord DENMAN, C. J. Why should they not pay the costs?] They only supported the decision of a competent Court in their favour, and ought not to pay costs. It is like a rule for a new trial for misdirection. Under 1 Wm. 4. c. 21, s. 6, also, the costs are discretionary with the Court, and the Court will

that if he was misinformed as to his rights, he did not go voluntarily. To this it was objected, that the officer was not to be liable in this action for mere misinformation; and that also it appeared clear that the statute had been complied with; a place had been nominated by the plaintiff, but it was not fit or convenient. He was bound to know his legal rights, and the officer was not bound to ask him where he would go. (Simpson v. Renton, 5 B. & Ad. 35; Dewhurst v. Pearson, 1 C. & M. 365; Pitt v. Middlesex (sheriff), 4 M. & P. 726, 1 D. P. C. 201, were referred to.)

PATTESON, J.-I think all was rightly left to the jury by the Lord Chief Justice, according to the law as laid down in Simpson v. Renton (5 B. & Ad. 35), which expressly decided that it is the duty of the officer to request him to nominate some place. Here this was not done. The plaintiff saying "May I not be taken to some sponging-house?" is not nominating it within the Act. The question as to his voluntarily going was left to the jury, and decided in the negative. In Silk v. Humphrey (4 Ad. & E. 959), the facts stated in the plea were held to be equivalent to a refusal.

WILLIAMS, J. concurred.

Lord DENMAN, C. J.-The rule that a person is bound to know his legal rights cannot possibly apply here. It has been expressly decided that the officer must inform him and put the question. To these cases we adhere. Rule refused.

Thursday, May 28.

GODCHILD v. PRITCHARD. Practice-Summons at chambers.

Sheriff of Middlesex, 5 Q. B. 365.)

Pashley, in support of the rule.-There are two other decisions which bear upon this question. In -Reg. v. Justices of West Riding (6 Q. B. 1), the Court did not doubt their power to give costs; and so also in Reg. v. Newbury (1 Q. B. 751); which last case shows that a substantive motion is the proper course. If ever there was a case in which costs ought to be inflicted, it is this, where the objection was of a most frivolous and absurd character. Yet not only did the parish officers appear, but the rule was enlarged from one Term to another. Inflicting costs will put a wholesome restraint upon frivolous objections at Sessions.

Lord DENMAN, C.J.-There is a general rule, that costs of intermediate proceedings follow the event of the cause; but there is also a general rule in the opposite direction, that costs are not granted where the mistake has been the mistake of the Court. For my part, I do not think that we are at liberty to give up any portion of our jurisdiction; and although the practice should be certain, still we are not bound to observe either of these rules in every case. I think this was a most frivolous objection, and one which the justices should not have allowed. Then the parties think proper to defend and endeavour to keep possession of what they had thus gained. I think, in the exercise of our discretion, it is a most proper case for granting costs against them.

PATTESON. J.-The general rule is, that costs go to the successful party, and ought so to do. There may be a strong case for an exception, but this is nothing of the kind. Here the officers contested the rule of their own accord. It is said, that it is like a verdict being set aside for misdirection, but it is to be recollected that not in every case of a mistake by the judge or Court are costs withheld, for the Court of Error gives costs. So here the Sessions were no doubt wrong, but costs ought to be given.

WILLIAMS, J.-The resistance to the mandamus was at all events an unnecessary act, for if proper attention had been directed to the objection, the officers must have seen that there was nothing in it. Rule absolute.

GORDON v. LAURIE. Arrest-Duty of officer-32 Geo. 2, c. 28. It is the duty of a sheriff's officer, under 32 Geo. 2, c. 28, s. 1, expressly to request his prisoner to nominate some convenient place to which he may be taken.

M. Chambers, Q.C. moved to set aside the verdict, and enter a nonsuit for a new trial. It was an action under 32 Geo. 2, c. 28, s. 1, for conveying the plaintiff to gaol within twenty-four hours, without his consent, though he did not refuse to be carried to some other convenient house. The facts were proved mainly by the plaintiff's broker. It appeared he was arrested on January 29th, in the morning, and at his I own request was taken to the officer's house or office, while some negotiation was going on with the plaintiff in the action. In the evening he asked the officer to allow him to remain there until he could arrange matters. The officer said he must go, as they were going to close the house. The plaintiff then asked if there was any private house or sponginghouse, and was told they were all given up. The plaintiff wrote a letter while there, to the execution creditor, in which he said, "If you will not arrange, I intend to go to Whitecross-street Prison." Something also passed about the arrest being illegal, and heavy damages. It was left to the jury to say whether he went to prison for his own purposes; and

materials cannot be made upon amended materials, either at chambers or to the Court.

