V. C. LORD CRANWORTH'S COURT. ~~~" and she (the defendant) believes he (the plaintiff) is acting under the advice of ignorant but cunning persons, and who are in expectation of extorting money from this defendant in order to be relieved from being worried and harassed, and put to expense by the illegal and vexatious conduct of the! said complainant." C. P. Cooper and Bilton, in support of the exceptions, her to inspect, &re. The Court, under these cir- finding that A. B. who was one of three trustees, Lovell, for the plaintiff, Frances Trappitt Jefferies, moved that the defendant, Charles Biggs, might be The VICE-CHANCELLOR (without hearing Swans ordered to pay into Court the sum of 1621. 8s. Id. ton and Schomberg for the plaintiff).-The wonder admitted by the affidavit of the said defendant to be that any one should have thought it worth while to in his hands, and also that he might produce insert such charges in an answer, is only equalled by and leave in the hands of the Clerk of Records the wonder that any one should have thought it and Writs, an exhibit, marked A, being a stateworth while to except to them on the ground of ment of his receipts and payments on account of the scandal. However, here they both are, and they intestate's estate admitted by his affidavit to be in must be dealt with. The reference is for scandal his possession or power. He stated that in the only; on which I am not quite sure that something present motion was involved an important question does not turn. However, I lay no stress upon it. to parties seeking relief by claim, one which, as far The first passage complained of is, "that he is de- as he was aware, had not hitherto arisen, namely, sirous, by annoying and harassing the defendant, to whether, under a suit so instituted, a plaintiff could extort money from the defendant." Now what is obtain such interlocutory relief, as he would clearly there charged is an operation of the mind by be entitled to if the suit had been instituted by bill, analogy to the charge in an indictment for high and the affidavits of the defendant were treated as treason, where what is charged is applied to an his answer thereto. In a recent case (Cockburn v. operation of the mind, which is proved and brought Green, 17 Law T. 58) the Vice-Chancellor Knight under the view of the Court by what are called overt Bruce had said that the affidavits of defendants were acts. By law, overt acts must be charged, as well as to be considered and treated in all respects as operations of the mind. No such rule is applicable though they were their answers to bills filed against to a bill in Chancery. Now here the overt act is im- them. If that were so, then he submitted he was material. For example, suppose it was charged that clearly entitled to the orders sought by the present the plaintiff had said that he was desirous of annoy-motion. [Lord CRANWORTH.-What are the paring and harassing the defendant to extort money from ticular words in which the defendant has admitted the defendant, it would be material on the question to have in his possession the sum you seek to have of costs. If there had been no allegation to allow of paid into court?] What the defendant states is the introduction of such proof, the charge would fail. this: "I have received in the whole the sum of My opinion is, this allegation would allow of the in- 1,1851. 1s. 8d. and I have paid in the whole moneys troduction of that evidence, and, therefore, although which, including three legacies of 1001. each (less 17. it is as nearly immaterial as that which is not actually legacy duty), amount to the sum of 1,0227. 13s. 7d. immaterial, I do not think it entirely immaterial. and there remains in my hands or due from me the The same observation applies to the charge "that he sum of 1627. 8s. Id. only, and no more." The deis acting under the advice of ignorant and cunning fendant then states, that as to the latter sum, one persons, who sue in expectation of extorting money John Fuller some time since commenced an action from the defendant in order to be relieved from being against him and his wife as administratrix to recover worried and harassed, and put to expense by the a sum of 187. 4s. but which he did not pay, as he beillegal and vexatious conduct of the plaintiff." Sup-lieved it was not justly due, a sum of 107. only being pose the defendant should be able to prove that the due, and that one Gibbs had also claimed the sum of plaintiff had said, "I am acting under the advice of 137. 10s. as due to him, but which he had refused to such and such persons, who are very ignorant and pay, believing it to be unjust. It was admitted that cunning, but who are expecting to extort money the intestate had been dead upwards of eight years, from the defendant in order to be relieved from being therefore both these claims would be barred by the worried and harassed and put to expense by my Statute. As to the one for 181. 4s. the defendant conduct, which I am advised and I agree is illegal did not state when proceedings were instituted and vexatious." Although this is all but nonsense, against him and his wife: he merely stated that some if not quite nonsense, on both sides, my impression time ago an action was commenced, and which, from is, that the exceptions ought not to be allowed. One all that appeared to the contrary, it might be is almost ashamed of giving anything that has the assumed had been abandoned; and as to the claim semblance of reasoning on this subject. Disallow for 137. 10s. it did not appear that any steps had the exceptions. As to costs I say nothing. Swanston and Schomberg contended that the exceptions should be overruled with costs; but The VICE-CHANCELLOR refused to give costs. Saturday, June 7. been taken to establish it. G. L. Russell, for the defendant Biggs, contended the motion ought to be refused, with costs. It would be hard upon the other defendants to have paid into court a fund in two-thirds of which they were interested, and that upon the application of a party interplaintiff her one-third if she will consent to the defendant abandoning certain proceedings he has adopted for the recovery of a debt due to the estate. Lovell.-No such offer has been made to my client, nor does the defendant anywhere in his affidavit allege such offer to have been made. Re THE IMPERIAL SALT AND ALKALI COMPANY.ested in one-third only. We have offered to pay the G. L. Russell.-Then, I now make the offer: Craig appeared in support of a petition, presented in this case by an equitable mortgagee of the real estate of the company, who desired to facilitate the sale of the property without losing his lien. The petition prayed that the petitioner might be at liberty to deliver up the deeds to the official manager, for the then, as to the deposit of the document, the defendpurpose of his effecting the sale, without the peti-ant states that he offered the plaintiff an inspection tioner's losing his lien, if any. The Master had ap-of it at the office of his solicitor, and that, previously proved of the arrangement. to her notice of motion; and, further, that she might have a copy of it at her expense, and I now repeat such offers. C. L. Webb, for the official manager, consented. V. C. LORD CRANWORTH'S COURT. Thursday, June 5. Claims-General orders, April, 1850-Interlocutory applications. His Lordship said he thought the plaintiff was he should make an order to that effect. If the deentitled to have the money brought into court, and fendant required any part of it for the purpose of paying debts, he might apply to the Court. Then, as to the other part of the motion, he should not make any order for the deposit of the document, but give leave to the plaintiff to inspect it at the offices of the defendant's solicitors. Lovell.