10 Superior Courts: House of Lords. is bound to answer the latter before he can | stated as made by the Vice Chancellor and compel an answer to his amended bill. affirmed by the Lord Chancellor, the King of The appellant's original bill, filed in 1827, Spain now appealed to this House. stated that one Justo de Machado, his agent, Wetherell, in support of the appeal, argued The Attorney General and Sir Charles appointed to receive certain indemnity funds, set apart by the French Government, in pur- cally or substantially a cross bill. It described that the bill of the respondents was not technisuance of certain conventions between that Government and Spain, to satisfy the claims of the appellant differently from the description of the subjects of the King of Spain on France him in the original suit, whereas a cross bill is for damage done and losses sustained during only properly maintainable against the same the revolutionary war, and charged that Ma- plaintiff. It contained allegations and charges chado sold out the said funds in France, trans- which had no foundation in truth, and had no ferred the proceeds to this country, and de- relation to the matter of the original suit, and posited above 200,0007. of them with the therefore not necessary to the respondents' derespondents, Hullet & Co., in the name of one fence against it. It was morally impossible for Achilles de Pereira. Machado's secretary; and a foreign sovereign to swear an answer to a it prayed that the defendants might answer the bill in our Court. Being admitted to sue as a matters charged in the bill, and might pay into sovereign, he could not sink his political capathe bank of England, to the credit of the city in the natural person. The law of nations cause, the balance of the monies so deposited external to his kingdom; and to swear to an forbids the sovereign's taking an oath in matters answer before a commissioner from our Court of Chancery in the face of his own subjects, would be tantamount to an abdication of sovereignty, as it would be acknowledging a supeof the matters inquired into by the cross bill, rior. The appellant had no personal knowledge and he tendered an officer of his own government to put in an answer on his behalf, to give all the information that could be required, and to be liable to all the consequences, as residing within the jurisdiction and subject to the control of the Court. The rule of practice as to answers to cross bills was dispensed with in and married women, and why not in the case cases of peers, corporations, infants, lunatics, of a king? There being no precedent in this case, the House might make one. with them and then in their hands. The respondents demurred to the bill, chiefly on the ground that a foreign sovereign is not entitled to sue in the Courts of Equity in England. But their demurrer on that point was overruled by the then Lord Chancellor, and his decision was confirmed upon appeal to this House, whereby it was established that a foreign sovereign may sue, on behalf of his subjects, in our Courts of Equity as well as at law.a The respondents then put in their answer to the bill, and in a few days after filed a cross bill against the King of Spain and others, stating that his Catholic Majesty had in his possession or power various documents and accounts, and also personal knowledge of divers transactions, the full communication and discovery of all which was material to their defence to his suit, and praying in the usual way that his majesty may answer all the matters in their cross bill charged against him. Sir Edward Sugden and Mr. James Rusbill of the respondents was strictly according sell, for the respondents, maintained that the to the principle of cross bills, and had for its The appellant, in the year 1830, more than object bona fide a discovery of matters essential a year and a half after the respondent's anto the defence of the respondents to the oriswer, obtained an order to amend his bill; that ginal suit. The appellant was bound to give order was set aside for irregularity,b on the to the respondents the justice he asked for application of the respondents, but was after- himself; and coming as a suitor in this counwards restored on the ground that the accept-try, he could not import his prerogatives with ance of the 20s. costs was a waiver of the irregularity.c The bill being accordingly amended, the respondents obtained an order from the Vice Chancellor, giving them a month's time to answer that amended bill after the appellant had answered their cross bill, and that order was affirmed, on appeal, by the Lord Chancellor. A motion was subsequently made to the late Lord Chancellor, to the effect that the appellant might put in an answer to the cross bill by an officer commissioned by him for that purpose, or that his own answer to it might be taken without oath. That motion was refused; and the order of refusal was, upon re-hearing, confirmed by the present Lord Chancellor. From this order, and from other orders made in both causes, among which was that above a See 1 Dow. & Clark, 169. b 13th New Orders. c 1 Russ. & Myl., 1-7. him, but should submit to the rules of our Court like all other suitors. The laws of England recognized no distinction between suitors. The law on this matter was