mortgagee, assigned the term of 1,000 years to B. and C. It was held (under stats. 55 Geo. 3, c. 184, schd. title "Mortgage," and 3 Geo. 4, c, 117, s. 2), that on this last deed an ad valorem stamp of 17. (in respect of the additional 157.), with stamps for progressive duty, was not sufficient; the conveyance of the fee creating a new security, in respect of which a deed-stamp was necessary. Doe dem. Barnes v. Rowe, 4 Bing. N. C. 773; Doe dem. Bowman v. Lewis, 13 M. & W. 241, were also cited. Henderson, contrà.-This rule, it is submitted, must be made absolute. If the instrument now in question be not an assignment (and it certainly cannot be said to be an assignment merely), it is a security for a specific sum of money, that is to say, 2,7231. and is essentially a new transaction between the parties. The premises were originally mortgaged in fee; but the further charge has made a great distinction in the terms: the same powers are not given in the one deed as in the other; in the latter the equity of redemption is conveyed, and it contains also powers of sale. It is not subject, either, to the ordinary power of redemption, but the premises are to be re-conveyed back; the day of payment, too, is altered, and is different in the latter to what it is in the former deed. Again, if the money be paid in a certain time, four per cent. interest only is to be paid. [PARKE, B.-It should certainly be an assignment of the original mortgage, and not another security.] Yes; and it is submitted that this is a security different in most respects in its terms to the previous one. Then, secondly, as to the 1,000l. it ought at all events to have had a deed stamp affixed. The 3 Geo. 4, c. 117, s. 3, illustrates the object of the Act, and states that where any deed or other instrument, already or thereafter to be made, as an additional or further security for any sum of money already or previously secured, on which the ad valorem duty shall have been paid, such deeds shall be charged and chargeable only with the ordinary duty payable on deeds in general; but if any further sum be added to the principal already secured, the said ad valorem duties respectively shall be charged in respect of such further sum, although certainly Doe dem. Bartley v. Gray, which has been before referred to, seems to oppose this interpretation. It is contended, nevertheless, by the defendant that this is not a mere assignment; it is something more, and is in fact a new and different contract: as such, therefore, it has not a sufficient stamp upon it, aud ought not to have been received, and the plaintiff should have this rule made absolute to enter a nonsuit. Cur. adv. vult. JUDGMENT. April 21.-PARKE, B. now delivered the judgment of the Court. This was an action of covenant for non-payment of mortgage money and interest to the plaintiff, argued at the sittings after last Term, upon a plea of non est factum. The only question was whether the indenture was properly stamped? My brother Wightman, before whom the cause was tried at Liverpool, reserved the point, and the case was argued at the sittings after last Term before my brothers Alderson, Rolfe, Platt, and myself. The indenture was on a 61. stamp, with the proper progressive duty. It was dated in 1837, and recited a prior mortgage in fee by Jones, the original mortgagor of certain messuages to John Mercer, by indenture of 1773, for the sum of 600l. and further charges to the amount of 4001. in favour of Mercer and Rogers, his devisees; and further, that the defendant was heir-at-law of Jones and that 1,000l. was still due to Rogers on the security of the said messuage, and that the plaintiff had ageeed to pay the 1,000l. to Rogers, and that the plaintiff had also advanced to the defendant the further sum of 1,7231.; and it was witnessed that Rogers, in consideration of the 1,000l. paid to him by the plaintiff at the request of the defendant, and the defendant, on consideration of the 1,7231. conveyed to the plaintiff the messuages, &c. in fee, subject to a proviso of redemption on payment of 2,7231. to the plaintiff. This indenture contains a covenant by the defendant to pay the aggregate sum of 2,7231. on different days from those specified in the original mortgage of 1773, which was produced on the trial, and also a power of sale for the whole sum, which was not inserted in the first mortgage. Mr. Henderson argued that the stamp of 61. which was the proper ad valorem duty on a mortgage for 1,7231. was insufficient, and that there should have been some further duty paid. The question arises on the proper construction of the 3 Geo.4, c. 117, which repealed the duties on transfers of mortgages contained in the schedule to the 55 Geo. 3, c. 184. Under the Act of 3 Geo. 4, if there is nothing but a transfer of the mortgage, a stamp duty of 17. 158. is imposed; if any further sum of money is added to the principal sum of money secured, the ad valorem duty on the mortgage payable by the former Act is to be charged only in respect of such further money. The decision in the case of Doe dem. Barnes v. Rowe, 4 Bing. N. C. 737, establishes that if there be a transfer of the former security only, and a new advance upon the same security for a sum of money, the ad valorem duty on the latter is sufficient, and no further stamp is necessary: but if besides the transfer of the former mortgage a fresh se PARKE, B.-Payment of money into court of part makes not that part admitted any more than payment into court of the whole, upon which a sum is paid in, admits the whole to be due. The only question is, whether the sum paid is shewn to be paid in specifically upon the first count. curity is added for the sum originally lent, as where recovered nothing; or if judgment by default had the first mortgage is of a term, and the second con- been suffered, he may have recovered a shilling or veys a fee to secure the old and new advance on one nothing. aggregate sum, it has been decided that a further Gordon. The plaintiff has admitted something to stamp is necessary by the case of Brown v. Pegg, be due. 6 Q. B. p. 1, such a case not falling within the provisions of the 3 Geo. 4, c. 117. We cannot distinguish this from the present one. This is not a transfer from the first mortgagee to the plaintiff, giving him only the same security which he had, and the same right to the land conveyed; but here is a fresh covenant from the defendant to the plaintiff to pay at different times the original advance of 1,000l. as well as the subsequent advance of 1,7231. giving also a power to raise the former as well as the latter sum by sale of the estate. The deed, therefore, contains more than a transfer of the old mortgage, and the advance of a further sum, and consequently requires a further stamp than the ad valorem on the new advance. We yield reluctantly to the objection, and decide that the rule must be absolute unless the plaintiff chooses to have a new trial on payment of costs, in order to have the deed re-stamped with a proper stamp. Rule absolute, or a new trial on payment of costs. Monday, February 15. TATTERSALL v. PARKINSON. Pleading-Payment of money into court. In an action upon a bill of exchange for 261. 13s. 2d. with counts for money lent and an account stated, the defendant pleaded as to the last count, except 101. 9s. 1d. non assumpsit. 2nd. As to the whole, except 10l. 9s. 1d. parcel, &c. in the first count, and 101. 9s. 1d. parcel, &c. in the second count, payment before action. 3rd. To the whole, except 101. 9s. 1d. a set-off. 4th. As to the 10l. 9s. 1d. parcel of the first, and 10l. 9s. 1d. parcel of the second count, payment into court of 111.: Held, bad on special demurrer. This was an action of assumpsit brought upon a bill of exchange for 261. 13s. 2d. with counts for money lent and an account stated. The defendant had pleaded-1st. As to the last count in the declaration, except as to the sum of 101. 9s. 1d. non assumpsit. 2nd. As to the whole declaration, except the sum of 101. 9s. 1d. parcel of the moneys in the first count mentioned, and 107. 9s. 1d. parcel of the second count, payment before action. 3rd. And as to the whole declaration, except 101. 9s. 1d. parcel of the first count, and 101. 9s. 1d. parcel of the second count, a set-off. 4th. And as to the said sum of 107. 9s. 1d. first above mentioned, being part of the said sum in the first count mentioned; and as to the said sum of 101. 