plaintiff, one Rorke, and that the defendant has no shall be costs in the cause; in neither case is the jurisremedy for the costs of that trial. Monahan in reply.-A motion made by the plaintiff to postpone a trial, because a witness is absent is not generally acceded to, unless upon strong grounds. There was the ordinary rule, regarding the mouth before this Act was passed. The defendant was not entitled to the costs, unless he applied by motion to the Court; he was bound to show that the omission to proceed to trial was not owing to any fault on his part; and the Court had jurisdiction not only to refuse him his costs, but to make him pay costs. What is the meaning of "such costs shall be costs in the cause?" The same as the defendant would have been entitled to if he entered a rule within the month; these costs shall be costs in the cause. If owing to the misconduct of the defendant, the record is withdrawn, the course is to move to discharge the rule. If therefore the difficulty of the defendant was such that by the old practice he would not have been entitled to his costs, we would have been entitled if he had entered his rule to move to discharge that rule, and even to get an order that he should pay costs; but by his own omission to enter the rule, his case is that he has compelled the Court to give him costs. If the not proceeding to trial was owing to the defendant, it was not such a non-proceeding to trial as is within the section. "Such costs "" mean the same as were referred to in the former portion of the section-Shannan v. Copper Mines (5 D. & L. 451). [Ball, J.Is there any rule in England analogous to the latter part of the section?] These words do not occur in the English Act-Pope v. Fleming (5 Ex. 249). [Monahan, C.J.-Your argument is that if the rule had been entered, the Court would have had discretion to discharge the rule if misconduct were brought home to the defendant; that the costs in the cause are substituted for costs that would have been recovered under the rule.] In Pope v. Fleming, the plaintiff entered his cause on the commission day. There was a rule calling on the plaintiff to show cause why he should not pay the costs of the day, for not proceeding to trial. This case shows the Court has a discretion-Worn v. Hill (7 C.B., N.S., 726), was subsequent to the Common Law Procedure Act. It was argued that the defendant was entitled to a rule for the costs of the day as a matter of course, under the terms of the first part of the English Act, which is the same as this Act. I refer to 10 W. R. 354. [Ball, J. objected that he did not know the Weekly Reporter.] Lord Westbury recently praised the Weekly Reporter, and said it was more accurate than the regular reports. These cases show where the rule is entered for the costs of the day, if the plaintiff can satisfy the Court there has been misconduct on the defendant's part, the hands of the Court are not tied absolutely, and it has juris diction to see whether this arose from the default of the opposite party, and if it does see that to hold the plaintiff has done all that he could, and that there is not a case of not proceeding to trial within the section. [Christian, J.-The Court has a jurisdiction over costs in the cause. It appears to me that there may be two courses, a present order for costs, or that they diction of the Court taken away.] The Court has jurisdiction to entertain the question of merits. [Monahan, C. J.-No doubt, prima facie they are costs in the cause, you being prima facie in default, though I doubt the construction in the office. Christian, J.-The early part provides only for the defendant's costs, and then says "such costs." Monahan, C. J.-I only notice it, lest it should be supposed, because Mr. Colles stated it, that it might be taken to mean both. Are you about to show, for that is the material question, that the record was withdrawn owing to the misconduct of the defendant?] It is mainly a question of fact. The case of misconduct is not merely made out, but it is not attempted to be answered. There are specific allegations of misconduct, not in the defendant himself, but in those acting for him-in Whitelaw, in the assistant of the attorney, in Adair, the attorney of the defendant, and in the nephew of Mills. As to Benjamin Reed, it has been sworn he was interested against the plaintiff; that when this view jury came to inspect, he forced himself on them, made observations calculated to have an unfavourable effect; that he threatened the jury with an action of trespass if they went across his land. It is sworn on the other side he was a grand juror, but it is admitted he was interested. Whitelaw pointed out a flag, telling the jury it had been placed dishonestly for the purpose of throwing the water back, and making the jury think the plaintiff had been injured by what the defendant did. The assistant has made no affidavit. In our affidavit at Naas, 26th July, which is not contradicted, we state that the assistant commenced at the first point of view, and having a long pole in his hand, stated to the jury that no gully existed there. The jury were in consequence annoyed, as they supposed they were