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suited upon a trial that came before my brother Cress. General demurrer.
Serjt. (with him Bovill), shewed cause. Byles, Serjt. (with well at the Liverpool assizes, a rule to shew cause Manning, Serjt. was to have argued in support of him Ogle), in support of the rule. Argument adjourned. was granted why such nonsuit should not be set the demurrer; but the Court, having intimated a
Tuesday, June 2. aside and a new trial had, on the ground of wisdirec- strong opinion that the plea was bad, called on
Re BULL.-Allen, Serjt. moved for a rule calling upon one tion. The declaration stated that the plaintiff was Channell, Serjt. who abandoned the argument.
of the Commissioners of the District Court of Bankruptcy at possessed of a house, and that the defendants MAULE, J.-You are trying to make this mere in- why the bankrupt should not be discharged from custody.
Leeds, and upon the gaoler of York Castle, to shew cause were possessed of large quantities of dangerous dorsement on the fi. fa. as effective as a release under the application was substantively the same with that made gas, and that the defendants took so little and such seal.
in the Bail Court in the same case in last Term (Law. T. bad care of the gas, that it passed into the house of TINDAL, C. J.-The plea is clearly bad.
Vol. VII. p. 117), and met with the same result. the plaintiff, and exploded and damaged the plaintiff's
Judgment for the plaintiff.
Rule refused. house. The defendants pleaded the general issue," not
Doe dem. BAILEY v. FOSTER.-Argument concluded. guilty," and the learned judge ruled, on the evidence
BUSINESS OF THE WEEK.
(Reported in another part of this paper.) brought forward, that the injury was not occasioned
Rule discharged. Thursday, May 28.
PIGGOT V. EASTERN COUNTIES RAILWAY COMPANY. by the neglect of any duty cast by law upon them, the Evans r. Watson.-Byles, Serjt. moved for a rule, call. Channell, Serjt. (with him Bovill) shewed cause. Shee, defendants. We think, on the facts proved at the ing upon the plaintiff to shew cause why the Master should Serjt. in support of the rule. It was an action on the case trial, such direction was right. The plaintiff was the not review his taxation, on the ground that he had impro- for negligence, whereby some stacks of the plaintiff had been owner of a house which had been let out to successive perly allowed the expenses of a witness, summoned from set on fire by sparks from the stcam-carriages of the defenda tenants, the last of whom had been in possession for abroad, at the rate of 78. a day, for 300 days. White v. ant. Evidence had been received, that on occasions different Brazier (3 Dowl. 499) was referred to.
from that upon which the negligence was said to have taken about two years, the house having been supplied with
Rule to shew cause.
place, large sparks had been thrown by the engines to a con. gas by the defendants during the whole time of his Tilt v. LOANES.-Sir Thos. Wilde, Serjt. moved to put siderable distance. It was objected, upon moving for a new tenancy by means of pipes and fixings, which were off the trial, upon affidavits that material witnesses were trial, that this was evidence of misconduct upon the part of put up and fixed within the house at the expense of abroad.
the defendants at different occasions from that which furthe plaintiff-the landlord--and all of which were his Wallis r. Brown and ANOTHER.-Byles, Serjt. shewed nished the present action, and therefore inadmissible. Upon property. The last tenant had quitted the house aside the appearance entered for one of the defendants. The evidence, the rule was granted. The judge who tried the case
cause against the rule obtained by Allen, Serjt. for setting this point, and upon the ground that the verdict was against about ten days before the explosion took place. Pre- question turned entirely upon the credit due to the different now reported that the evidence had been given to shew that viously to his quitting, he gave notice to the company affidavits.
the steam-carriages were capable of throwing sparks to the that no further supply would be wanted by him, and SUMMERS V. OGDEx.-Dowling, Serjt. moved for å rule, distance at which the stacks stood from the railway. The requested them to remove the lamp from the dining. calling upon the plaintiff to shew cause why the Master case was argued on the other point. Rule discharged.
Wednesday, June 3. room, which was his property. The plaintiff left the should not review his taxation, on the ground that the Master ought to have allowed the defendant the costs of making a
RIKY V. PRESTWICK. house in the care of a servant on the 28th of March, judge's order, which the plaintiff had failed to obey, a rule
Rule to shew cause.
Doe dem. BLOOMFIELD v. EYRE.--Channell, Serjt. (with and there was no appearance of the pipe having been of Court.
Rule to shew cituse.
him Willes), for the plaintift. Tulfourd, Serjt. (with him left improperly, and there was no smell of gas in the SARGENT ». Wrigut.-Allen, Serjt. moved to enter up Bovill), for the defendant.
Cur, ado, vult. house. No explanation was given as to the mode in judgment upon a warrant of attorney, more than a year old. Joll and ANOTHER 1. STEWART.-All the paper books which the escape of the gas, or the explosion which
Rule absolute. having been delivered by the plaintiff, and the defendant not took place on the 8th of April, was occasioned; but with him ). Brown), shewed cause. Talfuurd, Serjt. in ment of the Court, SIGGARS ”. PAYXTER and Axotuer.-Channell, Serjt. having paid for his copies, Manning, Serjt. prayed the judge
Judgment for the plaintiff. it might fairly be inferred that the inside pipe between support of the rule.
HAYWARD v. BENNETT.-Byles, Serjt. for the plaintiff. the gas-meter and the burner had been cut by some
Rule absolute for a new trial, upon payment of costs. Talfourd and Channell, Serjts. for the defendant. wrong-doer, who had entered the house during the ELSTON v. GASCOYNE-Shee, Serjt. was to have shewn
Cur, adv. vult. time it was empty, and during the interval between cause. Channell, Scrjt. (with him Wordsworth), to have
REEVES 7. GROOM.-Talfourd, Serjt. moved to set aside, the days. The mode by which the gas was conveyed timation annexed to his report by the judge who tried the proceedings, on the ground that the defendant had not
In consequence of an in the appearance entered for the defendant, and all subsequent to the house was a tube or pipe, which communicated
served with process. with the main in the street, and which passed through GIBBONS ». ALISON.-Channell, Serjt. (with him Borill),
Thursday, June 4. the outer walls into the meter, and from thence sup- shewed cause. Shee, Serjt. (with him Petersdorff), in sup
Smith and AxOTIER, Executors, v. EARL OF CHARLE. plied two lamps in the house, which were fitted up port of the rule for a new trial. The action was case for ville.-Channell, Serjt. moved for leave to sign judgment with proper stop-cocks fitted to each. There was a maliciously holding to bail. The judge who tried the cause, in the sci. fu. herein. He mentioned that the affidavits were stop-cock to each between the inside of the wall and though
he thought that want of reasonable and probable entitled as this motion is, and not in the original action the meter, of which the tenant had the key, and he had left both that question and the question of malice for the cause was not proved, had declined to decide that point, and which had been brought by the testator.
Application granted. could stop the gas entering the house altogether, if jury. After argument upon the facts, the Court now thought SAME r. Earl or MORNINGTON.--Channell, Serjt. made such stoppage was required; but the company had no that the judge ought to have held, and to have told the jury, a similar motion to the above. Application granted. stop-cock to the gas at the outside of the meter. On that there was was no reasonable or probable cause for hold- Francis v. DoDSWORTH.--Vanning, Serit, moved for a
ing the plaintiff to bail.
Rule absolute. the part of the plaintiff, it was contended that it was
rule to shew cause why the demurrer or rejoinder to the re
plication herein should not be set aside for duplicity, the duty of the defendants, on notice by any tenant of
Friday, May 29.
Rule to shew cause. the house that the supply of gas was no longer
GALLY V. Round.-Shee, Serjt. (with him Bramwell) wanted, to turn off the gas completely from
was to have shewn cause. TOCKWELL v. Morris.-Channell, Serjt. appearing for have supported the rule. After reading the report of the
Byles, Serjt. (with him Lush) to the house ; that they had no right to intro- the plaintiff, and no one appearing for the defendant, duce the gas into the house after such notice,
Rule discharged. Judgment for the plaintiff.
judge who tried the case. and that if an outer stop-cock in the street was abso
CARR 0. MAUDE. – Talfourd, Serit. for the plaintiff.