An application for particulars must be upon affidavit that none or insufficient particulars have been delivered.

Miller moved for a rule calling upon the plaintiff to give particulars.-The declaration contained counts for work and labour, money paid, and account stated. It appeared that he had applied to Williams, J. at chambers, but without any affidavit that particulars had not been delivered. It was then asserted that particulars had been delivered, and the summons was dismissed. A second summons was then taken out, and an affidavit produced, and Williams, J. refused it, because they did not come right at first. An affidavit was now produced. [PATTESON, J.-You have been a second time at chambers.]

Lord DENMAN, C. J.-You ought to have gone properly prepared at first. We cannot interfere now. PATTESON, J.-It is a well-understood practice that such an application ought to be accompanied by an affidavit. Rule refused.

Friday, May 29.

ROBINSON v. HAWKESFord.

There is no time fixed by law within which a cheque must be presented so as to charge the drawer, where no loss or damage has been sustained by him from the delay.

and which the Court seemed to think bad, was in the form given by Mr. Chitty, who supports it by a reference to Comyn's Digest, and also to Clift's Entries, where the same form is to be found.

Saturday, May 30.

REG. v. THE INHABITANTS OF HOLME. Settlement by apprenticeship-Notice of binding, what sufficient under 56 Geo. 3, c. 139, s. 2-What examinations to be sent with order of removal.

A notice of the intended binding of a poor person as an apprentice, under 56 Geo. 3, c. 139, s. 2, is sufficient, if sent to one only of the overseers of the parish in which the master lives.

If upon the application to justices for an order of removal, evidence is tendered on the part of the parish to which the proposed removal is to take place, and the justices hear it, but it is not taken down in writing, or transmitted with the order to the appel. lant parish, that is no ground of objection to the order of removal.

Upon appeal against an order of removal, the order I was confirmed, subject to a case, which submitted the following questions to the Court:-1. Whether a notice of the intention to bind a poor person apprentice, under the provisions of 56 Geo. 3, c. 139, s. 2, is sufficient, if directed to all the overseers of the parish in which the master lives, but sent to one of them only. 2. Whether it was a sufficient ground of objection to the order that the examinations of three persons, whose evidence had been offered before the justices on the part of the appellant parish, and received by them, had not been taken down in writing and sent to the appellants with the order of removal.

where notice is required to be given to overseers, no

Greenwood, in support of the order of Sessions.-1.

tice to one is generally sufficient (R. v. Warwickshire Justices, 6 Ad. & Ell. 783; 2 Nolan, P. L. 527, n.; and R. v. Staffordshire Justices, 4 Ad. & Ell. 482); and the words at the termination of sec. 2 of 56 Geo. 3, c. 139, "unless one of such overseers shall attend and admit such notice," make no difference. 2. It is not to be disputed, that all the examinations upon which the order is made must be sent to the appellant parish. (R. v. Outwell, 9 Ad. & Ell. 836; R. v. Black Callerton, 10 Ad. & Ell. 679.) Even copies of documents are to be sent, but this rule is confined to evidence taken down by the magistrates. It does not mean that every idle word which a witness might utter is to be taken down and sent. If the magistrates in any case neglect their duty, and refuse to take evidence which they ought to take, then the remedy is against them by mandamus; but here the evidence was offered on the part of the appellants, and they were clearly not bound to take the least notice of it.

Merivale, contrà.-1. Generally, notice to OND overseer is sufficient; but this is a particular case; and the proper construction of the Act is, that notice must be given to all, "unless one shall attend and admit the notice." The object is to insure the protection to the apprentice; and great care is taken that the notice shall reach some of the overseers. (R. v. Threlkeld, 4 B. & Adol. 229.)

By the COURT.-There is no doubt that the serit cannot be said that the order was made upon the examinations, which were not sent. If the evidence had been offered by the removing parish, perhaps, in that case, the justices would have no discretion; but here some evidence was tendered to the justices by the opposite party, not on which, but notwithstanding which, the order was made.

This was a special case, in which the simple point raised was whether the drawer of a cheque was dis-vice of the notice is good; and, as to the other point, charged from his liability upon the cheque by the delay of a fortnight in the presentment, all other cir. cumstances remaining the same, and he having suffered no injury by the delay. The Court called upon Cowling, on behalf of the defendant.-He cited Alexander v. Burchfield (8 Sc. N. R. 555); Moule v. Brown (4 B. N. C. 266); Serle v. Norton (2 M. & R.).