9s. 1d. secondly 'above mentioned, being part of the sum in the second count, mentioned payment of 117. into court. The plaintiff joined issue on the first plea, traversed the second and third, and demurred specially to the last. Gordon, in support of the demurrer, contended, that the plea was bad, as a payment of the amount here into court constituted a part only of the amount alleged to be due, and that payment of a smaller in discharge of a larger sum was not sufficient. He referred to Pinnell's case, 5 Coke Rep. 117; Thomas v. Heathorn, 2 B. & C. 477; Sibree v. Tripp, 15 M. & W. 23; Down & Hatcher, 10 Adol. & Ellis, 121; Fisher v. Aidé, 3 M. & W. 486. Hugh Hill, contra.-These pleas are perfectly good; if there was a reason for their being bad, it may be from uncertainty in not specifically stating what was paid in upon one count, or how much upon another; but it is not necessary to discuss that now, because that ground is not pointed out as a ground of special demurrer. The doubt was mentioned in the case of Jourdain v. Johnson, 2 C. M. & R. 564, where, to a declaration for 317. on a bill of exchange, and 1001. for money paid, lent, interest, goods sold, and on an account stated, the defendant pleaded as to the 311. and as to the 127. parcel of the 1001. for goods sold, and as to the 1007. on the account stated, payment into court of 511.; and alleged that the plaintiff had not sustained damage to a greater amount in respect of these causes of action, as in the plea mentioned; the marginal note there is, quare whether such plea is good on special demurrer; semble, the defendant ought to have shewn distinctly what portion of the money paid into court was to be ascribed to the bill of exchange. In the present case, 101. 9s. 1d. is admitted to be due on the bill, and so much of the second count as the plaintiff is entitled to; the other 10s. 11d. being paid in on the indebitatus counts, the defendant has followed here the prescribed form of the rule of Court. The plaintiff is in the same situation as if by comparison the defendant had suffered judgment by default for the residue beyond the 101. 9s. 1d.; and the payment therefore of the 10s. 11d. is good as paid in upon the indebitatus counts. He referred to Marshall v. Whiteside, 1 M. & W. 188; and Bright v. Beard, 4 Q. B. 837, where Lord Denman said no case was ever more completely overruled than Mee v. Tomlinson, 4 A. & E. 262. PLATT, B.-Suppose the 101. 9s. 1d. paid into court, and so pleaded, and a plea of set-off to the other portion of the plaintiff's demand, he may have Saturday, April 17. The judgment of the Court was delivered by PARKE, B.-This case was ar gued on the last day of the sittings after Term, before myself and my brother Platt. The declaration was in assumpsit against the second indorser of a bill for 267. 13s. 2d. The first count was on the bill, the second count for 301. for money lent, and on an account stated. The defendant, as to the last count, except 10l. 99. 1d. pleaded non assumpsit, and as to the whole declaration, except 101. 9s. 1d. pareel of the first count, and 101. 9s. 1d. parcel of the last count, pleaded payment before action, and also a set. off. And as to 10l. 9s. 1d. parcel of the first, and 101. 9s. 1d. parcel of the last count, payment into court of 111. in the usual form. To this there was a special demurrer, assigning several causes. The case of Jourdain v. Johnson, 2 Crompton, Meeson and Roscoe, 561, and the other authorities cited by Mr. Hill, for the defendant, decide that the plea of payment into court may be made, generally speaking, as to part of several counts, without stating how much was paid in on each. There is therefore no available objection in this case, on that ground; but where one of the counts is on a bill of exchange, the difficulty arises which was pointed out in that case of Jourdain v. Johnson, but not decided, viz. that if less than the amount of the bill of exchange should be considered as paid in on that count, the pleas would be bad; for if it admitted the bill, it admitted prima facie the precise sum to be due on it, and less than that would not legally satisfy it; or if it should be considered in the nature of a plea of non assumpsit to the remainder, the new rules forbid such a plea, and the record would contain no proper answer to the residue, unless there was an allegation of some special ground of defence, as part payment or failure of consideration as to part. And we do not see how this objection can be surmounted if this demurrer properly raises it; and we think it does. Again, if the sum of 101. 9s. 1d. is to be ascribed to the first count, the sum of 10s. 11d. only must be applied to the last count; and it is argued, and with great weight, that less than the whole admitted sum cannot be paid into court on satisfaction of it. There are, no doubt, very great difficulties in adapting the new rule as to payment of money into court to practice in some cases; and they were probably not foreseen in framing the rule, the object of which was to avoid the trouble and expense of proving payment into court in the old way by supplying a ready mode of obtaining the same object by a statement on the record. One of these difficulties arises from the form of a count in indebitatus assumpsit. In this form, which has been adopted for the sake of convenience (as it would be impossible to declare on each separate contract without great prolixity of pleading), each count may be interpreted to mean, that the defendant is indebted to the plaintiff in the sum mentioned, either on one contract to pay that precise sum, or one contract on a quantum meruit, which has resulted in a debt which the plaintiff estimates at that amount, or on several different contracts for different precise sums, or each on a quantum meruit, or on some for a sum certain, and some on a quantum meruit, together amounting to the sum claimed. The variety of meanings which the comprehensive allegations of a debt in such a count is capable of bearing, creates a considerable difficulty in specially pleading to it, and particularly in the payment of money into court. If a smaller sum is paid on such a declaration than the sum claimed, the plea admits that the sum claimed is due on one or more contracts for liquidated or unliquidated amounts. If unliquidated, there is no difficulty in paying in a smaller sum than the amount claimed, for then the defendant may truly say that the plaintiff has not sustained greater damage than the sum paid into court. But if the sum admitted is liquidated, or is an aggregate of liquidated sums, how can the plaintiff have sustained less damage than the liquidated amount in respect of the demand for that sum? The Court of Queen's Bench has already decided that a plea of accord and satisfaction by a less sum to a general declaration in indebitatus as sumpsit for a larger sum is bad, even after the verdict in Down v. Hatcher, 10 Adolphus and Ellis, 121. These considerations lead us to the conclusion that the form of pleading payment of a less sum of money into court than the sum pleaded to, with no answer to the difference, except that no more damages have been sustained, is objectionable, and that there is good reason for saying that the ordinary practice of pleading the payment of money into court to so much of the declaration as is equal to the amount paid in, is the best that can be adopted. On these grounds, also, we think the plea in its present form is bad. Mr. Hill argued that there is no other way than this where the indebitatus count is really for the sum which is the consideration of the bill. Certainly there must be some mode of pleading applicable to such a case; for without doubt the plaintiff cannot recover both the amount of the bill on the count on the bill, and the amount of the consideration on the indebitatus count: but it is not necessary for us to decide in what form such a plea ought to be. Probably it would be sufficient to plead to both counts, that the bill was given on account of the debt in the second count, and then to plead payment into court of the amount of the bill and interest. The plea in its present form is bad; but the defendant may, if he pleases, amend on the usual terms. EASTER TERM. Friday, April 16. A ship being insured, from the expiration of a former The Attorney-General now moved for leave to enter a verdict for the defendant, or to enter a nonsuit, or for a new trial. THE MIDLAND AND GREAT WESTERN RAILWAY Martin, Q. C. now moved for a rule to shew cause why a nonsuit should not be entered. The declaration stated that the defendant, before the commencement of the suit, had been and was holder of ten