fully laid down in Calvin's case,d and in the case of the Columbian Government v. Rothschild. The law of nations had nothing to do with the matter, and the analogy with peers, corporations, infants, or lunatics, did not hold. Lord Wynford and Lord Plunkett in hearing the case argued, said there was no necessity to postpone their judgment. Although the King of Spain was justly allowed to sue in our Court in his political capacity, yet he did not import any privileges that could displace the practice as applying to other suitors. Lord Lyndhurst, in moving the judgment of this House upon The Lord Chancellor, who was assisted by Superior Courts: K. B. Practice Court; Common Pleas; Exchequer. the demurrer, said that the appellant was on the same footing with the respondents, meaning clearly that he was liable to all the rules to which other suitors submitted, and the decision in the case of the Columbian Government v. Rothschild f went on the same view. The orders of the Courts below were affirmed, with costs. The King of Spain v. Hullet & Co., 19th and 20th of August, 1833 King's Bench Practice Court. BAIL.-NOTICE OF JUSTIFICATION. The rules of T. T. \ W. 4., as to notice of justification, do not apply to country bail. In this case country bail had been filed at the Judge's chambers on the 6th of May. Notice of justification was given on the same day for the 8th. It was objected, when the bail came up to justify, that four days' notice of justification had not been given, as required by the rules of Trinity Term, 1 W. 4., and therefore that they could not pass. Putteson, J. was of opinion that the rule referred to only applied to cases where the bail were put in and justified at the time of putting in. Here the bail had not been put in and justified at the same time, and therefore the rule did not apply. Bail justified.-Smith's bail, T. T. 1833. K. B. P. C. SETTING OFF JUDGMENTS.-CAPTAIN AND OWNERS.-VERDICT. The amount of a verdict cannot be set off against that of a judgment. 11 that the defendant had been summoned to answer the plaintiff in an action on the case," and then declared "on promises." Barnewall supported the demurrer, and contended, that since the passing of the Uniformity of Process Act, the 2 & 3 W. 4. c. 39, an action" on promises" was a new form of action, and consequently different from an action "on the case;" he referred to the first form given in the schedule in the act. There was consequently a variance between the form of action stated in the process, and the form in which the plaintiff declared. He cited King v. Skiffington,a in which the Court of Exchequer held that a writ of summons being to answer the plaintiff in an action of trespass on the case, followed by a declaration in assumpsit, is irregular, and may be set aside." Taunton, J.-The action on promises" is an action" on the case." There is nothing in the objection. 66 66 Judgment for the plaintiff-Wilson v. Prime, T. T. 1833. K. B. P. C. Common Pleas. RESCUE. SHERIFF'S RETURN.-BAILIFF. The Court will grant an attachment absolute in the first instance against rescuers, where the sheriff returns a rescue from his bailiff. In this case the Sheriff returned, that having made his warrant to his bailiff to take the defendant, the bailiff took him accordingly, and Application to set off judginents. In this kept him until A. B. and certain other persons case the plaintiff in the first action had reco-rescued him out of the bailiff's custody. vered against his owners a sum of 1147. 8s, and for that amount had signed judgment and issued execution. The money was levied, and in the hands of the sheriff, with notice to retain it. In the second action, which was by the owners against the captain, a verdict was found in favour of the owners for 1437. 15s.4d. A rule nisi for a new trial was, however, obtained in the Court of Exchequer, in which the action was brought, and was still pending. The present application therefore was to set off the two amounts against each other. Patteson, J., was of opinion, that as the owners had not obtained a judgment, the present application could not be sustained. Rule discharged, with costs.-Garrick v. Jones and others-Jones and others v. Garrick, T. T. 1833. K. B. P. C. DEMURRER.-PROOFS.-UNIFORMITY OF It is no ground of demurrer that the decla- Demurrer to a declaration. In this case the declaration, in setting out the process, alleged 1 Simon, 94. Wilde, Serjt., moved for a rule absolute in the first instance for an attachment against the rescuers, on the authority of Sir W. Jones, 197, cited in Com. Dig. Rescous, D. 4. The Court, on that authority, granted the rule accordingly. Rule granted.-Gobby v. Dewes, T. T. 1833. Com. Pl. Court of Exchequer.. INTERROGATORIES.-WITNESSES' EXPENCES. -COMMISSION. Since the 1 W. 4. c. 22, it is discretionary with the Court whether they will allow the expences of foreign witnesses brought over for the purposes of a cause, or only the costs of a commission. This was an action against the defendant for the breach of an agreement in not procuring for the plaintiff a situation abroad, and for the expences the plaintiff was put to in removing himself and family, and returning. The jury gave 500/. damages. Two witnesses, sons of a 1 Dowl. Prac. Cas. 686. 12 Superior Courts: Exchequer.