-Your lordship's order will be that the A defendant, by his affidavit, stated he had re-plaintiff have liberty to inspect, and also to take cerred certain sums of money, and had expended copies of, or make extracts from, the document in other sums of money, and that there remained question. in his hands, or due from him, the sum of 1621. Ss. Id. only, and no more." The plaintiff treating this affidavit as though it were the defendant's answer to a bill mored on notice that the money might be paid into Court. The Court made the order. The same defendant, by his ederit, admitted that he had in his possession a certain document. It appeared that the defendent had, previously to the notice of motion, offered the plaintif inspection of this document ind to furnish her with a copy of it at her expense.” The pozintif, by her notice of motion, asked that this document might be deposited with the Clerk of Records and Writs, with liberty to Lord CRANWORTH.-Certainly. Tuesday, June 10. Mc Queen, in support of the petition.-He called attention to the case of Watts's Trustees, before Vice-Chancellor Turner, 17 Law T. 139, and 15 Jur. 459, where, alluding to the 10th sec. of the Act, the Vice-Chancellor is reported to have said, that "where, as in the case before him, there were several trustees, one of whom was out of the jurisdiction, such a conveyance by the absent trustee would operate as a severance of the joint tenancy." The VICE-CHANCELLOR said, the petitioner was entitled to an order in the terms of the 10th section of the Act of Parliament (a). What would be the practical effect of that when done he was not then called upon to say. He had no power beyond that of directing the order of vesting in the terms of that section, and a purchaser might be satisfied to take a conveyance from the two continuing trustees. Order accordingly. tion. A municipal corporation, created by royal charter In a case where the Master had found that one of the Court of Chancery, or who cannot be found, it shall be This was a petition to confirm the Master's report, in the person or persons so jointly seized or possessed, or in such last-mentioned person or persons, together with any other person or persons, in such manner and for such estate as the said Court shall direct: and the order shall have the same effect as if the trustee out of the jurisdiction, or who cannot be found, had duly executed a conveyance or assignment of the lands in the same manner for the same estate, JUNE 21, 1851.] QUEEN'S BENCH. THE LAW TIMES. QUEEN'S BENCH. and bailiffs, touching or concerning the matters and QUEEN'S BENCH. that in Schedule B, which this was not, and the soil Monday, June 9. POOR OF ST. MARY, NEWINGTON. rate, requiring the members of it to elect certain This was a rule calling upon the defendants (who were made a corporation by another local Act, 14 were elected under a localAct, stat. 54 Geo. 3, c. 113, and Vict. c. 7) to shew cause why a mandamus should not issue requiring them to call a vestry meeting and proceed to elect a churchwarden and eight overseers to be members of their own body corporate, according to the statutes referred to. which belong to different proprietors; the owner of each leeze is entitled to stock the common with twenty-four sheep or three cows, or two horses throughout the year. The corporation are entitled to the surplus pasturage. The green is bounded on two sides by the river Swale, a river or arm of the sea flowing between Whitstable and the river Med-tion 24 enacts, that when the trusts shall be fulfilled, way, and the outer fence of the green on those two it shall be lawful for the Lords Commissioners of sides is a wall formed of earth, wood, and stones, Her Majesty's Treasury to certify such facts, &c.; about a mile in extent. It is absolutely necessary and after the publication of such certificate "all the that this wall should be kept in repair, as the river estate and property hereby vested in the trustees at high water is above the level of the land, and the under this Act, or so much thereof as shall then rewater must come in and overflow unless the wall be main unsold and undisposed of, shall revert to the properly kept up. The charter of Charles I. under said mayor," &c. to be held by them according to cease, except as to any acts, which the borough was governed, gave power to the their ancient laws, charters, customs, and usages; mayor, jurats, and bailiffs to make bye-laws for the and all the powers and provisions of this Act government of the inhabitants within the said shall thereupon borough, and for the management and preservation deeds, matters, and things theretofore done, &c. of the common lands and fisheries thereof. In ex- The rate in question recited the Act above menercise of that power, a bye-law was made in 1728 tioned, and information to the trustees by their which enacted that for the preservation of the marsh steward, that the sea-wall was out of and required commonly called sheep's lands of the said borough, and the sea-walls, fences, repair, and imposed contribution after the rate of &c. thereof, it should be lawful for the mayor, 15s. by the leeze; and so in proportion on the owners jurats, and bailiffs of the said borough, to make and or occupiers of the land " levy upon all owners and occupiers of sheep feed- leezes, or quarter leezes, or other fractional parts of ings, sheep leezes, and pasturage, a rateable scot tax leezes," to be paid to the steward and by him applied or assessment, according to the extent of such sheep in repairing, &c. the sea-walls, fences, sluices, feedings, &c.; and that all such owners and occu- ditches, and sewers, with power to the steward to piers should pay such scot or assessment as the levy by distress of the goods of defaulters for six mayor, jurats, and bailiffs should from time to time days after demand. One of the deponents to the judge to be fit and necessary for that purpose. From affidavit in support of the rule, swore that "since that time to the year 1824, rates designated as the passing of the said Act of Parliament, the trus- REG. v. THE GOVERNORS AND GUARDIANS OF THE for the repair of the said wall and tees for the time being acting under it have conti. "wallscotts fences were made by the corporation, and it does nually, without the consent of the leezeholders, not appear that the right to make them was ever dis- turned in upon the said common, to the great loss puted. In 1824 new bye-laws were made which re- and damage of the leezeholders, large numbers of pealed the then existing bye-laws, but contained cattle belonging to persons having no right of passimilar provisions for making wallscots; and under ture in or upon the said common; and the said trusthe new bye-laws, wallscotts were from time to time tees have received from such last-mentioned persons, made and not resisted. The 1st section of the Act for and in respect of such depasturing as last aforeabove mentioned recites, that "the mayor, jurats, said, divers sums of money amounting, as deponent has bailiffs, and burgesses of the borough of Quinborowe, been informed and believes, to about 601. or 701. a in the county of Kent, are a body corporate, and year; but the said trustees have never