and summed up the case to the jury; and the defendants further say, that there were and existed before and up to, and at the said trial, rumours of foul play having been practised by the plaintiff in and about, and touching and concerning the said duel, and the fighting thereof by the plaintiff, wherefore the defendants at the said time when, &c. committed the supposed grievances in the declaration mentioned, as they lawfully might, for the reasons aforesaid." Verification. To this replication the defendants demurred, alleging as ground, that they were not estopped by the verdict of acquittal and record in the replication mentioned, they having been no parties or privies to the prosecution of the indictment mentioned in the plea. The plaintiff's points, as delivered, were that the plea is bad in substance inasmuch as it does not answer the gist or the whole of the libellous matter set forth in the declaration; also that the replication to the plea is good, on the grounds that when a person has once been acquitted of an offence in due course of law, no one can be permitted to aver that such person was guilty of the offence of which he was so acquitted. That the objection that the defendants are not parties or privies to the record of the plaintiff's acquittal is either not well founded or has no application to a criminal case. The defendants' points, as delivered, were-that the libel resolves itself into a charge of murder. That there are no degrees in murder. That there is no such thing known to the law as a fair murder. That there can be no such distinctions as a fair or a foul deed where it ends fatally. That it is no good replication to set up by way of estoppel the alleged acquittal in a criminal court, to a prosecution in which the defendants were neither parties nor privies. That the verdict and judgment relied on by the replication were "res inter alios acte," and can form no ground of estoppel. THE LAW TIMES. COMMON BENCH. When the issue is murder, the Court the instruments he made use of. That fact is merely for libel that the public will not, is a very different evidence of an intent to murder. [MAULE, J.- matter. Malice is an essential ingredient in the charge of will not enter into such a question; but when murder; there may be, in fact, a great deal more the issue is libel, so long as there are circummalice than is necessary; and when that is alleged, stances which are circumstances of aggravation in it must be mentioned in justification. [JERVIS, J.C. the public mind, they must form part of the inquiry -The laudable object of the author of this article before the Court. If not, this will follow, that was to discourage duelling. It would be a lamentable after a man has been tried for a murder which he has practice he has so well reprehended that the offender terms detractive of his "conduct" in respect of it, thing in us to hold that it was no aggravation of the unfortunately committed in a duel, you may use any The plaintiff replied that the defendants ought sat up all night practising with pistols. TALFOURD, J. and he can have no redress for the opprobrium unnot to be permitted to aver that he the plaintiff did-Suppose he had secretly drawn the charge from his justly cast upon him. I do not think the Court will feloniously, &c. kill and murder the said Joseph adversary's pistol, that would not have been, legally lay down or be governed by such a principle, and MAULE, J.-I am of the same opinion. I think Crowther, because he, the plaintiff, surrendered him- speaking, a murder more than this; but would it not therefore because the plea professes to justify the self at the Justice Hall aforesaid, was tried by a have been matter of aggravation?] We do not in- whole libel, and does not do so, I think the plaintiff proper jury, who found him not guilty, whereupon quire whether a prize-fighter has been previously is entitled to judgment. it was by the Court adjudged that the plaintiff of trained or not. [MAULE, J.-No; but we do make his blows the heavier. This is a question of to make good a plea of justification, must justify the premises in the indictment be discharged and go whether or not he held in his hand a piece of lead to when an action is brought for a libel, the defendant, without day, as by record will appear, &c. quantity; you put a great deal of malice in your libel, everything in the libel injurious to the plaintiff. If and you justify only a small portion of it. That is he charges several crimes, they must all be justified; not sufficient. If we prove a malicious motive, the if he charges that a crime was committed in a parCourt will not inquire whether the motive was very ticular manner, he must justify that it was committed in murder. [MAULE, J.-Then Daniel Goode or the crime with circumstances of aggravation, he cause, although, as in the present case, the charge of malicious or not. There cannot legally be degrees in that particular manner; a fortiori, if he committed Greenacre were not more malicious than one who, must justify those aggravating circumstances; behaving received a personal insult, or hearing that a gross insult has been offered to a female relative, practising with pistols the night before will not make challenges the offender, and has the misfortune to the murder, legally speaking, a different murder, yet kill him?] In law it makes no difference. [MAULE, it will make the libel a different libel. It is quite a J.-Suppose your libel said in terms, "The plaintiff fallacy to say that this libel only imputes that the is a duellist, and not only so, but he has fought plaintiff committed a murder; if it imputed nothing several duels in a malicious, spiteful, and ungentle- but that, it would have been sufficient to allege, with manly manner,"-would not this be an aggravation of proper identification, that the plaintiff had committed the charge that he was a duellist, and would it justify a murder; but it states a great deal more than that; the libel that he had fought a duel in which he and if it states more which is injurious as to the whether a duel has been fought fairly or not, nor justice, that must be justified as well as the rest. It killed his adversary?] The Court cannot inquire plaintiff's character, on every principle of law and whether a murder has been committed in a gentle- does not follow that because a man has done a thing, manly manner or otherwise. [MAULE, J.