TEMPEST v. Kulzer.-Talfourd, Serjt. (with him CleasLately necessary for the purpose, it was their duty to Channell, Serjt. for the defendant, admitted that he could by) for the plaintiff, consented to have the verdict reduced
Judgment for the plaintiff.
to 25l. Byles, Serjt. (with him Atherton) for the defendant. have provided such stop-cock accordingly; and if
not support the demurrer.
Rule accordingly. sach duty was cast by law on the defendants, the di. No one appearing for the defendant,
BOWLBY c. BELL.-Byles, Serjt. (with him Archbold),
shewed cause, rection of the learned judge was undoubtedly wrong,
Judgment for the plaintiff.
Channell, Serjt. (with himi Atherton), in
Cur, adı, vult. as no such stop-cock was provided. On looking at DORMAY v. BORRADAILE.-Channell, Serit. (with him v. support of the rule. the Act under which this company was formed, no Lee and Camphell), for the plaintiff. Sir Thos. Wilde, Serit. ment upon a plea of nul tiel record to an action on a judg
Revell v. WETIERELL.-Byles, Serjt. asked for judge (with him R. Palmer), for the defendant. Cur, adv, vult, such direction appears to have been given to the company by the legislature, though it appeared in evi- might be referred to the Master, to examine the defendant been entered as of Easter Term, contrary to rule H. T;
Reg. v. HEMSWORTII.- Talfourd, Serjt. moved that it date assigned to it in the declaration ; but the record had
ment. The judgment was recovered upon May 14, 1815, the dence that a different company had been formed in upon the interrogatories, and to report to the Court. the same town, and that such company had used an
11 Geo. 1, whereby it is ordered that issues are to be entered outer stop-cock in the same way, but they had no
Saturday, May 30.
The COURT authority, as it appears to us, to do so; and as the DAVIES 0. Lowndes.- Tufourd, Serjt. moved to respite this case, was joined in Rilary, Term 1845.
ordered the record to be amended, and gave legislature is silent on this point, the common law the jury process in this writ of right until next Term.
Judgment for the plaintiff.
Application granted. would impose no precise duty on the defendants, or TOWERS v. TORNER.-Channell, Serjt. moved for a rule any other duty than that which is expressed in the calling upon the plaintiff to shew cause why the judge's order COURT OF EXCHEQUER. doctrine generally beld, the duty of using proper and for a writ of trial, and all subsequent proceedings, should not sufficient care in the supply of gas. Now, looking be set aside, and why a repleader should not be awarded.
KNIGHT v. THE MARQUIS OF WATERFORD. to the liability of the defendants in this point of view, and the writ of trial itself, commanded the sheriff to try the Construction of 2 4-3 W. 4, c. 100—Tithes.-- What is a it appears to us that the injury sustained by the plain- issue. The cause had been tried before the under-sheriff, modus within the meaning of the words “ DE MODO tiff is not solely attributable to the want of due and at the trial the defendant appeared by counsel. One of DECIMANDI." care on the part of the defendants, but that the plain the pleas was a plea of payment of 101. in full satisfaction This was an action of debt for not setting out tiff has, by his own voluntary aid, been contributory and discharge. The plaintiff replied that the defendant tithes, and came before the Court on a motion for a to it himself. The plaintiff knew that the pipe which did not pay the sum of money modo ac forma, as in the said
new trial on the ground of misdirection. brought the gas into the house still remained as be- plea mentioned.”. A repleader was desired, because the replication was not " that the defendant did not pay the sum
At the trial it appeared that the plaintiff was the fore, with the stop.cock in the inside of the house, of money in the said plea mentioned modo ac formd.” rector of the parish of Ford, in which parish there which would prevent the gas from being supplied to
Rule refused. were certain lands belonging to the defendant and his the house, if properly turned off ; and the house be- Price et Uxor •. JAMES.-Channell, Serjt. moved for ancestors. ing without a tenant, was under his own charge and a rule for the plaintiff to shew cause why the rule for a new
The action was brought to recover triple the value care. We think, therefore, the plaintiff was himself trial
should not be discharged. The rule for a new trial, upon of tithes claimed to be due to the plaintiff in respect wanting in ordinary care, in not seeing that the stop there had been no service of the rule, and no appointment of those lands. cock in the inside was elosed, which would effectually to tax costs.
Rule to shew cause. The defence set up was, that a modus of 401, had have prevented the gas from escaping; and this defence CoUltras v. Bowes, Clerk.-Talfourd and Channell, been from time immemorial, and still was, payable by appears, as we think, open to the defendants, under the Serjts. (with them O'Malley and Wells), shewed cause the lord of the manor of Ford to the parson in lieu of general issue, on the decision in the case of Bridge v. against the rule for a new trial, Sir Thos. Wilde and Byles, tithes, and that the tithes were paid to the lord. The Grand Junction Railway (3 M. & W. 244). We; Serjts. (with them Prendergast), supported the rule.
The payment of this modus was proved for 63 years, therefore, think the nonsuit right, and the rule for
Monday, June 1.
and also that the lord had enjoyed the tithes during setting it aside must be discharged.
ELY Y. SUITI.-Byles, Serjt. moved for a rule to shew that time, whereupon the learned judge directed the cause why the judgment of non pros. signed herein, and all jury that the case fell within 3 & 4 Wm. 4. c. 100, and
subsequent proceedings, should not be set aside at the cost the jury found for the defendant. Sir F. Kelly, S.G., Wednesday, June 3.
of the defendant. The writ had been served and appearance Sir Thos. Wilde, Q.S., Knowles, Q.C., and Crompton, HUTTON y. THOMP3ON.
entered in last vacation; and it was contended that the plain- shewed cause, citiog Pigot v. Heron (Cro. El. 595, ! To an action of debt on a judgment, a plea that a fi.fa. tiffs has the whole of the present Term in which to declare: Moor. 483) ; 'Dykes v. Thompson ('Wood, 513,1 had issued on the judgment, indorsed to lecy part of w. 664),
Rule to shew cause. Eagle & Y. 692); Phillips v. Prytherick (4 Wood's the sum recovered, and that that writ had been ex. COULTAS 0. Bowes. Argument concluded.
Decr. 73, 3 E. & G. 1273; Pigot v. Simpson (Cro. ecuted, and the money received under it paid over to
Cur, adv, vult. Eliz. 763) ; Stamford v. Donbar (13 M. & W. 822). the plaintiff, is bad on general demurrer.
Doe dem. HARRISON, 'Clerk, «. HAMPSON.-Dowling, Watson, Q.C., Addison, and Manisły, appeared to sup. Debt on a judgment recovered for 501. Plea~The Series with him . Smith), shewed cause.. Channell, Serji. port the rule. The arguments appear so fully in the issning of a f. fa. indorsed to levy 151. and a levy of with him Fitsherbert), in support of the rule.
Cur. adv. muut. judgment, that it is unnecessary to set them out here. the same, and payment over to the plaintif. Doe dem. BAILEY and OTHERS 0. FOSTER.-Channell,
Cur. adv. vult.
of his title to exemption, or to pay tithe otherwise is to be liable in case of single loss, and restricts the The LORD CHIEF BARON.-In this case, which than in kind. We all, therefore, think that there must liability to that value simply when there are several was heard before my brothers, Parke, Alderson, be a new trial, when the question to be decided on the losses; it gives the right to the parties who can preRolfe, and myself, on Thursday and Friday last, whole evidence will be, whether the payment of 401. sent a description of their value to have it apporthe principal question was elaborately argued by a year was immemorial or not. If it should be proved tioned among the several claimants. The statute, in the learned counsel on both sides. That question to be such, the question will arise whether the pre- the event of one loss only, does not give the shipowner was, whether the prescription or right under which scription for the lord and his assigns to take the tithes a right to file a bill, and to go to a court of equity to the defendant insisted on bis non- liability to tithes be good, a point which has not been fully argued be- decide on the value of the ship, but it leaves the in kind to the plaintiff, the rector, was a modus ex- fore us, and upon which we do not feel called upon to amount of damages sustained to be settled by a court emption, or discharge of tithes under the 2 & 3 Wm. give any opinion in the present stage of the proceed of law, and hence in the present case the defendant must 4, č. 100, s. 2, aod rendered, therefore, valid by user ings. Therefore, the rule for a new trial must be made be liable to some amount, and must shew oply some for two incumbencies, and three years for a third, and absolute.