on any occasion are entitled (subject to the claims of divers credi- included themselves in any rate or assessment or tors thereon) to considerable property, and espe- wallscot, in respect of the said common, made by cially to valuable oyster grounds, &c.; and that them, nor, as deponent has been informed and bethe said oyster grounds and fisheries by reason of lieves, at any time contributed any money whatever the embarrassed state of the affairs of the said mayor, in or towards said rates, nor been rated to the jurats, bailiffs, and burgesses, have been for several poor-rate, church-rates, or land-tax, in respect years unstocked, &c. and that the property of the of such depasturing as aforesaid, although the said said mayor, jurats, bailiffs, and burgesses, is ina- leezeholders have always been and are rated to "that the herbage produced by the said dequate to the discharge of their debts, and a great the above-mentioned rates in respect of their leezes." a large sworn, and that part of such property has been extended under On the other hand, in opposition to the rule, it was of elegit, stock the common greatly exceeds the amount of herbage divers writs is required to of money said oyster grounds, &c. and that it is expedient that necessary for depasturing all the sheep which the all the estate and property of the said mayor, &c. various persons occupying the said leezes are entitled should be vested in trustees with powers to sell, de- to depasture on the said common, and that the said mise, manage, and improve the same, and to appro- trustees therefore have from time to time, but withpriate the moneys to arise therefrom in the manner out any interference with, or encroachment on the hereinafter mentioned;" but these objects cannot rights of the said leezeholders to the full benefit be effected without the authority of Parliament; and and enjoyment of the said leezes, demised to strangers enacts that" from and immediately after the the right of depasturing sheep and other cattle upon passing of this Act, the soil and ground of the said the said common, and that they have derived thereborough and said town of Quinborowe, so far as the from an average profit of about 401. per annum, same is now vested in the mayor, jurats, bailiffs, and which has been applied by the said trustees in aid of burgesses of the said borough, and all the lands, the funds of the said borough, and according to the messuages, tenements, fisheries, advowsons, rents, provisions of the said Act. And that, according to tolls, hereditaments, and all other real and personal information and belief, the said mayor, jurats, and And that the said trustees have never estate and property of the said mayor, jurats, bailiffs, bailiffs were accustomed in like manner to demise and burgesses, save such as is included in the Sche- and make a profit of the surplus pasture of the said dule (B) to this Act, and all the estate, right, in- common. terest, and title of the said mayor, jurats, bailiffs, charged themselves with any of the said wallscots in and burgesses in and to the same, shall become and respect of the surplus pasture, because the said be, and the same are hereby and by virtue of this wallscots, before the passing of the said Act, were Act, vested in A. R., R. M. &c. the trustees ap- always charged solely upon the owners and occupiers pointed to carry this Act, and the trusts and powers of the said leezes, and upon no other person whatsothereof, into execution, to be held by the said trustees ever, and that the said trustees have never been Bovill and Couch shewed cause. according to the nature and quality of such estate charged with any parochial rates in respect of the and property respectively in as full, perfect, and said surplus pasture. Peacock contrà.-Callis on Sewers, 116; the case ample a manner as the said mayor, &c. immediately before the passing of this Act, held or ought to have held the same." The fourth section authorised and of the Isle of Ely, 10 Rep. 103; R. v. CommisPATTESON, J. (a)-I think that this rule must be empowered the trustees to manage the estate thereby sioners of Sewers, 1 B. & C. 484, were cited. "vested in them" in such manner as they shall think best for the benefit of the same, and for made absolute. The right to tax the leezeholders is carrying the purposes of this Act into execution. of necessity referable to this bye-law, which, under &c. or No commission of sewers had issued, and therefore The 22nd section enacts "that nothing in this the charter, the corporation had the power to make. the said mayor, Act shall deprive any of them of any immunities and exemptions the rate was not made under the statute of sewers. from toll, pontage, pannage, murage, kegage, pic- No authority to rate was conveyed by the grant of cage, groundage, lastage, stallage, wharfage, bidage, the ownership of the soil; the rate, therefore, must and rivage, or of any other immunities, exemptions, be referred to the bye-law. We do not know whether rights, and privileges, to which they are now entitled, there was any bye-law before 1728; but there was an and the exercise of which is not inconsistent with, or express bye-law in that year repealed, and renewed contrary to, the provisions of this Act." Section 23 in 1824, and so continuing down to the passing of enacts "that all bye-laws heretofore made by the this Act. The corporation was in difficulties as to mayor, jurats, and bailiffs of the said borough, money; it was unable to continue the oyster grounds; touching or concerning the estate and property here- and to get money so that they might be worked at a by vested in the trustees under this Act, or the profit was a great object of the Act. The first section management or government thereof, or touching or of the Act has words large enough to vest all the concerning the fishermen in the said fisheries, shall, property of the corporation in the trustees, except (a) Lord Campbell, C.J. was in the court for hearing from and after the passing of this Act, be void and of no effect; and that no bye-laws shall, at any time hereafter, be made by the said mayor, jurats, Crown cases reserved. sum It appeared that, under the provisions of the local Acts, the rector of the parish, the churchwardens, and two overseers, appointed, as required by the Act, were to constitute a corporation for managing Poor. The churchwardens and one-third of the all matters relating to the poor of the parish, under the title of the Governors and Guardians of the overseers were to go out of office yearly, and successors were to be appointed to them upon Easter Tuesday, in every year, such successors to be elected by the ratepayers in vestry assembled. It appeared that there existed in the parish a certain class called farmed ratepayers, being poor occupiers of small tenements whose rates were paid by their respective landlords. Previous to the election of last Easter Tuesday taking place, the present applicants had addressed the chairman, and had protested against the reception of the votes of the farmed ratepayers. Those votes, however, were taken, and in the result a churchwarden and eight overseers were elected to supply the then existing vacancies. The persons so clected, afterwards proceeded who were defeated at the election, upon a suggestion to act as duly appointed governors and guardians of the poor. This rule was obtained by the candidates that what had taken place was a void election, that the persons elected had no right to act, and that the corporation who had the control and management of the election were bound to proceed to a fresh election. Sir F. Thesiger and Lush shewed cause. D. D. Keane and Pashley in support of the rule. for Several objections where taken by the defendants: among others, that the proper remedy, if any, the prosecutors was by an information in the nature no demand or refusal such as to be the foundation of a writ of quo warranto, and that there had been for a rule of this kind. In the course of the argument, it was said by PATTESON, J.