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l'pon a motion to postpone a trial, the notice Where a rule to shew cause on the 20th of the intended application omitting to offer the November had not been served till that day costs of the postponement, the court made the at Birmingham, the court, on the 25th (the last rule absolute as well on payment of those costs day of term), refused to make it absolute, but as of the costs of the motion, though cause was enlarged it till the next term. llaukins v. shewn in the first instance. Ward v. Ducker, Benton, 2 D. & L. 465 ; 14 L. J., Q. B. 9. 6 Scott, N. R. 45.

If a rule cannot be served, it may be amended A party who shews cause successfully, in the and enlarged, even though it has run out. Grisfirst instance, against a rule, which, if granted, sold v. Iarding, 1 C. B., N. S. 556. would be a stay of proceedings, and operate to A rule obtained on Saturday for Monday may his prejudice, will be allowed the costs of oppos- be enlarged of course. Haines V. Aldrit, 2 Chit. ing the rule. Rennie v. Beresford, 3 D. & L. 372. 461 ; 15 L. J., Ex. 78; 10 Jur. 76.

In shewing cause against a rule, affidavits On discharging a rule with costs, the practice may be filed up to ten days before the terin of the court generally is, not to order them to when cause is actually shewn, although the rule be paid to any one not a formal party to the may have been often enlarged. Gompert:, In rule, without a separate application with that re, W., W. & D. 300. object. Reg. v. Green, 2 G. & D. 789.

On enlarging a rule on the last day of term, The court has a discretionary power to order the court will allow it to be made a part of the costs to be paid by persons making affidavits in rule that there should be a stay of proceedings. support of a motion, particularly attorneys in Todd v. Gompert:, W., W. & D. 610. their professional character ; but if the claim An enlarged rule may be made absolute on for costs arises on the affidavits in answer, there the last day on which it stands enlarged. Shaw must be a special application. Ib.

v. Masters, 2 Taunt. 174. After an inquisition under the Tithe Commu- The enlargement of one rule is a violation of tation Act (6 & 7 Will. 4, c. 71), s. 82, the owner a subsequent one in the same matter, which is of the land obtained a rule to set aside the writ drawn up with a stay of proceedings. Wyatt v. under which it was taken, and all subsequent Prebble', 5 D. P. C. 268. proceedings, which after argument

was dis

Where a party comes to enlarge a rule against charged, no mention being made of the costs : which he has to shew cause, he must file his atti-Held, that the costs of shewing cause against davits a week before the first day of the ensuing that rule could not be taxed as part of the term ; but, where he comes to enlarge his own costs of the inquisition. Hammersmith Rent rule, he cannot make the indulgence to himself charge, In re, 19 L. J., Ex. 66 ; 14 Jur. 917. a pretext for imposing a condition upon the

A party served with a rule calling upon him other party. Memorandum, 6 Scott, 900. to show cause is not entitled to his costs of ap- Enlarged rules are not served, because both pearing upon the rule, if he has no costs to parties are before the court. Anon., 1 Smith, shew. Cassidy v. Struurt, 4 Scott, N. R. 187 ; 199. 3 M. & G. 575.

If a party against whom a rule is granted

obtains its enlargement, he cannot afterwards f. Old Practice. object that it was not personally served.


wright v. Blackworth, 1 D. P. Č. 489. On what Day.]—Though the court will not

Where a rule is enlarged from Trinity Term to permit a matter of law to be discussed on the Michaelmas Term, affidavits filed a week before last day of term, it will allow cause to be the latter term are in time. Johnson v. Marriut, shewn against a rule, praying for a writ of resti. 2 D. P. C, 343. tution, where it was referred to the full court

Affidavits in answer to a rule enlarged from from the Bail Court, and counsel had been one term to another, which requires the affidavits unable to bring it on till the last day, owing to to be filed a certain time before the term, must press of business in the court, and the case is very in all cases, notwithstanding a contrary practice urgent. Doe d. Sterens v. Lord, 6 D. P. C. 256. has prevailed, be filed within the time prescribed,

unless the party is prevented from filing them by Enlarged Motions.] -- Where, from pressure inevitable accident. Turner. v. Unwin, 4 D.P.C. of business, a motion cannot be heard within 16; 1 H. & W. 186. the first four days of term, and the case is inserted in the list of enlarged motions, notice of Reviving.]-If a rule is drawn up to shew that fact should be given to the opposite party, cause in one term, it cannot be absolute in the or he will be entitled to the costs of proceeding next term, without enlarging; but it may be to sign judgment. Emblin v. Dartneli, 1 D. & L. revived. Smith v. Collins, 3 D. P. C. 100. 1010 ; 13 L. J., Ex. 255.

