by reason that, on or about the 23rd day of November, A.D. 1839, Hugh Ellison, her father, was and ever after until his death, which happened A.D. 1842, continued to be, seised of an estate in fee-simple in possession, in a certain house situate in your said parish of Carlton, and in or near to a street called New-street, in your said parish, having acquired the same otherwise than "by purchase, for which the consideration-money did not amount to the sum of 301. bond fide paid ;" and being so seised, he inhabited by personal residence in the said house for forty days and upwards; that is to say, during all the time of his being so seised as aforesaid, and until his death, and that he never, after the acquisition of the said settlement in your said parish of Carlton, did any act whereby to acquire a settlement in our said township of Marsden or elsewhere; and that the said Jane, single woman, was an infant, and still being with her father, and was unemancipated and a member of her father's family when he acquired the settlement, and hath not done any act whereby she hath acquired any legal settlement other than that of her said father's in your said parish. made to them of the property. That afterwards, by viate the inconvenience resulting from, and the frauds a deed bearing date the 9th April, 1822, and to which committed by, persons buying very small interests in the members of the said club were parties, reciting land, for the purpose of procuring a settlement. the agreement made by the vendor with the said That consideration is an answer to the suggestion club for the sale to them of the said land, the said that all the members of the club gained a settlement land and houses were conveyed by way of mortgage in 1822, which supposes that thirty persons, each to Mr. Henry Alcock, to secure the sum of 1737. 14s. subscribing 17. towards the purchase of an estate, paid by him at the request and by the direction of could thereby earn thirty settlements. Here, the the said club, as and for the purchase-money of the purchase of the estate was complete in 1822. The said land, the sum of 1007. advanced by him to the word "purchase" is used in a popular sense, and members of the club, and all such further sums of the question is, when the purchase was effected, money as he should advance to them, not exceeding not when the legal estate was conveyed. In in the whole 5007. That the purchase-money for the the year 1822 the pauper's father had paid nosaid land did not amount to the sum of 301. for each thing like 301. The mortgagor in possession, not member of the club. That by a deed bearing date the the mortgagee, is the person who gains the settle16th December, 1825, the property was charged with ment, and therefore, in 1822, if his proportion of the a further sum of money. That the order in which purchase-money had been sufficient, Ellison would members were entitled to have houses built for them have acquired a settlement. (Rex v. Edington, was determined by lot. That in March 1824 Hugh 1 East, 288; Rex v. Tedford, 2 Str. 1014.) It was Ellison drew his share, and between that time and quite immaterial who paid the purchase-money, the August 1825 had a house built for him by the club purchase was complete in 1822; that was the only on the said purchased land, according to the said ar- occasion at which there was a seller, and there can be ticles of agreement, and during the last-mentioned no purchaser without a seller. (Baxter, app. Brown, 12. That for a long time before and at the time of month he entered into possession thereof, and con- resp. 7 M. & Gr. 198.) What subsequently took the making of the said order against which we now tinued to live therein with his family till 1842, when place was an improvement of the property by the appeal, the last place of the legal settlement of the he died. That he paid rent for the house to the joint-tenants, and then a division of the property so said Jane Ellison and her said two children was in club from 1832 to July 1838. That he was assessed improved, according to their articles of agreement. your parish of Carlton, by reason that, in or about and paid rates for the relief of the poor of the parish The ultimate value after the severance by partition the year 1825, the said Hugh Ellison, her father, in- of Carlton from July 1833, though previous to is beside the question, for the law is quite settled habited by personal residence for forty days and up- that time the club had paid them for that that improvements to any extent will not confer a wards, that is to say, from that time continually for house. That the annual value and rent of the house settlement on the purchaser of an estate which is the space of fourteen years and upwards, in your said was under 101. That on the 1st of April, 1829, purchased for less than 301. (Rex v. Dunchurch, parish, during all which time he was possessed of a Hugh Ellison had paid upwards of 301. for his Burr. S. C. 553.) If a man buy a piece of land for certain estate and interest in land in fee-simple in monthly and annual payments in respect of his share 201. and build on it a house worth 20,000. he gains possession; that is to say, as joint tenant in common in the said building club. That the said club ended no settlement. (They referred also to Rex v. Lossen, with certain other persons, forming along with him in July 1838, when all the shares were paid up, 2T. R. 577, and Rex v. Selford, Burr. S. C. 516.) a certain society or club commonly called a building and the houses built. That Hugh Ellison had Cur, adv. vult. club, in certain land situate in or near a street called then paid in monthly payments of 6s. 8d. each, Wednesday, July 11.-Lord DENMAN, C. J. deliNew-street, in your said parish, of which estate and the sum of 651. and in annual payments of 17. each, vered the judgment of the Court.-In this case the interest he became possessed otherwise than " by the sum of 16. making together the sum of 817. question is, whether Hugh Ellison gained a settlepurchase, for which the consideration-money did not That on the 23rd of November, 1839, the moneys ment by the purchase of an estate or interest in land, amount to the sum of 301. bona fide paid." That and interest then due to him from the club having of which the purchase-money bona fide paid is 301. the said Hugh Ellison did not do any act whereby been paid off by them, the mortgagee conveyed the The fee-simple was conveyed in 1839, at which time, to acquire a subsequent settlement in Marsden afore- said land, with the houses so built on it, to the seveon the advance of 811. a conveyance was made to said or elsewhere; and that the said Jane Ellison, ral members of the club, and the said house so occu- him in consideration of that sum. But it was consingle woman, was an infant still living with her pied by Hugh Ellison as aforesaid, was by the said tended that he had, in 1822, acquired an equitable father, and was unemancipated and a member of her deed conveyed to him in fee. If this Court should estate in the land on which the house was afterwards said father's family when he acquired the said settle- be of opinion that the eleventh, twelfth, or thir- built; that such estate was acquired for less than ment, and hath not done any act whereby she hath teenth grounds of appeal were either of them good 307.; and that if the value was raised only to the acquired, nor hath she at any time acquired, any and sufficient to entitle the appellants to prove the requisite amount by improvements subsequent to the legal settlement other than that derived by her from facts above mentioned in answer to the case of the purchase of it, no settlement is gained. And the law her said father in your said parish; and that when respondents, then the question for this Court on those is clearly so, as stated in Rex v. Dunchurch, Burr. the order now appealed against was