-Every you may charge it to have been done in any way the of all the cumstances alone, and nothing else, such a libel need one knows there is a great difference in these cases; imagination can suggest. It might as well be said that persons are sometimes convicted of murder, that, if the libel had charged the aggravating cirand yet, with the world, the extreme penalty of the law is not not be justified. There is nothing in the plea which always executed upon them. No one says that shews any pretence for saying that the plaintiff the French law is not fit for a civilised people, be- spent the whole night preceding the duel in practiscause it allows of verdicts of murder with extenuating ing pistol-firing, or that the prosecuting counsel had circumstances.] Suppose the libel to have been that evidence of it in their possession. Then, supposing could the judge leave it to the jury to say whether damning piece of evidence-it would be a thing calthe plaintiff committed an ungentlemanlike murder, that not to be true-if it has been charged as a Peacock, Q. C. and Cowling, in support of the the murder was ungentlemanlike? [JERVIS, C.J.culated to make persons think worse of the plaintiff, CRESSWELL, J.-I am of opinion this plea does demurrer. [The judgment renders it unnecessary If the libel said that the plaintiff watched behind a and for which he could maintain an action; and, if to state the arguments urged to shew that the repli- hedge, enticed his adversary there under false pre-so, it must be justified, and not the less because it cation was bad, the Court desiring attention to be tences, and then rushed out and stabbed him in the is accompanied by something else. directed to the sufficiency of the plea; the following back, the judge on a trial for the libel might surely cases and authorities on the point of the replication leave all those facts to the jury?] Peacock referred not justify the whole libel. For a time something were cited: Buller's N.P. 245; Starkie, 277; Eng-to the marginal note in Hunt v. Bell, 1 Bing. 1. struck me in the argument that the circumstance land v. Burke, 3 Esp. 80; Cooke v. Field, 3 Esp. [MAULE, J.-The declaration here does not state described as a damning fact was merely evidence to that it is not so, and that it must be treated as a 135; Gibson v. McCarthy, Cas. Temp. Hardwick, that the vocation of the plaintiff was that of a prove the principal offence imputed-namely, the 311.1(a)-As to the plea, it is said the plea is bad as duellist, and that, by reason of the libel, he was crime of murder, and, therefore, that it was subnot answering the whole declaration, because prevented from keeping the fine company necessary stantially justified; but on consideration-I think it says the plaintiff was guilty of murder, while the for the pursuit of his vocation. TALFOURD, J.declaration says that he was not only guilty of mur- Surely the case of Greville v. Chapman, 5 Bing. separate matter. Suppose the libel to have been der, but of something more, that is to say, "that 731, disposes of that point. JERVIS, C.J.-In that the plaintiff got into a quarrel, and gave or acthe counsel for the prosecution were in possession of that case they were bound to justify the words cepted a challenge, but that he sat up all the night a damning piece of evidence, namely, that the pri-infernal robbery."] I say that if a person before practising pistol firing for that purpose; it soner had spent nearly the whole night immediately be proved guilty of an illegal act, such as murder or would be difficult to say that that would not be a TALFOURD, J.-If Mr. Peacock's argument prepreceding the duel in practising pistol-firing." The treason, the Court cannot inquire in an action for libel tending to disparage his character, and is it less latter part of the charge is clearly matter of evidence libel whether it was done unfairly or not. By enter- so because you have added to that, that after he had mitted an offence against the law, he would be to shew that the plaintiff was guilty of murder. The ing into a question whether a duel was fought fairly done so he went out and murdered his opponent? Court cannot try whether the duel was fair or not. or not, the Court would hold out to the world that Suppose a man said "I have murdered a man, but a duel might be conducted in a fair and proper vailed, the result must be that if any person comD. D. Keane (with him Quain), contrà. There placed out of the protection of the law as to any I did it in a fair and honourable manner," surely the manner. Court would not try that question? [MAULE, J. considerable difference in the case, because he in-You say that in criminal suits there are not several can hardly be anything added to what has fallen imputation respecting the offence. No one can degrees of the same crime. That may be true, but from the Court respecting the plea. If the plea is doubt that, in the mind of the writer of this article a man may be guilty of libel for imputing dishonour-bad, it will not be necessary to argue the points on at least, the circumstances mentioned did make a JERVIS, C.J.-The course this case has taken troduces the case by describing it as "a remarkable able conduct to another, though it does not the replication. amount to a violation of the criminal law. Suppose that in a libel you impute some disgraceful renders it unnecessary for us to express any opinion trial." He then speaks of this circumstance as a matter to a man which is not cognizable by the as to the validity of the replication, although the damning piece of evidence;" and adds that, alcriminal courts, but add to it something of which Court has an opinion on that subject (much fortified though no evidence was given of it, "the case those courts may take cognizance. To justify such a by the form of a plea of autre fois acquit), because looked black enough" without it. It is quite evilibel, you must justify the whole. If a man were the plea professes to justify the whole of the libel, and dent, therefore, that it did appear to the writer of Judgment for the plaintiff. charged with an assault, and it were added that he it does not give a full answer to it. The circum- the article as a circumstance of considerable aggracommitted the assault in a treacherous and cowardly stance of the libel is that the plaintiff committed a vation; and as I think also that it was so, and that manner, the latter part of the charge would be a murder under circumstances of great aggravation; it ought to have been justified, I am of opinion that libel, but not the less so because it accompanied a but the justification is that he committed simple the plaintiff is entitled to our judgment. criminal charge. [JERVIS, C.J.