Atherton, contrà, was not heard.

By the COURT.-Where any loss may have occurred from the delay, then we may consider the question as stated here; but upon the bare question now argued, we have no doubt whatever that a delay in the presentment does not discharge the drawer of the cheque. Judgment for the plaintiff. SPRINGETT v. MORRELL. Pleading-Replevin. Replevin-Avowry for rent in arrear. Pleas in bar-First, as to 14s. 6d. parcel of the rent-riens in arrere, concluding to the country; secondly, as to 227. 6s. the residue of the said rent, a tender before the distress.-Verification.

Demurrer, assigning for cause that the pleas in bar improperly divided the avowry, which only shewed one answer to the grievances complained of by the declaration, and could not be divided in the manner attempted; that each of the pleas by itself raised an immaterial issue, and was no answer to any part of the avowry, and that two issues were tendered where only one was necessary.

Aspinall, for the demurrer, was heard, and the Court then put it to Bramwell, contrà, whether he would amend, which he elected to do, the Court having expressed a strong opinion.

Authorities cited:-Vivian v. Jenkin (3 A. & E.); John v. Jenkin (1 C. & M.); Com. Dig. tit. Pleader, K. 30; Clift's Entries; Chitty on Pleading.

Amendment accordingly. Note. In this case the mode of pleading adopted,

Order confirmed.

REG. v. SAFFron Walden. Settlement by estate-Residence within ten miles➡➡ Measurement of distance.

Stat. 4 & 5 Wm. 4, c. 76, s. 68, in order to gain a set tlement by estate, renders necessary a residence within ten miles of the estate: Held, that the distance is to be calculated by the length of a straight line drawn from one point to the other.

On appeal against an order of removal, founded upon evidence of a settlement by estate, gained since the passing of stat. 4 & 5 Wm. 4, c. 76, the Court of Quarter Sessions confirmed the order, subject to a case; which stated that the house in which the pauper dwelt was situate in one parish, and more than ten miles from the estate situate in another, in respect of which the settlement was claimed, if the distance were to be measured by the nearest mode of access, but within ten miles if the distance were to be measured from the boundary of one parish to the boundary of the other, or by a straight line drawn from one point to the other. The proper mode of measurement was submitted to the Court.

M. Chambers, Q.C. and Wordsworth, in support of the order of Sessions, contended that the proper mode of calculating the distance was from boundary to boundary, or by drawing a straight line between the estate and the place of residence. The latter was the mode prescribed by statute as to the parliamentary franchise, and is spoken of as reasonable by one of the Court in Leigh v. Hind (9 B. & C. 774); though in that case a different mode of calculation was

adopted, because the question there arose on the construction of a covenant in restraint of trade. If the distance were to be calculated by the nearest mode of access, the distance would be constantly shifting; one day the estate would give a settlement, and the next day not. Further, in a case of doubt, the Court will lean in favour of the settlement.

Marsh, contrà.-Admitting that the boundary of the parish, in which the estate is situate, is the terminus à quo, the question is, what is the terminus ad quem, and how is the distance to be measured? The statute is clear, that the party must inhabit within ten miles; and a party inhabits at the house where he lives. If the distance is to be measured to the boundary of the county, the estate and the place of residence might be fifty miles distant; and then the object of the statute, which is, that the settlement should only be gained where the estate is under the personal control of the owner, would be defeated. Then as to the mode of measurement, that by the nearest mode of access is the most reasonable; it does not follow that it should be by a public road; but the ordinary meaning of the words of the Act is, a distance of ten miles by the nearest possible mode of access. No person could go in a straight line from one place to the other without trespassing. The distance between two livings, held by one incumbent, has been declared by legislative construction to mean the distance according to the nearest mode of access; and Leigh v. Hind (9 B. and C. 774), is in favour of the appellant.

Lord DENMAN, C.J.-There are statutes which prescribe one mode of calculation, and others which prescribe another mode; and there is a case in which it was suggested by the learned judge, that the natural mode was to measure the distance as the crow flies; but the object of the contract there being to prevent any interference with the trade of one of the parties, a different mode was adopted. We are left, therefore, very much at large to decide this question; and no materials are presented to us, except the Act of Parliament. Under these circumstances, we are bound to lay down a fixed and arbitrary rule; and the rule, which, in the abstract, we think most reasonable is, that the measurement should be made by a horizontal line drawn from one point to the other; which we assume can be done. By laying down that rule, difficulties will be avoided, the settlement will not be constantly shifting, gained as yesterday and lost as yesterday, as the road may be lengthened or shortened.