obtained the said facts was, whether Hugh Ellison acquired a settle- S. C. 553. We do not find the facts to bring the two illegitimate children were entitled to have and ment in the parish of Carlton, which the pauper Jane present case within that law. The agreement for follow the said settlement of their mother Jane El- Ellison derived from him. If this Court should be the purchase is stated to be by a building-club for lison, they having severally been born bastards since of opinion that Hugh Ellison did so acquire a settle- the purposes thereof, and the mortgage was with the the month of August, A.D. 1834. ment in the parish of Carlton, which Jane Ellison same club; and though the members of the club had 13. That the said Hugh Ellison acquired a settle-derived from him, then the order of Sessions was an interest in the land while the building was going ment in your said parish of Carlton in or about the to be confirmed, otherwise the order of Sessions on, yet no individual member had a clear equitable year 1839, by then inhabiting by personal residence was to be quashed, and the order of justices was to estate in any particular portion of it until it was in your said parish for more than forty days, to wit, be confirmed. actually conveyed to him. In Rex v. Woolpit, 4 for a whole year and upwards, on his own estate, D. & Ry. 461, Bayley, J. citing Rex v. Geddington situate in your said parish, which estate consisted of and Rex v. Long Bennington, states that an equitaa dwelling-house, more particularly mentioned in the ble right is not sufficient to confer a settlement; it ground of appeal eleventhly above stated, and that must be an equitable estate actually vested. Then if at the time when the said Hugh Ellison so acquired an equitable interest prior to the conveyance would his said settlement in your said parish, the said Jane not have been sufficient to confer a settlement if a Ellison, single woman, was an infant still living with sufficient price had been paid, neither is it sufficient the said Hugh Ellison, unemancipated and a memto make the time of the acquirement of that interest ber of his family; and that the said Jane Ellison the time of the purchase, so as to make the subseaccordingly derived from the said Hugh Ellison, her quent building to be an improvement of the purfather, the said settlement so acquired by him; and chase. We do not find that any estate was vested in that the said Jane Ellison has not since acquired any the pauper's father until the conveyance to him, and other settlement, but still retains the said settlement at that time the purchase-money paid amounted to in Carlton, which she so derived from her said father; more than 301.; consequently the settlement is gained. and that when the order now appealed against was Therefore the order of Sessions must be confirmed. obtained, the two illegitimate children were entitled Rule discharged. to have and follow the same settlement of the said Jane Ellison, having been severally born bastards since the month of August, A.D. 1834. At the trial it appeared that the pauper was settled in Marsden, unless a settlement was gained by Hugh Ellison in Carlton under the circumstances referred to in the grounds of appeal above set out. Pashley and F. Thompson, in support of the order of Sessions.-The foundation of a settlement by estate was, at first, the interpretation put upon stat. 13 & 14 Car. 2, c. 12, viz. that it was not intended to interfere with a man's right of living upon his own property, however small the value of it might be. The stat. 9 Geo. 1, c. 7, s. 5, engrafted a limitation with reference to settlement in cases of estates bought by the party, which, since that Act, must be such that the consideration for the purchase at least amounts to the sum of 301. bona fide paid. Here the estate was purchased either in the year 1822, when it was conveyed to Alcock in trust for the building society, or in 1839, when it was conveyed in fee to Hugh Ellison. Probably its actual purchase by the pauper's father ought to be attributed to the latter date, at which time the consideration-money amounted to 817. It is quite immaterial how such a sum is made up. In copyholds it is sufficient if the 301. be made up by the purchasemoney, the fines and the fees together. (Paul's Walden v. Kempton, Foley, 238.) But even if the only purchase is to be ascribed to the year 1822, and The appellants proved the following facts:-That the rest of the proceedings to be regarded as some a building club, called the "Carlton Building So- arrangement between the members of the society, ciety," was formed in April 1822, of which Hugh not amounting to a "purchase" within the meaning Ellison, the father of the pauper, then became a of the settlement laws, a settlement was gained in member and a subscriber for one share. That the respect of the conveyance in 1822 by all the members club consisted of fourteen members, and that their of the society. The statute says, "no person or object was the erection, upon a piece of land to be persons shall acquire a settlement by virtue of any purchased for that purpose, of an equal number of purchase whereof the consideration of such purchase houses as there were shares subscribed for by the doth not amount," &c. The purchase-money in 1822 members. The funds necessary for buying the land was considerably more than 301.; and an equitable and building the houses were to be obtained by the estate is sufficient to confer a settlement. It was periodical payments of each member, the rents not presumed by the Legislature that persons would arising from time to time from the houses as they conspire to evade the Act; and therefore there is no should be completed and occupied, and fines payable provision against any number of persons acquiring a by the members for infractions of the rules of the settlement by a single purchase; and such a purclub as severally specified in certain articles of agree-chase, where there is no ground for imputing fraud ment entered into by the members on the formation or dishonest conduct touching the settlement, will of the club (a copy whereof was annexed, to be confer a settlement. (Rex v. Staplegrove, 2 B. & taken as part of the case). That the members of A. 52.) the club entered into a contract for the purchase of a piece of freehold land in Carlton, and commenced building houses thereon before any conveyance was entirely upon the construction to be put upon the Thursday, July 5. WHALLEY V. M'CONNELL. Held, that the plea was not proved, inasmuch as ! Trespass.-For false imprisonment. Pleas (inter alia).-1. Not guilty. 2. A justification under process out of the County Court, in a suit by the now defendant against the now plaintiff. Replication to the second plea.