-The issue here is murder. It cannot be said by the defendants that not murder or no murder, but libel or no libel.] Is in this case it makes no difference whether the murder a worse crime, in contemplation of law, be- murder was committed under one state of circumcause the murderer sat up all night practising with stances or another, because in the libel itself it is and then a circumstance (a) For the benefit of those who may wish to inquire said that "it was understood that the counsel for into this subject we add the following list of authorities the prosecution were in possession of a damning which would have been cited by counsel for plaintiff in piece of evidence," support of the replication if he had been called on to is mentioned to shew that there was not only maintain it:-2 Smith Lead. Cas. 431; Co. Litt. 260 B, malice conducing to the death of the deceased, 123 b, 287 b, 332b; Bacon's abr. "Pardon" b; Cuddington v. Wilkins, Hobart, 81; Scarle v. Williams, Hob. 288; but that his murder was in the contemplation Ashfield v. Thornton, 1 B. & Ald. 457; Armstrong v. Lisle, of the party who caused it, I think we should Keeling, C. J. Rep. 93; Staunforde; P. Crown, 105; be doing a serious injury to public morals if Starkie, Crim. Pleading, 334; Dyer, 236b; Pulton, De we were to hold that it makes no difference in Pace Regis, 151, 155, 161, 162; Buller's N.P. 240; Req. v. public estimation whether a duel has been fought Huchinson, 1 Leach, 185; Beake v. Tyrrhytt, 3 Mod. 194; R.. Roche, 1 Leach, 134; Hawkins P. C. Cases, Appeal, fairly or unfairly. It is true it would never do for trial for murder by duelling; but to say on a trial "Murder," 4 Bl. Com. 335-6; 2 Hale, 255 & 304; Brooke, the Court to countenance any such distinction on a Appeal, 122. Insolvent-Description of creditor in schedule1 & 2 Vict. c. 110. holder of a negotiable instrument at the time of his, the insolvent's, acceptance, he should insert it in his schedule, although filed some time subIf the insolvent knows the name of the payee or sequently: and if he does not, the discharge under the Insolvent Act is inoperative as against the claim of such payee or holder. Action by plaintiff, the payee, upon a bill of exby the defendant. change, drawn by John Simons upon and accepted COMMON BENCH. Plea of discharge under the Insolvent Debtors' the verdict and enter it for the defendant. Hawkins for the defendant, in support of the rule. All the cases cited, with the exception of Pugh v. Hookham, have little bearing upon the point. The question is, did the defendant know the plaintiff to be the holder at the time of the adjudication? The defendant knew the plaintiff once to be the holder of the bill; but, being a negotiable instrument, he might fairly believe that the plaintiff had indorsed it away. And then, if the holder was unknown to him, he was not bound to insert the name in the schedule. But here the insolvent being sworn to the truth of his schedule, it should be taken that he believed that the plaintiff had parted with the bill to Simons, and that Simons was the holder at the time of filing the schedule. Sec. 93, which expressly discharges debtors where there are errors in the actual amount of the debt mentioned in the schedule without culpable negligence, or fraud, or evil intention on the part of prisoners, shews that the description to be inserted in the schedule is not to be construed with minute accuracy. It is submitted, therefore, that the defendant was discharged from this debt as against the plaintiff. The be discharged; but as a condition it is enacted that then filed a bill for specific performance of the sale con- The Court to-day took the special paper. for the opinion of this Court, the question being, whether case for the plaintiff. Crompton, for the defendant, was OGILBY V. ROBERTS.-Needham shewed cause against a Peremptory undertaking to try at the first sittings in CROFTS v. BEALE.-Bramwell and Willes shewed cause against a rule nisi for a new trial, on the ground that the HILL v. SPODE.-Byles, Serjt. shewed cause against a GASKILL V. BAINBRIGGE.-Pigott moved for a rule calling on Hancock, the plaintiff's attorney, to shew cause why he should not pay to the defendant the costs incurred in this cause, and of the reference and award herein. I cannot well ask the rule against any parties not on the record; but as the attorney for the plaintiff has deceived the defendant, it is submitted that this is a case in which the Court will interfere and make him pay costs. He represented that he had authority to go on with the action for the assignees, whereas it turned out that he had no such authority. MAULE, J.-You might have come for security for costs. JERVIS, C. J.-You may take a rule. We will hear what the other side has to say in the matter. Rule nisi. FARRELL and ANOTHER. CAWLEY and ANOTHER.This was an appeal from the decision of the judge of the of Limitations. County Court of Poole, the question being on the Statute Udall was heard for the appellant. Barstow and Willes, for the respondent. The Court not having power under the statute to give judgment in Term, intimated that judgment should be delivered on Saturday. Stands over. HELSHAM. BLACKWOOD and ANOTHER.-Peacock, Q.C. -In this case an apology had been prepared, which does not satisfy Captain Helsham, and we now come to say that we withdraw every imputation on him, and that the statement with reference to the pistol-firing is wholly untrue. D. D. Keane.-I have seen the apology, and shall recommend Captain Helsham to accept it. I think it is worthy of the generous feelings known to actuate the learned gentleman who is believed to be the author of the libel. Captain Helsham is a married man with a family, and for the sake of the latter, he felt bound to clear his character from the imputation cast upon it by the libel. JERVIS, C.J.