Rule absolute. amount or some value of ownership. At what time such further time as would make sixty-three years
the value was to be established, if the matter was res under the provisions of that Act. We are all of
BROWN 0. WILKINSON.
integra, is a question that is not one of much doubt ; opinion that it was not a modus exception or dis. In an action aguinst the owner of a ship for an injury the Court of Queen's Bench have already decided that charge, and consequently that there must be a new to another ressel by collision, the measure of da- the value was not to be calculated at the time of the trial. The jury found that the defendant and his an. mages recovered may be commensurate with the value commencement of the voyage, but at the time of the cestors had, during the term mentioned in that sta- of ihe ship doing the injury at the moment the injury loss ; and in so doing, they have not adverted to the tute immediately preceding the commencement of the is caused.
circumstances that arise from several losses. Then statute, held and enjoyed the lands in respect of the This was an action brought by the plaintiff to the statute in this section clearly contemplates some title for which the action was brought, freed and dis- recover compensation from the defendant, as owner value to be paid into court; and if there are several charged of title by reason of a payment to the lord of of a certain vessel which had come in collision with losses at the time, and wbat loss as to value, is to be the manor of Ford of an annual sum of 401. payable a ship of the plaintiff, and had done her considerable given. This section is not considered by the Court as and for payable, &c from time immemorial in lieu injury. The defendant having suffered judgment by in W- - v. Dixon (2 B. & Ald. 2), and probably if it and compensation of all manner of tithes with default, a writ of inquiry to assess damages was had been adverted to, it would bave said that is the in the said manor; and that it was part of the executed before the Secondary, when a verdict was value at the commencement of the voyage, which is same custom that the lord, in consideration of the given for the plaintiff for 2591. which was the full that which naturally would be the amount of the payment of 401. should leave to him, bis heirs, amount of the injury done. Upon this a rule was shipowner's insurance, and which would be the same and assigas, a tenth of all titheable matters in the obtained by Fish, calling on the plaintiff to shew whatever the number of accidents there might be dur. said manor, or any part thereof; and upon this find. cause why the verdict should not be set aside, and ing the voyage, and that would have been the value ing, with reference to which the opinion of my brother a new inquisition had, or a verdict entered for no. contemplated by the statute. From the practice in the Rolfe was given on the trial, the question arises, minal damages, on the ground that the damages Court of Admiralty, no light can be thrown on this ques. whether it be within the statute or not. The right were excessive. The grounds for this motion were, tion, for that Court has another and different jurisdicthey have claimed, if it has existed beyond time of that the 53 Geo. 3, c. 159, limited the damages tion. But with regard to the question whether the value legal memory, would (subject to an objection which to be recovered to the value of the ship inflicting is to be taken as the measure of liability, as the point will be afterwards noticed) be valid upon the principle the injury, and the freight then accruing due to has been decided by the case referred to, we pause laid down in the cases of Pigott v. Heron (Croke, her owners. Now in this case, the vessel doing before we overrule that authority. It is not, howEliz. 519; Moore, 483); Pigott v. Simpson (Croke, he injury bad, at the time she inflicted the in- ever, necessary for this Court to do so; for we think, Eliz. 763); Philips v. Prytherick (3 Eagle and Young, jury on the plaintiff's ship, given herself a death- according to the true meaning of that decision, that 1273); and Dykes v. Thomson (Eagle and Young, blow, and had immediately suok; it was therefore the value at the time of the loss to which the da. 692); and though in the first mentioned case of Pigolt contended, that her value at that time was to be the mages are restrained, is tbe value at the moment the v. Heron, according to the report in Croke, the Court amount of damages, and as she had received her loss commenced by the collision with the defendant's appears to have treated the prescription as consisting death-blow, it could be but nominal.
ship, when the injury is inflicted, and that cannot be of two parts : the first, a modus by the lord for him- Watson, Q. C. and James, now (Feb. 11) reduced by the consideration that the defendant's self and his tenants, to bar the parson from demand. shewed cause, and contended that the measure of da. vessel is about to founder, at which time it really is ing tithes in specie; and the second, a prescriptive mages was to be taken at the time of the collision, of no value. It would be to exempt the defendant right in the lord to have the tenth thereof, &c. not as and not afterwards ; that it must be taken, in fact, at altogether, which the statute does not contemplate tithes, but a temporal right, analogous to a rent ser- a time when, being a floating body capable of motion, under any circumstances. Now, in this case, it is im. vice of his tenants; yet the judges of the court, in the and governed by the defendant's agents, she com- material whether we take this value, or the value of subsequent case of Pigottv. Sympson (Croke, Eliz. 763) mitted the tortious act for which compensation was the defendant's vessel at the commencement of the and Lord Coke's statement in the Bishop of Winches- sought; they also contended that as the defendant voyage, as the limit of the damages to be given ; for ter's case (2 Coke, 45 and 46), put the decision upon a bad suffered judgment by default, he could not now the present, we think that the verdict given is cor. different ground, and treated the prescription as giving raise this defence, but should have done so by a rect, and that the rule must be discharged. the lord a title, by the special matter to title as such, prope plea.
Rule discharged. as appurtenant to his manor, with a right to sue for Marlin, Q.C. and Firsh, contrà.
Friday, May 29. them in the spiritual Court, and this appears to us to
Cur, adr, vult.
LAW v. THOMPSON. be the true principle of this decision. The prescrip.
Where plaintiff's particulars of demand claimed a sum tion gives a title to the lord to the tithes themselves PARKE, B. now delivered the judgment of the of money to be due for plaintiff's services as clerk to lying in the manor, and the only payment to the rector Court.-In this case, the plaintiff sued the de. the defendant : and by his amended particulars the is the principle or prescriptive rent" (as it is termed in fendant, as the registered owner of a certain brig, plaintiff claimed the amount as due for his services, Dykes v. Thomson), given as the, or compensation for for negligence and improper navigation of his vessel, after the rate of 2001. per annum ;” and at the the, parcel of tithes; and this view of the case was by which the plaintiff's vessel was injured. The trial the evidence shewed a sum to be ording from the evidently taken by the House of Lords on the appeal Court gave judgment by default; at the inquisition, defendant to the plaintiff for services performed by from the decree of my brother Alderson, reported in the jury assessed the damages at 2511. Mr. Fish the latter, such services to be paid for by a certain 11th Clark and Finnelly, their Lordships having moved, in Michaelmas Term last, for a new inquiry per-centage on the defendant's business : Held, that treated the claims of the defendant, not, as properly on the ground that by the same strike that did there was a material variance between the particulars speaking, a modus, but a claim of title to a parcel of the damage to the plaintiff's vessel, the defend. and the case established by the evidence, and that the tithes as against the parson, and therefore they re- ant received her death wound, and soon after plaintiff ought to have been nonsuited. versed the decree; a court of equity not lending its sunk. The defendant contended that his vessel Joseph Browne shewed cause against a rule which assistance in a case of dispute of title to the tithes; was of no value at the time of the plaintiff's loss, had been obtained by Jervis, Q.C. to enter a nonsuit this being, therefore, a prescription title to a parcel and that by the 53 Geo. 3, c. 159, s. 3, the damages in the above case-the rule having been moved on the of tithes, and the immemorial payment, a prescriptive ought to bave been merely nominal. In this (Hilary) ground that the plaintiff's particulars of demand were rent for them, the Act appears to all of us not to Term cause was shewn by Mr. Watson, who sub not supported by the evidence. The action was in apply; the pension is not a modus according to the mitted that the rule should be discharged, and the assumpsit, and by his particulars the plaintiff claimed legal definition of that term, De modo Decimandi, case was fully argued. It was contended that the the sum of 4501. for his services as clerk to the de13th Coke, page 12. It is not given in satisfaction object of the statute, the 59 Geo. 3, c. 159, s. 3, fendant from August 1837, to Oct. 1839, inclusive. of tithes, for the occupier has always been liable was to give to British shipping all the protection in the defendant applied for further particulars, and in to pay tithe, and has paid them either by navigation from loss that foreign states extend to his amended particulars the plaintiff added the render or retainer, though not the rector; a modus theirs. This protection goes to the extent of permit. words, “after the rate of 2001. per annum.". The and a liability to pay tithe is kind for the same land ting the owner, at the end of a voyage, to give up the pleas were, non assumpsit, the Statute of Limitacannot co-exist; they are perfectly inconsistent ; nor vessel in its then state, with a full satisfaction to the tions, and a set-off ; and by the plea of the Statute of do we think that this is a modus in the sense of that parties, and if it be lost the owner is altogether exempt Limitations, the plaintiff's claim was reduced to the term, as used in the Act, for we see no reason to be from the benefit of insurance beyond the surplus. sum of 1001. for which amount the verdict was given; Wieve that the framer of the statute used it in any other Supposing the act to have been framed on this prin but the evidence established a claim on the part of
than its proper sense; and this appears by section 1, ciple, and to have this effect, we ought to know the the plaintiff for commission, to be estimated by a cerwhich provides that if a modus has been paid for time it happened, the defendant's vessel having been tain per-centage on the amount of business done by thirty years, it may be defeated by shewing the pay- totally lost immediately after the defendant was the defendant in each year. ment of tithes in kind, that is, the payment to any really exempt from all liability. If this argument Joseph Browne. There is no doubt that in this case one; and the word must be used in the same sense in were well founded, the consequence would be, the de. the plaintiff was bound by the wording of the amended the subsequent part of the clause, so that a modus in fendant ought to plead; at the same time the total particulars, but the question is, whether or not the the sense given by the Act is as inconsistent with the loss is matter of defence to the action, although defendant was misled by them. [ALDERSON, B.render of tithe, as it is according to its proper legal the judgment by default admits all liability to A salary is totally different from a payment by com. acceptation; and it is clear that this is not an ex- pay some damages. But the argument cannot mission at so much per cent.). It is submitted that emption or discharge," the lands of which the title be supported. It may indeed be true the legislature, the defendant was not damaged by the incorrect mode is claimed in this suit being liable to the payment of by giving relief by a series of statutes on the subject, of stating the claim. [ALDERSox, B.--The priaci. tithe according to the alleged prescription.