unnecessarily detained. These acts prima facie were improper. In Simon's case (Barne's Notes, 157), the Court said the showers might show marks, boundaries, &c. That shows it would be contrary to justice to allow evidence to be given in the absence of the judge, in the absence of counsel which might creep into the jury's minds, and that they are to go in with their minds unprejudiced. Adair does not make an affidavit meeting these things. Our allegation is, "that the said Samuel F. asserted as a fact several times that the water had come over higher up." There is only a general denial that deponent or his assistant interfered with the jury as alleged. The application was not to postpone the trial, but to withdraw the record. plaintiff had a right to do that as a matter of course; therefore the application must have been to this effect, either in consideration of not having to pay the costs, or on condition that the defendant should pay the costs. Now, by Mr. Courtenay's memorandum it appears costs were reserved at the instance of the defendant. That is reconcileable in this way: the application was met at Naas, " You were as bad as we.' What the Chief Justice may have said was, he would not decide the question of costs. When the Chief Justice said (as appears by the end of the memorandum) that the plaintiff must go on or withdraw the record, that seems inconsistent, and looks more like conversation. It might have happened in The " this way. The plaintiff's counsel say, If you be of does not enforce the costs of the day they become a that opinion, we move that the record be withdrawn portion of the costs of the cause, and therefore that without costs, and Mr. Courtenay added this, and it no matter what were the circumstances, the Court has only means a distinct motion with reference to with- no jurisdiction. We are of opinion a proper answer drawal of the record must be brought forward. Such was given during the argument. [His Lordship re.d a motion was brought forward. As to what took the section.] The cases we were referred to clearly place in the taxing office, if a distinct order had been establish our own impression that if it should appear produced and drawn up by the registrar, I appre- the party was not in default in withdrawing, but was hend he would have refused to give the costs. The coerced to do so, or in the exercise of his discretion defendant gets a certificate which omits all statement did withdraw from the misconduct of the defendant, that the record was withdrawn. The plaintiff swears that before this Act, and since it was competent to that he felt it would be unjust to him that the trial should the Court to see why the plaintiff withdrew the record, proceed with a jury who had been so tampered with. and if for impropriety in the defendant the plaintiff Brett's affidavit made at Naas says that deponent could have the rule set aside if the defendant had enheard several of the jurors say that the causes of actered it. We adopt these cases, and say, if the detion were frivolous. As to the time which has elapsed, fendant had entered the rule, and brought the matter much depends on the construction of the order. If it for adjudication within the time, it was within our means that nobody is to get these costs without ap- jurisdiction to consider whether we should set it aside plying to the Court, then there have been as much or not. They become costs in the cause, which we laches on the part of the defendant as the plaintiff; apprehend to be costs in the cause subject to the same and that is the true construction of the order. [Chris-jurisdiction as if the rule was entered, and that it is tian, J.-Was not the last trial in Trinity Term, competent to us to see if there was misconduct. I do 1863, two terms since? From July, 1863, you knew not mean intentional misconduct. I must next consithat the defendant would in the ordinary way be enti der the delay. If I am right, that is to a certain extled to the costs.] That is, assuming that that is the tent attributable to the defendant himself, for if within construction of the order. The time is since the 24th the month he entered that rule, the matter should be January at most, because then only the costs were disposed of by an application to discharge it. But the certified. It is not pretended we knew of the exist- question might never arise, because, not having enence of this memorandum in Mr. Courtenay's office. tered his rule, he never would have been entitled unCur. adv. vult. less he succeeded in the cause. It was then only the plaintiff was called on to interfere to get rid of these costs in the cause. Having regard to Mr. Courtenay's death, we think there was not delay sufficient to disentitle the plaintiff to relief. The question of the merits comes to this. That the assistant of Mr. Adair acted in a way contrary to what either party should have done. That he made allegations that there was no cause of action, that Adair pointed out where particular water had come over a bridge, and said that that was the gravamen, and not what the plaintiff relied on. Adair's affidavit in reply does not controvert this allegation; nor does his assistant nor do