-De injurić. At the trial, which took place before Erle, J. at Liverpool, during the Summer Assizes of 1848, it appeared that a person named Ireland being indebted to the now defendant, a bill, stating the demand, was delivered by the defendant's messenger to the plaintiff by mistake; that the defendant obtained a summons against Ireland in the County Court, which the same messenger served upon the plaintiff, insisting that the plaintiff was Ireland, although the plaintiff on that and all other occasions informed him of his mistake. Upon the return of the summons, the defendant in the County Court not appearing, judgment was obtained, and the debt ordered to be paid. Upon nonpayment pursuant to that judgment, application was made to the judge of the County Court for a summons, calling upon Ireland to shew cause why he should not be committed to prison; which application was granted. That summons was also served upon the plaintiff, and upon disobedience of that summons, a capias against Ireland was issued, under which the plaintiff was arrested and imprisoned. Under the direction of the learned judge the jury found a verdict for the plaintiff, but leave was reserved to move the Court to enter it for the defendant upon both issues. Accordingly in the following Term a rule nisi to enter the verdict for the defendant or for a new trial was obtained; against which 66 recovered the judgment. The effect of a judgment limitation alone indicates the intention of the Legisin the County Court, which is a court of record, is lature to protect the party charged from repeated the same as the effect of a judgment in a Superior applications. Other statutes in pari materia indiCourt. The party against whom judgment has been cate the same intention still more clearly. The 4 & obtained is liable to final execution; and Fisher v. 5 Wm. 4, c. 76, contained a provision which in effect Magnay shews that a man may be liable, though he prevented more than one application, for it required has been sued under a wrong name. At all events, the application to be made to the next General the defendant is not responsible for the imprison- Quarter Sessions after the child became chargeable. ment. The proceedings upon the fraud summons But if the statutes leave the matter in doubt, upon are not so much in the nature of execution as of general principles, it is clear that a matter once judipunishment. [ERLE, J.-I thought the defendant cially determined by a competent tribunal cannot be could have procured the plaintiff's discharge.] The reviewed by the same or another tribunal of merely only mode of getting discharged is by paying the equal authority. The cases of R. v. Tennant, 2 money. (They referred to secs. 98, 99, 103, and Ld. Raym. 1423; 2 Str. 716; and Anon. 1 Vent. 110 of the County Courts Act, 9 & 10 Vict. c. 95.) 59, shew that after one refusal by the magistrates the Cur. adv. vult. matter becomes res judicata. A recent case before Erle, J. in the Bail Court (Reg. v. The Justices of Bucks, 18 L. J. 113, M. C.) may be relied on as an authority the other way. It is true that in that case the learned judge said "a former decision upon the merits in favour of the putative father was an answer to the application;" but his decision proceeded upon the ground that the justices to whom the second application was made were the proper parties to decide whether the matter had been already conclusively determined; and in this case the magistrates were the same on both occasions; and upon the authority of R. v. The Justices of Bucks, their decisions that the first adjudication was final cannot be reviewed by this Court. JUDGMENT. Thursday, July 5.-ERLE, J.-This was an action of trespass and false imprisonment: the plea justified under process out of a County Court in a suit there by the now defendant against the now plaintiff. The question has been, whether the plea was proved. The evidence in support thereof was, that the defendant having a debt due from one Ireland, sent in a bill by a messenger, who delivered it to Whalley by mistake, believing him to be Ireland, and the defendant then issued a summons out of the County Court against Ireland intending to issue it against him as his debtor; then that summons was served on Whalley, the plaintiff, under the direction of the same messenger, who in- Montague Smith, contrâ.-The distinction besisted there was no mistake in this respect, the plain-tween the two statutes is clearly in favour of this tiff being Ireland. Upon the usual ex parte proof of application. The Legislature, in the former statute, Crompton and Cowling (Wednesday, June 13), the service of the summons judgment was obtained rendered a second application impossible; in this shewed cause.-1. As to the issue upon not guilty against Ireland, and a second summons and capias statute that provision is omitted; and the inference the verdict is clearly right. It is said that the learned were issued, all of them being against Ireland by is, that the Legislature intended to permit a second judge at the trial was wrong in describing the capias name, and all of them being served upon the plain- application. Again, this statute gives an appeal to issued by the judge of the County Court as a writ of tiff. Throughout these proceedings the plaintiff uni- the putative father in case an order is made, but execution, instead of a proceeding in pœnam; and formly stated he was not Ireland, and informed those none to the mother if an order is refused. Further, that therefore there ought to be a new trial; but who served him of their mistake. On these facts we the Legislature gives the woman a year within which sec. 110 gives the judge power to order the discharge are of opinion the plea is not proved. The allegation to make her application; and to allow a second apof the party imprisoned; and for some purposes it that the defendant issued the summons against the plication, involves no inconsistency. In this case certainly appears to be a writ of execution, though plaintiff is not true; it was against another man by the magistrates, on the first occasion, refused to of an anomalous character. (They referred to secs. his proper name and intended by the defendant to be make an order; if they make an order on another 98 and 99 of the County Courts Act.) Ex parte Kin- against him, and served upon the plaintiff only by application, supported by other evidence, they will ning, 16 L. J. Q.B. was decided on a different statute. reason of a mistaken supposition that he was the not thereby impugn their first decision. Dismissal of But that question is not material in this case, for it debtor. Whatever force there may be in the such an application is analogous to a nonsuit at Nisi is clear that the defendant if he had chosen to inter- argument raised as to the proper course to Prius, and not to a verdict for the defendant. (Paley fere might have prevented the plaintiff's imprison- be pursued by one who is wrongly served with on Convictions, 151.) A second application may be ment; and at all events it was the defendant's process in an action, not being the intended de- made for an order of removal after a first has been wrongful act which placed him in the situation, fendant, the allegation in question is material, and refused. Why not in this case? [WIGHTMAN, J. which subjected him to imprisonment. (Thompson indeed it is the foundation of the plea, and that Because both parties are before the Court.] There v. Gibson, 7 Mee. & W. 456, per Parke, B.) foundation falling the superstructure falls also; and is no judgment in existence which concludes the par[COLERIDGE, J. referred to Lock v. Ashton, 18 the distinction between mesne process and final ties. pro[ERLE, J.-At chambers, the indorsement L. J. 76, Q.B.] 2. The plea of justification was not cess does not arise in this case as Whalley never be- application dismissed" is a judgment against proved, for the present plaintiff was not, but Ireland came the defendant and never held himself out as which an appeal lies; but if the indorsement is " no was the defendant in the County Court. The de- Ireland. Upon this ground we distinguish the pre-order," no appeal lies. Applying that principle, fendant supposed that he was suing Ireland. Mesne sent case from that of Fisher v. Magnay. It was have not the magistrates here pronounced the deciprocess against the wrong person has always been stated that the plaintiff Fisher there, notwithstanding sion-"application dismissed?"] There is in such held bad; and in this case if the first writ was the misnomer, assumed to be the defendant in the first cases written authoritative evidence of the decisions, bad the whole proceeding fails. A plea of justifi- action; and if, though not defendant to the action, he and parol evidence is unnecessary. In this case the cation under process of an Inferior Court or under is to be concluded from denying that he is the defend- magistrates were compelled to hear evidence of what mesne process must shew all the proceedings from ant, final process may be valid, though not against him passed on the former occasion, and there may have the commencement. Com. Dig." Pleader," 3 M. 24; by his real name, but by the name that he must be been a mistake on the part of the witness, or of them.Doe v. Parmiter, 2 Lev. 81; Shadgett v. Clipson, taken to have adopted. Whatever be the nature of [ERLE, J.