--The defendant must pay costs in the mat ter as between attorney and client. Order accordingly. THE WEST LONDON RAILWAY COMPANY . THE LONDON AND NORTH-WESTERN RAILWAY COMPANY. — Channell, Serjt. mentioned this case to the Court, stating that Aspland had agreed with him that it should be argued tomorrow. Stands over. MARSHALL . THE YORK AND NEWCASTLE RAILWAY COMPANY. In this case a rule had been obtained on a former day for an attachment against Lord Adolphus Vane, for contempt of Court. It appears that an action had been commenced by the plaintiff, who had been his lordship's servant, to recover the value of a portmanteau, part of his prove his case, the plaintiff found it necessary to subprad luggage, which had been lost upon the line. In order to Lord Adolphus Vane, who alone could speak to the delivery of this luggage into the care of the company. A person went accordingly to the house of Lord Adolphus, and, as his lordship passed from his cabriolet to the door, attempted to serve him with a subpana ad testificandum, whereupon his lordship replied: "You be damned; I shall not attend." Afterwards he said, "Damn you, the Court and all." Subsequently, on the 7th of July, his lordship wrote to the plaintiff's attor ney, stating that he could give no evidence respecting the portmanteau. To this a reply was made, stating that his which was the day before the trial was to take place, the lordship must attend the trial. On the 13th of May last, plaintiff was advised by counsel that he could not proceed safely to trial unless Lord Adolphus Vane would give evidence. He therefore had his fordship called on his subpana, and he not appearing the record was withdrawn. Affidavits were made by Lord Adolphus Vane, in reply to those upon which the rule nisi was obtained, in which he negatived the use of language disrespectful to the Court, and stated that he thought the subpoena, which had been placed by the process server on his arm, whence it fell to the ground, was no more than a mere letter, such as he had received before in the matter, it being folded in an envelope. Peacock, Q.C. and Manisty, for his lordship, and Hon. G. Denman for plaintiff, were severally heard, and the Court discharged the rule, on the ground that his lordship had effectually purged himself of the contempt, though he might be liable to an action by the plaintiff for not attending on his subpæna. Rule discharged. JERVIS, C.J.-I am of opinion that this rule MAULE, J.-I agree that the discharge of the defendant, under the Insolvent Act, was inoperative with respect to the claim of the plaintiff. The spirit of the Insolvent Act is, that prisoners for debt should an Rule refused. EAST ANGLIAN RAILWAY COMPANY . EASTERN COUN called on, intimated that he could not go on in the absence TIES RAILWAY COMPANY.-Bramwell, when the case was of Crowder, Q.C. who was at the time engaged in the Q.B. Stands over. JUNE 21, 1851.] EXCHEQUER. BATHWICK v. BOTCHERLEY.-Kingdon moved for costs of the day for not proceeding to trial. Affidavit to be amended. next. THE LAW TIMES. BAIL COURT. Tuesday, June 17. BENN . SKIDMORE.-Hawkins shewed cause against a "Peremptory undertaking to try in Michaelmas Term DOE dem. HOPKINS . PRICE.-Hawkins shewed cause against a rule nisi to discharge a rule absolute for a new trial on payment of costs, the costs not having been paid. Grove, contrà. THE EAST ANGLIAN RAILWAY COMPANY v. THE EASTERN COUNTIES RAILWAY COMPANY.-Bramwell and Wheeler shewed cause, and Crowder and Bovill supported a rule nisi to set aside the interlocutory judgment signed on the ground of the delivery of non-issuable pleas. COURT OF EXCHEQUER. Cur, ado. vult. WILLIAMS and OTHERS v. HOLDSWORTH.- Atherton shewed cause against a rule nisi obtained to set aside an order of the County Court judge of Merioneth, which into this court by certiorari, and was now sought to be order, dated the 25th February last, had been removed Rule absolute on payment of costs. The plea of non quashed. It appeared there had been twenty actions, in the above-named defendant was ordered to pay the amount est factum to be withdrawn; and the substance of each of which judgment was given for the plaintiff, and the pleas objected to be pleaded in one plea. SKELTON . SPRINGETT. Byles, Serjt. and Charnock by instalments; default being made, execution issued, and shewed cause against a rule nisi to set aside the verdict a vessel, or the defendant's share in it, was seized, whereof the National Provincial Bank of England at Dolgelly and enter a nonsuit, obtained on the ground of there being upon a Mr. Griffith Jones Williams gave notice on behalf that the bank had an equitable mortgage, or claimed a no evidence, which the undersheriff ought to have left to lien upon the defendant's interest in the vessel so seized, Rule absolute. the jury. Needham, contrà, was not called upon. the 21st February particulars of the claim set up were DEWS v. RILEY.-Judgment for the defendant. To be and twenty interpleader summonses thereupon issued. On given, and the hearing was fixed for the 25th February; at reported. the hearing, however, the claim by the bank was given up, when the judge made an order upon Mr. Williams, the attorney for the bank, to pay the costs, amounting to 601. and upwards. This was the order brought up by the certiorari, and now sought to be quashed, as the judge had no more power to make an order upon Mr. Williams to pay than upon a person he had never seen or heard of. It was contended, notwithstanding, that such an order was not removeable, either under the 9 & 10 Vict. c. 95, ss. 90 and 118, or the 13 & 14 Vict. c. 61, ss. 14, 15, and 16, the other side not having availed themselves of a removal The 14th section of the 13 & 14 Vict. c. 61, refers to "either party in any cause," that is, one of the parties to the suit, not a third or an indifferent party to the suit altoan order upon Mr. Williams to pay the costs? He is neither a party to the suit or to the interpleader summons. gether. What possible right could the judge have to make (He was then stopped.) Atherton suggested that perhaps the better course might be to move to quash the certiorari. The COURT said a strong opinion upon the Bench now was that the order was clearly bad, and having been brought up by certiorari into this court, should be quashed; but the better plan at present would be to enlarge this rule until Rule enlarged. next Term, that substantial justice might be done in the meantime by all parties. BUSINESS OF THE WEEK. THE ATTORNEY-GENERAL . THE LONDON DOCK COM- PANY. Part heard. BAIL COURT. ment without a lawful excuse, must shew either On a former day Huddleston obtained a writ of THE ATTORNEY-GENERAL U. THE LONDON DOCK COM-under the latter Act. Welsby in support of the rule.-in favour of the complainant, whereupon the defend- SIDNEY V. LLOYD.