PATTESON, J.-We must lay down an arbitrary rule. The words of the statute are ten miles;" and I think it is the more reasonable construction to say that that means ten miles as the crow flies.

WILLIAMS, J.-What can the statute mean but an actual distance of ten miles from the one place to the other? As to the danger of trespasses being committed, we are spared that consideration in this case; because the distance calculated in that way is expressly found in the case. Order confirmed.

Monday, June 1.

Re HAMMOND. Masters and Servants Act. Under the Masters and Servants Act, 4 Geo. 4, c. 36, s. 3, an instrument, purporting to be at the same time a warrant of commitment and a conviction, must set forth the evidence as in a conviction. Per Patteson, J.-It must also adjudge imprisonment. This was a motion to quash a commitment under the Masters and Servants Act, returned upon habeas corpus, on the ground that it did not set forth the evidence. It recited the complaint and adjudication upon it, and did therefore commit, and called upon the officer therein named to apprehend, and the jailer to receive.

Bodkin (with him Huddlestone), against the commitment. This is in fact a conviction, not a mere commitment or order. (Re Gray, 1 N.S.C. 354; R. v. Richards, 5 Q.B. 296; R. v. Cheshire Justices, 5 B. & Ad. 439, were cited.)

Pashley, contrà.-This is not a conviction nor an order, but only a commitment. Convictions are records, and ought to be on parchment. Every ingredient necessary to make this valid is here, jurisdiction, offence, fact of conviction. (Daniel v. Philips, 1 C. M. & R. 668.) This is a warrant. A commitment is not a record. (Whalley v. Jones, 5 East, 250; Cooper v. Jones, 2 M. & S. 283; Wood v. Fenwick, 10 M. & W. 295; Canadian prisoners' case, 9 A. & E. 731.) A conviction may be produced at any time. (Re Reynolds, 1 D. & L. 846; Re Fletcher, ib. 726.) It would be absurd if he should be discharged to-day for this being bad, and not have an action againt the jailer because a good conviction is produced.

Lord DEMMAN, C. J.-We must deal with this as we find it. There is nothing to shew that the original was not on parchment, and we shall presume that it was. We cannot take notice of the means that may exist for producing good convictions at another time, when the question is whether this instrument is a sufficient warrant for detaining. It professes to be at one and the same time a commitment and a statement of a conviction. As the latter, it is bad in point

of law, because it does not set out the evidence upon which it is founded. The prisoner, therefore, is entitled to his liberty.

PATTESON. J.-I am of the same opinion. This is also bad, because, after professing to convict, it does not adjudge an imprisonment, but calls upon the officer to apprehend, and the jailer to receive. WILLIAMS, J. concurred.

Conviction quashed.

Re TURNER. Masters and Servants Act. An information under the Masters and Servants Act, for absence and neglect thereby to fulfil the contract, must aver that it was without the consent of the master, or without legal excuse within his knowledge, The information ought to shew the nature of the contract, for it is not every contract of service that is within the statute, and non constat that there may not be an exception.

Bodkin (with him Huddlestone) moved as in the preceding case. 1. The information (which was framed as above) did not disclose any legal offence. (Paley on Convictions, p. 108; R. v. Corden, 2 Burr. 2279; R. v. Jukes, 8 T. R. 536; R. v. Jervis, 1 Burr. 148; Ex parte Aldridge, 2 B. & C. 600; Fletcher v. Calthorp, 16 L. J. 49, M. C.; Newman v. Earl of Hardwicke, 8 A. & E. 124.) 2. It does not shew the nature of the contract. It might be not within the statute. (Harding v. Ryde, 9 B. & C. 603.) 3. As to the validity of the contract, 1 Smith, L. Cas. 182; Hitchcock v. Coker (6 A. & E.); Horner v. Greaves (7 Bing. 743), and other cases were cited.

c. 122, s. 14; and that therefore no act of bankruptcy was committed, although the fulfilment of the terms of the agreement was not complete until some days after the 14th.