Where a defendant resides such a distance An expired rule cannot be enlarged. Price from town, that he cannot be served before the v. Thomas, 11 C. B. 543.

day for sbewing cause, and the term expires on A rule cannot be enlarged after the day on the day after that day, the rule may be revived which it is returnable. Abrahams v. Darid son, in the next term. Rowbottom v. Kalphs, 6 D. 6 C. B. 622.

P. C. 291. Where a party who has to shew cause against a rule moves to enlarge it, it is his duty to draw Abandoning.)-A rule, when once obtained, up and serve the rule for that purpose. Batty cannot be abandoned by the party moving. v. Marriott, 5 C. B. 420 ; 5 D. & L. 477 ; 17 Simpson, In re, 17 L. T. 617. L. J., C. P. 110.

If a party obtaining a rule does not choose to So where a rule is enlarged by consent, it is proceed on it, the other party cannot compel the duty of the party who originally moved the him. Doe d. Ilarcourt v. Hoe, 4 Taunt. 883. rule to keep it alive by drawing up and serving Although the general practice may be for one. the enlarged rule. Ib.

party to the suit to draw up a rule obtained in

the progress of a cause, if the other party wishes But an action will lie on a judge's order to to act upon it he should draw it up within the refer made by consent, the consent being evi. time to which it relates ; for if not drawn up dence of an agreement to perform the award. within such period, it is to be considered as Lievesley v. Gilmore, 1 L. R., C. P. 570 ; 35 L.J., having been abandoned. Gingell v. Bean, 1 C. P. 351 ; 12 Jur., N. S. 874; 15 L, T. 386 ; 1 M. & G. 50.

H. & R. 849.

Making Rule of Court.]-Rule 158, of Hilary By Suit in Equity. ]-An order, made by Term, 1853, applies where the party sought to consent, whereby it was ordered that proceedbe charged is an infant. Beames v. Farley, 5 (ings in an action should be taxed upou certain C. B. 178.

conditions, does not amount to an agreement to A rule absolute may be drawn up during term, perform those conditions ; and a bill in equity on an order of a judge dated in vacation. Swaine for a specific performance will not lie. Thamer V. Stone, 4 M. & Scott, 584.

Iron Works and Shipbuilding Company v. Patent But a judge's order granted in vacation must Derrick Company, 1 Johns. & H. 93 ; 29 L. J., not be drawn up as of the preceding term. Rex Ch. 714 ; 6 Jur., N. S. 1013. v. Price, 2 D. P. C. 233; 2 C. & M. 212; 4 Tyr. 60.

- By Attachment.]-An attachment will The court will not grant a rule absolute in the not be granted for disobedience to a judge's order first instance, for making an order a rule of court, until it is made a rule of court, though the order where, by the rule, costs are sought to be imposed has been acquiesced in and acted upon. Buker on the opposite party. Spicer v. Bond, 2 D., v. Rye, 1 D. P. C. 689 ; S. P., Hlinchlife v. N. S. 955 ; 7 Jur. 672.

Jones, 4 D. P. C. 86. A rule for making an order a rule of court, and for the costs of the application, is absolute in the Must be made a Rule of Court.]— The mere first instance, provided there is an affidavit of the circumstance that an agreement contains a service and of disobedience of the order. Black v. proviso for its being made a rule of court will Low, 4 D. & L. 285; 16 L.J., Ex. 56 ; 10 Jur. 953. not of itself authorize the court to take such a

Costs due under a judge's order and an allo- step. Steers v. Harrop, 1 Bing. 133 ; 7 Moore, catur are payable on demand. Thomson v. Bil. 466. ling, 11 M. & W. 361 ; 2 D., N. S. 824 ; 12 L. J., Ex. 301 ; 7 Jur. 354.