shares, and at the time of the commencement of the suit was indebted in 1551. in respect of three calls made on such shares. The defendant had pleaded1st, never indebted; 2nd, that he was not, nor is, a holder of shares. The shares had been allotted and the scrip issued and at the time they were issued they were negotiable, and intended to be so by the directors. The action had been brought upon a policy of in- It appeared that in 1844 a prospectus was issued for surance, which had been effected upon the ship Jo- the purpose of making a railway from Dublin to anna, to commence at and from the expiration of the Mullingar and Athlone; that on the 21st of former policy (25th of September, 1845) until the ar- October, 1844, defendant executed what is called rival of the ship at Memel. There had been a former the subscribers' agreement. This deed recited that policy effected on the ship from the 26th of September, the capital of the company should be 1,000,000l. 1844, to the 26th of September, 1845,-a time policy, and should be raised by 50,000 shares 201. each, at the expiration of which the new policy was to be in the defendant being a holder of ten shares on force. On the 25th of September, 1845, which was the 28th of October, 1844, bonâ fide sold them in the the time of the expiration of the former policy, the market through a broker to one of the most respectJoanna was at Stark Point, in the Channel, having able brokers in Dublin. The deed which the defendsailed from Gloucester, at which place she had been ant signed authorised the directors to apply to parliachartered, to take a cargo of salt, and therewith pro- ment for an Act, and to do every thing that was ceed to Pillau Bay, or as near thereto as she could necessary for the formation of a railway from Dublin get. At the time the slip was handed in by the to Mullingar and Athlone. In 1845 the Directors agent of the owner to the insurer, the ship was at applied to parliament, and obtained what is called a Gloucester, and he stated to the insurer that she special Act (8 & 9 Vict. c. 119), and there is a clause was about to proceed to Memel, without mentioning that the Companies' Clauses Consolidation Act should that she was also going to Pillau Bay; it did not be deemed and be part of that Act; and by this speappear that the agent was aware of the intended voy-cial Act power is given to the directors to purchase a age to Pillau Bay. If the insurer had known that certain canal called the Royal Canal, and to work the the ship was going to Pillau Bay, a much larger pre- canal, and by the Act the railway was to extend only mium would have been required. It also appeared to Mullingar. I therefore contend that there should be that the ship Joanna was an east-country ship, and a new trial in this case on two grounds. First, the that east-country ships sometimes touch at Pillau shares being negotiable and the defendant having bonâ Bay on a voyage to Memel; no mention, however, fide sold his shares, he has parted with all interest was made at the time of the insurance that she was and liability. Secondly. The scheme which has been an east-country ship, nor was there any evidence carried out is a totally different scheme to that which that he was aware of it. the defendant authorised the directors to carry out, when he subscribed the agreement. The defendant had parted with his scrip before the Act was obtained, and the company were not justified in registering his name in their books as a shareholder. [PARKE, B. -He has no right to sell any thing but his equity, that is, the right which he has to be registered as a shareholder; but until the transfer is properly made, and the person to whom the equity is sold is registered as a shareholder, the liability of the original subscriber continues.] In the second place, the defendant is not liable, because he has never subscribed to the undertaking for which the Act has been obtained. The original scheme was to make a railway to Athlone, a very important place, and the chief military post in Ireland. This was the great feature in the scheme, and has not been carried out; but on the contrary a railway is to be formed to Mullingar, and the company are also to have power to purchase and work a canal having no connection with the railway. It was now contended that the voyage to Pillau Bay was a deviation, and that there was a misrepresentation at the time of effecting the insurance. It was contended that this was not a time policy, but a voyage policy; a time policy would require a different stamp. Upon this there was only a voyage stamp. [PARKE, B.-The Stamp Acts, the 3 & 4 Wm. 4, c. 23, and 7 & 8 Vict. c. 21, say, that for every policy, &c. relating to any ship or vessel which may be law. fully insured for any certain time, &c. ; now here the insurance is for an uncertain time, and therefore the stamp is correct.] If this is not a deviation, then it would have been open for the owner to have sent the ship on a voyage to the East Indies, so that she would arrive at Memel before the expiration of the time for which she was insured, whereas, if the insurer had been aware that she was on any other voyage than that direct to Memel, a higher rate would have been charged. [ROLFE, B.-As far as the policy itself goes, it is only an insurance from a certain date until the ship shall arrive at Memel, and I do not see that it is an argumentum ad absurdum to say that she might go to the East Indies before going to Memel.] The evidence is, that when the insurance was effected, the agent was asked where the ship was; he said she was at Gloucester, and he supposed she was going to take salt to Memel. Now it is the duty of the assured to communicate to the assurer everything that he knows, and he should also communicate everything that he knows to the person who is to effect the insurance. (Parke on Insurance, 445.) [PARKE, B. -In this case, then, you put it that the principal did not communicate to the person who effected the insurance all that he knew respecting the voyage, &c.] No mention was made of Pillau Bay at the time of the insurance. There is also the case of Fitzherbert v. Mather, 1 T. R. 12, which is in point. Rule nisi. PARKE, B.-The powers in the subscribers' contract are very large; they agree to pay all calls, and to submit to all such regulations as may be imposed by the legislature. The directors are empowered to apply to Parliament, and take whatever they can get. The Act then empowers them to make calls on all who have subscribed to the undertaking, or whose names shall be entered in the register of the company as shareholders. POLLOCK, C. B.-The question is one of identity. Whatever goes into Parliament is the same as that which comes out, after being moulded anew by the legislature: the features may be so changed that you would not know them again, but the body is the same. The defendant is a shareholder of the undertaking, and as such is bound to pay the calls. Rule refused. COLLINS v. BRADLEY. England, but a committee for the purpose of carrying out a railway granted by the Dutch government), being present at a meeting when certain clerks are appointed, but afterwards resigns, and is sued by one of the clerks for the amount of his salary: Quære, can the director shake off his responsibility by resignation, or does the liability continue until he gives express notice of terminating the contract? This cause was tried before the Lord Chief Baron at the sittings in Middlesex, when the plaintiff was nonsuited. Watson, Q.C. now moved for a rule to set aside the nonsuit, and for a new trial. It appeared that the plaintiff was assistant clerk to the Dutch Hanoverian Railway Company, and the action was brought by him to recover from the defendant, as one of the directors of the said company, the sum of 401. being his salary from February to August 1846. The company was not formed as in England by a provisional committee in the first instance; but there were two sets of directors, one set in Holland, and the other set, of which the defendant was a member, in England. The minutes of a meeting, held on the 22nd of October, 1845, were put in as evidence, at which the defendant was present; and it was determined to take offices, and clerks were to be appointed; and on the 29th of October another meeting was held, at which Bradley, the defendant, was also present, at which it was resolved that three assistants should be appointed, subject to the future consideration of the board, and three names were proposed,-Fisher, W. Brent Collins (the plaintiff), and Edwards. At a meeting on the 5th of November, 1845, the defendant being present, the minutes of the former meeting, appointing the plaintiff and two others to be assistants, were read and confirmed; the plaintiff accordingly attended, and did work as a clerk to the company. He had received 201. being three months salary from November until the 6th of February. When the company was first established, 10. was advanced by each of the directors to the secretary, and which the secretary explained was for current office expenses, and to buy furniture; and when the subscriptions came in on the shares, the 10l. was returned to each of the directors. [PARKE, B.