-Sittings of the Master of the Rolls. the plaintiff, had been brought from Barbadoes for the purpose of proving the plaintiff's case. They were sworn to be essential. The master, in taxing costs, had allowed the expences of their journey here and back, and during their stay here, amounting altogether to 3807. SITTINGS OF THE MASTER OF IN AND AFTER MICHAELMAS TERM, 1833. Richards having obtained a rule nisi for reviewing the master's report, and for disallow The Sittings will take place in the Mornings at ing the expences of the witnesses' voyage here and back Erle shewed cause, and referred to Tremain v. Barrett, a where it was held that if a witness is bona fide sent for from a foreign country, Ten o' Clock. for the sake of his testimony in an intended Monday, November 4< Lord Lyndhurst, C. B.-Would it have been safe to examine those witnesses under a commission? Erle. The whole case rested upon those two witnesses. Prudence might require that they should be brought over. The 1 W. 4. Tuesday c. 22, gives the Court power to examine wit- At Westminster.-General Petitions, and Petitions and Further Directions by Consent. At Westminster. Causes, Further Directions, and Ex 5 6 7 neral Paper. Monday Richards, in support of the rule. The ex- Saturday pences of commissions under that act are in the discretion of the Court. The affidavits do not shew for what purpose the witnesses were brought over. Bringing over two witnesses, and keeping them here from November to May, could not be material. Both could not be wanted. 8 ceptions in the Ge At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper. 9 At Westminster. 11 12 13 14. 15 Lord Lyndhurst, C. B.-A party having no power to compel the attendance of witnesses Friday abroad, to prevent injustice, the 13 G. 3. c. 63, gave the Court power to issue a commission for the examination of witnesses in India, and the 1 W. 4. c. 22, has extended that power over all his majesty's foreign possessions. master has exercised no discretion in this case, It thinking himself bound by the cases. pears to me, that it is for the discretion of the Court in each particular case. But we will consult with the Judges of the other Courts, and if we are of opinion that it will depend upon the facts of each particular case, we will refer it back to the master to inquire. Vaughan, B.-There is no provision in the Friday act altering the jurisdiction or discretion of the Court. In a late case in the King's Bench, the master allowed the costs; but the question is now before Mr. Justice Parke. 22 Causes, Further Di rections, and Ex ceptions, in the General Paper. At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper. At Westminster. Causes, Further Di rections, and Ex ceptions, in the General Paper. At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper. At Westminster. Causes, Further Di Upon a subsequent day, Vaughan, B., who tried the cause, expressing his opinion that it Saturday was a case in which the witnesses were properly brought over, the master's report was confirmed. M'Alpine v. Coles, T. T. 1833. Excheq. Monday a 6 Taunt. 89. At the Rolls.-At 10 o'clock, to swear in Solicitors, and General Petitions. Places appointed for the Trial of Issues. At the Rolls.-Causes, 13 At Preston, on Tuesday, the 14th of January, 1884, for the Northern Division. At Liverpool, on Wednesday, the 15th of January, for West Derby Hundred. At Manchester, on Thursday, the 16th of January, for Salford Hundred. Inquiries and Issues from the Superior Courts, in actions for demands under 201., pursuant to the late act, for the Further Amendment of the Law, and the Better Advancement of Justice, may be tried at any of the above places, being entered in the paper at the Sheriff's Office in Preston, on the Monday preceding each Court. The Court to begin at ten o'clock in the forenoon each day. EDMUND LODge, E. CHESTER, Staple Inn, LANCASHIRE. At the County Court of Sir John Gerard, Bart., Sheriff of the county of Lancaster, holden at Preston, the 22nd day of October, 1833. Before Thomas Batty Addison, and John Addison the younger, Esqrs., Barristers at law, suitors. And Edmond Lodge, gentleman, acting under Sheriff. CARMARTHENSHIRE. I, David Lewis, High Sheriff of the said county, do hereby give notice, that I will, once every month during my sheriffalty, hold a Court at the Shirehall, in the town of Llandilo, in the said county, for the purpose of trying all issues that may be directed to me, by virtue of an act passed in the third and fourth years of the reign of his present Majesty, King Williain the Fourth, intituled, “An Act for the Further Amendment of the Law, and the Better Advancement of Justice." And, I do hereby further give notice, that the first Court for the above purpose will be held on Thursday, the 24th instant, and so from month to month so long as I remain in DAVID LEWIS. office. It was ordered by the Court, that the next County Court, and every alternate County Court thereafter, shall be holden by adjournment, on the second day of the sitting of such Court, in the town of Liverpool, for the perfecting of Inquiries, and the Trial of Causes, in cases wherein the residence of the plaintiff's attorney, or the plaintiffs themselves, when suing in person, shall be within the hundred of West Derby, and that no