-There is this difficulty here: the fendants, requiring them to hold a new election. prosecutors ask for a writ of mandamus to the deUndoubtedly, nearly all the proceedings were regular. The question is only about the legality of some votes. The mode has always hitherto been in such cases to ask for a mandamus to justices or the returning officer, or some other authority, to admit or Rex v. The Mayor, &c. of Norwich, 1 B. & Ad. swear in the person who claims to have been elected. That could hardly have been done here, for the affidavits do not state distinctly a belief that the prosecutors had the majority of legal votes. 310, was referred to. Lord CAMPBELL, C.J.-We are quite satisfied mandamus. If there had been actually no election absolute nullity, Rex v. The Mayor of Norwich is that upon these affidavits there can be no writ of upon Easter Tuesday, or an election that was an 164 QUEEN'S BENCH. an authority that we might treat the statute as direc- curred. Tuesday, June 10. THE GRANTHAM CANAL COMPANY . THE AMBER- to THE LAW TIMES. QUEEN'S BENCH. the request of the judge, have expressly found the Fraser, QUEEN'S BENCH. made out the whole plea; for if I had done so to find for the plaintiff, unless the defendant wi Greaves had obtained a rule calling on the de- they had found a general verdict, this question w Can it alter the legal consens fendant to shew cause why an order of Patteson, J. not possibly have arisen. Then, can my so disallowing the plaintiff the costs of his witnesses, the questions, not with any reference to the who attended at the trial to disprove the existence of but alio intuitu altogether, have the effect action for a libel, imputing to the plaintiff that he of the verdict upon the issue? It is sad a nuisance, should not be rescinded. This was an tended for? been summoned before magistrates, he behaved dis- clear that that cannot be done so as to gre kept and maintained a nuisance, and that having the issue is distributable quoad the costr creditably before them. The defendant pleaded to to the unsuccessful party; but can it be done so the whole declaration a single plea of justification, deprive the successful party of some of the co authority of the cases, I think it cannot, ariyim alleging various facts, and, amongst others, that the which otherwise he would be entitled? Upt Replication de injuriâ.-Upon the trial which took none of them are precisely in point; and the plaintiff did keep and maintain a nuisance. place before Patteson, J. at the last Hereford As-venience of the practice would certainly e sizes, the defendant failed to prove the whole of the great. I made the order with a view eye COLERIDGE, J.-I think it is a saf learned judge, found a verdict for the plaintiff upon plea, and therefore the jury, by direction of the of the case; but I think I was wrong. that issue. The learned judge, however, asked their the practice to cases in which divisio se re opinion upon several separate facts alleged in the presented on the record. That, in effect by plea; and they found expressly, amongst other the rule of 2 Wm. 4, which has beet ar these circumstances Patteson, J. had made an order to issues which may be entered distribute a things, that the plaintiff had kept a nuisance. Under construed to apply not merely to distinct se at chambers, disallowing the plaintiff the costs of all now we are desired to carry that rule very Held, that neither of the canal companies could sue formity; and, in order to advance the suppose. 3. for the contract price of their canal until the those witnesses who had been subpoenaed and at- ther; and I think that we ought not to pr whole distance between A. and B. had been sub-tended the trial for the purpose of disproving the singly, at all events, to alter a rule made a had been granted. stantially opened for public use; and that the nuisance; and to rescind that order the present rule concurrence of the three Courts, for the sakr Whateley and Phipson shewed cause.-Although tice of the case, to lay down a rule which w ERLE, J.-My opinion is not important, 2 opening of one-half of that distance, whereby one of the canal companies was affected, would not for the purpose of entering the verdict upon the re- attended with the most inconvenient consec gire a right of action to that company. This was an action to recover the sum of 120.0007. cord this plea is entire, and cannot be distributed, it being the purchase-money of all the shares in the may for the purpose of taxing the costs as between majority of the Court think that this rule si Why should the defendant pay the would apply to this case. Although the reti Grantham Canal Company; which by a local and the plaintiff and defendant. If this were not so, absolute; but I certainly should have thoug ful party. personal Act (9 and 10 Vict. c. clv. s. 73), the de- great hardship would be inflicted upon the unsuccess- the principle laid down in Prudhomme vis plaintiff the costs of witnesses called to disprove a puts in issue the entirety of the ples, there defendants were required to purchase "from and immediately after the opening of the said railway, fact which the jury have found? Prudhomme v. fact, separate matters of defence; for the de Ad. & Ell. 645, is an authority in support says you did keep a nuisance, and you die between Ambergate and Grantham, for public use.' The case came before the Court upon a special ver- of the order of the learned judge, which is within discreditably before the magistrates. The pa dict, which found that the railway had been opened the principle of the Reg. Gen. 2 Wm. 4, H. T. r. might have replied that he did keep a mus for public use between Grantham and Nottingham, 74, Pilgrim v. The Southampton and Dorchester did not behave discreditably before the ma the jury, and take their verdict upon cact but not between Nottingham and Ambergate. The Ex. Rep. 375; Welby v. Brown, ib. 770; perfect right to put the two questions separ part opened, which was a distance of about seven- Railway Company, 8 C. B. 25; Sharland v. Loar- but he chooses to deny both, and the jade in teen miles, was that which competed with the Greaves, contrà.-If this rule should be discharged might, no doubt, have left the matter with Grantham Canal; the part unopened, a distance of Nicholson v. Dyson, 11 Mee. & W. 545. about twelve miles, was the part which would com- the most inconvenient consequences will follow. It direction to the jury to find for the plaintiff pete with another canal, called the Nottingham trifl be necessary for parties to insist that the jury were not proved to their satisfaction; bat Canal, belonging to a separate company, and which the defendandants were also by the Act required to shall try, not the issues joined upon the record, knows that the failure to prove one would be ma purchase "from and immediately after the opening but every separate material fact alleged in the plead into consideration by the jury in of the railway between Ambergate and Grantham ings. [Lord CAMPBELL, C.J.