-The 4th section gives power to adjourn 8 East 328; Cole v. Hindson, 6 T. R. 234; Finch v. the execution upon the summons it is clear it was from time to time; that would be for inquiry. Then Cocken, 2 Cr. M. & R. 196; and all the steps in the moved for by the defendant, and executed against the the order is not to be made after forty days. Do proceeding must be proved as facts. There cannot be present plaintiff under his direction; the defendant not these two provisions lead to the conclusion that a judgment in an Interior Court without appearance. is therefore responsible for the wrongful imprison- there is to be but one application?] They seem (Williams v. Lord Bagot, 3 B. & C. 772.) Here the ment under it, and the rule must be discharged. rather to shew that a proceeding once commenced plaintiff was not the party meant; and even if he had must be completed within a certain time, or be been, he was not the party described in the plaint. abandoned; but that is not a reason why fresh proIn Jarmain v. Hooper, 6 M. & G. 827, it was held that ceedings may not be instituted. Suppose the woman the party must not only be properly described in the does not appear, she may clearly have a second sumwrit, but he must also be the party meant to be arrested. mons, and if so, there are cases in which a second [COLERIDGE, J.-The principle will probably not be application may be made. [ERLE, J.-If she may disputed; but it will be argued that the plaintiff has make the second application, and they must hear it, so conducted himself as to give the defendant the there seems to be no reason why she may not apply right to say that he was the man intended.] The at all the petty sessions during the year.] Pertinaplaintiff never represented that he was Ireland; he cious litigants are rare, especially in the class to took no notice of the process; and he was entitled which most of those applicants belong. [WIGHTto do so. Freeman v. Cooke, 18 L. J. 114, 117, Ex. MAN, J.-A nonsuit is never in invitum. That is per Parke, B. Fisher v. Magnay, 5 M. & G. 778, the theory of nonsuit only.] In R. v. Jenkins, Cas. is distinguishable. (They also referred to Crawford Temp. Hard. 301, it was expressly decided that it v. Satchwell, 2 Stra. 1218; and to ss. 59 and 80 of was beyond the power of the justices finally to acquit the County Courts Act; Hardres, 323, and 1 Saund. the party charged as putative father; and therefore 89.) R. v. Tenant is overruled. Martin, Q.C. and Atherton, in support of the rule.-Finch v. Cocken, Cole v. Hindson, and the other cases cited, were decided upon the distinction between mesne and final process; which is this, that " upon the former the defendant has a right to insist upon being sued by his real name; but if, when sued in a different name, he omits to take his objection in the mode pointed out by law, he acquiesces in being sued by that name, and cannot afterwards retract his admission." (Per Cresswell, J. in Fisher v. Magnay.) Against whom did the defendant intend to proceed in the County Court? Against the person served with process. The plaintiff, if the real person, sued by a wrong name, should have taken the objection in proper form;-if not the debtor, then he should have defended the suit. The defendant clearly meant to proceed against the plaintiff when the fraud summons was served; he must have meant to proceed against the man, against whom he had Rule discharged. Wednesday, July 11. REG. v. THE JUSTICES OF GLOUCESTERSHIRE. Bastardy-Second application on further evidence. This was a rule calling on two justices acting in Thursday, May 3.-Keating shewed cause. These applications are regulated by the 7 & 8 Vict. c. 101; but that statute contains no express provision, either permitting or forbidding second application; but the order is required to be made within forty days from the date of the summons; and that The Anon. case, 1 Vent. 59, is wrong in one point, and can scarcely be deemed an authority; for it is there said, unless a father can be found, the justices of peace must keep the bastard child themselves." 66 JUDGMENT. Cur. adv. vult. Lord DENMAN, C. J. now delivered the judgment of the Court. The question in this case is whether a second application in bastardy can be made by the mother under the 7 & 8 Vict. c. 101, after the justices at petty sessions have refused the first. The case of Rex v. Jenkyns, a case in the time of Lord Hardwicke, determined that the justices out of sessions had no power to adjudicate that the man against whom the complaint is made is not the father, and to acquit him expressly on that ground, and that as no appeal was given to the parish, they ought not to be concluded. So here no appeal is given to the mother, though it is given to the parties charged, and therefore, if we were to hold that no second application could be made, the parties would be put on unequal terms. The cases cited at the bar were all cited in Rex v. Jenkyns, and the Court took a distinction between the decision of the Court of Sessions, which is final, and that of the mere dismissal of the application to justices out of sessions, and also noticed the alleged inconvenience of a repeated application, and said it was no greater than in other cases, such as applications for orders of settlement, or repressing alehouses, and the like, in which there is no doubt a second application can be made. The statute 7 & 8 Vict. gives the mother a remedy somewhat similar to that formerly given to the parish; it directs the tribunal to which application is to be made, and authorises the justices in petty sessions, on certain evidence, to adjudge the party summoned to be the putative father, and to order him to pay the money; but it contains no direction as to what is to be done if the case is not made out to their satisfaction, nor does the subsequent statute, the 8 & 9 Vict. c. 10, which latter gives in the schedule the forms which are to be used, but no form of adjudication in favour of the party summoned, nor any enactment as to the costs to him, or anything else of the kind. We cannot, therefore, say that the Legislature intended them to have any power to adjudicate finally against the mother. Their dismissal of the application is rather in the nature of a nonsuit in an action, in which case the plaintiff may come again. We are far from saying the dismissal is to have no weight, but we think the justices cannot refuse to hear the second application. If it should appear to them the matter was not finally inquired into on the first occasion, it would be essential to receive any new evidence. We do not think the dismissal can be said not to bear a further inquiry. The rule must therefore be absolute for a damus. Rul absolute (a). which, since the decision of that case, had, until the case of Bird v. Higginson, been invariably adopted, excluded him from any right to costs under that section. All the authorities adduced in the judgment of the Court of Queen's Bench in Bird v. Higginson, as bearing on the question of the plaintiff's right to costs, under the statute of Anne, except the case of Yates v. Gun, 2 Barnes, 122, consist with that construction. In Cooke v. Sayer, 2 Burr. 753, the defendant did not obtain a verdict on any issue of fact, but was entitled to judgment on the whole record; and the Court, therefore, consistently with the above-mentioned construction, held that the plaintiff was not entitled to the costs of the trial. In Jones v. Davies, 2 Barnes, 12, some issues of fact were