-Was it paid back to Bradley before the time when the plaintiff was appointed?] No, it was after that time; but that has nothing to do with the case. He said that, after the 6th of February, and before the 28th of February, he had sent in his resignation, but it was not produced; but supposing that he had sent in his resignation, he could not resign. [PARKE, B.-Unless the original contract was so long as he should continue a director.] Bradley never attended after the 17th of February; but I shall contend that he had no power to throw off his responsibility. This was not a provisional committee as in England, but a company to carry out the railway. [PARKE, B.-There is no doubt that if you take it that the contract was that he should engage this clerk at a salary of 80 per annum, the contract would continue until he had expressly put an end to it by notice. Rule nisi. GRIFFITHS v. HUGHES. Where there has been a judge's order, final judgment may be signed upon such order, and no action need be brought; and if action be brought, the costs will not be allowed on signing judgment. The judge's order has the same effect as an allocatur. Atherton moved on behalf of the plaintiff, an attorney. The affidavit shews, that on the common application plaintiff delivered his bill of costs, and the same were taxed, and the Master's allocatur given for 231. 9s. 4d.; and subsequently an order was made under statute 6 & 7 Vict. c. 73, s. 43, by a judge at chambers, entitling Griffiths to sign final judgment for the amount mentioned. Griffiths, however, commenced an action upon the judgment, issued writ, filed declaration, entered appearance, and signed judgment by default; and on subsequent taxation the Master disallowed the costs of these subsequent proceedings as not being necessary, Griffiths being at liberty to sign final judgment upon the judge's order. PARKE, B.-The judge's order has the same effect as an allocatur, and judgment might have been signed. Refused. Saturday, April 17. STAGG V. EARL OF MILLTOWN. Motion for new trial-Perverse verdict. In this case an action had been brought against the defendant for services said to have been rendered him by the plaintiff, as a jockey, in training and riding horses, and the like. The cause came on for trial at the last Stafford Assizes, before Mr. Justice Maule. The plaintiff, by his particulars of demand, had claimed the sum of 3561. 4s. the items commencing in March 1840 and running on to 1843, against which he gave credit for 1617. as "by cash at various times" received by him, leaving upon that statement a balance due to him of 1951. 4s. The defendant had pleaded, never indebted, payment, and set-off, upon which the plaintiff had obtained a verdict for 501. Talfourd, Serjt. moved for a rule calling upon the plaintiff to shew cause why that verdict should not be set aside and a new trial had on the ground that the verdict was perverse, and contrary to the summing up and opinion of the learned judge. No proof whatever had been given that any claim had been made by the plaintiff upon the defendant since the plaintiff had gone out of the latter's employ; and it was most improbable that a person in plaintiff's station of life should have left this sum due and remain unpaid to him for so long a time as nearly four years, without even asking for the amount. The defendant had contended that he had been paid at the time, but the plaintiff himself was unable to prove as due to him the sum of 1611. for which he had given the defendant credit; so that even upon his own shewing he had been overpaid by the defendant, and it was submitted therefore at the trial that the plaintiff should be nonsuited. The learned judge, being of this opinion, directed the plaintiff to be called; but his counsel declined this, and insisted upon the case going to the jury, which it then did, and they returned a verdict for the plaintiff. The learned judge then asked them what amount of damages they meant to give, and after another consultation among themselves of about a quarter of an hour, they returned and said 501. damages. POLLOCK, C. B.-Take a rule to shew cause. Rule nisi. GREEN AND OTHERS v. SIR PETER LAURIE AND ger. Martin, Q. C. moved to set aside that verdict, and enter it for the plaintiffs, for 3251. The plaintiffs were the assignees of one Osborne, a bankrupt, and the defendants were the trustees of The Union Bank. The question arose upon on interpleader issue to try whether the proceeds of certain goods, sold under a fi.fa. by the sheriff of Middlesex, at the suit of the defendants, properly belonged to the plaintiffs or the defendants. Osborne, it appeared, kept an account with this joint-stock bank, at their branch in Argylestreet, Regent-street, a Mr. Clack being the manaMr. Webster, an attorney for the bank, had sued Osborne for the amount of his overdue bills due to the bank in April 1846, and on the 21st of May Osborne gave a judge's order for the debt and costs payable on the 1st of July, or in case of default judg ment to be then signed. The amount was not then paid when due; but on the 1st of July, 1846, Osborne made a declaration of insolvency under the 5 & 6 Vict. c. 122, s. 22. He referred also to the 6 Geo. 4, c. 16, s. 6. On the 2nd of July notice of what had taken place was served on Clack at five minutes before ten o'clock in the morning, and also on Webster and the sheriff five minutes before eleven. Judgment was not signed until after one o'clock, and the sale took place on the 9th. As to the notice Conway v. Nall, 1 Com. Bench, 643, and Rothwell v. Timbrell, 1 Dowl. N. S. 778, were mentioned. (See also Udell v. Walton, 5 Law T. 320.) Rule nisi. Monday, April 19. ad owing the plaintiff anything, except upon one tiffs that the meaning of this contract was, that so Sir F. Kelly, therefore now moved to set aside that verdict, and contended that the proper construction to be put upon the contract was that upon which the defendants had acted; and moreover, that the plaintiffs, by their declaration, had themselves so construed the contract. The declaration was-"That in consideration that the plaintiffs would consign to the defendants divers goods of the value of 10,000l. Defendants promised the plaintiffs that they, the defendants, would invest and remit, within a reasonable time next after so receiving the said proceeds, by the purchase of tea to the amount of 5001. or any other article than tea which defendants thought fit; and if within such reasonable time tea could not be bought, and silk could be bought within certain prices agreed on, and if they did not purchase any other article than silk, the defendants would purchase silk to the extent of one half of the said proceeds; and plaintiffs did consign to defendants the said goods, &c. the proceeds of which were to be realised and invested in the purchase accordingly, and afterwards, to wit, on the the 20th of November, defendants received the said goods so consigned to them as aforesaid, and then sold the same and received the proceeds thereof for and on account of the plaintiffs as aforesaid, amounting to the sum of 10,000l.; and after defendants so received the said proceeds, and while they had the said proceeds in their hands for more than a reasonable time, to wit, for three months, defendants did not invest any part of the said proceeds in any other article than tea and silk; and during all the time aforesaid defendants could have bought silk and could not have bought tea in China, yet the defendants neglected, &c." To this the defendants pleaded, that after the defendants had received the proceeds of the goods consigned to them, as in the first count mentioned, they could not have bought silk within the prices agreed on, in manner and form, &c. In the declaration only one time is mentioned, and there is only one allegation; it cannot be said that the plea is not an answer