-May it not be left amount of damages. Where they fe depend upon the finding of each separate allegation, that by distributing the costs accoring their findfor public use." The question was, whether that to the discretion of the judge?] If the costs are to matters of defence separately, as he preacind then each party would have a right to require that ing no different principle is inted from that event had yet happened. Peacock (Pearson with him), for the plaintiff. The authorities clearly shew that the plaintiff cannot a single issue was severed for the purpose of const Rule abacate Sir F. Kelly (Channell, Serjt. and Wheeler, with every separate allegation should be put to the jury. which was adopted in Prudhommes. Frazer, where him), for the defendant. Lord CAMPBELL, C.J.-This is certainly an ill-be deprived of the costs of any issue upon which the I think, therefore, that we ought not to allow framed contract, with reference to the interests of verdict must be entered wholly in his favour upon plaintiff the costs of witnesses who were to help the canal companies, whom it leaves exposed to con- the record. If the verdict cannot be entered distri- to contradict an allegation, the truth of wh REG. v. MILLS and Two OTHERS (Justices d siderable hardship; but we must put upon the butively, and the plaintiff succeeds, there is no power been found by the jury. words of the statute their natural interpretation. to deprive him of any part of the costs of that issue proved. (Daniel v. Barry, 4 Q.B. Rep. 59; Now, upon looking at this Act of Parliament, it on the ground that particular facts were or not appears clearly that one epoch is to determine a great many events; the two canals are to be pur- Skinner v. Shoppee, 6 Bing. Q.C. 131; Twigg v. Railway, 8 Mee. & W. 856.) chased at the same time; and the proprietors of Potts, 4 Dowl. 270; Williams v. Great Western Justices-Jurisdiction-Local improvement deLord CAMPBELL, C.J.-I am of opinion that this By a local improvement Act, commissioners each are to have various rights depending upon the happening of the same event. The Legis-rule ought to be absolute. The question is whether, meant something with regard to the taxation of costs, an issue may lature must therefore have which could reasonably be ascertained, thing as to the happening of which no doubt be distributed, although it cannot with regard to the could be entertained; and, looking at the words verdict. If the issue is distributable on the record, with reference to the context, I think that event is so that as to one part the plaintiff, and as to another the substantial opening for public use of the whole the defendant, may have the verdict entered for him hun- recovers the costs occasioned by that part found in of that part of the line which lies between on the record, there is no difficulty; each party If only a Ambergate and Grantham. dred yards was left incomplete and unopened, the his favour. But where, as here, that cannot be done, company would not he allowed so to evade their and the plaintiff is entitled to the verdict on an contract; because a jury would, under such circum- entire issue, there is great difficulty in saving that stances, find that the whole line had been opened; the Court are to look at the several allegations some ing, Lancashire). Valid order. authorised to order the removal of commissioners having made an order, in was not a nuisance: but on this special verdict it is impossible to say that which make up the whole cause, denied by the Held, that that was not an exercising of th substantially the whole has been opened; and, general replication, ascertain how each ought to be ance of which the canal companies are interested; plete and open their line. PATTESON and ERLE, JJ. concurred. Thursday, June 12. be found; but it requiring that the facts should be put separately to diction entrusted to them; but that as thr it could not conveniently be done. It is not pre- cashire to shew cause why a writ of meats the railway company to complete, in the perform-tended that the Taxing Master could in every case should not issue, commanding them to proc suggested that it may be done laid before them by the Rochdale Improvement and if application is made in proper time to this enter upon an inquiry how each allegation ought to the hearing, and, if necessary, to rehear a comp of the jury upon particular facts. That would make an order of the commissioners which required Court, the railway company will be ordered to com- when the judge, in his discretion, asks the opinion missioners against an inhabitant, for not ob the practice depend upon a very accidental circum- to remove certain railings in front of his house stance; besides which. Judgment for defendants. any such rule were laid judged by the commissioners to be a nuisance down, each party would often have good reason for the local Act of Parliament, which passed in 1844 the jury; and the result would be most inconvenient. obstructions according to the order of the a If a plea, containing many separate allegations, is advanced by distributing the costs in the way summary way before justices of the county; b nevertheless indivisible for the purpose of the ordered by my learned brother, but I am of opinion appeal to the Quarter Sessions was given a its entirety, but proves several of the allegations the practice sought to be introduced would lead to out appealing against the order, neglected to PATTESON, J.-This question has arisen entirely answer for that neglect. The magistrates, ho entitled to recover the costs of witnesses called to from my putting to the jury, at their request, certain entered upon the question whether the defendes disprove those allegations, although the jury, at specific questions of fact, instead of directing them railings were a nuisance, and considering that th It is possible that justice might in some cases be verdict, and the defendant fails to establish it in that that order is an excess of authority, and that orders of the commissioners. The occupier with it, and was summoned before the magists JUNE 21, 1851.] QUEEN'S BENCH. were not, refused to convict, and dismissed the complaint. Crompton shewed cause.-The justices have heard the case, and dismissed the complaint, and this Court will not interfere. (R. v. The Recorder of Liverpool, 20 L. J. 35, M.C..) [COLERIDGE, J.-This was put as a wrong decision on a preliminary point. Lord CAMPBELL, C.J.-The justices have not adjudicated upon any matter over The question of which they had jurisdiction. nuisance or no nuisance was for the commissioners.] Then, secondly, the order of the commissioners was bad, for not shewing that the railings had been erected since the passing of the Act, upon which fact their jurisdiction depended under the Act of Parliament. The information sets out the order at length, and therefore the objection appears upon the face of it. Cowling, contrà.-The affidavit shews that the rails were in fact erected in October last, and the fact need not be stated in the order. The Act of Parliament was passed six years ago, and the Court will not presume that rails of this sort were put up before that time. ERLE, J. referred to Ormerod v. Chadwick, 16 M. & W. 365. Crompton mentioned Christie v. Unwin, 11 Ad. & Ell. 373. Lord CAMPBELL, C.J.