found for the defendant, and the Court held that the plaintiff was entitled, under the 5th section, to tax and deduct the costs of the issues found for him. In Bartlett v. Spooner, Buller's N. P. 335, the plaintiff was not entitled, as a verdict had not been found for him, as the issues of fact were found for the defendant. In the cases of Duberley v. Page, 2 T. R. 391; Hart v. Cutbush, 2 Dowl. 456; The Duke of Newcastle v. Green, cited in the report of that case; Spencer v. Hamerton, 4 A. &_E. 413; Othir v. Calvert, 8 Bailey & Moore's Reports, 239; Vollum v. Simpson, 2 Bos. & Pull. 368; Wright v. Jackson, 2 Barnes, 126; Dodd v. Joddrell, 2 T. R. 235; Brooks v. Willet, 2 H. & Bl. 435; Bennett v. Coster, 1 Br. & Bing. 465; the plaintiff was entitled under the first provision of that 5th section which relates to the issues. The application in Vivian v. Blake, 11 East, 263, must have been for the general costs, and the plaintiff was entitled to deduct the costs of the issues found for him. This consists with the collection of authorities in the case of Yates v. Gun, correctly reported and subman-stantially overruled by the Court of Queen's Bench in Richmond v. Johnson, which was before the decision of Bird v. Higginson. In the present case the plaintiff is not entitled to the costs of the issues under the statute of Gloucester, nor, on demurrer, under the statute of 4 Anne. Is he then entitled under that section to tax and deduct the costs of the issues found for him? If Bird v. Higginson is rightly decided he is. We, however, think the conclusion arrived at in that decision was not warranted by the cases cited, and that it is opposed to the established construction of the 5th section. According to that construction the plaintiff is not entitled to the costs of the issues of fact found for him under the statute of Anne unless some issues of fact had been found for the defendant also, and therefore no issue being found by the jury for the defendant Gardner, the plaintiff Partridge is not entitled to the costs sought by his rule, and the rule must, consequently, be discharged with costs. COURT OF EXCHEQUER. Reported by FREDERICK BAILEY and MORGAN LLOYD, Esqrs, Barristers-at-Law. TRINITY TERM. A brought an action against B, to which B pleaded The statute of 4 Anne, c. 16, s. 5, gives costs only in cases where some issues have been found for the plaintiff, and some for the defendant, and not in cases where all the issues have been found for the plaintiff. This case was argued at length by The facts and the cases cited, however, sufficiently appear from the judgment, which, after a cur. adv. vult. was delivered by Rule discharged with costs. INSOLVENT COURT. Reported by DAVID CATO MACRAE, Esq. of the Middle Temple, Barrister-at-Law. Saturday, June 2. (Before Mr. Commissioner LAW.) In re CHARLES TINGAY MOLE. Jurisdiction of this Court in country cases-Appointment of assignees. In country cases a nomination of assignees by the judge of the County Court at the hearing will be attended to, but such nomination will not preclude the exercise of jurisdiction affecting these appointments by this Court. This insolvent, a prisoner in Norwich Castle, having petitioned the Court for relief of insolvent debtors, his case was duly referred for hearing to the County Court at Norwich, and upon the 13th of April, 1849, he appeared for his hearing before T. J. Birch, esq. Judge of the County Court of Norfolk, and was ordered to be discharged forthwith. Upon the application of creditors two assignees, John Tyler Godfrey and William Edwards, were appointed. One of these gentlemen declined to act. An application was then made for his removal and the appointment of another assignee. Mr. Commissioner LAW made the following PARKE, B.-In this case Mr. Phipson obtained a rule calling on the defendant to shew cause why the plaintiff's costs should not be taxed on the issues found for him, and be paid by the defendant, after deducting the amount allowed to the defendant. The plaintiff had declared in assumpsit. The defendant pleaded seven pleas: first non assumpsit; the second, third, fourth, fifth, and sixth respectively traversed the allegations in the declaration; the seventh was a plea in confession and avoidance. The plaintiff having joined issue on the first five pleas, demurred to the sixth and seventh, and obtained a verdict on all the issues of fact, with contingent damages, and afterwards upon the argument on demurrer failed, the Court holding that the declara-order:-"Whereas it appears that Robert Edwards, tion was insufficient, and giving judgment against him accordingly on the ground of such insufficiency. Upon this state of the record Mr. Phipson sought to obtain from the plaintiff his costs of the trial of the issues, and as an authority in support of that application cited the case of Bird v. Higginson, 5 A. & E. 83. The plaintiff's right to costs in an action of assumpsit is derived either from the statute of Gloucester, 6 Edw. 1, c. 1, s. 2; or the 4 Anne, c. 16, s. 5. As however the plaintiff in this action has not recovered damages, he is not entitled under the statute of Gloucester, and as all the issues of fact have been found for him, the construction which, in Richmond v. Johnson, 7 East, 583, Lord Ellenborough and the rest of the judges of the King's Bench unanimously put on the 5th section of 4 Anne, c. 16, (a) See Reg. v. Brisby, antè, p. 167; 18 L. J. 157, M.C. | who was nominated assignee jointly with J. T. Godfrey, is unwilling to act. It is ordered that J. T. Godfrey be appointed sole assignee of the estate and effects of the said insolvent debtor." Friday, June 15.-The appointment issued from the office of the provisional assignee. Monday, Aug. 20. Re JOHN PATCHING. Bail. No positive rule has been laid down as to the amount for which sureties will be required to justify upon the application of an insolvent to be admitted to bail till his hearing. This insolvent applied to be admitted to bail, and tendered sureties for his appearance at the hearing. The debts in his schedule amounted to 1071. Nichols opposed for a creditor, and upon examin ing the sureties elicited that the value of their good, and chattels did not probably amount to 3001. o double the amount of the detaining creditor's debts. Mr. Commissioner LAW, upon looking through the schedule, intimated that if the bail justified to the amount of 1701. it was enough. Bail accepted. NOTE. The general practice of the other commissioners is to require bail to justify in double the amount of the detaining creditor's debts. Re JOSEPH WAYRE. A petition under the 1 & 2 Vict. c, 110, may be filed notwithstanding that a prior petition under the Protection Acts is upon the files of the Court. The filing of a petition under the 1 & 2 Viet. e. 110, is no reason for the dismissal of a prior petition not acted upon under the Protection Acts. Dowse applied for the dismissal of a petition filed by this insolvent under the Protection Acts, which had not been proceeded upon, and for leave to file another petition under the 1 & 2 Vict. c. 110. Mr. Commissioner LAW inquired what reason there was for dismissing the petition under the Protection statutes. Dowse said that the petitioner had been advised that he could not file a fresh petition under the 1 & 2 Vict. while a prior proceeding, which had been begun under the Protection Statutes, remained undisposed of. Mr. Commissioner LAW.