This was a feigned issue to try the right of the plaintiffs, as the assignees of one James Bradshaw, to certain goods which had been seized in execution by the defendants. The verdict was taken for the plaintiffs by consent, subject to the opinion of this Court upon a special case. The case stated the following facts: the fiat against James Bradshaw issued on the 27th March, 1844; and the bankrupt was indebted to the defendants in the sum of 1497. 48. from the 5th Feb. to the 3rd March in the same year, and thence hitherto, save as therein after mentioned. The defendants proceeded under stat. 5 & 6 Vict. c. 122, for the recovery of that debt; and on the 8th February, 1844, obtained a summons from the Court of Bankruptcy, containing the usual endorsement of the notice to the party summoned ; Quære, whether a contract binding a servant to work whereupon, on the 15th February following, the for the master absolutely for eleven months, in certain bankrupt signed the following admission, which was mines, on receiving a certain remuneration by the on the same day filed in the Court of Bankruptcy :piece for his work, but not binding the master to find "I, the undersigned, James Bradshaw, of &c. in the him a certain amount of work in each week, nor county of Middlesex, do hereby confess that I am into find him any work in case of accidental or unavoid-debted to Messrs. Rhodes and Crucknell, of, &c. in able damage or obstruction to any engine, gearing, the sum of 1491." No further or other admission, or machinery, or to the said mines, or any of them, deposition, or other proceeding whatever, was had, or to the workings thereof, is a valid contract, so as made, or entered into, and no further or other step to bring him within the Act? was taken in the said Court of Bankruptcy by the said bankrupt, until the fiat issued; and there was no enlargement of the time for complying with the above-mentioned summons, or for any purpose whatever. On the 8th Feb. an action was commenced by Messrs. Rhodes and Crucknell against the bankrupt, to recover their debt; and on the 17th, notice of declaration was served. On the 21st a letter was written by the bankrupt's solicitor, proposing to pay the debt by weekly instalments of 501. each; but that proposal was declined. On the 29th Feb. a meeting took place between Mr. Rhodes and the bankrupt; at which the bankrupt offered a judge's order for the amount due from him to Messrs. Rhodes and Crucknell, payable by instalments of 501. per week, and also to deposit with Messrs. R. and C. six bills of exchange, which the bankrupt then produced. Nothing was said about the odd money; all the costs were to be paid down, but the amount was not mentioned. The bankrupt delivered the six bills of exchange to Mr. Adams, who consulted with his client, Mr. Rhodes, as to their value; and Mr. Rhodes, then, in the presence of his solicitor, Mr. Adams and of the bankrupt, agreed to accept the deposit of the bills, and acceded to the terms proposed. The bankrupt asked Mr. Adams whether the bankruptcy proceedings would be stayed; and he replied, that of course the bankruptcy proceedings went for nothing. The bankrupt gave the six bills to Mr. Adams for the purpose of his keeping them for his clients, Messrs. Rhodes and Crucknell; but Mr. Adams delivered the six bills of exchange back to the bankrupt, and said that, as a matter of professional etiquette, he wished that the bills should be delivered to him through Messrs. Davies, the attorneys of the bankrupt; but no time was mentioned when the bills were to be sent by Messrs. Davies to Mr. Adams. On the same day the bankrupt took the bills to his attorneys, and a letter was written containing the above terms. On the 1st of March following, a summons was taken out by the bankrupt's attoneys to obtain a judge's order in pursuance of the said agreement; and on the 2nd of March the order was drawn up and sent to Messrs. R. and C. or their attorneys, the six bills being sent in a letter to their attorneys on the same day. In pursuance of that agreement two instalments were paid; but upon default in payment of others, final judgment was signed, and execution issued on the 23rd March. The question for the opinion of this Court was, whether the facts above stated disclose an act of bankruptcy by the said bankrupt committed before the levying of the said execution, so as to render the same invalid as against the plaintiffs, in which case the verdict was to stand for them. If not, the defendants to have their execution satisfied thereout, and a nonsuit entered.

Cowling, Edward James, and Fry.-As to the first point, the following cases were cited: R. v. Chandler (1 Ld. Raym. 581); R. v. Speed (5 Ld. Raym. 583); R. v. Cripps (2 Strange, 711; Bac. Abr. Indictment, H. 3); R. v. Marsh (2 B. & C. 772); Mann v. Davies (3 B. & Ald. 103). As to the second point, it is the same as the first, and involved in it. The contract is valid. (Williamson v. Taylor, 5 Q. B. 175; Young v. Timmins, 1 C. & J. 341; Morris v. Smith, 3 Dougl. 277; Sykes v. Dixon, 9 A. & E. 693; Aspdin v. Austin, 5 Q. B. 671.)

Bodkin and Huddlestone replied.