ending with the 53 Geo. 3, had the former statutes ple on which you make your claim is wrongly set In truth, there is a contest between the lord and in view, and proceeded in their spirit, but they have forth; the contract between the parties for a payment the rector as to the tithe to a parcel of tithes admitted not introduced the liability in the provisions of this by way of salary would be quite different from a conto be due from the occupier to some one ; the statute statute. There is not a word in the statutes protect tract to pay a per-centage.] If the defendant has never was meant to apply to disputed tithes, to the ing shipowners from all liability if the ship is lost, been misled by the plaintiff's particulars, the proper ownersbip of tithes, or to make a bad tithe to a parcel whatever the result be, or to take away the benefit course is for him to bring that fact under the notice of tithes good. It was enacted, in cases of the occu. to any parties of insurance under any circumstances of the Court by affidavit; here no such affidavit is pro pier who had not paid tithe in kind at all, but been whatever; all that they have done is to restrict the duced. (Hursi v. Watkins, 1 Camp. 68; -1. Bower, totally exempt, or bad paid something in lieu of it, liability of the shipowoer to the value of the ship and ib. 69, note.). If it appeared to the Court, either by for a long period, and relief is given by shortening the freight at the time, but no more. The Act specifies affidavit or from the nature of the misstatement, that tinge of prescription, and thus facilitating the proof | tbe value shall go to the extent to which the owner the defendant was, or must necessarily have been misled, the Court would, no doubt, hold that the tion, a sixth would be taken off; it is therefore neces- first issued, would have relief in some shape or other. plaintiff was bound by his particulars. (Lambirth v. sary that the information required should be given. Torts are, in their nature, joint and several; and Roff, 8 Bing. 411.) At all events, the rule should
Rule absolule. Lord Ellenborough's dictum, as cited from Campb. be for a new trial, with leave to the plaintiff to amend
R. is extra-judicial and incorrect. This dictum, it his particulars.
Wednesday, June 3.
is true, has been adopted by Mr. Chitty, in his work Jervis, Q.C. and Crompton, in support of the rule.
on Pleadings, but it is not supported by any autho-In Mahon v. Ward (Law T. Jan. 1846), there was no
HENRY V. GOLDNEY.
rity. Here the party first sued should have pleaded substantial variance; here there is. It is not indis- A plea in abatement is bad which states that the debt in abatement. As he omitted to do this, it remained pensable that there should be an affidavit by defen- sued for was contracted by the defendant jointly with for the present defendant to plead in abatement. dant that he was misled. Many cases occur in which A B, and that an action for the recovery of the Prior to the statute 3 & 4 Wm. 4, c. 42, only one the judge would nonsuit; but in which the defendant, same debt is pending against the said A. B.
action agaiost all jointly could have been brought if knowing, as he must do, what the contract really was, This was an action brought against the defendant, the parties had taken the proper steps. That Act could not have been misled.
who was one of the provisional directors of a railway was framed without reference to the rules of pleading, Platt, B.-Suppose a declaration with two counts company, for money alleged to be due from him to and the object of the 8th section was to prevent the for goods sold and delivered, and for freight, and sup- the plaintiff.
injustice and embarrassment which were so frequently pose the particulars are for goods sold and delivered Plea, in abatement—That the debt was contracted occasioned to a party suing, by reason of his nononly, that would not be sufficient. Here the defence by the defendant jointly with one A B, and that an joinder of all the contracting parties. This Act has prepared would be materially influenced by the parti. action for recovery of the same debt bas been com- nothing to do with the present question, and, indeculars, because the Statute of Limitations would ap- menced, and is now pending against the said A B. pendently of its provisions, I hold this plea to be bad. ply differently according to the nature of the contract Demurrer.
ALDERSON, B., The defendant ought to have between the parties; that is, whether the plaintiff's Crompton, in support of the demurrer, was stopped pleaded in abatement; and, on the other party claim be for a salary or for commission. (Holland v. by the Court, who called on
being made a co-defendant, a plea should have been Hopkins, 2 B. & P. 243.)
Bramwell, who appeared in support of the plea.- pleaded of the pendency of the action previously comPOLLOCK, C.B.- In this case there is a substan- If the Court hold this plea to be bad, the decision menced against him. This would have been a good tial variance between the case set up at the trial and will tend to encourage a multiplicity of actions on defence as to both the defendants. the plaintiff's particulars; a payment by way of com- joint contracts, and will put it in the plaintiff's power ROLFE, B.-King v. Hoare has no bearing on this mission is very different from a payment by way of to cause great vexation and embarrassment to the case ; tbat was decided on the principle that the prior salary. I think the plaintiff ought to have been non contract of parties; the rule of law, nemo debet bis action bad proceeded to judgment. The rule transit suited; but as the jury have found a verdict for the vexari pro eâdem causa, appplies emphatically to such in rem judicatam was held to be applicable. plaintiff, which is stronger than an affidavit of merits a case. [ALDERSON, B.-How so? That maxim PLATT, B.-If there were execution against one of would have been, there should be a new trial, on pay- would apply if this defendant were sued jointly with the defendants only, he could of course sue his co-dement of costs by the plaintiff.
the other party in the action previously commenced ; fendants for contribution. It is quite true that the ALDERSON, B.-In determining whether the par- but it does not apply where the two actions are law, according to the cases cited, will not permit a ticulars in any case are sufficient, we must consider against different parties. POLLOCK, C. B.-You double vexation, but here the defendants in the two not merely whether the defendant has, in fact, been ought to have pleaded the nonjoinder in abatement actions are different persons. There must be judgmisled, but whether they were calculated to mislead first, and when the plaintiff bad issued his writ, and ment for the plaintiff. Judgment for the plaintiff. him ; that is, whether a reasonable man would, under declared against both the contract of parties, you the circumstances, be probably deceived by the parti. might have pleaded the pendency of the former acculars--that is the true test. tion, which would bave been good.] If this plea is
STEADMAN. HOCKLEY. Rolfe, B.-I concur. The question is this, are held to be bad, an absurdity will be occasioned by the 4 çerlificated conveyancer has no lien on deeds sent to the particulars calculated to mislead? It has often stat. 3 & 4 Wm. 4, c. 42, s. 8. That section enacts,
him, and in respect of which business is to be done been held, that particulars were sufficient, which, al- that “no plea in abatement for the nonjoinder of any
by him. though wrong, were not calculated to mislead. person as a co-defendant shall be allowed in any court
This was an action of deliuue, to wbich the de. PLATT, B. concurred.