the others contradict what is said against them. There is a general allegation that Adair committed no misconduct, but there is no doubt of the matters charged, and it may be Adair did not suppose these things were culpable in the eye of the law. We must take it that he and they did these acts. What induced the plaintiff to withdraw the record? It is said that, owing to the observations of the jury, he thought they had showed a hostility to him. I do not doubt that; but what did he attribute that hostility to? Not to the inherent weakness of his case, or badness of it, but to the allegations improperly made. We think, on the merits, the plaintiff is entitled to what he seeks; that he should not have to pay the costs of the defendant of that abortive trial. The money was paid under protest. If the parties disagree as to the amount, Mr. Colle must settle that. Then the plaintiff not only seeks that, but that he should be paid by the defendant the costs incurred by him. We think he fails in that; we think that under the terms of the rule, there is a mistake in the office of the taxing master. I do not mean to say there might not be an extreme case in which the Court might visit him May 9.-MONAHAN, C. J.-This was an action for the disturbance of a water-course. The case went down to Kildare to be tried. It was arranged that the jury should have a view, and it was a portion of the verbal order that nobody was to interfere with the jury. It appears the jury went out, that the plaintiff was dissatisfied with the conduct of the parties acting for the defendant; that he thought they interfered with the jury, and made certain allegations calculated to influence them; that he applied to withdraw his record. Everybody knows that, generally speaking, anyone can withdraw his record. It appears from the lamented death of Mr. Courtenay there was not evidence of what occurred under his hand. Since the commencement of the present motion, a document in the handwriting of Mr. Courtenay has been produced, and it substantially corroborates the statement. The Chief Justice reserved the question, and said if he had no power it was to go for nothing. The plaintiff made an affidavit to ground the motion the next term. He alleges it was premature to bring it on, and though the affidavit was made he did not use it. There was another trial. The verdict was set aside on the ground of surprise or some such thing. We changed the venue on the ground that a proper trial could not be had fairly and ultimately, the defendant got a verdict. The plaintiff says he should not be liable for the costs of that first trial, and that not only should he not be obliged to pay, but that he should be recouped by the defendant the costs incurred by him in that abortive trial. Mr. Byrne, for the defendant, made a very serious objection, which seemed at first such, viz., that by the 105th section of the Common Law Procedure Act, wherever a record is withdrawn, if the defendant with these costs. As to the costs of the present mo- Court of Exchequer. [Reported by Oliver J. Burke, Esq., Barrister-at-Law.] REVENUE SIDE. IN RE J. C. AN ACCOUNTABLE PARTY FOR LEGACY DUTY. hold or detain the same, every such person shall be to deliver such account within such period as may be appointed in the writ, or to shew cause to the contrary; and on cause being shewn, such order shall be made as shall be just. Daniel Delacherois: while the plaintiff in error claimed as devisee under the will of the said Daniel Delacherois. The said Daniel made his will before the Wills Act, viz., on 3rd of March, 1836, devising all Jebb now moved to make the order absolute, and his real estate. He died on 1st of October, 1850. for an attachment in case of disobedience upon a certi-The question was whether the property in question ficate of no cause shown, and an affidavit of service. passed by the will. It was part of a manor vested in PER CURIAM.-Let the said J. C. within a week the testator at the time of his will. The lands, though after service of this rule upon him, deliver to the Com-originally part of the manor, had been sold and then missioners of Inland Revenue an account upon oath of the said sum of £70; and let the said sum be paid within the time aforesaid to the Receiver General of Inland Revenue in Ireland; and in default thereof let an attachment issue against the said J. C. without further motion. House of Lords. [Reported by James Paterson, Esq., of the Middle Temple, Barrister-at-law.] DELACHEROIS v. DELACHEROIS―July 20. Manor-Alienation of part of manor-Repurchase by lord in fee-Escheat-Wills Act-Evidence of manor. Whatever may be the origin of the distinction, there is a settled distinction between the case of a lord of a manor re-acquiring lands once severed from the manor by escheat and by re-purchase. In the former case the lands become reunited to the manor so as to pass by a previous devise of it; but in the latter case this is not so. A patent from the Crown, 2 Car. 1, granted lands to H. with power to create manors thereof. A later patent re-granted the lands to H. and declared that certain of such lands, including the lands of B, should form the manor of D. In 