to the declaration. The defendants contend that the pleadings correctly set forth the contract, and which contract they have performed. The question to enquire is, what was the market price of the articles mentioned, and When the defendants had realised the whole proceeds was the proper time, and at that time silk could not be bought at the prices named. The Chief Baron ought to have left it to the jury as a question of reasonable time, a portion having been sold in July and a portion in November; it should have been left to the jury within what time the election was to be made. A cargo being consigned to agents abroad, with instruc- Sir F. Kelly, now applied for a rule to shew cause why that verdict should not be set aside, and if leave reserved why verdict should not be entered for the defendant on the second, fourth, and fifth issues, and if no leave reserved, then for a new trial. Rule nisi. Tuesday, April 20. ODDY T. WILLIAMSON. Alleged fraud in obtaining judgment-Motion to set the same aside. Parry moved to set aside the judgment signed The plaintiffs were merchants and manufacturers in herein, and to rescind the order of Mr. Baron Parke, this county, and the defendants were merchants and on the ground that the judgment had been obtained factors in China. The action was for an alleged by means of fraud. The defendant in the action did breach of contract on the sale of a cargo of cotton not appear to the writ-an appearance had been twists and cotton consigned by the plaintiffs to the entered sec. stat. for her; and on the 15th of February defendants, and the investment of the proceeds ac- last the declaration was filed; on the 20th, judgment cording to certain instructions which had been sent to was signed by default. It appeared that the defend. them. A cargo of cotton and cotton twists had been ant, Mary Williamson, of Water-lane, Blackfriars, consigned to the defendants by the plaintiffs in the was about sixty years of age, and of weak intellect. ship Patna, and, by a letter of instructions, dated the She had about 2001. invested in the funds, which the 26th of December, 1842, the defendants, on receipt plaintiff knew, and his desire was to charge that of the cargo, were instructed to realise the cargo, and stock for his alleged debt of 157. The deposit of the the plaintiffs directed them to invest the whole pro- defendant's money was, however, made in her name ceeds in tea, if tea could be had at a certain price jointly with that of her brother, Richard Williamson, named in the letter of instructions, and if tea could for her protection. The plaintiff, it was believed, had not be had at the price named, then half of the pro- advanced money at various times to the defendant's ceeds were to be invested in silk, if silk could be pur- nephew, and with whom it was alleged the present chased at prices not exceeding certain prices men- plaintiff was acting in collusion; but the defendant hertioned in the letter. It was contended by the plain-self was not aware, as was stated by her affidavit, of WAY COMPANY U. PRANCE. Action for calls-Form of declaration. In an action for calls, upon the 8 Vict. c. 16. the declaration purported to be drawn in compliance with the requisition of the 26th sect. of the 8 Vict. c. 16, but omitted to state that the action had ac. crued by virtue of that and the special Act: Held, that such omission was insufficient to arrest the judgment. This was an action tried before Lord Denman at the last Surrey Assizes, when a verdict was given for the plaintiff for the amount claimed. Shee, Serjt. moved to set aside that verdict pursuant to leave reserved, and to enter it for the defendant, or for a new trial on the ground of misdirection. The action was in debt for calls to which the defendant had pleaded the general issue; under the 8 Vict. c. 16, s. 27, the proof was given as there required. Twenty-one days' notice was the time limited between the day of making each call and its payment; and the 136th section required that if such notice were sent through the post-office, and it be directed according to the registered address, or other ko›wn address of the shareholder, within such period as to admit of its being delivered in due course of delivery, within the period (if any) prescribed for the giving of such notice, it should be sufficient; and in proving such service, it] should be sufficient to prove that such notice was properly directed, and that it was so put into the post-office. A call had been made on the 8th of January, 1846, payable on the 28th of February, another on the 4th of April for the 30th, another on the 2nd of July payable on the 31st, and another on the 28th of September, payable on the 30th of October. These notices were not called for upon the trial, and the only evidence was, that the secretary had taken up the register of names of proprietors, and had written and, he believed, had properly dated all letters for calls made, and that he bad given them to one Maugham to fold and copy, who was called, and said he had, he believed, done so, and had given them to the porter to take to the post, who was also called, and said he had put all the letters so given him by Maugham into the post-office, but upon one of the forms which they used being produced, it turned out the dates were printed in them, so that there may have been an error in this respect; and it was submitted the notices were not sufficiently and distinctly proved as being given on those days, and so leaving it to the jury was the misdirection of which the defendant complained. Then he moved also in arrest of judgment upon the form of the declaration. The 26th section of the Act says that, in an action for calls, it shall be sufficient for the company to declare that the defendant is the holder of one or more shares in the company, stating the number of shares, and is indebted to the company in the sum of money to which the calls in arrears shall amount, in respect of one call or more, upon one share or more, stating the number and amount of each of such calls, whereby an action hath accrued to the company by virtue of that and the special act. This declaration had omitted altogether to state that the action had so accrued by virtue of that and the special act; but concluded in the usual and ordinary form, without reference to those acts. If, therefore, the company intended to avail itself of the Act, the forms should be strictly complied with; otherwise the proceedings should be as if no such Act had passed. He referred to Thistlewood v. Cracroft, 1 Maule & Sel. p. 500. POLLOCK, C.B.-The evidence given as to the notices was left to the jury, and they held it to be sufficient. Objection may perhaps have been made at the trial to the giving parol evidence of the service, when they had been reduced to writing; but I do not understamd that this was done, so that the parol evidence was admitted without objection taken at the time: the jury were satisfied with it, and that is enough. If the service had not been in time, the defendant having, most probably, the notices in his possession, could have disproved the fact had it been So. I also think, under the Act of Parliament referred to, the declaration is sufficient in form. There will therefore be no rule. PARKE, B.-I am also of the same opinion as to the motion in arrest of judgment. The Act says, in any action to be brought against any shareholder to recover any money due for any call, it shall not be necessary to set forth special matter. It applies to every action. Besides, there no form is given,—only outlines of it. ROLFE and PLATT, BB. concurred. Rule refused. HITCHCOCK, Administrator, v. BEAVAN. Usury. This was an action tried at Westminster before the Lord Chief Baron, when a verdict was found for the =plaintiff, by direction of the learned judge, with liberty to move to set the same aside, and enter it for the defendant. Martin, Q.C. moved accordingly.-The action was on a bond given to Richard Hitchcock (and the plaintiff was his administrator), for 17,000l. payable in April 1842, and dated the 16th of April, 1839. The pleas were-1st, Non est factum (upon which nothing turned); and 2nd, Usury. In 1838 a mortgage was executed to Beavan for 8,000l.; in 1839 Beavan was indebted to Hitchcock upwards of 4,000l. and he pressed for his debt, and application was then made to Hitchcock to lend in lieu of Beavan. A Mr. Cripps had agreed to lend, but subsequently declined to go on. Hitchcock agreed to lend if 5001. bonus was paid to him, and Best became security; this was car ried out on the 15th and 16th of April. Best Owed Beavan 8,8651. Beavan owed Hitchcock 4,5841. 