-Prentice moved for a rule to rescind an order of Platt, B. dated 22nd May last. with costs. on Refused. HALL. ROBINSON.-Birnie moved for a rule to shew Granted. cause why the amount awarded herein should not be paid Chapman PEARS, Administrator, v. JAMES WILSON.-Postponed. BRISTOW.-SAME v. SAME. NEEDHAM v. moved for a rule to shew cause why the outlawry herein should not be set aside and the costs paid. Rule nisi to set aside the outlawry, the defendant undertaking to set off so much of his debt of 22,350, recovered by him in an action against the plaintiff in this Court as the plaintiff should recover in these actions. SAME V. SAME.-In this case a HARVEY V. TOWERS. rule had been obtained calling on the plaintiff to shew cause why a verdict should not be entered for the sixth, seventh, and eighth the defendant issues, or why the plaintiff should not be nonsuited, The action was brought pursuant to leave reserved. on a bill of exchange, the plaintiff suing as the indorsee of the drawer, the defendant being the acceptor. The 6th plea was, that the acceptance was obtained by fraud, and without consideration, and that the plaintiff was a holder without valuable consideration. The 7th plea alleged the same facts, and further, that the plaintiff had notice of the fraud. The 8th plea alleged the same facts, and further, that the bill was indorsed, and the plaintiff received the same after it became due. At the trial the jury were of opinion that the fraud was established, and the judge had directed the jury that it was the duty of the defendant to substantiate his plea in all its branches, both as to the fraud and also the want of consideration, and upon that ruling a verdict was returned for the plaintiff, with leave reserved to the defendant to move to enter a verdict for him on the above-named counts, or for a nonsuit. Maynard (James, Q.C. with him), now shewed cause. cited Bingham v. Stanley, 2 Q. B. 117; Small v. Att wood, 6 C. & F. 232, 338. Wilkins, Serjt. and Crompton By the COURT.-When a plea were not called upon. of fraud is established, the onus of proving that he gave value for the bill is cast on the plaintiff. This has always been the established rule in this Court; they referred to Smith v. Braine, 20 L. J. 201, Q.B. Rule absolute for a nonsuit in both cases. Cur. ade, vult. ADCOCK v. WOOD. Part heard. GRAHAM and OTHERS, Assignees of SAUNDERS v. NEWNMonday, June 16. HAM. He Motions before Martin, B. sitting alone in the Exchequer Chamber. CARR v. JACKSON.-G. Pollock moved to change the Granted. venue from the town and county of Newcastle to the county of Northumberland. PRICE C. SIMS.-Borill moved for a rule to shew cause why the award herein should not be set aside. Granted, returnable to-morrow. moved for a distringas to Granted. HICKS V. WATSON.proceed to outlawry. THOMPSON v. PHILLIPS.-C. W. Lewis moved for a rule to shew cause why a mandamus should not issue to the Granted. judges of Madras to examine witnesses. (30 Geo. 3, c. 63; Tidd, 814.) HEWITT v. PATERSON.-Bramwell moved for a rule to give t the plaintiff herein his costs, under 13 & 14 Vict. c. 61. Prentice shewed cause in the first instance. Settled on payment of 51. costs. MORRIS V. PHELPS.-Cooke moved for & rule to confirm the Master's report as regarded a certain deduction of 84. 68. 41d.; and farther, that such deduction should be increased by 1034. the difference between 4. and 51. per M. Smith appeared to consent. BEAVAN. BEAVAN.-Crowder, Q.C. appeared for the ant was committed to the house of correction for "County of To all constables and others of her "Whereas complaint upon oath hath been made REG. T. THE SOUTH-EASTERN RAILWAY COMPANY.-given to his said master any notice thereof, and BAIL COURT. without assigning any sufficient reason for so doing; "These are therefore to command you the said constable forthwith to convey the said Joseph Askew to the House of Correction at Stafford aforesaid, and deliver him to the keeper thereof, together with Reported by T. W. SAUNDERS, Esq. of the Middle Temple, this warrant; and I do hereby command you, the Barrister-at-Law. (Before Mr. Justice WIGHTMAN) Friday, June 13. Ex parte JOSEPH Askew. c. 34, s. 3, of a servant for leaving his employ- said keeper, to receive the said Joseph Askew, into BAIL COURT. The habeas corpus having been returned, and the defendant being in Court, BAIL COURT. appeal), and struck out the appeal, on the ground Huddleston moved that he may be discharged from custody upon the ground (inter alia) that the warrant of commitment is bad, inasmuch as it nei- Hall now shewed cause, and argued that the ther shews that the contract of service was in writing, Sessions were right, for that where it is the practice nor that not being in writing, the defendant had, in of the Sessions to require the original order to be fact, ever entered into the said service, one of which filed, it is the duty of the appellants to give the alternatives was essential to give the justice jurisdic-respondents notice to produce it for the purpose. tion to convict. (Lindsay v. Leigh, in error, 11 (Reg. v. Sussex, 9 Dowl. 125; Reg. v. Peterborough, Q.B. 455, 3 New Sess. Cas. 99.) 18 Law J. M. C. 79.) Pashley, in support of the commitment, argued that the allegation in the warrant of commitment that the defendant "did, on the second day of June instant, misdemean and misconduct himself in his said business, by neglecting and absenting himself from his said master's service," necessarily implies that the defendant had, in fact, entered the service of his masters, particularly as the introductory part of the warrant explains that a contract to serve had been some time before then entered into; the case of Lindsay v. Leigh being distinguishable in this latter particular. The misconduct must evidently mean misconduct whilst in his service by absenting himself. He also argued that as this was a doubtful question it would be better to leave the defendant to his action. WIGHTMAN, J.