-So far from there being a necessity for dismissing the petition under the Protection Acts before a man can file another under the Prison Statutes, he has a right to file his petition under the latter, and I shall not think of dismissing the other petition. Application to file petition under Prison Stastutes granted. Application to dismiss petition under Protection Statutes refused. Tuesday, May 1, 1849. (Before Mr. Commissioner PHILLIPS.) Re ROBERT HUTCHINSON. Custom of trade-Fraud. No custom of trade will excuse parties taking goods under circumstances which, if known to the vendor, would effectually prevent him from sending them : Held, that a bargain to pay one creditor at the expense of other traders, upon condition that he was silent as to the insolvent's "circumstances,” was an offence contemplated by the Act of Parliament under the discretionary clause. This insolvent, an auctioneer, came up for his hearing, and was opposed by Birnie, for a creditor, who proved several alleged irregularities committed by the insolvent in the course of business, and, amongst others, that he had proposed to pay a large weekly instalment to the opposing creditor, provided he would be silent as to his circumstances, which would not prevent him from receiving the goods of other parties, which he could sell for the purpose. Counsel contended that such conduct, however common, amounted to a gross fraud, and submitted that the very frequency of the custom demands the reprehension of the Court. Cooke, for the insolvent, urged that an auctioneer must be regarded in the same light as a banker or an attorney. Money was paid to each on a running account, and it would be monstrous if, on a sudden insolvency, either were held liable for moneys paid, or for the "custom of the trade" in taking in fresh goods to meet a general running account. Mr. Commissioner PHILLIPS concurred with the opposing counsel upon the point that no "custom of trade" could excuse ordering and taking in goods under circumstances which, if known, would effectually prevent parties from sending them. The bargain for "silence" implied a sense of guilt, and though he thought the opposing creditor had been weakly credulous, it was his duty to mark his sense of such fraudulent conduct under the discretionary clause of the Act of Parliament, under which the insolvent would be remanded for three calendar months from the date of his vesting order. the younger, executors named in a former will, had brought in a responsive allegation, which had been admitted to proof. The evidence of the wife of John Cullum the elder was required in support of this allegation. Harding applied to the Court for the dismissal from the suit of John Cullum the elder, in order that his wife might be examined as a witness in the cause. Lord Denman's Act, 6 & 7 Vict. c. 85, removes the disqualification on account of interest which might otherwise have attached to Mrs. Cullum. The objection which may be taken is merely technical; that Mrs. Cullum is the wife of one of the parties named in the proceedings, should the statute apply to these courts, but of which there may be some doubt; but the object of the application is to remove that objection by dismissing Mr. Cullum, in order to prevent his legal incapacity interfering with his evidence as a witness. Bayford opposed the motion.-Mrs. Cullum will, in the event of this will, which is set up by her husband and son, being established, take the whole of the property after the death of the widow, so that she is deeply interested in the result of the suit. The rule of the Court is, that where a party is liable for costs, he will not be dismissed; if he has not appeared, he may be dismissed for the purpose of being examined. In Panchard v. Wager, 1 Phill. 212, the appearance was given without authority, and the Court dismissed the executor on that account. (Arnold v. Earl and Welbee, 2 Lee, 380; Sanders v. Wigston, 1 Robert. 460; 9 Law T. 255.) Harding. As to the liability to costs, we are ready to give security for them. Sir H. JENNER FUST.-The practice respecting the dismissal of parties with a view to their being examined as witnesses has altered very much of late years; and the 6 & 7 Vict. c. 85, which was, in Sanders v. Wigston, considered to apply to these courts, has directed that no amount of interest shall incapacitate a witness; but that statute will not apply where the person applying to be dismissed has taken every step in the cause up to the very moment of the application. That being the case with Mr. Cullum, I cannot in justice to the other side allow him to be dismissed now; I therefore reject the motion. Circuit Reports. Reported by JOHN B. DASENT, Esq. Barrister-at-Law. OXFORD CIRCUIT. Hereford, Wednesday, Aug. 1. (Before ERLE, J.) REG. v. HARRIS and ANOTHER. Practice-Evidence of prisoner's statement. Where a statement made by a prisoner before the committing magistrates, appears, on the face of it, to have been duly taken under the statute 11 & 12 Vict. c. 42, s. 26, and is at the trial produced from the depositions of the witnesses taken at the same time, and appears to have been transmitted with them, it is receivable in evidence without further proof. The prisoners were indicted for larceny of forty pounds weight of copper. the prisoner in the form directed by the statute, and It was submitted that no evidence was necessary ERLE, J.-Without deciding whether any further evidence is necessary, I think if the prisoner's statement can be proved in the old way, it will be advisable to adopt that course. Skinner said he was in a position to do so, but as the practice of the Sessions had been to receive the depositions without further evidence, it was very important to have the point settled one way or the other. ERLE, J. intimated that he would consider the point, and give his opinion before the termination of the Assizes. The prisoner's statement was then proved by a police-officer, who was present when it was taken and saw it duly signed. On the following day (Aug. 2), ascertain his view as to the probable ultimate result; for if the probability be that the conviction may be sustained, then I should not consider the prisoner entitled to be bailed; but if there was a probability that the ultimate result would be in the prisoner's favour, then it would be proper to admit him to bail. Under no circumstances should I bail a prisoner in such a case as the present without communicating with the learned judge before whom he was tried. Here, however, the opinion of Mr. Baron Platt is admitted to be against the prisoner on the merits, and therefore without troubling him I must refuse the application. Mr. Baron Platt may be applied to at any time to admit the prisoner to bail if he thinks fit in his discretion to do so. No real hardship is inflicted on the prisoner, for he has been tried and convicted by a jury, and, in the opinion of the judge, properly so convicted. Application refused. REG. v. BAYLIS. Practice Detention of prisoner in custody until a child is instructed in the obligation of an oath. Where a bill for the rape of a child under the age of ten years has been ignored by the grand jury in consequence of the judge refusing to allow the child to be sworn as a wituess on the ground of its want of knowledge of the obligation of an oath, the prisoner was ordered to be detained in custody until the child could be properly instructed. ERLE, J. said,-I have consulted with my learned brother, Mr. Baron Rolfe, as to the proof of statements made by prisoners under the recent Act of Parliament, and I find that he admits them without A bill was preferred against the prisoner for a rape any evidence, considering them as having been duly on Mary Ann Ballenger, a child under the age of transmitted with the examinations of the witnesses, ten years. The child was brought before Mr. Jusunless any thing appears to the contrary. This is tice Erle to be examined previously to going before also, I understand, the practice at Quarter Sessions, the grand jury as to her knowledge of the obliga and, as it would be inconvenient to establish a dif- tions of an oath. The learned judge intimated that ferent course, I shall, in future adopt the same rule. the child did not appear to him to have any notion In a subsequent case at the Monmouthshire As-whatever of religious or