1721, the then owner of the manor of D. made a fee-farm grant of the lands of B. to L, paying rent and doing service therefor at the Court of D. The manor courts had been held at D. from before the time of living memory, and the occupiers of the lands of B. attended these courts. In leases of B. the tenant was bound by covenants to do suit to the manor courts of D. Held, that there was evidence to go to the jury that there was, in 1721, a manor of D, comprising the lands of B. as part of its demesnes. Quære, whether the effect of the deed of 1721 was to vest the lands of B. in L, wholly severed from the manor of D, or to be holden as of the manor of D. THIS was a proceeding by way of appeal from a judg ment of the Exchequer Chamber of Ireland. The defendant in error, as plaintiff below, brought an action of ejectment against the plaintiff in error to recover one-third of the lands of Ballyhayes. The defendant, in error, claimed as heir-at-law of his uncle, From the Law Times by permission. reconveyed in fee to the lord. It was contended, on the one hand, that the reconveyance made the lands once more part of the manor; while, on other hand, it was contended that the lands could not again become part of the manor after being once severed from it. The Court in Ireland held that the lands did not become again part of the manor, and gave judgment for the plaintiff below, which judgment was affirmed by the Irish Exchequer Chamber. Erro was then brought to the House of Lords. The following learned judges attended the argument: Pollock, C.B., Blackburn, Williams & Willes, JJ., and Bramwell, B. Sir H. Cairns, Q.C., Law, Q.C. and C. Hall, for the plaintiff, in error, contended that lands held in fee of a manor, if purchased by the lord, when seized of the manor, became reincorporated with and parcel of the manor; that there is no distinction between the lord re-acquiring by purchase and by escheat; that, therefore, on the re-purchase of these lands in 1842, they became parcel of the manor and passed by the devise in his will-1 Cruise Dig. tit. "Tenure," 36; Wright's Tenures, 4; Butler Co. Litt. 191 a; 3 Pres. on Conv. 26; Montague's case, Ley 63; Anon., Saville, 24; Creswell's case, 1 Moo. 729; Mountjoy's case, 5 Rep. 3 b; Temple v. Cooke, Dyer, 265; Holmes v. Hanby, 2 Keb. 28; Anon., 12 Mod. 128; Bingham v. Woodgate, 1 Russ. & My. 32; Robinson on Gavelkind, 85; Com. Dig. "Gavelkind;" Bro. Ab. "Disclaimer." The Attorney-General (Sir R. Palmer, Q.C.), Whiteside, Q.C. and Dart, for the defendant in error, contended that the power of creating tenure never attached to these lands, that they were not granted to be held as of the manor of Donaghadee; and when tenemental lands are purchased by the lord they do not again become parcel of the manor; and that a purchase differs from escheat in its legal effect--Hawkins v. Gathercole (6 De G. M. & G. 1); AttorneyGeneral v. Wyggeston, (13 Beav. 113); Doe v. Davidson, (2 M. & S. 175); Bradshaw v. Lawson, (4 T. R. 443); Vin. Abr. "Manor," 218; Burgess v. Wheate, (1 Eden, 177); Brunker v. Cooke, (11 Mod. 122); Roe v. Wigg, (6 T. R. 708): Glover v. Lane, (3 T. R. 447); R. v. Mein, (4 T. R. 480); Passingham v. Petty, (17 C. B. 363); Doe v. Williams, (11 M. & W. 807). At the conclusion of the argument the following questions were put to the learned judges: First, whether there was evidence to go to the jury that there was on 5th January, 1721, a manor of Donaghadee, comprising the lands of Ballyhayes as part of the demesnes thereof? Secondly, assuming the existence of such a manor was the effect of the deed of 5th January, 1721, to 1 vest Ballyhayes in Luke St. Lawrence and his heirs it extended, inter alia, to " manors," and it enacted wholly severed from the manor of Donaghadee; or was it to vest the estate in him and his heirs, to be holden of the grantor as the manor of Donaghadee? Thirdly, assuming the existence of the manor, and that the lands of Ballyhayes remained after the deed of 5th January, 1721, a tenement portion of or holden of that mauor, did the third part of those lands conveyed in fee to the lord of the manor in 1842, become so re-united to the manor as to pass by the devise of that manor made on 3rd of March, 1863? The learned judges having taken time to consider, afterwards returned the following unanimous opinion, read by that all and every person, &c. should enjoy “all such manors, lands, tenements, and hereditaments of what nature soever according to the purport of the said letters patent, for such fines, &c. and with such privileges, liberties, profits and commodities, and in such manner and form, as in and by the said letters patent shall be limited and appointed." It went on to ratify the confirmatory patents to be granted, and to make them of the same force as if every clause was verbatim enacted by Parliament, and it enacted that "every clause, article and sentence in them, or any of them, to be contained for ever from and after the making of the same letters patent, shall stand, be, and remain and be adjudged and taken to stand and be of such and the same force and effect to all intents and purposes as if the same letters patent and every of them, and