-We are quite unanimous in opinion as to the construction of this Act of Parliament. It is clearly for the commissioners to determine the question of nuisance or no nuisance, subject to the appeal given by the Act. But when no appeal is brought, and an order of the commissioners is not obeyed, the magistrates who are asked to enforce it are not to sit as a court of appeal from the judgment of the commissioners; and that is what they have assumed to do here. If they had adjudicated upon the question submitted to them, we should not review that decision, whether right or wrong; but they have not done so; and if this order of the commissioners had been valid, I think we ought to have commanded the justices to hear the complaint. The order, however, is clearly not good, and, therefore, it would not be right to grant a mandamus requiring the magistrates to act upon it. PATTESON, COLERIDGE, and ERLE, JJ. concurred. Rule discharged. BUSINESS OF THE WEEK. Thursday, June 12. BEAUCLERC v. FFOOK.-Bovill shewed cause against a rule to rescind an order of Erle, J. ordering the outlawry of the plaintiff to be reversed. The question was whether the defendant's plea was issuable. The error assigned was that the defendant was out of the jurisdiction when the exigi facias issued. The plea was, that the defendant might have returned, and that he had notice that proceedings to outlawry would be taken. Bryan v. Wagstaffe, 5 B. & C. 314, was cited as expressly in point. T. Jones and Field, contrà. By the COURT.-A plea which has been held bad Rule discharged. is not issuable. REG. v. A'BECKETT.-Hughes moved for rule to require the defendant, as sitting magistrate at the Westminster Police Court, to take the recognizance of a person named as surety for the prosecution of an appeal against a conviction under the Vagrant Act. One surety has been accepted, and one rejected, without any reason; and the seven days limited by the Act for entering into the recognizance have expired. By the COURT.-If so, that is a fatal objection to this application. It may be that the one surety is sufficient; and, if so, you may go on with your appeal. Rule refused. contrà. THE LAW TIMES. to COMMON BENCH. Rule nisi. COMMON BENCH. Idants would pay him 1,000l., and enter, within the Rule absolute. Monday, June 16. REG. v. THE LANCASHIRE AND YORKSHIRE RAILWAY Rule absolute. Tuesday, June 17. Demurrer to the part relating to costs. Channell, Serjt. in support of the demurrer.The question is, whether the plaintiff is entitled to the costs of the inquiry before the sheriff under the dation Act). The plaintiff, the claimant, initiated the 8 & 9 Vict. c. 18 (the Companies Clauses Consoliavoid a mandamus (per Lord Chancellor in The proceedings according to the 68th section, and the object of this provision appears to have been to London and North Western Railway Company v. York, Newcastle, and Berwick Railway Company, 19 L. J. 464, Q. B. it was held that sec. 38 applies Smith, 19 L. J. 193, Ch.). In Railstone v. The sec. 68 applies to the case of lands already taken or only to cases where the company are about to take injuriously affected; and in the latter case, that the or injuriously affect land of the claimant, but that company are not required to give the claimant notice of their intention to summon a jury to assess where the company initiate the proceedings under compensation. Sec. 68 does not give costs in express terms, and the preceding sections only apply to costs REG. v. GARLAND.-Indictment for nuisance. Karslake sec. 38. In all the succeeding sections to 38, the for the Crown. Crowder for the defendant. No judg-words are "such inquiry," referring to sec. 38; and ment was pronounced, the matter having been arranged. REG. . SALE.-Sir F. Thesiger, Dr. Bayford, and H. Sir F. Kelly, Dr. Addams, Knowles, Rule absolute. Cowling, and Overend in support of the rule. Hill shewed cause. REG. v. THE NORTH-WESTERN RAILWAY COMPANY Watson, Willes, and H. Hill shewed cause. Sir F. Kelly and Phipson in support of the rule. REG. . THE POOR-LAW COMMISSIONERS.-Peacock and Keane moved for a certiorari to remove an order relating The Attorney-General, Crompton, and Tomlinson Rule refused. to St. James's, Westminster, for the purpose of quashing it. VENNET . THE SOUTH-EASTERN RAILWAY COMPANY.shewed cause in the first instance. Rule discharged. Crowder shewed cause. Peacock in support of the rule. contrà. Rule absolute. Rule absolute. DUKE OF BRUNSWICK v. HARMER.-M. Chambers, Ather- Rule absolute. COURT OF COMMON BENCH. REG.v.JUSTICES OF YARMOUTH.-O'Malley showed cause against a rule, under the 11 & 12 Vict. c. 41, s. 5, requiring justices to issue a distress warrant to levy a poor rate. Rule absolute. Palmer, contrà. ALLEN v. COLEMAN.-Lush moved to rescind an order of RICHARDSON V. THE SOUTH EASTERN RAILWAY Wightman, J. ordering the plaintiff to produce the policy, upon which the action was brought, the protests, surveys, log-books, &c. relating to the voyage insured. Rule refused. REG. v. MONK'S KIRBY.-Bittleston shewed cause against COMPANY. Lands Clauses Consolidation Act-8 & 9 Vict. c. a rule for levying a fine upon the inhabitants of a parish, The claimant gave notice of his desire to have com for the non-repair of a road. Hayes, contrà. Rule absolute, the prosecutor undertaking to levy on a Re GETHING v. WATSON.-Heath shewed cause against a rule to set aside an award; Keane, contrà. Rule absolute. pensation settled by a jury, and claimed 1,000l. Held, that the plaintiff was entitled to his costs of Rule discharged. Friday, June 13. THE GOVERNOR, &c. OF THE CHELSEA WATER WORKS v. Judgment for the plaintiffs. BOWLEY. Rule absolute. Doɛ dem. PALMER v. EYRE. Rule discharged. DOE dem. BADDELEY v. MASSEY. The declaration stated, that the plaintiff was REG. . AMOS.-Bovill shewed cause. Carter in support Debt upon statute. Rule discharged with costs. of the rule. REG. v. THE LANCASHIRE AND YORKSHIRE RAILWAY COMPANY.-Sir F. Kelly, Peacock, Wilkins, Serjt. and seized in fee-simple in possession of an estate interSir F. Thesiger, Knowles, and sected by a railway, which the defendants were authorised, by Act of Parliament, to construct from Tomlinson, shewed cause. Addison, in support of the rule. REG. . AMBERGATE AND NOTTINGHAM RAILWAY COM- the London and Greenwich Railway to Woolwich Sir F. Kelley, and Gravesend, and thereby greatly damaged and injuriously affected; that the defendants, before PANY.-Willes and Wheeler shewed cause. Rule absolute. giving the notice hereinafter mentioned, converted Peacock, and Pearson in support of the rule. Saturday, June 14. REG. v. JUSTICES OF WARWICKSHIRE.-M. Smith shewep a piece of the said ground to the purposes of the was entlitled to compensation from the defendants cause against a rule requiring the defendants to issue a said Railway, and that, in consequence, the plaintiff distress warrant for the purpose of levying upon a Mr. Woodhouse the sum of 44. as the expense of paving the to an amount exceeding 50%., to wit 1,000l., and footway adjoining his house and premises at Leamington. being desirous of having the compensation settled by a jury, he gave notice to the defendants, and Hayes contrà. ROB. MANSER.-Willes and Wise were heard in sup-claimed 1,000l., and desired that the question should port of the rule for a new trial. WILTON V. DUNN.-Keating shewed cause against a rule be settled in the manner pointed out by the Rule absolute. Cur, ado, vult. sec. 51 only gives costs on such inquiry where the Channell, Serjt. in reply. JERVIS, C.J.