-Giving all due weight to the last argument, that the question is an arguable one, and that the prisoner, therefore, should be left to his action, I can only answer that being brought before me for his discharge, if I think that he is entitled to it I am bound to discharge him. I really cannot distinguish this case from that in the Exchequer Chamber (Lindsay v. Leigh), a court of higher authority than this one. There there was a warrant upon the same statute, and almost in the same words, and it was held to be invalid, and in that very case I find that the prisoner had been brought before me upon habeas corpus, and discharged upon the same grounds. The statute provides for two casesone where there has been a contract and the defendant has not entered the service, the contract being in writing; or, not being in writing, where the defendant enters the service and absents himself. In either of those cases he is liable. But in this case the warrant neither states the contract to have been in writing, nor that the defendant had entered into the service, but merely that he misconducted himself "by neglecting and absenting himself from his said master's service." It is, however, said, that ex vi termini, “absenting himself from his said master's service" means that he has entered into it. This, however, is not a necessary implication, and the statute itself is opposed to it; for otherwise it would have been unnecessary to have used the words "having entered into such service." The case of Lindsay v. Leigh is a governing authority. There the Court say that there must be an "averment either that the contract to serve was in writing, or that the service was entered upon, one of these two circumstances being essential to give the magistrate jurisdiction to commit to hard labour." In the absence, therefore, of either one or the other of these allegations, the warrant is bad, and on the authority of Lindsay v. Leigh, in which I fully concur, I must hold that the defendant is entitled to his discharge. Prisoner discharged. Saturday, June 14. WIGHTMAN, J. thought that as it was stated upon the affidavits that the recorder struck out the appeal because he thought he had absolutely no jurisdiction to try it without the original order, that in this he was wrong, and the mandamus ought to go. Monday, June 16. Rule absolute. (Before Mr. Justice WIGHTMAN.) BANKS and ANOTHER v. REBBECK and WIFE. County Court, prohibition to. BAIL COURT. The plaintiffs sought to recover possession of a house which the defendant occupied, by proceeding in the County Court under the 122nd section of the 9 & 10 Vict. c. 95, by which it is enacted, that when and so soon as the term and interest of the tenant of any house, &c. where the value of the premises, or the rent payable in respect of the tenancy did not exceed 501. by the year, and upon which no fine shall have been paid, shall have ended, or shall have been duly determined by a legal notice to quit, and the tenant shall refuse to quit the premises, the landlord may Pashley, contrà, contended that the Sessions were proceed in the County Court to recover possession. wrong, for that there was no settled practice upon The defendant, who was the occupier of the prethe subject, and that at least the Sessions ought to mises, resisted the proceeding on the ground that have permitted the appellants to have proved their the title to the house was in question, and that the notice of appeal, and that such a rule, even if it ex-ordinary relation of landlord and tenant did not subisted, would be unreasonable. (Reg. v The West sist between the plaintiff and the defendant. It Riding, 2 Q.B. 705.) appeared that on Monday, the 10th of August, 1846, the father of the defendant let the house to Hannah Miranda Service, at 8s. a week, to commence on that day, and the first payment to become due on the following Monday, and a week's notice to quit to be given. It further appears, that on the 11th December the defendant married Hannah Miranda Service, and it was stated in the affidavit on behalf of the defendant, that on the 10th of December the father of the defendant entered into another agreement with Hannah Miranda Service, to sell her the house in question for 1507. and, upon payment of that sum, On a rule for a prohibition to the judge of a County the defendant further agreed to give a good title and Court, on the ground that the title to the pre-execute the proper deeds, conveying the house to mises sought to be recovered came in question, it Hannah Miranda Service; but until the 150%. was appeared that the defendants occupied the pre-paid, she was to pay the father 8s. a week mises, under a written agreement with the owner, for the house, but the 8s. a week to be in part payfor the purchase of the premises for 1501., 88. per ment of the 1501. This agreement was said to be week having to be paid weekly until the purchase- a substitution for the agreement to let, and it was money was paid, the 8s. weekly to go in liquida- stated that the 1501. had been paid by so many tion of the purchase-money: weekly payments as amounted to 847. It also appeared that the defendant, after the marriage, paid 8s. a week to the father down to his death, and the. defendant paid 4s. a week on account of the rent to the mother. The judge of the County Court was of opinion that the title did not come in question. It appears to me that, under the circumstances of this case, after the making of the second agreement, which was for the purchase, the occupation was under that agreement and not under the first, and even though the purchase-money had been paid it would have given no title, but when it was paid the defendant would be in the occupation not as tenant but as purchaser, and the ordinary relation of landlord and tenant would not subsist between the plaintiff and defendant, and the case in principle falls in with that of Jones v. Owen, 5 Dowl. & Lound. 669, upon which my brother Patteson said, to bring the case within the jurisdiction of the County Court, the ordinary relation of landlord and tenant must subsist between the parties, and upon that case it is clear that he ought not to be turned out; but it seems to me, upon the proper construction of the statute as adopted in the case alluded to, in which I concur, that this case is not within the jurisdiction of the County Court, and the rule must be made absolute for a prohibition. Rule absolute. Held, that the ordinary relationship of landlord In this case a rule nisi had been obtained on the part of the defendant for a prohibition to be directed to the judge of the County Court of Whitechapel, restraining him from further proceeding in this cause, inasmuch as the title to land was in question. This was a plaint under sec. 122 of the 9 & 10 Vict. c. 95 (County Courts Act), by the executors of one Benjamin Rebbeck, to recover possession of premises; and in support of the application it was alleged that the deceased Benjamin Rebbeck, in August 1846, entered