of common law, unless it shall be stated in such plea fendant pleaded that he was a conveyancer duly certiRule absolute for a new trial, on payment of costs that such person is resident within the jurisdiction of ficated under the statute, and entitled to fees as such by the plaintiff. The plaintiff to be at liberty to the court, and unless the place of residence of such business to be done respectively by bim — that he did amend within a week after taxation.
affidavit verifying such plea." Now, if an action this business, and that a sum of money was due and Saturday, May 30.
were brought against one
from the plaintiff to him for and in respect of BEST v. ROBINSON.
of whom one was abroad, the party sued could not such work and labour, and that defendant was en. In an action for goods sold and delivered, the particu- plead in abatement, by reason of the above enact titled to hold the deeds for the money so due and
lar, delivered was for goods bargained and sold : ment, and the plaintiff might consequently bring owing: Tothis plea the plaintiff demurred specially; the Held no variance.
separate actions against the other parties residing plea did not set out any agreement between the parties, This was an action for goods sold and delivered, within the jurisdiction of the Court. The observa or any custom by virtue of which a lien could be money lent, and on account stated. The particulars tions of Alderson, B. in King v. Hoare (13 M. & W. claimed; the question therefore was, whether the were for goods bargained and sold. A verdict having 494, 498), are strong in my favour. There it was held common law recognized the lien contended for set up Pearson moved for a pónsuit, or a new trial, on against one of two joint debtors, is a bar to an action inconvenience which would result if such a lien as that that a judgment (without satisfaction) recovered by the defendant.
Bovill, in support of the demurrer, remarked on the the ground of a variance between the declaration and against the other; there the learned baron intimated particulars of demand, and contended that the plain that a creditor cannot, in the case of a joint contract, set up by the plea were allowed; he cited Scarfe v. tiff had no right to give evidence of goods sold and have several suits against the different parties to such Morgan (4 M.& W. 270, 282); Saunderson v. Bell (2 delivered under a particular for goods bargained and contract. [Alderson, B.-Why cannot the defen- Cr. & M. 304); Eyre v. Shelley (6 M. & W.269, 274). sold.
dant here plead in abatement? If he did so,
Udall, in support of the plea, referred to Hollis v. ALDERSON, B.-This is no variance ; goods sold would probably discontinue the first action.] He Claridge (4 Taunt. 807), and contended that a right and delivered are necessarily bargained and
sold; no must in the first place apply to the Court for a rule to to lien existed wherever an article was bailed, under child could be deceived as to what he had to meet discontinue. [POLLOCK, C. B.—Yes; but that is circumstances bringing it within the 5th Act of Parliaunder this declaration and particular.
grantable ex debito justitia.] In an action in form, ment mentioned in Coggsv. Barnard (Lord Raym.909). By the COURT
Rule refused. ex deliclo, it is submitted that a plea framed like the Unless from the nature of the thing bailed there would
present would be good, and there the defendant could be something inconsistent with a lien. He also cited Tuesday, June 2.
not plead in abatement. [POLLOCK, C. B.-You Jackson v. Cummins (5 M. & W. 342); Poucher v. ENGLEMART O. MOORE.
may sue each of several joint-stock proprietors, but a Norman (5 D., & R. 648); Ex parle Grove (3 B. N. It is necessary in an attorney's bill that the court in judgment recovered against one would
be an answer to C. 304); Phillips v. Robinson (4 Bing. 106) ; Leeds v. which the business is alleged to have been done should a second action.] Boyce v. Bailiffe, (1 Camp. 58, Hancock (4 C. & P. 152). be stated. 2 Cas.); Boyce v. Douglas (cited ib. n.); Earl of Bed.
The Court, however, without hearing Bovill in This was an action of debt on an attorney's bill. ford v. Bishop of Exeter (Hobart, 137) ; and the judg- reply, gave judgment for the plaintiff. Plea-That no bill was delivered. ment of Holt, C.J.in 1 Shower, 75, are authorities in
Judgment for the plaintiff. Replication, as to a portion of the amount claimed - support of this plea. [ALDERSON, B.—This plea that a bill was delivered ; and as to the residue, a per- of the pendency of another action depends on the prin. sonal delivery of the bill to the defendant. ciple that a man shall not be twice vexed for the same
Saturday, May 30. The rule was moved on the ground that the court cause of action, but that does not apply where the calling on the plaintiff to shew cause why the defendant
O'Brien 0, BRYANT.-This was a rule of Greenwood's in which the business had been done was not specified. two actions are against different persons.] This plea should not have leave to plead a plea that had been dis
Jervis, Q. C. and Simon, having shewn cause, may be supported on another ground, viz. that the allowed by Mr. Baron Platt at chambers, on the ground that
Martin, Q. C. and Hugh Hill, in support of the plaintiff seeks to recover a chose in action ; and if the it amounted to the general issue. It was, in substance, that rule for a nonsuit. - The plaintiff was bound to deliver plea were not allowed, the plaintiff might recover this the defendant had not spoken the word " black-leg” with a bill of costs shewing clearly the nature of the trans- chose in action from each of several parties. The regard to the plaintiff in the sense alleged in the declaration. action in respect of which the business was transacted absurdity involved in this would be apparent if the distinguish this case from the one cited by Mr. Greenwood for which the claim was made; it must be such that claim were for a specific chattel, or for land. The of M'Gregor
v. Gregory (11 M. & W. 287), and therefore he the party charged may know, on looking at the bill, main argument, however, for the defendant is
, that must be content to submit to the rule being made absolute. whether the charges made in it are correct or not. before the Act of Wm. 4, above-mentioned, only one
Rule absolute. This must be so, because those charges are different action could be brought on a joint contract, and if an
HEAD O. SAYER.-V. Lee moved to set aside the judgment
herein on the ground of irregularity. in tbe different courts; and unless this information be action had been brought against each co-contractor
Rule nisi. given in the bill, the defendant could not judge as to there would have been an adequate remedy, whether ruptcy of the plaintiff. This had been refused by Mr. Baron
CLARK v. Levi.- Ogle moved for leave to plead the bank. the propriety of referring the bill to taxation, or whe- this plea were held to be good or not; whereas, Platt at chambers, on the ground that it was not an issuable ther, if referred, a sixth would be taken off or not. since the statute, this plea would afford the only plea. He cited Wallis v. Hallett (5 Bing. N.C. 465). They referred to the remarks of Lord Denman, C. J. defence where one of the contracting parties was in Martindale v. Faulkner (10 Jurist, 161), and the out of the jurisdiction. The remedy, by auditâ qua- and Peucock, were heard for the defendant.
WALSTAB v. SPOTTISWOODE.-Martin, Q. C. v. Lee, statutes 2 Geo. 2, c. 23, s. 23; 6 Vict. c. 73, ss. 7, rela would be altogether ineffectual, because the par
Cur, adr, vult. 37, 42. ties might all be taken in execution at the same time.
Monday, June 1. By the COURT.-The bill ought to contain a state- POLLOCK, C.B.-This plea is bad. The same DEAN AND CHAPTER OF ELY v. Cash.-Martin, Q.C. ment of the court in which the business was done, not party is not, in this case, twice vexed for the same Woolige, with him, was heard for the plaintiffs; Watson, necessarily in the heading of the bill, but in some cause of action, and the maxim which has been so
Q. C. (Eagle, with him) contrà.
MAYOR OF SALFORD V. ACKERS.-Crompton was heard part of it. The object of the statute is, to allow the much relied upon does not apply; when a contract is
in reply. plaintiff a month for consideration, as to whether he joint and several, each of the contracting parties may BENTON v. Wood.-Humfrey, Q. C. moved to set aside had better refer the bill then to taxation or not. Un-be sued upon it, but then the debt or damages can a distringas on the ground that the writ on which it issued dess the name of the court is stated, it would be im- be only once recovered by the plaintif. All
the de- was four months old, and consequently a nullity: possible for the defendant to know whether, on taxa-fendants, except that one against whom execution was
BUSINESS OF THE WEEK.
Cur adv. vult.
NEW TRIAL PAPER.
BENHAM v. WILKINS.-Crowder, Q. C. in support of the
Monday, June 1.
part, and must be taken to mean intentional negleet; demurrer; Willes, contrà.