-I am of opinion that the plaintiff ment should be in his favour. If the defendants had is entitled to recover these costs, and that our judginitiated the proceedings, and given notice to the plain that the plaintiff, in pursuance of sec. 38, it plaintiff would have been entitled to the costs of the proceedings; and sec. 68 expressly provides, that if the claimant desires to have the compensation assessed by a jury, and the promoters of the undertaking are not willing to pay the amount claimed, and make default in commanding the sheriff to summon the jury, the claimant may recover the amount of compensation claimed, with costs, by therefore, the company is clearly liable to pay costs: It would be action in the Superior Courts. In these two cases, and the question now is, whether the plaintiff, having recovered a larger sum than that offered by the defendants, is entitled to his costs. strange if in this third case, where the defendants have held the plaintiff at defiance, and he has re COMMON BENCH. covered more than they were willing to give, they were not liable to pay the plaintiff his costs. If it had been casus omissus, the Court would have been bound so to construe the Act, however unjust they might think it to be; but if the words of the Act are open by a fair construction, so as to avoid the injustice, the Court will so construe them. Now, looking to the 68th section, it appears to the Court that the words, "in the manner herein provided,” in the last clause, viz., "they shall issue their warrant to the sheriff to summon a jury for settling the same, in the manner herein provided," may fairly be construed to incorporate all the previous provisions relating to the assessment by the jury. The 38th, 39th, and several subsequent sections, apply to all cases of disputed compensation; for the words, in sec. 38, "before the promoters, &c. shall issue their warrant for summoning a jury for settling any case of disputed compensation," will apply to every case. I feel that to a certain extent this view of the Act conflicts with the decision in the Q. B.; but that was not an unanimous decision, and very strong reasons were urged by Coleridge, J. for dissenting from the other judges of that Court. MAULE, J.-I am of the same opinion. This Act provides a number of general regulations which are to be applied in all cases in which they may be applicable to railways that may be established by Acts subsequently passed; and the words of the -clauses of this Act are to be read by way of supplement to the clauses in such Acts subsequently passed. A considerable number of the clauses of this Act apply to the settlement of disputed claims of compensation by arbitration and assessment by a jury. Those clauses are couched in general terms, and are not restrained to particular cases, but are applicable to all such cases of arbitration or assess ment by a jury. Sec. 38 applies to any case of disputed compensation, and comprehends the cases in sec. 68, without the assistance of the words "in the manner herein provided," in the latter section. But those words in sec. 68 make sec. 38 directly applicable to this case. The reasons of Coleridge, J. in the case cited, are of great weight. I think, therefore, that our judgment should be for the plaintiff. CRESSWELL and TALFOURD, JJ. concurred. ALDIS V. MASON. The declaration stated a demise of certain premises for twenty-one years, with an obligation on the part of the defendant to uphold, maintain, and keep the same in good repair; and breach, that the defendant did not and would not uphold, maintain, and keep the said premises in good repair, but on the contrary thereof during the said term, to wit, on the 1st of November, 1850, and thence continually hitherto suffered and permitted the said premises and every part thereof to be and continue ruinous, prostrate, fallen, down, &c. Plea-That the defendant did not, during the said term of twenty years, suffer or permit the said premises to be or continue, nor were the same during all the said time ruinous, prostrate, fallen down, &c. Special demurrer. Willes, in support of the demurrer.-The traverse is too large. The defendant, instead of pleading performance of the covenant, pleads that the premises were not out of repair during all the term. That is no answer, because if the premises were out of repair during any part of the term, the covenant has been broken and the plaintiff is entitled to sue. The plea would be proved if there was any portion of the term, one day only, in which the premises were not out of repair. (He was then stopped by the Court.) Pigott, contrà.-The plea is a good traverse as the declaration stands. (Palmer v. Gooden, 8 M. & W. 890.) COMMON BENCH. so committed murder, and that he was tried for On demurrer to the replication, By the COURT,-The plea is clearly bad. Judgment for the plaintiff. Friday, June 13, HELSHAM V. BLACKWOOD AND ANOTHER. Libel and slander-Plea of justification— Demurrer-Estoppel. A declaration in case for libel alleged that the plaintiff shot a man in a duel; that on the night before the duel he had practised pistol-firing; that he was tried for murder in respect of the duel, and was acquitted, to the dissatisfaction of the judge who tried him. The defendants pleaded that the plaintiff did shoot a man in a duel, and COMMON BENCH. which the sentence of death concluded that God would have mercy on the soul' of the condemned. Gentlemen of the jury,' commenced Mr. Baron Bayley, amidst profound silence, we have heard several times during the course of this trial of the law of honour; but I will now tell you what is the law of the land, which is all that you and I have to do with. It is this-that if two persons go out with deadly weapons, intending to use them against each other, and do use them, and death ensue, that is murder-wilful murder.' He paused for a moment, as if to give the jury time to appreciate the dread significance of his opening. As soon as he had Case for libel. The declaration stated that be- uttered the last two words, Captain Helsham's cheek fore and at the time of committing, by the de- was instantaneously blanched. We were eyeing him fendants, of the several grievances hereinafter men- intently at the moment, and shall never forget it. tioned, the plaintiff was a captain of militia, and He stood, however, with rigid erectness, gazing a person of good name, credit, &c. yet the defen- with mingled anger and fear at the judge, dants, well-knowing the premises, but contriving whom he felt to be uttering his death-warrant; and maliciously intending to injure the plaintiff and and after a while bent his eyes on the jury, to bring him into public scandal and disgrace, there- from whom they wandered scarce a moment, tofore, &c. falsely and maliciously did publish and during that momentous summing up, one which, cause and procure to be published of and concerning with every word, was letting fall around him, as he the plaintiff, in a certain magazine called "Black- must have felt, the curtain of death. The law of wood's Edinburgh Magazine," a false, scandalous, honour,' said the judge, towards the close of his malicious, and defamatory libel of and concerning charge, is an imposture, a wicked imposture, when the plaintiff, containing the false, &c. and libellous set against the law of the land and the law of God matters following, that is to say, "We ourselves Almighty, claiming the right to take away human were present at a remarkable trial for duelling, about life. I tell you, who sit there to discharge a sworn eighteen or twenty years ago, at the Old Bailey, duty, that a fatal duel is malicious homicide, and before the late