moral duties, and that consizes (Reg. v. Hunt, Aug. 6, 1849), Erle, J. upon sequently she was unfit to have an oath administered the counsel for the prosecution applying to have the to her. The bill was consequently ignored by the prisoner's statement read as evidence, said, "You grand jury. ask me for the statement, I hand it down, taking notice that it is in the proper form, and that it has been duly transmitted by the justices to the proper officer of the Court; for if it appears to have been so transmitted, and there is nothing shewn to the contrary, then it is to be assumed to have been duly taken according to, and within the meaning of, the late statute, and therefore no further evidence is necessary." Gloucester, Wednesday, Aug. 8. Practice Admission to bail. Where after conviction by a jury at an Assizes, Gray, on the part of the prosecution, applied that the prisoner should be remanded until the next Assizes. ERLE, J. directed that the prisoner should be detained in custody until the next Assizes, the child in the mean time to be duly instructed. THE LEGISLATOR. Summary. THERE was good cause for congratulation at the rising of Parliament that the session had produced at least one important and beneficial change in a branch of our legal system Huddleston applied to his lordship to admit a where alteration was loudly demanded-the prisoner named Harris to bail under the following Law of Bankruptcy. We have the further satiscircumstances:-The prisoner was indicted at the faction of knowing that other and yet more imlast Spring Assizes for the county of Gloucester, for portant measures are prepared for, and will an offence under the bankrupt laws, for not dis-doubtless become law, next session. Among closing all his property on his examination. He was these the most prominent is the Digesting of convicted, but in the course of the trial certain obSkinner, on the part of the prosecution, proposed jections were taken to the indictment, which Platt, B. our Criminal Law,-which, according to Lord to put in evidence a statement made by one of the before whom the prisoner was tried, reserved for the BROUGHAM's remark, in his memorable letter prisoners, before the committing magistrates. The consideration of the Court of Criminal Appeal, and to Sir JAMES GRAHAM, is but another name requirements of the statute 11 & 12 Vict. c. 42, s.26, (a) no sentence was passed upon the prisoner at the for Codification. After sixteen years of assiappeared on the face of the statement (which was in time. The case came on for argument in Easter duous labour, the commissioners have comthe form given in the schedule to the above Act) to Term, when Pollock, C.B. presided at that court. have been complied with, viz. the question put to A doubt was entertained as to the jurisdiction of this pleted their Herculean task of consolidating (a)" And be it enacted, that after the examinations of new Court to entertain points which arose upon the the entire Criminal Law of the country; and all the witnesses on the part of the prosecution as afore-face of the record, and the case was postponed until the result is that two Bills are now ready to be or one of the justices by or before whom such examination sitting of the Court of Appeal, Lord Denman, C.J. Parliament next session, the first being a said, shall have been completed, the justice of the peace, that preliminary point was settled. At the next together submitted to the consideration of shall have been so completed as aforesaid, shall, without presided, and the Court being composed of different requiring the attendance of the witnesses, read, or cause to be read to the accused, the depositions taken against members, it declined to give judgment upon the Digest of Crimes and Punishments, the other him, and shall say to him these words, or words to the like case; and, on the other hand, it was a matter of a Digest of the Practice of Procedure in respect effect: Having heard the evidence, do you wish to say some doubt whether the Court before which the case of indictable offences. The confusion and anoany thing in answer to the charge? You are not obliged was originally set down for hearing having been dis-malies existing in our criminal law have been to say any thing unless you desire to do so, but whatever solved, any further steps could be taken. In the the subject of continual remark in this Journal, you say will be taken down in writing, and may be given mean time the prisoner remained in custody, and it and we are rejoiced to have arrived at a time in evidence against you upon your trial.' And whatever the prisoner shall then say in answer thereto shall be was under these circumstances that application was taken down in writing and read over to him, and shall be now made to admit him to bail until the case was when the law will be settled upon a lastsigned by the said justice or justices and kept with the decided. ing and rational foundation. We earnestly depositions of the witnesses, and shall be transmitted with hope that like interference and ill-considered them as hereinafter mentioned; and afterwards, upon the amendments at the hands of the Commons, trial of the said accused person, the same may, if necessary, be given in evidence against him, without further proof such as Lord Brougham complains of as havthereof, unless it shall be proved that the justice or justices purporting to sign the same did not, in fact, sign the same: ing mutilated and impaired the efficacy of the Provided always, that the said justice or justices, before Huddleston, in reply, admitted that the learned Bankruptcy Law Amendment Act, will not be such accused person shall make any statement, shall state judge who tried the case had formed an opinion ad- tolerated in the passage of these Bills through to him, and give him clearly to understand that he has nothing to hope from any promise of favour, and nothing verse to the prisoner on the facts; but, supposing the Parliament, thwarting as they do the maturelyto fear from any threat which may have been holden out prisoner to have been convicted on an informal into him to induce him to make any admission or confession dictment, it was a hardship upon him to be impri- thought labours of those whose experience and of his guilt, but that whatever he shall then say may be soned when the result might be that he was impro- learning far better qualify them to legislate on given in evidence against him upon his trial, notwithstand-perly convicted. Moreover, he should be able to such grave matters than most of those who preing such promise or threat: Provided nevertheless, that shew by affidavit that the prisoner's health was in-sume to set at naught their recommendations. nothing herein enacted or contained shall prevent the pro- jured by the imprisonment. secutor in any case from giving in evidence any admission W. H. Cooke, on the part of the prosecution, resisted the application, and said that Platt, B. had expressed a strong opinion against the prisoner on the merits of the case, and, in fact, there was no hardship inflicted on the latter. or confession, or other statement of the person accused or ERLE, J.-If I had not heard that my brother charged, made at any time, which by law would be admissible as evidence against such person." Platt had expressed an opinion on the case, I should have felt it my duty to communicate with him, and NEW STATUTES. 12TH and 13TH VICT. A.D. 1849. [In this record of Legislation the Practical Statutes only are given in extenso; of those of local or partial interest an abstract or the titles only are presented.] (Continued from page 492.) CAP. LXXV. An Act to defray, until the 1st day of August, CAP. LXXVI. (July 28, 1849.) 14. Orders of commissioners may be enforced in 15. Commissioners to be a Court of Record, and 17. Incumbrancer may apply to commissioners 18. No application to be entertained unless costs of any previous application paid. 19. Where lands or lease not to be deemed sub-plying with the Standing Orders of the House of ject to incumbrance. 