XIX. TIME. A judge's order was, upon an affidavit that it had been served and disobeyed, made a rule of (See Rules of Supreme Court, 1883, Ord. LXIV.) court; and it was made part of such rule, that the costs of making the order a rule of court should be

1. Generally. paid by the party against whom the order was

2. Notice to Proceed, 2041. made. The court, upon an affidavit shewing that there had been no disobedience, rescinded so much

1. GENERALLY. of the rule as related to the costs, although no demand of them had beeh made. Farrant, Ex

Extension of_Notice of Motion.] - Where parte, 1 B. C. C. 64; 21 L. J., Q. B. 272.

notice of motion has not been given in sufficient An affidavit of service is sufficient, if the ser- time, owing to a bonâ fide mistake, the court vice is sworn to have been effected on the may, in its discretion, allow the party in default attorney or agent for the plaintiff in this cause."

to shew the reason of the mistake by affidavit, Vorris v. Beduard, 9 D. P. C. 130.

and allow the motion to be made on a later day. A judge's order made in an action was as fol- Smith v. Smacksmen Insurance Company, 32 lows :-" I order that the defendant shall within W. R. 184. three days obtain the discharge of the plaintiff in the action in which he is detained at the suit of

Motion for New Trial.]—The Court of A. B., by paying the debt and 501. agreed costs to Appeal has power under Ord. LVIII. r. 5, to en. the plaintiff's attorney, and shall also within four- large the time for moving for a new trial. Pure teen days take, at the defendant's expense, what- nell v: Great Western Railway Company, i ever proceedings may be necessary to obtain the Q. B. D. 636 ; 45 L. J., Q. B. 687; 24 W. R. 720

-C. A. vacating of the vesting order in the Insolvent Debtors Court obtained by A. B. against the

Where a motion for a new trial is to be made plaintiff in this cause, and that thereupon all conditionally on the result of a decision pending proceedings in this action shall be stayed.” The in the Court of Appeal in a similar cause, notice master objected to draw up the rule for making of motion should be given within the usual time, the order a rule of court with costs, on the and application be then made to the court to ground that the order was conditional in its postpone the hearing till the decision in the terms :-Held, that the first two branches of the Court of Appeal has been obtained. The court order were clearly mandatory on the defendant, has a full discretion over such applications, and and the third was for the defendant's benefit is not limited to cases only where parties have when he had performed the other two. The

been misled. Peckett v. Short, 32 W. R. 123. court therefore granted the rule with costs. Crowther v. Crowther, 16 C. B. 177.

For Indorsement on Writ of Date of

Service. ]—Under r. 6 of Ord. LVII. of Rules of Enforcing Performance — By Action.] - An Court, 1875, the court has power to extend the action will not lie upon an undertaking con-time fixed by r. 13 of Ord. IX. for the making an tained in a judge's order, though the order was indorsement on a writ of the date of service out made by consent, and the undertaking was of the jurisdiction. Hastings v. Hurley, 16 Ch. founded on a good consideration. Hookpayton v. 1. 734 ; 50 L.J., Ch. 577 ; 4À L. T. 176 ; 29 W. R. Bussell, 9 Ex. 24 ; 23 L. J., Ex. 267.



Where, through inadvertence, the date of the lar to the previous one. There had been no fresh service of a writ has not been indorsed upon the personal demand of the money since the diswrit within the time prescribed by Ord. IX. r. charge of the last rule. The court made the rule 13, the court can extend the time, so as to make absolute. Burlington v. Richardson, 22 L. J., an indorsement made after the proper time, and Q. B. 385. all subsequent proceedings, valid. Sproat v. The rule that a term's notice was necessary Peckett, 48 L, T. 755.

where no proceeding had been taken in a cause

for a year, did not apply to proceedings had after For Pleading. ]-See PLEADING.

verdict. Neuton v. Boodle, 4 D. & L. 664 ; 3

C. B. 795 ; 16 L. J., C. P. 137; 11 Jur. 148.
For Appeal.]-See APPEAL.

Where a rule had been made absolute to set

aside a verdict found for the defendant, and for Discretion of Judge.] — By a master's a new trial on payment of costs by the plaintiff, order an action was to be dismissed, unless notice and the plaintiff for more than a year failed to of trial were delivered by a certain day. Through pay the costs, or to take any steps towards availa mistake of the solicitor's clerk, notice of trial ing himself of the rule, the defendant could not was not delivered within the required time. A move to discharge it without previously giving a judge at chambers refused, in the exercise of his term's notice of his intention so to do. Lord v. discretion, to extend the time fixed by the Wardle, 3 C. B. 295 ; 15 L. J., C. P. 259. master's order, and the divisional court declined The rule did not apply to a motion to set aside to interfere with the judge's discretion. Gilder proceedings for irregularity, but only to any steps v. Morrison, 30 W. R. 815.