such causes shall be tried at Preston, at any Court which shall be Day of Oct. 1833. adjourned to Liverpool as aforesaid; but nevertheless, such causes may be tried at Preston as heretofore, at any Court which shall not be so adjourned. In pursuance of the above order the County Courts of the present Sheriff will be held as follows: At Preston, on Tuesday the 19th of November, 1833, for the Northern Division of the county. At Liverpool, on Wednesday, the 20th of November, for West Derby Hundred. At Manchester, on Thursday, the 21st of November, for Salford Hundred. At Preston, on Tuesday, the 17th of December, for the Northern Division, and West Derby Hundred. Dated this 18th DEVONSHIRE. Notice is hereby given, that the Sheriff of Devon will, in pursuance of the act 3 & 4 W. 4. c. 42, hold Courts at the places and on the days following, for the trial of all such actions indorsed on the writ of summons, shall not (where the sum sought to be recovered, and exceed 204.), as shall be directed by either of the Superior Courts at Westminster, to be tried in Devon, that is to say, Exeter. At the Castle of Exeter, on Wednesday, the 6th of November next, and every alternate Wednesday during the Sheriffalty of John Quicke, Esq. Plymouth. At the Guildhall, Plymouth, on Wednesday the 13th of November, WednesAt Manchester, on Thursday, the 19th of day 11th of December, Wednesday 8th of JaDecember, for Salford Hundred. a See Vol. 6. p. 494, for the places appointed in Derbyshire, Nottingham, Northumberland, and Yorkshire. nuary, and Wednesday 5th of February next. Barnstaple.-At the Guildhall, Barnstaple, on Friday the 15th of November, and Friday the 10th of January next. At eleven o'clock in the forenoon of each of the said days. 14 Places appointed for Trial of Issues.-Answers to Queries.-Queries. Provided that the writs commanding the Sheriff to try the issues be delivered at the Under sheriff's Office in Exeter four clear days before the Court-day on which the same are to be tried. HEN. W. FORD Under-sheriff. Dated Under-sheriff's Office, Exeter, Oct. 21, 1833. [We think much credit is due to the Undersheriffs in general for the prompt attention which they have paid to the interests of the suitors, by the appointment of Monthly Courts; and in Lancashire, it will be observed, where the business is unusually extensive, the Undersheriff incurs the expense of appointing barristers as assessors.-ED.] Law of Property and Conveyancing. LEASE. EXECUTORS. P. 463. If the lease was for years, it would go to the executors, because personalty; if for lives, the executors would take it under the statute of Charles the Second. BARRING DOWER. P. 464. Ω. ANSWERS TO QUERIES. Law of Landlord and Tenant. EXECUTION.-RENT. P. 462. 1. Before the removal of goods, the party at whose suit the execution is sued out shall pay the landlord such sums as shall be due for rent, providing it does not amount to more than one year's rent; and the sheriff can levy and pay to the plaintiff as well the money so paid for rent as the execution money; see 8 Anne, c. 14. But notice to the sheriff must be given in order to subject him to an action; and unless the rent be paid the sheriff must quit; and if he does not quit, a special action on the case lies against him after notice of the rent due. See 2 Wilson, 141. R. C. S. super 2. Goods in the custody of the law cannot be distrained for rent. The sheriff being in possession, under exccution, a distress vening is bad. By the statute 8 Anne, c. 14, s. 1, the sheriff is bound to pay to the landlord only the rent (not exceeding a year) due at the time of the levy. RENT IN ADVANCE. P. 463. Ω. Law of Landlord and Tenant. REPLEVIN. A. distrains on the goods of B. for rent in arrear, and retains possession till the sixth day, when he appraises and sells them, but without having first searched the sheriff's office to ascertain whether a replevy had been entered; B. had given the usual bond to the sheriff's deputy (the distress being made in the country) in the morning of the sixth day, but the bailiff did not appear with the warrant till late in the evening of the sixth day, the goods having been then all sold. Can A. justify such sale? M. J. SUB-LESSEE'S LIABILITY.-MORTGAGE. A. leases certain property to B. at 50% a year; B. leases the same to C. at 40l. a year; and C., after underleasing them to other parties at 807. a year, mortgages them to D., who calls upon and receives from B. the 107. a year, and pays 501. rent to A.; C.'s lessees quit the premises, and A. finding nothing left to distrain on compels B. to pay 127. 10s., the quarter's rent; C. is insolvent. Can B. compel D. to pay 107., a quarter's rent, D. being mortgagee, and having received the quarter's rent from C.'s lessees on their leaving? E. S. Law of Property and Conveyancing. FREEHOLD TITLE. Since the statute 3 & 4 W. 4. c. 27, (§§ 2 & 24) and after the last day of the present year. will a purchaser of a freehold estate be bound to accept a 20 years' title, in the same manner as heretofore he has been bound to accept a 60 years' title? A CONSTANT READER. MORTGAGE.-SALE. DAMAGES. A., owner of an estate in mortgage to B. for 2500/., sells it to C. for 40007., to be paid in equal portions, with interest in January, July, December, and June, on payment of which |