Cur. adv, tult.
and that, as in the present case it appeared that the Thursday, May 28.
An attorney of the Courts at Westminster was arrested plaintiff had really intended to try his cause, he was MORRIS U. COMPTON.-T. W. Saunders moved for a rule
as he was returning from the County Court, where entitled to the indulgence which he sougbt on payment to rescind the order of Mr. Baron Alderson directing the
he had been professionally engaged. On an appli- of the costs incurred. defendant to be holden to bail, and for the defendant's dis
cation for his discharge, upon an affidavit, stating Rule absolute; the plaintiff peremptorily to go to charge from the custody of the Sheriff of Herefordshire, on
trial at the adjourned sittings after Term, and that he was a certificated attorney, duly admitted in the ground that the order had been improperly obtained.
Rule nisi. the superior courts, but not stating that he had to pay the costs of the day, including the sun, Fenwick v. Boyd.-Watson, Q. C. shewed cause; Un- signed any roll of attorneys in the County Court.- moning and returning of the special jury, and of thank, contrà.
Cur, adv. vult.
Held, that in the absence of any proof to the con. this application. LOURIE v. DOUGLASS.-Martin, Q. C. and Hill, shewed
trary, it sufficiently appeared that he was entitled to
BUSINESS OF THE WEEK.
Thursday, May 28.
Rule discharged. F.V. Lee shewed cause against a rule for discharg- Home v. BARNEET.-Wordsworth moved to set aside the WALSTAB V, SPOTTISWOODE.
served more than 200 yards from the borders of the county
Rule nisi. M'LAREY r. BERKLEY.-- it was arranged that this case certificated attorney, and duly admitted in the Courts In the matter of the arbitration of REECE O. THOMAS should be heard by Rolfe, B. at chambers.
at Westminster, was arrested as he was leaving the v. Williams moved to set aside the award herein. In the matter of GEORGE SALTER.-Jones moved for a
Rule nisi. County Court of Gloucestershire, where he had been rule, calling on George Salter, an attorney, to shew cause
Er parte The late SHERIFF OP BRECON.-M. Smith moved why he should not account to the Overton Friendly Society, professionally engaged as an attorney in several acin Denbighshire, for money received by him on behalf of the tions. The affidavit upon which the motion was made to set aside the attachment against this party with costs, or
for a stay of all proceedings.
Rule nisi. society, by whom he had been employed as attorney. stated the fact of his being duly on the roll of attor
Reg. Ó. Bridson and ANOTHER.-Petersdorff moved, on Rule to shew cause, neys of the Queen's Bench, but did not state that he the return of the certiorari herein, to quash the order of had signed the roll of attorneys of the County Court petty sessions.
Rule zisi. FILBEY v. Hodgsox.-This case was tried before Pol.
It was now
Friday, May 29. lock, C.B. at the last Sittings in London. The question pursuant to the 6 & 7 Vic. c. 73, s. 27.
Reg. v. EATON and AxOTHER.-Couch moved to re-open turned entirely on the evidence given at the trial as to recontended, that the defendant not having sworn that
a rule and make it absolute, the terms of the rule in the puted ownership of certain goods. There was no point in. he had signed the roll in the County Court, had not
cause enabling him to do so on default of payment of a sum volved in it of any interest, and the Court thought that the shewn himself entitled to practise there, and was
Rule opened and made absolute. rule for a new trial, on the ground of misdirection, should be therefore not privileged.
Reg. v. TILE Town COUNCIL OF LICHFIELD.-Whateley, discharged. Humfrey, Q.C. and Cleasby, in support of the Miller, contrà, argued that the defendant had suf- Q.C. shewed cause against a rule for enlarging the time for rule. Martin, Q.č. and Dowdeswell, contrà.
Rule enlarged upon terms.
CLUTTERBUCK V. HULLS, – F. V. Lee shewed cause but involved no point of the slightest interest to the profes: ferred that there is any roll of attorneys in that Court against discharging the defendant out of custody. Miller,
Hills v. CROSSLAND.-This was an action of trespass, practise in the County Court; that it was not to be in-
Cur, adv. vult. Rule absolute for a new trial, unless the plaintif admitted attorney in the superior Courts, it should be HARTLEY v. MILBURN.-Unthank shewed cause. T. W.
consents to enter a stet processus within a week. BICKLEY V. BOYDELL.
presumed that he had done all that was requisite to Saunders, contrà.
Rule discharged upon a peremptory undertaking..
Saturday, May 30.
Davis v. Jones and ANOTHER.— Jerris, Q.C. moved for The judgment in Healle v. Baldwin; Rorburgh v. Blunt: arrest, in the present instance, is that of the client
a rule calling upon the defendant, Catherine Jones, to pay
Cur, adv. vult. Roxburgh v. Broke; and Roxburgh 5. Thomson, followed and not of the attorney.
the amount of the sheriff's possession money.
Rule nisi. that in Henry V. GOLDNEY, above reported. There was
WOOD v. New.-O'Brien moved for a rule to amend no argument, the point being the same in each case.
Mr. Justice WiGhTMAN now delivered judgment the judgment roll by inserting the Christian name of the TORRE v. WEST.-The judgment in this case followed
Rule nisi. as follows:-It seems to me that the defendant is defendant. that in Allport v. Nutt (14 L.J. N. S.; C. P. 272; S., 3 entitled to his discharge on the ground of privilege ; trial herein (which was tried before the judge of the She
BRADSHAW v. ALLANDER.–Prendergast moved for a new Dowl. & L. 233). Hayes, for the demurrer. Cowling, contrà, Judgment for the defendant.
for without discussing whether it is or is not neces- riff's Court, when a verdict was found for the defendant), on CHARLTON 0. LINDSEY.
Part heard. sary to warrant an attorney in practising in the the ground of the verdict being against evidence, and for GRAHAM V, SPALDING.-This case was not argued. County Court, that he should have signed the roll misdirection.
Rule nisi. Judgment for the plaintif.
(my impression being that it is not necessary), I LIPSCOMBE v. TURNER.-T. W. Saunders shewed cause think that enough is shewn by his affidavit to justify against a rule for reviewing the Master's taxation. Brown,
Cur, adr, vult. his discharge, for it is said that he was an attorney of BAIL COURT.
Monday, June 1. the Courts at Westminster, and that he was acting as
Egg v. WAITE.- Parry moved for a rule to discharge the an attorney in the County Court, and it was for the peremptory undertaking in this case, and for leave to enter 2 Thursday, May 28.
other side, therefore, to have shewn that he was not stet processus, the defendant having become bankrupt since (Before Mr. Justice WIGHTMAN.). entitled so to practise, and this particularly, as the the giving of the undertaking.
Rule nisi. BEALE v. SHARP. privilege is not so much that of the attorney as of the
Wednesday, June 3. Where a defendant absconds to aroid his creditors gene- client. The rule, therefore, will be absolute for the WHITWELL v. WAYTE.-Buvill moved to set aside a dis. rally, the Court will (upon the proper calls and ap- defendant's discharge.
tringas to compel appearance, on the ground that the writ of pointments being made) grant a distringas to compel
summons had never come to the defendant's hands, was not
left at his dwelling-house, and that he had no knowledge of an appearance, though it does not appear that the
Tuesday, June 2.
Rule nisi. defendant has absented himself to avoid the plaintiff
ROGERS V. VANDERCOMBE.
REG. v. Tue COMMISSIONERS OF Excise.-Martin, Q.C. in particular.
When a pluintiff is under terms to try peremptorily at a moved to discharge the rule for a mandamus obtained herein Miller moved for a writ of distringas to compel an particular sitting, and fails to do so, the Court has last term, and for a fresh rule, some error haring been made
in the former application. appearance under the following circumstances.' The
Rule nisi. power to enlarge such undertaking, and will do so
DEER r. Rapsdex.-Crowder, Q.C. moved to dispauper usual calls and appointments had been made, and the upon good cause shewn.
the plaintiff (for vexatious proceedings), and for the costs of writ left with the wife of the defendant, who stated M. Smith shewed cause against a rule to discharge the day, in not trying his action pursuant to notice. that, nine weeks before, her husband had absconded a rule for judgment, and to enlarge a peremptory un.
Rule nisi. with a considerable sum of money to avoid his cre- dertaking. The facts were these ; the plaintiff hav.