excellent and very learned Baron that is wilful murder.' The jury retired to consider Bayley, on which occasion he also laid down the their verdict; and the judge at the same time rule of law respecting duelling with uncompromising quitted the court till his presence should be required firmness and straightforwardness. This was the case again. Captain Helsham, however, continued of Captain Helsham, who had shot Lieutenant standing at the bar almost motionless as a statue. Crowther in a duel at Boulogne. There were After a prolonged absence of an hour and forty rumours of foul play having been practised; and a minutes, the jury returned into court. The prisoner clergyman, the brother of the deceased, made stre-eyed them, as one by one they re-entered their box, nuous and persevering efforts to bring Captain Hel- with a solicitude dismal to behold, and the irresham to trial. The latter continued for some time pressible quivering of his upper lip indicated mortal after the duel in France, though anxious to return agitation. The verdict, however, was not guilty; to England; and after (as we have heard) taking the on which the prisoner heaved a heavy sigh, passed opinion of a well-known counsel at the criminal bar his hand slowly over his damp forehead, bowed who advised him that he could not be be tried in slightly, but rather sternly to the jury, and was then this country for a duel fought in a foreign country removed from the bar and released from custody. not under the British Crown--he came to England, When the verdict was a few minutes afterwards where he was instantly arrested, under stat. 9 Geo. communicated to Baron Bayley, who had remained 4, c. 31, sec. 7, which had been passed two or three in attendance in an adjoining room, he remarked years previously, viz. in 1828, and must have al- gravely, I did my duty! It is well for Captain together escaped the notice of the counsel in ques- Helsham that the verdict is as it is; had it been the tion. That Act authorises the trial in England of other way. I should certainly have left him for exeany British subject charged with having committed cution.' In that case the duellist would have died any murder or manslaughter abroad, whether within on the gallows on the ensuing Monday morning." or without the British dominions, as if such crimes had been committed in England. Captain Helsham was admitted to bail to meet the charge, and having duly surrendered, took his place at the bar of the Old Bailey at nine o'clock on a The defendants pleaded "that before the comSaturday morning. He was a middle-aged man, mitting of the said grievance, to wit, on the 1st of of gentlemanly appearance, his features indi- April, 1829, at Boulogne in France, the plaintiff then cating great determination of character; but they being a subject of his Majesty, King of the United wore an expression of manifest anxiety and appre- Kingdom, did feloniously, wilfully, and of malice hension as he entered the dock, and, looking down, aforethought, shoot off and discharge at and against beheld immediately beneath him the brother of the one Joseph Crowther, then being a subject, &c. and man whom he had shot, and through whose cease- a lieutenant of militia, a certain pistol loaded with less activity he was then placed on trial for his life powder and lead, in a certain duel then and there as a murderer. And he was to be tried by an un- fought by and between the last-mentioned person compromising judge-stern and exact in administer- and the plaintiff; and the plaintiff did then and ing the law, and animated by pure religious spirit, there feloniously, &c. give unto the said Joseph but, withal, thoroughly humane. Throughout the Crowther a mortal wound, of which he died, and whole of that agitating day the prisoner stood firm in manner and by the means aforesaid, the plaintiff as a rock-sometimes his arms folded, at others did then and there the said Joseph Crowther felohis hands resting on the bar, while his eyes were niously, wilfully, and of malice aforethought, kill fixed intently on the judge, the witnesses, or the and murder in the said duel." The plea then counsel-every now and then glancing with gloomy averred, that at a certain session of oyer and terinquisitiveness at the jury and the judge. His lips were miner, duly holden at Justice Hall, in the Old from first to last firmly compressed. It was understood Bailey, on the 7th of October, 1830, before Sir John that the counsel for the prosecution were in possses- Bayley, one of the Barons of the Exchequer, Sir sion of a damning piece of evidence-viz. that the pri- John Barnard Bosanquet, one of the Justices of the soner had spent nearly the whole of the night imme- Court of Common Pleas, and others their fellow diately preceding the duel in practising pistol-firing. justices, it was duly presented by the oaths of thirHowever the fact might be, it nevertheless was not teen good and lawful men, then sworn and charged elicited at the trial; and probably the prisoner, who to inquire of concerning the said murder, “that the had been prepared for such evidence being produced, plaintiff a certain pistol loaded &c. did wilfully, began, on finding that it was not so, to take a more feloniously, and of malice aforethought, against the favourable view of his chances. As the case stood, said Joseph Crowther shoot off and discharge, and however, it looked black enough to those who knew with the bullet so shot off and discharged, the the law, and the character of the judge who sat to said Joseph Crowther in and upon the neck of him administer it. That venerable person began his sum- the said Joseph Crowther did strike, penetrate, ming up to the jury about seven o'clock in the even- and wound, and by such striking, &c. then and ing, and the scene can never be effaced from our me- there did give unto the said Joseph Crowther one mory. The court was extremely crowded-the lights mortal wound, of which he did then and there die; burned brightly, exhibiting anxious faces in every direc- and that the now plaintiff him the said Joseph Crowtion. But what a striking figure was the central one-ther feloniously, &c. did kill and murder." The plea," the prisoner! Immediately over his head was a mirror, so placed as to reflect his face and figure vividly, especially to the jury. A few moments after the judge had commenced his charge, we observed the Ordinary of Newgate glide into Court, the late Rev. Dr. Cotton, in full canonicals, and with flowing white hair, having a picturesquely venerable and ominous appearance, and take his seat near to but a little behind the judge. It was then usual for the Ordinary to be present at the close of capital cases, in order to add a solemn 'amen' to the prayer with The declaration then stated, that by means of the grievances committed by the defendants, the plaintiff had been greatly injured, &c. and concluded by averring damages to the amount of 5,000l. after averring that the grand jury found that the plaintiff killed the said Joseph Crowther at Boulogne in France, both principals being subjects of the English Crown, alleged the arrest and trial of the plaintiff at the Old Bailey before the judges before named, and went on as follows: "and the defendants further say, that the case of the plaintiff on the said trial looked black enough to those who knew the law and the character of the judge, that is to say, the Sir John Bayley who sat to administer the law, and that the said Sir John Bayley presided at the said trial, |