taken towards judgment. Lumley v. Thompson,

3 M. & W. 632 ; 6 D. P. C. 558. Effect of Rules on Mercantile Transactions.] A term's notice was not necessary if the delay - The plaintiff in the action sued on a promissory had taken place at the defendant's request. note at three months, dated the 11th March, Evans v. Davies, 3 D. P. C. 786 ; S. P., Bland 1874 ; the note was therefore primâ facie duc on v. Darley, 3 T. R. 530. the 14th June of the same year. The 14th of A term's notice was not necessary in case of a June was a Sunday. The writ in the action trial by proviso after a lapse of four terms. bore date 14th June, 1880, which was a Monday. Theobald v. Crichmore, 2 B. & A. 594. It was contended that the right of action was Or before motion for costs of the day. French barred by the Statute of Limitations :-Held, v. Burton, 2 C. & J. 634. that Ord. LVII. r. 3, of the Judicature Act of An order to change an attorney was not a pro1875 did not apply to such a case as the present ceeding in a cause dispensing with a term's notice one, as it was not intended to extend the time of proceeding. Deacon v. Fuller, 3 Tyr. 382 ; 1 fixed by the Statute of Limitations. Morris v. C. & M. 349; 1 D. P. C. 675. Richards, 15 L. T. 210 ; 46 J. P. 37.

A term's notice was not necessary to revive Sce further cases, sub tit. TIME.

proceedings against a defendant who had stayed them by obtaining an injunction. Bosworth v.

Phillips, 2 W. Bl. 784. 2. NOTICE TO PROCEED,

Where proceedings are stayed for a time certain

above a year, proceedings might go on at the exMonth's Notice. ]-By Rules of Supreme Court, piration of the time, without a term's notice. 1883, Ord. LXIV. r. 13, in any cause or matter | Watkins v. Haydon, 2 W. Bl. 762. in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. A

XX. TERMS, summons on which no order has been made shall not, but notice of trial, although countermanded, By 36 & 37 Vict. c. 66, s. 26, - terms shall be deemed a proceeding within this rule. abolished, but they may continue to be referred

to in all cases in which they were used as a To what Cases Applicable.] - Rule 176 of measure for determining the time within which Hilary Term, 1853, applies to the signing of an act is required to be done. An award was judgment for not proceeding to trial under 15 & made on the 28th of March, 1877. An applica16 Vict. c. 76, s. 101. Metcalf v. Hetherington, tion to set it aside under 9 & 10 Will. 3, c. 15, 8. 3 H. & N. 755 ; 28 L. J., Ex. 155.

2, was made in the Easter sittings on a day after After interlocutory judgment had been entered the 8th of May. Easter Term in 1877, under the for 25l. for default, the rest of the action was re- former procedure, would have begun on the ferred and an award made. There was no power 15th of April and ended on the 8th of May of entering up judgment on the issues referred. Held, that the application ought to have been After the lapse of a year the plaintiff gave the made on a day before the 8th of May, for “terms" defendant notice that the court would be moved still exist as a measure for determining the time in a week. Within a month from the date of the within which an award should be set aside under notice, the plaintiff applied for a rule calling on 9 & 10 Will. 3, c. 15, s. 2. Christ's College, the defendant to pay the 251., or why the plaintiff Brecknock v. Martin, 3 Q. B. D. 16 ; 46 L. J., should not be allowed to sign final judgment. Q. B. 591 ; 36 L. T. 537 ; 25 W. R. 637—C. A. There was a proper demand of the money. The When all the days included between the rule was discharged on the ground that there had Thursday before, and the Wednesday after not been a month's notice of proceeding. A sub- Easter-day (both inclusive), fall within Easter sequent notice was given by the plaintiff that he Term, that term must be prolonged by five busiwould after a month proceed in the action by ap- ness days, and Trinity Term commence five days plying to sign final judgment. After the month later accordingly. Downes v. Bostock, 5 Jur. had expired, the plaintiff applied for a rule simi- ( 103.