Reg. v. CHORLEY.-Moody moved for a certiorari to reditors, to whom he was much indebted. It was now ing neglected to try within the usual period, a rule move an indictment, found at the last Taunton Assizes, for submitted, that notwithstanding there was no direct was obtained for judgment, as in case of a nonsuit, civil side at the Assizes, to the end that there may be a speevidence that the defendant kept out of the way to which rule was discharged upon a peremptory under- cial jury and a view.
Writ granted. avoid the process of the plaintiff in particular; yet, taking to try at the sittings after last Hilary Term. CHEATIAN 0. SPILSBURY.-Gray moved for a rule to as he was keeping from home with the view of Shortly before the cause would have come on, the set aside the appearance entered sec. stat. and all subsequent evading his creditors generally, it amounts to the plaintiff made an application for its postponement, on proceedings, on the ground that the defendant was not
served with process. same thing. (Channing v. Cross, 9 Dow). 118; Archer the ground of the absence of a material witness; it
Reg. 0. THE THAMES HAVEN DOCK AND RAILWAY v. Brindley, 9 Dowl. 38.) Application granted. was then, however, discovered, that a material defect COMPANY. ---Lush moved for a madamus commanding the
existed in the record, whereupon the cause was struck above company to pay over a sum of money recovered for Saturday, May 30.
out. In Easter Term a rule absolute was obtained damages, and, if necessary, to make a call on the subscribers BURROWS v. GABRIEL AND OTHERS.
Rule nisi. for judgment, as in case of a nousuit, for not proceed for the amount. A party attending for the purpose of serving a writ of ing to trial pursuant to the peremptory undertaking; remove from the Dorset Sessions an indictment found there
- Reg. v, HOARE.-Greenwood moved for a certiorari to summons saw a person whom he understood to be a and then the plaintiff moved for and obtained the pre- against the defendant for giving false answers, under the 5 servant, and gave her the copy, intending afterwards sent rule. It was now contended, that the Court has & 6 Wm. 4, c. 76, s. 34 (the Municipal Corporation Act), at to apply for a distringas, and did not, therefore, in- no functions to grant the plaintiff any further indul- the municipal election for Bridport. Writ granted dorse the writ within the three days, as required by gence, for that by the 14 Geo. 2, c. 17, which reguthe rule of Court. It afterwards appearing, that the lates these motions, it is enacted, that if, after time person to whom the copy writ was so delivered was has been granted the plaintiff for the trial of his
Bankrupt and knsolbent Tourts. the defendant, the Court granted leave to enter an issue, "he shall neglect to try such issue within the appearance without such indorsement. time or times so allowed him, and in every such case,
COMMISSIONERS' COURTS. Charnock moved for a distringas to compel an ap: the said judge or judges shall proceed to give such pearance, in respect of two of these defendants, and judgment as aforesaid," and that the plaintiff having
Thursday, May 14. for leave to enter an appearance for the third. It'neglected to comply with the terms of his peremptory
(Before Mr. Commissioner Evans.) appeared, that the defendants in this case were three undertaking, the judgment against him must be ab
Re THOMAS KNIGHT. females, and that many attempts were made to serve solute. (Ward v. Turner, 5 Dowl. 22, 2 Dowl. & L. A commissioner may not properly adjourn the hearing of them with process; and that on the 21st of March, a 640.)
a disputed adjudication beyond the time allowed by copy of the writ of summons was left with a person Crowder, Q.C. argued that the term “neglect,' the statute. at the house of the defendants, who appeared to be a in the latter part of the section, must be construed Thomas Knight appeared on the fifth day after set. servant. It was subsequently discovered that this as in the former part, and must be taken to mean vice of the adjudication, under a fiat in bankruptes person was Ann Gabriel, one of the defendants; as wilful neglect ; that bere there was no neglect-the issued against him, to shew cause against its validity, regarded her, therefore, the leave of the Court was plaintiff intending to try, but being unable to do so on the ground that an act of bankruptcy was not sui. sought, under the circumstances, to enter an appear on account of a defect in the record, independently officiently proved. The objection was allowed. ance, notwithstanding the writ had not been indorsed which the plaintiff was prepared to shew at the trial a Turner, for the petitioning creditor, proposed to as to the service within three days, as required by the good ground of postponement. (Lumley v. Dubourg, prove other acts of bankruptcy, and asked for an ado R. G. M. 3 W. 4, s. 3, and for a distringas against 3 Dowl. & L. 80.)
Cur. adv. vult. journment of the hearing, in order to enable him to the other two defendants. (Brook v. Edridge, 3 His lordship this day gave judgment, holding that produce witnesses, citing 5 & 6 Vict. c. 122, s. 23. Dowl. 647.)
the word “neglect," in the latter part of the 1st sec. Cook, for the bankrupt, objected that the Commis. Application granted to enter an appearance, and tion of the 14 Geo. 2, c. 17, should be construed with sioner had no power to adjourn the hearing, the time for a distringas.
the same latitude as the same word in the former days allowed by the statute having elapsed.
INEQUALITY OF STAMP DUTIES.
SHORT FORMS AND REGISTRATION OF DEEDS.
BILLS READ A SECOND TIME.
COST OF CONVEYANCING.
Somerset Small Debts Court
Askew's Estate Bill
BILLS READ Birkenhead Small Debts
His HONOUR said that the circumstances of the payable out of the proceeds of the land before any rated as improved land, on the net rent a company of case would justify the adjournment asked, but he portion of them is available or applicable to the carriers would give for the occupation of the same; doubted his power to grant it. He would, however, profits of the capital invested in its cultivation. It is and, as the rents of a railway would depend materially take the opinion of his brother commissioners upon further important to consider the effect of this charge on the profits derived from the carrying trade on it, the point.
on the land in the case of a serious fall in the price of the profits are taken as a guide to arrive at the net Having done this,
agricultural produce. Under the old law, the value rent. Mills are rated on the same principle, namely, His HONOUR said that there was a difference of of the tithe would correspond with that of the crop; the rent for which the mill, with its appurtenances, opinion as to their power of adjourning a disputed ad- bat under the law of commutation it would take would let. Considering the changes occasioned by judication to a period beyond the five days appointed several years before the land would be relieved in the the creation of real property, as well as those taking by the statute. If the argument were to continue to amount of its tithe.
place in the relative value of different descriptions of midnight, the point would press for decision ; but the
real property, the committee need scarcely point out adjournment being asked for another day, he doubted
the advantage as well as justice of periodical and uni. bis power to grant it, and must therefore annul the
The stamp duties levied under the head of deeds form valuations. adjudication.
and iastruments in 1844, amounted to 1,646,365l. ;
sources, ought to be deducted before the burden affect- The committee earnestly request the attention of
esti- the House to the important evidence of Mr. Stewart, mated.
on the evils proceeding from the length of deeds conSummary.
The committee, moreover, wish to direct particular nected with real property; and while the committee
attention to the important evidence given by Messrs. acknowledge the benefit of the act passed last session LEGISLATORS have been keeping holiday Senior, Stewart, and Baxter, on the unequal pressure respecting satisfied outstanding terms and short deeds, like all the rest of the busy world.
imposed by the various Stamp Acts on dealings with they are at the same time anxious to impress on
real property. The last-named witness, Mr. Baxter, the House the necessity of a thorough revision of the Imperial Parliament.
says, the stamp upon a 501. sale (calculating a certain whole subject of conveyancing, and the disuse of the
The committee have received evidence on the ad-
of similar institutions to dealings with real property cent.