into an agreement to let the premises in question, being No. 3, Rose-terrace, to one Hannah Miranda Service, at 8s. a week; that subsequently, on the 10th of December, in the same year, a fresh agreement was entered into between them, whereby it was agreed that Benjamin Rebbeck should sell the house to the said Hannah Service for the sum of 1507. and, until that sum was paid, she should pay the rent of 8s. per week, which was to go in liquidation of the purchase-money, and that he would at that time make out a good title, and execute all necessary deeds. On the day following, Hannah Service married the son of the deceased, being the present defendant; that in the present year Benjamin Rebbeck died, leaving the present plaintiffs his executors, who gave the defendant notice to quit, and instituted the proceedings in the County Court to recover possession of the premises. On the case coming on, the defend(Before Mr. Justice WIGHTMAN.) ant set up the agreement of the 10th December, REX. v. THE RECORDER OF MANCHESTER. 1846, alleging that the full amount of 1507. had been Appeal-Filing original order of removal. satisfied to Benjamin Rebbeck before his death, and Where the recorder of a borough refused to hear arguing therefore, that as he claimed title to the an appeal, upon the ground merely that as the premises, the judge had no jurisdiction. Upon this original order of removal was not filed (a copy the plaintiffs were asked if they admitted the agreehad been filed), the Court had no power to enter ment, which they declined to do; whereupon the upon the appeal, this Court granted a mandamus learned judge requested to look at the agreement, to him to eater continuances and hear the appeal. when he observed that it gave the defendant only This was a rule for a mandamus to be directed to an equitable and not a legal title, and therefore he the recorder of Manchester, directing him to enter would grant a warrant of possession, but not to be continuances and hear the appeal against an order executed for a month, to give the defendant an opof removal, wherein the parish officers of the town-portunity of applying to this court. ship of Preston were appellants, and the parish Barnard shewed cause, and contended that the officers of the township of Manchester were respon- agreement in question gave the defendant no rights, dents. The appeal in this case came on for trial at it not being a genuine instrument, and that in fact the borough sessions for Manchester, in December no such agreement was proved at the trial, the delast. Upon the appellants being about to prove their fendant not having given it in evidence. notice of appeal, it was objected on the part of the respondents that they had not filed the original order of removal, but merely a copy, which, according to the practice of the Sessions, was insufficient, and that being so, the Sessions had no jurisdiction to hear the appeal, and that as no notice to produce the original order of removal had been served on the respondents, the appellants could not be permitted to give secondary evidence of it. To this the appellants replied that they were not bound to file the original order (which was in the possession of the respondents), there being no rule of Sessions requiring them to do so. Upon this the recorder referred to the clerk of the peace to know what was the practice upon the subject, to which he answered that there was no rule upon the subject either way. The recorder then declined to hear such evidence (notice of Monday, June 16. Held, also, that the "&c." with which the rejoinder Hoggins shewed cause on an affidavit, which set out the pleadings, by which it appeared that to a replication of set-off the defendant had pleaded the Statute of Limitations by way of rejoinder, but had not added a similiter. It was therefore contended that the cause was not at issue, and therefore that the defendant was not entitled to move for judgment as in case of a nonsuit. The case of Wright v. Oldfield, 8 Dowl. Hoskins contended that as the rejoinder concluded with an "&c." that would be taken to include the words "and the plaintiff doth the like;" and that it was not necessary to set out the words at length. WIGHTMAN, J.-I do not think the et cetera will help you, though it has been said that there is great virtue in it. You should have added the similiter, or ruled the plaintiff to surrejoin before you were entitled to move for judgment as in case of Hawkins, in support of the rule, argued that the WIGHTMAN, J.-An application was made to this Rule discharged; costs to be costs in the cause. Ex parte HYDE. A conviction under the Game Act, 1 & 2 Wm. 4, c. 32, s. 3, adjudged the defendant to pay 5s. “to be paid and applied according to law." By sec. 21 of 5 & 6 Wm. 4, c. 20, the penalty imposed by the 1 & 2 Wm. 4, c. 32, is to be applied half THE LAW TIMES. INSOLVENCY. of a year and a half, and the balance should be in a motion for a certiorari to bring up the convicoff tion, eld, that the conviction was bad for not adjudicating to whom the penalty was to be paid. feld, also, that the justices had acted without jurisdiction in directing the defendant to be imprisoned in default of paying the penalty (the adjudication to pay the penalty being informal), and, therefore, that the certiorari was not taken away by the 45th section of 1 & 2 Wm. 4, c. 32, which applies to matter of form merely. This was a rule for a certiorari to remove into is court a conviction of justices made under the ame Act, 1 & 2 Wm. 4, c. 32, for shooting a pheant within the prohibited months. The conviction adjudged the defendant to pay a e of 5s. "to be paid and applied according to w," &c. and in default of payment to be imprisoned r two months, &c. Rule nisi returnable at chambers. GELL v. FOWLER.-Lush shewed cause against a rule nisi In moving for the rule it was contended that as by he 21st section of 5 & 6 Wm. 4, c. 20, it is enacted SMITH . THE EASTERN UNION RAILWAY COMPANY.Dat the penalty imposed by the first-named statute for a new trial fn this case, on the ground of suspense. to be applied one half to the informer and the Fowler, in person, supported the rule. Rule discharged. her half to the overseer of the poor or some Er parte THE TRUSTEES OF PAVING AND LIGHTING THE ficer (as the convicting justice or justices may Referred back to the arbitrator, to find specifically as to prect) of the parish, township, or place in which particular fact, which it was contended was left in doubt. e offence shall have been committed, &c., the HAMLET OF POPLAR AND BLACKWALL.