every clause, article and sentence in them and every of them to be contained, were specially and particularly herein expressed, and by the authority of this prosent Parliament enacted." This statute, it will be observed, expressly dealt with "manors,” and contained words large enough to include all incidental rights. It was followed by the 10 Car. 1, sess. 3, c. 2, which explained and confirmed it. It mentioned, as one species of defect to be cured, the "lack or omission of sufficient and special non obstantes of particular statutes." In 1637 a general commission of grace, in terms extensive enough to authorize all that was done under it in this particular, accordingly issued, upon which the patent of the same year was issued re-granting the land, and in express terms granting or creating (for the words are large enough for either) a manor of which Ballyhayes was part, and also in express terms the right to make sub-infeudations in fee-simple, and also the right to hold a court baron and a court leet. This patent appears to have been amply authorized by the terms of the commission of grace. That commission further declared that the king would ratify what was done under it at the next Parliament. Accordingly, the 15 Car. 1, c. 6, (not set out in the papers, but to be found in 2 Irish Stats. 194) was passed for the purpose of confirming such patents of, amongst other things, "any manors, franchises, liberties, or other hereditaments," of what na WILLES, J.-My Lords, as to the first question, we are of opinion that there was evidence to go to the jury that there was on the 5th of January, 1721, a manor of Donaghadee, comprising the lands of Ballyhayes as part of the demesnes thereof. The first patent of Charles I. granted manorial rights in respect amongst other things of holding, not merely courts leet, which, although usual incidents of a manor, do not necessarily involve that the lord should have a manor or seigniory in respect of services rendered by the suitors, but also courts baron, which are proper incidents to a manor or seigniory, and cannot exist without freeholders owing suit and service to the seigniory, or, if there be demesnes in the hands of the lord, to the manor over the limits of which the jurisdiction extends. A court leet involves only limits and resiants. A court baron further involves the existence of free holders owing suit and service to the manor, for, failing them, the barons of the court and the court baron must de facto expire together: (Coke Littleton, 58 a). It therefore involves a manor or seigniory, and nothing less than such a manor, with the right of creating holdings, which owe suit and service to the manor, and uot immediately to the Crown, can satisfy the graut, The greatest caution and learning appear to have been bestowed upon the framing of this and the subsequent grant of the same king, which are studiously extensive and precise. The framer both of the first and the second patent anticipated the difficulty which was raised in Chetwode v. Crew, (Willes, 614) as to creation of tenure in modern times upon a conveyance in fee-simple of the demesnes of an Eng-ture soever, by virtue of any commission of grace, and lish manor, so as to keep up or revive a court baron which had failed for want of freeholders. And, accordingly, each of the patents in so many words professed to authorize sub infeudation in fee-simple of any of the lands within the manor, to be held by suit of court, and any other services or rents, with a non obstante of the statute of Quia Emptores, and any other statute to the contrary. This and other patents of the like kind were soon brought into doubt, and it was thought proper they should be confirmed by Act of Parliament, which they accordingly were, and, if effectually so confirmed, the result is, that this case was properly considered in the court below as if the main question were unaffected by the statute of Quia Emptores and De Prerogativâ Regis. With the view theu of confirming amongst others the title to the manor in question, the Act of Car. 1, sess. 1, c. 3, provided for the confirmation of defective titles by letters patent founded upon commissions of grace, and 1 which render such patents valid, "notwithstanding any defect whatsoever, or any statute, ordnance, law, cause, matter or thing, which might in any way impeach, enfeeble, avoid, or destroy any of the said letters patent in all points whatsoever." It seems difficult to construe this latter statute in any other manner than as a statutory confirmation of the patent of 13 Car, 1 in its very terms, and as creating a manor with the right of sub-infeudation in fee therein, notwithstanding the statutes of Quia Emptores and De Prerogativâ Regis; and, indeed, in our opinion, stopping here, the second patent was confirmed in terms, and a manor with such a power of sub-infeudation was created. That power thus conferred by statute constitutes, in our judgment, the chief peculiarity of the case, and distinguishes the capacity of the lord of such a manor from that of the lord of an ordinary manor in this part of the kingdom, in respect of creating tenure in fee simple at the present day. Add to |