in foreign states. The committee, however, limit Northern and Southern Connecting Railwaay
themselves to the expression of their opinion, that a
The transfer, moreover, of real property is subjected registry of title to all real property is essential to the Metropolitan Sewage Manure Company
by law to other difficulties, expenses, and inequalities, Great Leinster and Munster Railway (No. 1) Carlow to Kil- of a similar character. According to the evidence of success of any attempt to simplify the system of.com
veyancing. kenny, Bill
the same witness, the expenses, including stamps, Great Leinster and Munster Railway (No. 2) Kilkenny to upon a sale of 50l. value, amount to no less than Such a report from such a quarter cannot Clonmel, Bill
thirty per cent; upon a sale of 100l. value, to fifteen fail to lead to early and considerable changes British Guarantee Association
per cent.; upon a sale of 600l. value, to seven and a materially affecting the interests of the ProfesFriday, May 29. half per cent.; upon 1,5001. five per cent. The com
sion, mittee are convinced that the marketable value of real Wakefield, Pontefract, and Goole Railway
property is seriously diminished by the tedious and Glasgow, Barrhead, and Neilston Direct Railway
expensive process attending its transfer. Nor is it ARREST IN EXECUTION.- In the proposal by Glasgow, Barrhead, and Neilston Direct Railway only in the transfer of real property that the pressure Mr. Serjeant Manning to the Lord Chancellor
for the Stirling and Dunfermline Railway
of this burden is felt. It is a work of time to raise amendment of the law of bankruptcy, and insolvency, Birkenhead, Lancashire, and Cheshire Junction Railway money on landed security, and the law expenses inci. the question of retaining arrest in execution is con Edinburgh and Northern Railway, Strathearn Deviation
dent to the transaction are a considerable addition to sidered. The learned serjeant is of opinion that it is Edinburgh and Northern Railway York and North Midland Railway, Leeds Extension
the interest on the sum borrowed. The transfer of " inexpedient" in its present form. He says, “ The Midland Railway, Erewash Valley Extension
the debt or mortgage is also attended with serious propriety of allowing arrest in execution at the mere Midland Railway, Claycross to Newark
expenses to the mortgagor ; the process of discharg- will of the judgment creditor has been so often dis. Midland Railway, Erewash Valley Branches
ing the land from one loan, and subjecting it to an- cussed, that I do not trouble your Lordship with a Harrogate Gas Lancashire and North Yorkshire Railway
other, being both heavy burdens upon the proprietor. repetition of the arguments which have been used Arbroath and Forfar Railway.
Mr. Baxter gives the following evidence on the ex. upon the subject. It appears to be an inconvenient penses attending mortgages :-* A mortgage for 501. mode of getting at the property of the debtor, where
would cost, in stamps and law expenses, thirty per there is property, and it often operates as a great REPORT OF THE LORDS COMMITTEE cent. ; a mortgage for 1001. would cost twenty per hardship and oppression where there is none. It is ON THE BURDENS ON LAND. cent. ; a mortgage for 4501. would cost seven per true that it not unfrequently happens that the assets
cent.; a mortgage for 1,5001. would cost three per of an insolvent debtor are too artfully covered to be The resolutions with which the Committee cent. ; a mortgage for 12,5001
. would cost one per capable of being brought within the reach of any prohave summed up their report have been already cent.; for 25,0001. it would cost 15s. per 1001. ; and cess against property, or of being affected by any presented to our readers. They allude briefly for 100,0001. it would cost 12s. per 100l.”
legislative provision for transferring the property of to divers plans which had been suggested for
the debtor to an assignee; and it is equally true that
LEGACY AND PROBATE DUTY. diminishing the cost of conveyancing. We
Freeholds are exempt from legacy and probate duty. the only mode by which such assets can be effectually
coercion by imprisonment of the person is at present now extract from the body of the report itself The committee have not been able to ascertain the reached. Imprisonment, however, often fails in prothe paragraphs relating to Law Reforms re- hold property ; but they feel it their duty to draw ment which now exists for concealing property, in the commended, as they have an immediate inte attention to the fact that leaseholds are not only liable belief that it may bereafter be safely produced and rest for the readers of the Law TIMES. to the stamp duties on dealings with the property inter enjoyed without disturbance under the false name of
vivos, but also to the probate and legacy duty. Nor after-acquired property, would, it is conceived, be in The committee are of opinion that the tithe com.
can the committee avoid reminding the House, that a great degree removed by the establishment of a mutation rent-charge operates as a burden on the legacy duty is paid in every case where the testator continued modified liability on the part of the debtor. land which is subject to it; inasmuch as a certain has devised bis lands to be sold; and, according
to Imprisonment for debt can have only two legitimate amount measured in produce must be paid, whatever the evidence
of Mr. Baxter, a solicitor of very great objects in view-the protection of the creditors against may be the nature of the cultivation
or the return practice, nine wills out of ten in the middle ranks of the malversations of the debtor, and the protection of made
by it. The value of the crops, without reference life convert the whole land into personalty for the the public against a recurrence of misconduct on the to the natural qualities of the soil
, being taken into purpose of division. The evidence of Mr. Pressly part of the debtor and others. It is conceived that, consideration in fixing the basis on which the com
tends to confirm the previous evidence of Mr. Baxter, upon the adoption of the enactments now suggested, mutation rests, lands, which by artificial means were that a considerable portion of the legacy duty is raised the dangerous power of imprisonment at the sole dis? rendered highly productive during the seven years on
on freeholds devised to be sold for the purpose of divi. cretion of the creditor may be safely abolished, withwhich the commutation is based, have become in con- sion. The witnessstates that Mrr Trevor, the controller out regard to the formal distinction
preMr. Weall'in bis evidence states, that the high farm- freeholds devised to be sold), at five-twelfths of the matter of record, and debts which are not so secured. sequence permanently liable to a heavy rent-charge of the legacy duty; estimates it (the portion raised on vails between debts secured by judgment or other ing introduced at great expense in the parishes of amount. Assuming the legacy duty to be 1,200,0001, Debtors who have misconducted themselves, and Beddington and Wallington had raised the tithes he estimates the proportion of duty arising from real those who, upon reasonable grounds, are suspected of during the years preceding the Commutation Act from estate at 500,000l. I think," the witness continues, an intention
to defraud their creditors, will be secured 3s. 6d. per acre to 7s. and 8s. per acre. Mr. Bennet
he has put it too high. I do not think that more both for the preservative and for the penal jurisdiction remarks, that the heaviest" wheat-lands have the than a fourth, or scarcely a fourth, of the 1,200,0001. of the court, and means will be afforded, as well to heaviest tithes upon them ; thus imposing the heaviest legacy duty arises from land.”
The witness, however, protect creditors against the dissipation, alienation, charge where cultivation is the most expensive. Mr. does not include leasehold property in his calculation; or concealment of that which is in truth their prosides amounts to 178. 6d. per acre ; and Mr.
Blamire, must be added
to the above-mentioned estimate, before losses have been occasioned." "Mr. Serjeant Manning in answers 2,5-24 and 2,525, confirms the evidence of we arrive at the full
portion of the legacy duty arising is of opinion that arrest upon process of execution preceding witnesses, that the rent-charge amounts, out of the proceeds of the land.
upon judgments in civil actions should be permitted in some cases, to more than one-half the rent; that LAW OF SETTLEMENT, REMOVAL AND RATING. only where such judgments are founded upon a one-third is not an unusual proportion; and that The agricultural witnesses complain also of the re- malicious, wilful, or fraudulent act or omission, there are some rare cases where the rent-charge is striction in the choice of labourers imposed on the injurious to the person, to the reputation, to the proequal in amount to the whole rent. On the supposi- farmer by the law of settlement; and Mr. Coppock, perty, or to some domestic relation of the plaintiff. tion of a continued reduction in the amount of pro. the clerk of the Stockport Union, bears evidence to These views are opposed to those of Mr. Commis. ceeds derived from capital invested in the cultivation the hardships and expenses occasioned by the present siner Law, in 1840, as expressed in his Report on the of the land, it is self-evident that titheable land would state of that law.
Lar of Bankruptcy and Insolvency, wherein he dem be abandoned sooner than land which is tithe-free; The question having been raised as to the principle scribes a debtor as a "wrong doer." Mr. Serjeant and though the landowner has no claim whatever to adopted in rating railways to the poor-rate, the com- Manning speaks of that report as an able one, and the property of the tithe-owner, the tithe itself would mittee bave examined Mr. Coode and Mr. B. Russell containing valuable information, of which he had in that case have the effect of diverting capital from on the subject ; and it appears from their evidence availed himself. The question of " arrest in execu its cultivation. The committee, therefore, submit to that the uniform principle of assessing all fixed pro- tion" is one of some importance, and should be well. the consideration of the House the fact that 4,500,0001. perty at the net rent or clear amount at which it can considered before it is interfered with. Ia strict levied under the Tithe Commutation Act becomes I be let, has not been departed from, Railways are morality a debtor is a "wrong daer," but by brand.
BURDEN OF TITHE COMMUTATION.