-Pashley moved for a bridge in the manner pointed out by the Railway Clauses bnviction was bad for not specifying to whom the mandamus to the East and West India Docks and Birming enalty was to be paid; and Chaddock v. Wilbraham Junction Railway Company, to compel them to build REG. v. TURWESTON.-Rule enlarged until next term, to razm, 5 C.B. 645, was cited. Consolidation Act, 8 & 9 Vict. c. 20, s. 19. REG. V. THE CHESTER AND HOLYHEAD RAILWAY COMenable the defendants to obtain the certificate of two justices that the road is in good repair. PANY.-Phipson moved for a mandamus to the company to issue their warrant to the sheriff to summon a jury to assess compensation to Mr. Eaton for injury done to his Rose now shewed cause and contended that by e 45th section of the Game Act, 1 & 2 Wm. 4, c. , the writ of certiorari was expressly taken away, dad that no conviction under the Act could be rought up to be quashed for want of form. In this ise it could not be contended that the justices had t jurisdiction over the subject matter, and therefore at the conviction could not be removed by certiotri. (Reg. v. The Justices of Somersetshire, B. & C. 816.) Hawkins (called on by the Court), in support of e rule.-No doubt the certiorari is taken away for 1 matters of form or mere informality; but it is ontended that in this case the justices have acted ithout jurisdiction, in ordering Mr. Hyde to be nprisoned without having first adjudicated in what manner the penalty was to be apportioned, and to hom paid; and if the justices have acted without urisdiction the conviction may still be removed by ertiorari. It is clear that the jurisdiction to imprison only arises in the event of the non-payment of the fine, and as the mode in which the fine is to be apportioned is not legally adjudicated on the conviction, the order of two months' imprisonment for the non-payment is made without jurisdiction, and therefore the certiorari is not taken away, and, if So, the conviction is clearly bad within the decision of the Court in Chaddock v. Wilbraham, 5 C. B. This case had been repeatedly before the Court, 645. He also cited Corner's Practice, "Certiorari," p. 66; and Rex v. Berkely, 1 L. Kenyon's Rep. 80. Rose was heard in continuation, and contended that the magistrates had jurisdiction to imprison, the and fully argued by counsel. The facts are suffiThe CHIEF COMMISSIONER said, this man was a conviction sufficiently pointing out how the fine ciently stated in the judgment, which was delivered The Act (5 & 6 Wm. 4, by the Court to-day after a cur. adv. vult. was to be paid. c. 20, s. 21) enacted that half the penalty was to be paid to the informer and the other cotton spinner at Sedbergh, in Yorkshire, and being half to the overseer of the parish, or other in prison for debt on the 6th of April, 1848, filed his officer; therefore in the absence of any direction petition on the 15th April, and obtained his vesting by the justice the penalty would be payable half order on the 18th. He was heard at York on the 1st to the informer and half to the overseer of the July, 1848, and was discharged forthwith. Mr. John parish, and therefore the direction" to be paid and Swainson, creditor 71, and Mr. William Wearing, applied according to law" was a sufficient adjudi- creditor 70, were appointed assignees, and their apcation. He also contended that as this conviction pointment is dated 12th July, 1848. Among other was in the form given by 11 & 12 Vict. c. 43, sche-property possessed by the insolvent was his interest dule I. 2. in a mill called Birks Mill, of which he held the lease WIGHTMAN, J.-That form is clearly not applic- for the unexpired term of eight years and a half, and Mr. Wearing's account able to a case where the justices have to adjudicate the machinery on that mill; and in another called to whom of several persons named in an Act, dif- Milthorpe Mill. On the 16th March, 1849, Mr. ferent parts of a penalty are to be paid. I have no Wearing files his account, and on the 12th April doubt whatever that the conviction is informal; the Mr. Swainson files his. only doubt I had was, whether the certiorari was was audited on the 29th of March, 1849, and a retaken away, but I have come to the opinion that the port was made to the Court, before the late Mr. defect in this conviction is matter of substance, and Commissioner Harris. This report was excepted to, not mere form, and therefore that the certiorari is and two matters only were referred back to the not taken away. In my opinion the conviction examiner, namely, the disposal of the insolvent's shews on the face of it a want of jurisdiction to im- property at Birks Mill and at Milthorpe Mill; and it prison; the power of the justices to order that, only is upon these two particulars that an immense mass of the arrangement with Holmes, proceeds as folarises on the non-payment of the penalty, but in of affidavits has been filed, and very lengthened lows. (The learned Chief here read the extract.) this case the adjudication to pay the penalty is in- and able arguments have been addressed to the Now to this part of Mr. Swainson's affidavit, tion, and the 13th of December, 1848, was the day Swainson's statement is true; and that Mr. formal, and therefore the jurisdiction to imprison Court. It appears that there was an intention to Mr. Wearing makes no reply, nor offers denial appointed for the sale. On the morning of that day, Wearing, with a full knowledge of what he was does not arise. I think, therefore, the certiorari dispose of the property at Birks Mill by public auc- or explanation. I conclude, therefore, that Mr. a conference took place between the two assignees, a doing in his character of assignee of this estate, has must go. Mr. Fisher, and a Mr. Scot, and Mr. Holmes, land- subjected himself to make good whatever deficiency lord, about withdrawing the sale from the public to has occurred. Now, in bankruptcy, the assignees purchase it at the sum of 5117. that out of this not possess themselves of the bankrupt's property dispose of the same to Mr. Holmes, the landlord; cannot bid, nor employ any one to bid for them, at Mr. Holmes should deduct his claim for rent by purchase or otherwise; the rule of the Court and ultimately it was agreed that Mr. Holmes should the public sale of the bankrupt's estate; they can Rule absolute. |