Lord DENMAN, C.J.-The question really is, does the information disclose any offence? for if not, the magistrate had no authority to commit. It never could have been the intention of the legislature that mere absence should be an offence under this Act. It therefore is necessary that the absence should be shewn to have been without the consent of the master, which was a fact to which the master could speak, or at all events, without lawful excuse to the knowledge of the master, or the person authorized to complain. As to the second point, it was quite obvious that the magistrate ought to be enabled to see whether the contract contained any exceptions that withdrew the alleged misconduct from the operation of the statute. It ought, therefore, to be set out. As to the third point, I, for one, should be very slow to deliver an opinion that would have the effect of relieving persons from being amenable to the law into which they so voluntarily and deliberately enter.

PATTESON, J. and WILLIAMS, J. concurred.

Tuesday, June 2.

PENNELL and OTHERS v. RHODES and ANOTHER. Stat. 5 & 6 Vict. c. 122, ss. 11-17.-Act of Bankruptcy-Compounding for debt. Proceedings being taken against a debtor under stat. 5 & 6 Vict. c. 122, ss. 11-12, by obtaining a summons from the Court of Bankruptcy, upon a debt of 1491. 4s. the debtor filed an admission that he was indebted to the creditor in the sum of 1491.: Held, that the omission of the 4s. being obviously accidental, and not implying a denial that the 4s. was due, did not prevent that admission from constituting an act of bankruptcy.

Friday, May 29.-Watson, Q.C. for the defendants, contended that no act of bankruptcy had been committed; and

The COURT, being of that opinion, gave judgment for the defendants, in the absence of Willes for the plaintiffs; but reserved to him the right of being heard, as he was engaged in another court.

On the fourteenth day after the filing of that admission (an action having been in the mean time commenced), an agreement was entered into between the debtor and Willes was now heard accordingly for the plaintiffs. creditor, whereby the latter agreed to accept six bills-1st. An Act of bankruptcy was committed by the of exchange and a judge's order for the payment of bankrupt, under s. 15 of 5 & 6 Vict. c. 122, which the amount of the debt by weekly instalments. The provides that a trader signing an admission for part bills were handed by the debtor to the creditor's at- only of a demand, and not making a deposition that he torney at the time, but were immediately restored by believes he has a good defence to the residue, if he him, because, as a matter of professional etiquette, he shall not within fourteen days next after the filing of he wished to receive them through the hands of the such admission, pay, secure, or compound for the debtor's attorney; and on the next day but one the same; and, as to the residue shall not, within fourteen judge's order, containing the terms agreed upon, was days after personal service of the summons, pay, seobtained, and the bills were sent by the debtor's to cure, or compound for the same, or enter into a bond the creditor's attorney: Held, that the agreement to pay any sum recovered with costs, shall be deemed entered into on the 14th day, was a compounding" to have committed an Act of bankruptcy on the 15th of the debt within the meaning of the stat. 5 & 6 Vict. I day after service of the summons. The present case

66

Semble, it would also be sufficient upon special de

murrer.

This was an action of assumpsit upon a bill of exchange, drawn by Leonard Simpson on J. Powilston, whereby the said "L. S. required the said J. P. to pay to the order of the said L. S. in London, 1981. value received, three months after the date thereof," indorsed by L. S. to the defendant, and by the defendant to T. R. and by T. R. to the plaintiff. The declaration went on to aver "that the said J. Powilston did not pay the same, although the same was presented to him for payment on the day when it became due," and then concluded in the ordinary form. The only plea was a denial of the notice of dishonour, the issue upon which was found for the plaintiff. The venue in the action was London.

In last Term, Byles, Serjt. had obtained a rule to shew cause why the judgment should not be arrested, on the ground that the declaration, as it shewed that the bill was drawn payable in London, ought to have averred, not a general presentment, but a presentment in London. Gibb v. Mather (8 Bing. 214), Lyon v. Holt (5 M. & W. 250), were mentioned.

Dowling, Serjt. now shewed cause.-The allegation of presentment is, at all events, good after verdict. There is sufficient to shew a presentment to the payee, which must be taken to have been such a presentment as is required by the previous part of the declaration. No other place besides London is mentioned in the declaration. This form is in accordance with the Rules of Court, T. T. 1 Wm. 4, and H. T. 4 Wm. 4. According to the former of these (see the last form but one in the Schedule and Directions, 1), our declaration would have averred "that the bill was then and there presented to the said J. P.;" but by Rule H. T. 4 Wm. 4, pl. 8, "The name of a county shall in all cases be stated in the margin of a declaration, and no venue shall be stated in the body of the declaration, or in any subsequent pleading." It was not intended by the rule to relieve the plaintiff from the necessity of proving every thing which he had to prove before. If the presentation had been traversed, the plaintiff would have been bound to shew presentment in London. Supposing such a traverse, and isssue found for the plaintiff, the Court would not have allowed this objection after verdict. A fortiori, the objection cannot be made when presentation is admitted. The presentment would have to be proved to have taken place in London, but a strict allegation of it is unnecessary. (Parks v. Edge, 1 Cr. & M. 429.)