2s. 9d. Best executed a mortgage to Hitchcock, which was legal on the face of it, and was in the usual and ordinary form, at 5 per cent. interest. Hitchcock drew a check on his bankers for the money, which he gave to Beavan in Best's presence. Best executed the deed as for the money paid to him. Beavan drew two cheques, one of which was for the 5001. bonus, which he gave to Hitchcock. It was contended at the trial that the 500l. was given as for expenses, but the jury said it was not so, but given as a bonus. Motives, he submitted, had nothing to do with the matter as by the borrower. The question is, does the lender take more than the proper legal interest? ferred to Sutton v. Tatham, 10 A. & E. 27; Brittain v. plaintiff's verdict and enter a nonsuit. The cause was tried before Cresswell, J. at Dorset, and was for work done, according to the particulars, for the defendant, at Haddlestreet, Yeovil; whereas that as given in evidence was in Peter-street; the defendant, also, had nothing whatever to do now with the premises, as they belonged to the mortgagees. Rule nisi. HETHERINGTON v. LE JEUNE.-Tried before Lord Denman, at Surrey. Shee, Serjt. moved in this case for misRule refused. WEBSTER V. CROUCH.-J. Brown moved to set aside the plaintiff's verdict and enter a nonsuit, on the ground of a the record, one being executory, and the other upon an exevariance between the agreement as given in evidence and direction. cuted consideration. Rule nisi. Rule nisi. KAYE AND UXOR v. CLARK. In the matter of GEORGE CLARK SMITH.-Hoggins moved for an attachment against Smith for not obeying a subpoena. BATES v. TOWNLEY.-Welsby moved, pursuant to leave reserved on the trial of this case at Chester, before Coltman, J. when the plaintiff obtained a verdict on the account stated for 1,0391. 10s. 3d. and also on the 1st count, but for the defendant on the 2nd count, for leave to enter verdict for the defendant; also on the 3rd count, and to compel the plaintiff to elect his damages as on the 1st or 3rd counts, or for a new trial. He referred to Crofts v. Harris, Carthew, 187; Allan and Milner, 2 Cromp. & J. 47; and R. v. Peto, 1 Young & Jervis, 47. BOYD . MANGLES.-The Attorney-General moved in this case, which had been tried in London, when a verdict was found for the plaintiff, for leave to enter a verdict for the defendant, for a nonsuit, or a new trial. CROFTON V. PICKERNELL.-Sir F. Thesiger moved to set Rule nisi. ments against the defendant as promoter of the London and Hastings Railway Company. The defendant obtained a verdict, and Martin, Q. C. moved to set it aside, and for a new Rule refused. trial, on the ground of misdirection. Monday, April 19. JONES v. WILLIAMS.-Judgment was given in this case. RALLI V. DENNISTOUN.-This case was tried before the Lord Chief Baron in London on the 22nd of February, and a verdict obtained for the defendant. The Attorney-General now moved to set aside this verdict, and to enter a verdict for the plaintiff or for a new trial; the facts were very coinplicated, concerning bills of exchange drawn in sets in England upon merchants at Trieste; the question turned upon the right to draw fresh seconds after the first set had been cancelled. Special case. COOK v. BLAKE.-Knowles, Q. C. moved for a rule to shew cause why the verdict in this case should not be set aside, and a new trial had on the ground of misdirection; the cause had been tried at Liverpool, and a verdict obtained for the plaintiff. Rule nisi. SHARP V. PERRY, Executor.-This was an action brought by the plaintiff to recover for money paid to defendant's use in the preparing of certain deeds for the purpose of making a good title to certain property purchased by the plaintiff of the defendant's testatrix. Evans, Q. C. moved to set aside the verdict, which had been entered for the defendant, and for a nonsuit, on the ground of misdirection, and that the verdict was against evidence. Refused. BAIL COURT. Tuesday, April 20. GOLDSTONE v. JONES. It was clear the 500l. so given here made aside the nonsuit entered for the plaintiff herein, and to have At the trial before the under-sheriff of Middlesex it BUSINESS OF THE WEEK. Friday, April 16. COOMER V. LATHAM.-Welsby moved, by leave of the judge, for leave to enter a nonsuit, or for a new trial. The cause was tried at Chester before Coltman J. and a verdict obtained for the plaintiff for 4. 13s. 10d. The action was brought for trespass, and breaking and entering plaintiff's house, and taking away the goods, and detaining them until he paid a sum of 21. 13s. 10d.-a judgment having been obtained against him in the Hundred Court for that amount, but which was paid before the distringas was executed. Rule refused. DoE dem. MAYHEW v. Rowe.-Bramwell moved for leave to serve declaration herein, by leaving copy with the wife, the husband being away, and also a copy on the premises, the same being shut up and no one residing there. Rule nisi. The rule to be served in the same way. WOOD . COOK-Chambers, Q.C.-This cause was tried at Surrey before Lord Denman, and a verdict was found for the plaintiff for 501. Application was now made to set aside this verdict, and for a new trial. Rule nisi. a new trial. The action was upon a charter-party for demurrage, upon which there had been afterwards endorsed a memorandum qualifying its terms, although not in respect to the present action. The learned judge thought it should have been stamped, and so directed a nonsuit. Brocklebank v. Sugrue, 1 B. & Adol. 81; Rer v. Pendleton, 15 East. 450; Vincent v. Cole, Mood v. Malkin, 275, were referred to. Rule nisi. CASSE v. COCKBURN.-This was a feigned issue tried before the Lord Chief Baron at Westminster, when the defendant obtained a verdict. Humfrey, Q.C. moved to set it aside for a misdirection. Rule nisi. ANDRE V. SILVESTER. - This case was tried before Parke, B. when the plaintiff obtained a verdict for 2001. BONLEAU v. RUDLIN.-Tried before Lord Denman, in Surrey, when a verdict was found for the defendant. Shee, Serjt. moved (and pursuant to leave reserved) to set the same aside, and enter it for the plaintiff for 1017. or 120/. The action was for four and a quarter years' occupation of a house, from September 1842 to December 1846, and the answer was that the defendant was let into possession under an agreement to purchase the lease for 6501. He referred to Winterbottom v. Ingham, 10 Jurist, 4; Slatterie v. Pooley, 6 Mees. & W.; and Howard v. Shaw, 8 Mees. & W. 118. An abstract was delivered at the end of 1842, and the ob jection was that the vendor was only lessee, and could not grant a lease unless it were subject to the covenants in the original lease. He refused to complete the contract, but In the matter of KEANE's Award.-The Attorney-General shewed cause against a rule obtained by Watson, Q.C. to set aside the award, on the ground that the arbitrator had not stated the principle upon which he made his award. A patent had been obtained by Keane and Co. and Atkinson and others agreed to enter into partnership with them, for the purpose of working the patent. Differences arose, which were sub-continued to hold on till 1846. mitted to arbitration. It was sought to set aside the award, on the ground that he had not stated on what principle he had made his award, so that the award would be of no use in the event of future differences; and also, that he had improperly received parol evidence of the contents of a deed. It did not appear that he was bound to state on what principle he decided, nor was he requested to do so; and as all matters of law and equity had been referred to the arbitrator, it was held he properly received the evidence respecting the Discharged with costs. ALEXANDER V. HOOKER.-Watson, Q.C. moved to set aside the verdict found for the plaintiff herein, and to enter a nonsuit, or to set the verdict aside, and that the plaintiff should pay the defendant his costs of the trial of and occasioned by the amending the declaration, with liberty for the plaintiff to plea de novo; or for a new trial. [A full report of this case at Nisi Prius will be found, antè, Vol. VIII. pp. 451-2.] Rule nisi. CORNER . WARD and OTHERS.-Tried before Parke, B. at Derby, when a verdict was found for the plaintiff, damages 2001. Humfrey, Q.C. moved to set it aside, and for a new trial on affidavits. Rule nisi. ROBINSON v. HARMAN.