ACTIONS. (See Rules of Supreme Court, 1883, Ords. LXIII. and LXIV.)


MENT. Jurisdiction of Vacation Judge.]—The jurisdiction of the vacation judge under Ord. LXI.

Discovery of Documents.]-See DISCOVERY. r. 7, extends to the adjournment of sittings by a judge of the Chancery Division during the

Application for Leave to Join.)-An applisittings of the division. Wilson v. Watson, 38 cation for leave to join another action with an L. T. 380.

action for the recovery of land must be made before the writ is issued. Pilcher, In re, Pilcher

v. Hinds, 11 Ch. D. 905 ; 48 L. J., Ch. 587; 40 Absence of Judge temporarily during Term L. T. 832 ; 27 W. R. 789—-C. A. Time. ]-Whenever during the regular sittings of Where another action had been joined with the High Court of Justice any judge is absent an action for the recovery of land without from any cause, as, for instance, through having leave, the court refused to grant leave to conrisen for a few days' vacation, applications of antinue the action in that form, although the urgent nature in any action pending before such defendants had appeared. Ib. judge will be heard and disposed of by the Master of the Rolls or any other judge of the Court of

Applies to Counter-claim.] — The proAppeal, under s. 51 of the Judicature Act, 1873, vision of r. 2 of Ord. XVII., that no cause of upon a request being obtained from the lord action, except those specified in that rule, shall, chancellor. Chapman v. Real Property Trust, unless by leave of the court, be joined with an 7 Ch. D. 732 ; 26 W. R. 587.

action for the recovery of land, applies to a

counter-claim as well as to an original action. What is Long Vacation Business.]-An appli- 51 L. J., Ch. 680 ; 47 L. T. 122 ; 30 W. R. 563.

Compton or Comton v. Preston, 21 Ch. D. 138 ; cation for payment out of a parliamentary deposit not previously payable is long vacation business.

When Leave Necessary. ]--An action to Wigan Junction Railway Act, In re, 10 L, R., establish title to land is an action for the recovery Ch. 541; 44 L. J., Ch. 774.

of land so as to require the leave of the court

for its joinder with another cause of action. Order to take Effect in Vacation.]—When a Whetstone v. Dewis, 1 Ch. D. 99 ; 45 L. J., Ch. person entitled to a vested interest in trust funds 49 ; 33 L. T. 501 ; 24 W. R. 93. in court, to be paid at twenty-one, would attain An action - to establish title to land," not that age in the long vacation, a prospective claiming possession, is not an action for the order was made for the payment out of the fund recovery of land,” so as to require the leave to her at such date. Penn, In re, 42 L. J., Ch. of the court, under Rules of S. C., r. 2 of 880; 21 W. R. 865.

Ord. XVII., for its joinder with another cause of action. Whetstone v. Dewis (1 C'h. D. 99)

not followed. Gledhill v. Hunter, 14 Ch. D. Leave to Serve Short Notice of Motion in 492; 49 L. J., Ch. 333 ; 42 L. T. 392 ; 28 W. R. Vacation.]—Leave to serve short notice of motion 530. cannot be given by the chief clerk in vacation Where the writ was indorsed for declaration any more than during the sittings. Conacher v. of title, declaration that a lease was granted l'onacher, 29 W. R. 230.

under a mistake, recovery of rents and profits,

and a receiver, and the statement of claim asked Appeal from Chambers during.]--See APPEAL. also for possession :-Held, that this was an

action for the recovery of land and nothing

else, and that there was no joinder of any cause Before Judicature Acts-Notice of Sittings.] of action which required the leave of the court. - The notice of sittings in vacation pursuant to Ib. 1 & 2 Vict. c. 32, must specify with accuracy and An action was brought by the plaintiffs to precision the nature of the business to be pro- establish their title to certain waste lands, and ceeded with. Field v. Mackenzie, 6 C. B. 381. that they might be quieted in the possession

At the post-terminal sittings in banc, no busi- thereof; and for an injunction to restrain the ness can be taken, except that of which notice defendants from trespassing on the said lands, has been given. Subor v. Edwards, 3 C. B., and from interfering with the plaintiffs' rights N. S. 64.