Byles, Serjt. in support of the rule.-First. This declaration would have been bad before stat. 1 & 2 Geo. 4, c. 78. (Rowe v. Young, 2 B. & B. 165; Saunderson v. Bowes, 14 East, 500.) Secondly. Statute 1 and 2 Geo. 4, c. 78, relates only to accept. ances. Here the bill was drawn specially payable at a particular place. Thirdly. The defect would be fatal even upon general demurrer. It is not cured by verdict, because there is no issue, and therefore no verdict, upon this particular part of the declaration. [MAULE, J.-It is not so much that there has been a verdict as that the defendant has pleaded over. Where matter defective on special demurrer is good after verdict, it is supposed that the judge has directed the jury with a view to that sense of the pleading which will sustain the action. If there be a general demurrer, the party treats the declaration as a thing requiring no answer; if he pleads over, he takes it in a sense that requires an answer. So in Hobson v. Middleton (6 B. & C. 295), Bayley, J. says, "That after pleading over, an equivocal expression is to be taken in that sense which will support the previous pleading." That applies only where the part defective is pleaded over to. The law upon the effect of pleading over is laid down in 1 Wms. Saunders, 228. Butt's case (7 Rep. 25), and Dr. Bonham's case (8 Rep. 120), are authorities to shew that pleading over merely cures matters of form. See also 1 Chitty on Pleading, 7th ed. 704. [COLTMAN, J.-What would you say, if "then and there" had been inserted with the allegation of presentment?] Even that would not do. This is not merely an equivocal expression: it is an absolute defect. It is a mere accident that the venue is London, and, with reference to this point, cannot place the parties in a better position than if the venue had been some other county. This is within the proviso of the Rule H. T. 4 Wm. 4, pl. 8, "provided that in cases where local description is now required, such description shall be given."

TINDAL, C.J.-It appears to me that this case is decided by the new rule last referred to. It must now be taken as if the venue inserted in the margin were continued throughout the declaration; just as if it had been in the old form, "afterwards on such a day the bill was then and there presented, &c." I think that would have sufficiently averred a presentment in London.

COLTMAN, J.-It is unnecessary to advert to the effect of pleading over. It would have been quite sufficient in the declaration to allege that the bill was presented in London; then comes the rule, and prohibits the insertion of that special venue as unnecessary.

MAULE, J.-I think the venue in the margin suf

ficiently applies to the presentment. The Rule of Court referred to is-"The name of a county shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff." That makes it absolutely necessary to state the name of the county in the margin; and then it goes on-"no venue shall be stated in the body of the declaration, or in any subsequent pleading." Now, what is venue? It is the place where a material fact stated in the pleadings is alleged to have taken place, and was formerly important to determine from what place the jurors were to be summoned. The rule does require that the place where a material fact takes place should be stated, because it requires the county to be named in the margin, and that place is to be taken to be the place where the plaintiff alleges every matter of fact to have happened. If it is immaterial to prove that the fact took place in London, the plaintiff need not prove it; if material, he must prove it. This declaration, therefore, does contain an allegation that presentment was made in London, and that allegation, being material, if traversed, must have been proved.

CRESSWELL, J.-This case is determined by the Rule of Court. Before the rule, every material and traversable fact must have had a venue. Then the rule says, you are to read the margin in the body of the declaration. You are to construe the declaration as if the venue were inserted. Rule discharged.

DOE dem. GAISFORD V. STONE.

At the trial of an ejectment a deed was put in which was a mortgage of the premises from S. to the lessor of the plaintiff. Indorsed upon the deed was a memorandom of further charge of later date, signed only by the defendant, in which he described himself as the purchaser of the equity of redemption of the within-mentioned premises: Held, that he could not, after this, set up in defence a prior mortgage to a different party.

Friday, May 29. REYNOLDS v. FENTON. Pleading-Foreign judgment.

To an action upon a foreign judgment, it is not sufficient to plead "that the defendant was not served with process, nor had any notice of process, nor did he appear in Court to answer in the said suit;" without shewing distinctly that by the law in force in the foreign court, proceedings in an action brought there, of necessity commence with process. Assumpsit, setting out a judgment or decree recovered against the defendant in the Tribunal of Commerce, in Brussels, in the kingdom of Belgium, and in consideration thereof a promise by defendant to pay.