-This was a writ of inquiry to assess damages, before Lord Denman, in Surrey. Chambers, Q.C. moved for a new trial, on the ground that evidence was rejected which ought to have been received; he referred to Hopkins v. Grazebrook, 6 B. & C. 31: Johnson v. Johnson, 3 Bos. & Pul. 163; and as to Russell's charges, Hodges v. Earl of Litchfield, 1 Bing. N. C. 492. Rule nisi. JONES U. WILLIAMS.-Erans, Q.C. moved in this case, which was an action against the sheriff for extortion, tried before Wightman, J. at Brecon, and a verdict found for the plaintiff, with liberty given to move to enter the same for the defendant. Pilkington v. Cook, reported antè, vol. 8, p. 516; and Wrightup v. Greenacre, antè, 36, were mentioned by the Court. Cur, adv. vult. BAYLIFF . BUTTERWORTH.-Knowles, Q.C. moved to increase the plaintiff's verdict from 27. 10s. io 1007. and re-. Rule nisi. HARRIS V. GRISSELL. Sir F. Kelly moved in this case, which had been tried before Mr. Serjt. Gazelee, at Worces ter, when the plaintiff obtained a verdict for 5001. damages, for a rule to shew cause why there should not be a new trial for misdirection. The plaintiff was the occupier of a mill on the river Severn, and the defendants substantially were the commissioners acting under an Act of Parliament for improving the river. The Act directed certain things to be done, and at particular places weirs, &c. to be erected, that the water may be seven feet deep. A plan or section was to be prepared according to the Act, and deposited with the clerk of the peace. The plaintiff complained that in consequence of the weir, some distance higher up than his mill, not being lowered in times of flood, he was greatly injured by it. The defendants justified under the Act, and relied on the 142nd, 143rd, 144th, and 162nd sections of it; and contended nothing more had been done than the Act permitted. Secondly, as to the damages. Before these works were erected, the plaintiff suffered occasionally in flood times, yet no distinction was made in summing up as to the height of the mill, or otherwise, and the different causes of penning back the water were not distinctly taken, but the whole put together as one cause of damage. Rule nisi on the first point: on the other the Court said they would see the learned judge. SMITH V. GRIFFIN.-Godson, Q. C. moved to set aside the plaintiff's verdict for 41. on the ground that it was per verse. The action was in trover for a horse. Defendant had a horse which he sold to one Haynes, but was to keep it until he paid for it. Griffin afterwards sold it to one Williams, who gave it to one Simmons, who lost it, and charged Smith with stealing it. Smith then gave it up to Simmons; went to a justice, and was discharged; and then brought the present action. Haynes was called, who said at the trial he sold it to Smith prior to when Griffin sold it to Williams. The Court said they would see the learned judge. SMITH V. SNEAD.-Godson, Q. C. moved for a new trial in this case, which was upon an interpleader rule to try the validity of a bill of sale, and the plaintiff obtained a verdict. Refused. SIMMONS AND ANOTHER v. EDWARDS AND ANOTHER. Knowles, Q.C. moved to set aside the plaintiffs' verdict, and Refused. New trial-Notice of dishonour of bill of exchange. Bagley moved for a rule to enter a nonsuit or for a new trial. The action was brought by the indorsee against the indorser of a bill of exchange, and the defendant pleaded that he had no notice of dishonour. was proved that the bill became due and was dishonoured on the 3rd of March, at which time it was in the hands of the plaintiff's bankers who gave him notice of it on the 4th, and the plaintiff, who resided defendant who resided in Leadenhall-street, London, at Kingsland, sent notice through the post to the "some time after 4 o'clock" on that day, as the witness stated. No evidence was given to shew that in the ordinary course of delivery the letter would have reached the defendant the same day, which it was contended should have been done. (Fowler v. Hendon, 4 Tyrw. 1002.) The jury returned a verdict for the plaintiff. Rule nisi. Wednesday, April 21. REG. V. THE INHABITANTS OF WATFORD. Upon an indictment for the non-repair of a road, directed by justices, pursuant to the 5 & 6 Wm. 4, c. 50, s. 95, which indictment was tried at the assizes, the judge made an order for the costs of prosecution in the following words :-" In pursuance of the statute in that case made and provided, I order and direct that the costs of the within prosecution be paid, when taxed, to the prosecutor, Geo. H. Arnold, esq. or his attorney, in such manner as the Act directs. W. H. Maule." This order was on motion held bad, inasmuch as it was not made conformably with the foregoing section, and did not direct out of what fund such costs were to be paid. In Hilary Term 1846, Hayes obtained a rule calling upon the prosecutor to shew cause why the order of Mr. Justice Maule for the costs of the prosecution should not be set aside. An indictment had been preferred at the Northampton Sessions against the inhabitants of the parish of Watford for the non-repair of a highway by an order of justices under the 5 & 6 Wm. 4, c. 50, s. 95, which indictment was afterwards removed into this court by certiorari, and came on for trial at the Northampton Spring Assizes 1845, when a verdict was found for the Crown. Subsequently Mr. Justice Maule, who tried the case, granted his certificate for the prosecutor's costs in the following words :-"In pursuance of the statute in that case made and provided, I order and direct that the costs of the within prosecution be paid when taxed to the prosecutor, George H. Arnold, esq. or his attorney, in such manner as the Act directs. "W. H. MAULE." The present rule was argued in Trinity Term last, when it was contended by Hayes, on the part of the defendants (amongst other objections), that the cer.. tificate was bad, inasmuch as it did not pursue the directions of sec. 95, under which it was made, which enacts that "the costs of such prosecution shall be directed by the judge of assize, before whom the said indictment is tried, or by the justices at such quarter sessions to be paid out of the rate made and levied in pursuance of this Act in the parish in which such highway shall be situate." Hill, Q. C. shewed cause. Feb. 25. WIGHTMAN, J. delivered judgment as follows:-This was an application to set aside an order of the learned judge for the payment of costs of the prosecution, under the 5 & 6 Wm. 4, c. 50. The prosecution had been directed by two justices, under the 94th and 95th sections of the Act, and the indictment was removed into this court by certiorari. The indictment came on to be tried at the Northampton Assizes, in March, 1845, when the verdict was for the Crown. At that time an application for the costs 3 MATTHEWS v. CROSSLY.-Ball moved for a rule to set aside the rule absolute for judgment, as in case of a nonsuit. Rule nisi. HARDWICK . WARDLE.-Pashley moved to set aside the declaration, and all subsequent proceedings, on the ground that the defendant had never been served with process. Rule nisi. JEWEL U. RAWLINS.-Robinson moved to set aside the Rule nisi. Er parte ToWELL.-Pashey moved for a mandamus to be directed to the Commissioners acting under the 3 & 4 Vict. c. 112, s. 47, for the improvement of Clerkenwell, commanding them to issue their warrant to the the sheriff of Middlesex, to empannel a jury to assess compensation. Rule nisi. Rule nisi. No rule. of the prosecution was made to the judge, who, how- 231. the amount of taxed costs, or why a promissory note for ever, declined making it; however, in August follow- 17. should not be given up to him to cover his costs. This ing, he made an order in the following terms :-"In rule was on the behalf of the plaintiff's attorney, who alleged that the defendant's attorney and the plaintiff had collupursuance of the statute in that case made and pro-sively settled the action to deprive him of his costs. vided, I order and direct that the costs of the within Rule nisi. prosecution be paid, when taxed, to the prosecutor, Wednesday, April 21. George H. Arnold, esq. or his attorney, in such man- MELTON . MORLY.-In this case his Lordship refused ner as the Act directs.