or molesting their tenants and agents :—Held, On the last day of term, a rule was made abso- that the plaintiffs had established their title ; lute on an affidavit of service. The master, next that there was not sufficient evidence of a dlay discovering that the affidavit was defective, charitable trust which the defendants had refused to draw up the rule. The court, consider alleged, and that the Statutes of Limitation ing the rule as a pending rule, allowed a motion would not in this case protect them ; that, to be made in the sittings after term to make having regard to Gledhill 5. Hunter (14 Ch. D. the rule absolute on an amended affidavit of 422), the action was well founded, and that the service. Dow v. Bell, 4 Ex. 259 ; 18 L. J., Ex. plea that the defendants were not actually in 391.

possession and were unable to maintain this A writ of inquiry in a personal action may be action could not be maintained.

Voricich tested in vacation under 2 Will. 4, c. 39, ss. 11, 12. (Vayor) v. Brown, 48 L. T. 898. Collett v. Curling, 5 D. & L. 605 ; 17 L, J., Q. B. 216.

What Claims may be Joined. ]-A purchaser

of real property brought an action claiming of November, 1874, when the Judicature Act quiet possession of the property purchased, and came into operation :-Held, that although the an injunction to restrain the defendant from bill could not have been sustained before the interfering with such possession :-Held, that Judicature Acts, the objection to the jurisdiction the claim for an injunction was not a separate was removed by s. 22 of the Judicature Act, cause of action, and could be joined with that | 1873. Hurst v. llurst, 21 Ch. D. 278; 51 L. J., for possession without the leave of the court. Ch. 729 ; 46 L. T. 899—C. A. kondrick v. Roberts, 46 L. T. 59 ; 30 W. R. 365.

Pleadings in.]-Sec PLEADING. An action for the administration of personal estate may be joined with an action to establish 2. BREACH OF PROMISE OF MARRIAGE.-See title to real estate where the plaintiff claims

HUSBAND AND WIFE. both estates under a common gift in the same will. Whetstone v. Dewis, supra.

3. PARTNERSHIP ACTIONS.—See PARTNERSHIP, Leave will be given to join with an action for the recovery of land an action for the recovery or delivery up of a deed relating to the land; also for the recovery of personal estate comprised in the same instrument. Cook v. Ench. march, 2 Ch. D. 111; 45 L. J., Ch. 504 ; 24 W. R. 293.

PREMIUM. In an action by the heir-at-law, who was also one of the next of kin of an intestate, against I. ON ARTICLES.

.-See SOLICITOR. the administratrix, who was in possession of the intestate's real estate, leave was given to join a II. OX INSURING.–See INSURANCE. claim for the recovery of the land, and a claim for the administration of the estate. Kitching III; ON DISSOLUTION OF PARTNERSHIP.v. kitching, 24 W. R. 901.

Leave was given to join with an action for
the recovery of land, à claim for a receiver.
Allen v. Kennet, 24 W. R. 815.





Writ of Possession. ]-Where in an ejectment after defence taken, the plaintiff obtains a verdict for possession, mesne rates and costs, execution cannot issue until the judgment is complete, and the plaintiff is therefore not entitled to a writ of possession until the costs are taxed and added to the judgment, or are waived by him. Beasley v. Chapman, 6 L. R., Ir. 393.

When, after writ of possession executed, the defendant forcibly retook possession, the Queen's Bench Division made an order renewing the writ. Stacpoole v. Walsh, 6 L. R., Ir. 441.

Under Ord. XLVIII, a writ of possession is now substituted for the writ of assistance, whether between parties or as against strangers to the action. llall v. Hall, 47 L. J., Ch. 680.

Judgment for Recovery of Possession of Land.] -A judgment for foreclosure absolute is not a judgment for the recovery of the possession of land within the meaning of Ord. XLII. r. 3, of Rules of Court, 1875. Wood v. Wheater, 22 Ch. D. 281 ; 52 L. J., Ch. 144 ; 47 L. T. 440 ; 31 W. R. 117.

A foreclosure action is not an action for the recovery of land within the meaning of he Rules of Court, 1875, Ord. XVII. r. 2. Tawell v. Slate Company, 3 Ch. D. 629.

Ejectment Bill — Effect of Judicature Act, 8. 22.]-A bill, which the court held to be a mere ejectment bill, was filed shortly before 2nd






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