Plea. That although the said judgment or decree in the declaration mentioned, was obtained by the plaintiff against the defendant, he, the defendant, was not at any time served with any process issuing out of the said Tribunal of Commerce in and of the said city of Brussels, in the said kingdom of Belgium, in the declaration mentioned at the suit of the plaintiff, for the causes of action for which the said judgment was recovered, nor had he at any time notice of any such process, nor did he, the said defendant, at any time appear in the said Court to answer the plaintiff in the said suit or action on which the said judgment or decree was so obtained, as in the said declaration

mentioned.

Verification. General demurrer.

Channell, Serjt., in support of the demurrer. The plea is bad for not shewing that the defendant was not resident or domiciled in Belgium. (Douglas v. Forrest, 4 Bing. 686: Smith v. Nicolis, 5 Bing. N.C. 208; Cowan v. Braidwood, 1 M. & G. 882). He may have had an agent at Brussels, or he may have waived the service; or the Tribunal of Commerce may be a mere Court of Appeal, and the defendant may have been summoned to the inferior Court. Ferguson v. Mahon (11 A. & E. 179) was probably decided before Cowan v. Braidwood was reported, and cannot be sustained. It does not appear that by Belgian law a suit commences necessarily with process. The mere absence of a writ as the commencement of a suit is not contrary to natural justice. (Buchanan v. Rucker, 1 Camp. 62.)

At the trial of this ejectment, before Erle, J. at the last assizes for the county of Somerset, the following deeds were proved and put in:-Aug. 28th, 1828. A mortgage of the premises by Robert Saunders to Alfred Prothero. May 5th, 1829. Mortgage in fee by Saunders to the lessor of the plaintiff. An indorsement upon the last-mentioned deed, dated May Talfourd, Serjt., for the defendant.-The term "pro21st, 1842, and signed by the defendant in the follow-cess" is not confined in its meaning to a mere written ing words: "Memorandum, that by indenture of document; it will denote any method by which the surcharge, bearing date the 5th day of May inst. proceedings in an action are commenced. This plea the within-mentioned premises were charged by me, is identical with the plea in Ferguson v. Mahon (11 A. William Stone, the purchaser of the equity of re- & E. 179), and was framed upon it; primâ facie, it demption thereof, with the payment of the further furnishes a good defence to the action. If the nesum of 3001. and interest from the said 5th day of cessity of process were waived, or there were any May.' ." Erle, J. directed a verdict for the plaintiff. other excuse for its absence, that should be replied. In last Term, Channell, Serjt. had obtained a rule, The law, as laid down by Lord Ellenborough in Bupursuant to leave reserved, for entering the verdict chanan v. Rucker (1 Camp. 62), was afterwards upfor the defendant, on the ground that the title was held by the full Court (9 East, 192). A person who shewn to be in Alfred Prothero, and not in the lessor seeks to enforce a foreign judgment, must shew either of the plaintiff. that the party was summoned, or that there was some excuse for the defect. (Cavan v. Stewart, 1 Stark. N. P. 525; Becquet v. Mac Carthy, 2 B. & Ad. 951). [MAULE, J.-Your plea states merely that you had no notice of process; it is consistent with that, that in Brussels proceedings commence with a verbal summons from the plaintiff to the defendant. You do not even say that you had no notice of the proceedings. Prima facie, the plea must be taken to mean that. This objection is on general demurrer. We cannot say that the issue of process is necessary to natural justice. Your plea might perhaps have sufficed, if it had said that the Court had no jurisdiction, except in cases where process issued.] By the COURT.-You had better amend. Talfourd, Serjt. prayed leave to amend accordingly. The defendant to amend, otherwise judgment for the plaintiff. MESSENT . REYNOLDS. Pleading-Implied covenants. Where the declaration in an action states an agreement, whereby the defendant agrees to let to the plaintiff certain premises, subject to the same conditions as are mentioned in a certain memorandum of agreement made between the defendant and A B," without shewing what the memorandum is, the Court cannot infer an absolute covenant for quiet enjoyment from the defendant to the plaintiff.

Manning, Serjt. (with him Bailey) shewed cause.According to the relation of mortgagor and mortgagee, it does not lie in the mouth of the defendant to say that, at the time of the mortgage to the lessor of the plaintiff, Saunders was not in possession. The defendant, by his memorandum, precludes himself from setting up any better title than Saunders himself could, and Saunders would be estopped from setting up a title in somebody else, at the date of the deed of May 5th, 1829. He referred also to Slatterie v. Pooley (6 M. & W. 664).

The COURT called on

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