-W. H. MAULE." On the the rule. 17th of July, 1846, there was a certificate issued to tax the costs of the prosecution. Several objections were taken to the order on argument, and the case stood over on account of some doubt which I entertained on some points. On consideration, however, I do not think that there is much weight in any of the objections, except the fifth and sixth, which im-verdict herein, and for a new trial. peach the order; because it does not state or denote out of what funds the costs were to be paid, and because it did not specify the amount. It is therefore unnecessary to advert to the former objections in detail, because I think that the fifth objection is fatal. By the 94th and 95th sections, after providing for the mode of proceeding upon an indictment for non-repair, when directed by justices, upon a denial of the obligation to repair, it is enacted, that "the costs of such prosecution shall be directed by the judge of assize, before whom the said indictment is tried, or by the justices at such quarter sessions, to be paid out of the rate made and levied in pursuance of this Act, in the parish in which such highway shall be situate." The power being statutable, it should be exercised formally. By the Act the judge shall direct the costs to be paid out of the rate made and levied in pursuance of the Act, in the parish in which the highway is situated. Then, in the order in question, no reference is made to any funds out of which the costs shall be paid, though the Act requires this to be paid out of a particular fund. This was, I think, a fatal defect, that is not remedied by the introduction of the words, "in such manner as the Act directs." The rule therefore, without adverting to the remaining points, will be absolute to set aside the order. Rule absolute. Thursday, April 22. REG. v. GREGORY. Mr. Justice ERLE gave judgment in this case, which was an application on the part of the prosecution to amend the record. Rule absolute. BUSINESS OF THE WEEK. (Before Mr. Justice COLERIDGE.) THOMAS V. -Pearson moved for a rule to set aside the verdict in this case, which was found for the plaintiff, and for a new trial, or to arrest the judgment on the ground of the insufficiency of the declaration. (Bolton v. Coglan, 1 Bing. N. C.) Rule nisi. HOSKINS . PHILLIPS and ANOTHER.-Ball moved in this case, which was tried before the judge of the Sheriff's Court, for a new trial on the ground of misdirection. Cur. adv. vult. BIRCHER V. CLARK.-Unthank moved for a new trial herein on the ground of the verdict, which was for the defendant, being against evidence; the cause was tried before the under-sheriff for Derbyshire. Cur, adv. vult. JONES v. BILL.-T. W. Saunders moved for a rule nisi herein. Monday, April 19. Rule nisi. BERKHEAD . NORTH. BIRCHER V. CLARK. Friday, April 23. (Before Mr. Justice COLERIDGE.) DENTON . GODFREY and OTHERS.-The AttorneyGeneral moved for a rule calling upon the plaintiff to shew cause why the writ of ca. sa. should not be quashed, and why satisfaction should not be entered upon the roll, the plaintiff having already taken one of the defendants upon an execution, and having made terms with and discharged him. (Clark v. Clement, 6 T. R. 525.) Rule nisi. CUMMING . INCE and OTHERS.-Watson, Q. C. moved, 164(12). 164(13) do. No. 47 164(14) do. Nos. 5, 6, 8, 9, 18, 20, 21, and 23, and Weymouth and Melcombe Regis Harbour Trusts Bill do. Nos. 47, 48, 49, 50, and 51 184. Copper Ore-Copies of Memorials, &c. 266. Public Works, Ireland-Further Return 270. Foreign Vessels-Account 124. Local Acts-Report of Commissioners of Woods, Forests, &c.-Evidence to Part 76 218. Settlement and Poor Removal-Fourth Report from Committee Commercial Tariffs, Regulations, &c.-Hayti and Foreign West Indies, Part 20 124. Local Acts-Report of Commissioners of Woods, Forests, &c.-Evidence to Parts 5, 24, 75, and 80 129. Local Acts-Reports of the Admiralty, Part 8 268. British Museum-Copy of Memorial 271. Shipping-Account 272. Wheat, &c.-Account 279. Seamen-Return 290. Relief Works, Ireland-Return 232. Navigation Laws-First Report from Committee on affidavits disclosing a variety of facts, for a rule to stay Distress, Ireland-Treasury Minute and First Report of the the proceedings herein. Highways-" to amend the Laws relating to Highways." County Buildings-" to amend the Acts relating to County Ecclesiastical Commissioners" to amend the Acts relating to the Ecclesiastical Commissioners for England." Medical Registration and Medical Law Amendment-" for Thursday, April 22. the Registration of qualified Medical Practitioners, and for amending the Law relating to the Practice of Medicine in Great Britain and Ireland." BILLS READ A SECOND TIME. Monday, April 19. Service of Heirs, Scotland Tuesday, April 20. BILLS READ A THIRD TIME. THE QUEEN . THE COMPANY OF PROPRIETORS OF THF Punishment of Vagrants, Ireland. SHEFFIELD CANAL.-Hall moved for a certiorari to remove this indictment, which had been found against the defendants for the non-repair of a road. Certiorari granted. GRIFFITHS v. HUGHES and ANOTHER.-Gray moved for a rule for a new trial, which was tried before the undersheriff of Carnarvonshire (when a verdict was found for the plaintiff for 77. 3s.), on the ground of the verdict being against evidence. Rule nisi. Friday, April 16. Poor Relief, Ireland BILLS READ A FIRST TIME. Friday, April 16. notice of trial herein on the ground of issue not having been Cleveland Square, &c. Improvement joined. Rule nisi. DOWNHAM v. CollinGRIDGE.-Thomas moved to set aside the verdict and for a new trial in this case, which was tried before the under-sheriff of Middlesex (when a verdict was returned for the plaintiff), on the grounds: 1st. Of misdirection; 2nd. That the verdict was against evidence. Cur, adv. vult. BIRKHEAD and JONES, Executors v. NORTH.-Woolrych moved for a rule calling upon the defendant to shew cause why the plaintiffs should not be exempt from the payment of costs on a certain issue upon which they had failed. BOORHAM . GRANT.-Wells moved for a new trial in this case, on the ground that the verdict which was found for the plaintiff was against evidence. Rule nisi. REED v. WHITE.-Hawkins moved to set aside this verdict, and for a new trial, on the grounds, first, that there was no evidence to support the verdict; and, secondly, of surprise. The action was tried before the under-sheriff of Middlesex, and a verdict returned for the plaintiff for 51. 5s. Rule nisi on the second ground. JULIUS U. WETHERALL.-Billing moved, on behalf of the defendant, to set aside the verdict, and for a new trial, on the ground of surprise, the defendant thinking that the cause would not be taken until the sittings after Term. Cur, adv. vult. MOORE U. ANGELL.-Wordsworth moved for a rule, calling upon the defendant to shew cause why the plaintiff's attorney should be at liberty to sign judgment and issue execution, or why the defendant should not pay over to him HOUSE OF LORDS. ACTIONS AGAINST MAGISTRATES. FRIDAY, April 16.-Earl FORTESCUE rose tof bring before their lordships' notice the petition o John Sweetland, and George Savage Curteis, esqrs. magistrates of the county of Down, complaining of law expenses unjustly incurred in the execution of their magisterial duties. As far as the noble earl could be heard, he was understood to say that the petitioners in 1843 had convicted one Joseph Stanton, a toll-collector, of some offence, and fined him 51. That an action was brought against them, which had been tried, and a verdict found for the plaintiff. They moved for a new trial; on the occasion of that trial a verdict was found for them, the defendants. He hoped that some means would be found to relieve magistrates from such responsibilities. ARREST OF DEBTORS LEAVING THE COUNTRY. Lord BROUGHAM in presenting petitions from the Societies for the Protection of Trade, at Hull, Liverpool, and Preston, begged to call the attention of the House, and especially of his noble and learned friends to their prayer. They were all addressed to the same important subject, contained the same statement of facts, and recommended the same remedy. The Act which abolished imprisonment for debt on mesne process, in 1838, and the two bills to which he had obtained the concurrence of Parliament in 1844 and 1845, were referred to, and it was complained that they were all defective in one particular. They gave the power of arresting any debtor who was about to leave the country, but they gave it only on application to a judge in Westminster Hall. It was therefore urged that this power should be lodged in the hands of local judges, which would prevent the necessity which now existed of any one, putting the Act in force, coming to London.-Lord CAMPBELL said that at the time this bill passed, there was a difficulty in fixing on any subordinate officer to whom this power should be given. He hoped it would be given to the judges of the County Courts. |