20. When incumbrance subject to limitations, the net income. 23. Tenancies, &c. to be ascertained. Sale may be made subject to an annual charge. 24. Sale to be under direction of commissioners. Execution by commissioners sufficient. 25. Payment of purchase money. 26. Where an incumbrancer purchases, commissioners may authorise payment into the bank of balance of purchase-money, after retaining amount of incumbrance. 27. Effect of Assurance. We give this statute entire. 1. Punishment of persons procuring defilement of women.-For the better preventing the heinous offence of procuring the defiling of women, which certain infamous persons do most wickedly practise, Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That if any person shall, by false pretences, false representations, or other fraudulent means, procure any woman or child under the age of twenty-parts of leases, &c. and possession to purchaser. one years to have illicit carnal connection with any man, such person shall be guilty of a misdemeanor, and shall, being duly convicted thereof, suffer imprisonment for a term not exceeding two years, with hard labour. 28. Saving of right of common, &c. 5 & 6 Vict. c. 89. 10 & 11 Vict. c. 32. 29. Commissioners may order delivery of counter 30. Application of purchase-money. 32. Appointment of new trustees. 33. No payment, not being in full, to affect right of incumbrancer for balance, and no payment in respect of any incumbrance to impair remedy over. 34. Commissioners may make provision to incumtribution of purchase-money. 1. 7 & 8 Geo. 4, c. 64-Recited Act 7 & 8 Geo. 4, c. 64, repealed.-Whereas an Act was passed in the seventh year of the reign of his late Majesty King George the Fourth, intituled "An Act to establish a Taxation of Costs on Private Bills in the House of Lords:" And whereas it is expedient to repeal the same, and to make more effectual provision for taxing the costs and expenses to be charged by parliamentary agents, attorneys, solicitors, and others, in future sessions of Parliament, in respect of Bills subject to the payment of fees in Parliament, commonly called Private Bills, and to be incurred in comLords relative to such Bills, and in preparing, bringing in, and carrying the same through, or in opposing the same in, the House of Lords, and to facilitate the taxation of other costs incurred in respect of private Bills, in certain cases: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That, except as to any costs, charges, and expenses which shall have been incurred in the present or any preceding session of Parliament, the said recited Act shall be repealed. 2. Parliamentary agent, attorney, or solicitor not to sue for costs until one month after delivery of his bill-Evidence of delivery of bill-Power to judge to authorise action before expiration of one month. That no parliamentary agent, attorney, or solicitor, nor any executor, administrator, or assignee of any parliamentary agent, attorney, or solicitor, shall commence or maintain any action or suit for the recovery of any costs, charges, or expenses in respect of any proceedings in the House of Lords in any future session of Parliament relating to any petition for a private Bill, or private Bill, or in respect of complying with the standing orders of the said House relative thereto, or in preparing, bringing in, and carrying the same through, or opposing the same in, the House of Lords, until the expiration of one month after such parliamentary agent, attorney, or solicitor, or executor, administrator, or assignee of such parliamentary agent, attorney, or solicitor, has delivered unto the party to be charged therewith, or sent by post to or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such costs, charges, and expenses, and which bill shall either be subscribed with the proper had of such parliamentary agent, attorney, or solicitor, or in the case of a partnership by any of the partners, either with his own name or with the name of such partnership, or of the executor, administrator, or assignee of such parliamentary agent, attorney, or solicitor, or be enclosed in or accompanied by a letter subscribed in like manner referring to such Bill: Provided always, that it shall not in any case be necessary, in the first 41. Order for a sale under this Act may be made instance, for such parliamentary agent, attorney, notwithstanding pending suit or decree for sale. or solicitor, or the executor, administrator, or as42. After order by commissioners for sale, pro-signee of such parliamentary agent, attorney, or soceedings for a sale under decree to be stayed, and licitor, in proving a compliance with this Act, to no suit, &c. to be commenced without leave of com- prove the contents of the bill delivered, sent, or missioners, pending proceedings under this Act. left by him, but it shall be sufficient to prove that a 43. On application for sale of an undivided share, bill of costs, charges, and expenses, subscribed in or after sale, commissioners may, on application of manner aforesaid, or inclosed in or accompanied by party interested, and giving notices and hearing par- such letter as aforesaid, was delivered, sent, or left ties, make order for partition. 35. Power to commissioners to order money to be paid into Court of Chancery or Exchequer. 10 & 11 Vict. c. 96. 11 & 12 Vict. c. 68. 36. Lands included in different applications, and different interests in the same land, may be included in the same sale. rent. 2. Where persons appear as prosecutor, &c. Court empowered to award costs and compensation for loss of time. That where any prosecutor or other person shall appear before any Court on re-brances, charges, &c. to facilitate sales, &c. and discognizance to prosecute or give evidence against any person charged with any offence against this Act, every such Court is hereby authorised and empowered, whether any bill of indictment for such charge shall or shall not be actually preferred, to order payment of the costs and expenses of the prosecutor and witnesses for the prosecution, in the same manner as Courts are now by law authorised 37. If land sold shall be subject to a lease, &c. and empowered to order the same in cases of prose-comprising other land, or if part of lease in perpecutions for felony. 3. Order for payment of money shall be made out as orders for payment of costs in cases of felony, and treasurer to be allowed the same in his accounts. -That every order for the payment of any money by virtue of this Act shall be made out and delivered by the proper officer of the court unto such prosecutor or other person upon the same terms and in the same manner in all respects as orders for the payment of costs are now made in cases of felony, and the treasurer or other person when any such order shall be made shall be and he is hereby required, upon sight of such order, forthwith to pay to the person therein named, or to any one duly authorised in that behalf, the money in such order mentioned, and such treasurer or other person shall be allowed the same in passing his accounts. CAP. LXXVII. An Act further to facilitate the Sale and Transfer of Incumbered Estates in Ireland. (July 28, 1849.) We are precluded by its length from giving more than an outline of this statute. 1. Three commissioners to be appointed under sign manual. 2. Commissioners to have a common seal. 3. Two commissioners to be a quorum. 4. Power to appoint and remove secretary, clerks, &c. 5. Appointments under this Act limited to five years. 6. Salaries to be paid out of moneys to be provided by Parliament. 7. Commissioners not to sit in House of Com mons. 8. Oath of commissioners. 9. Commissioners to frame and promulgate forms of application, &c. tuity, &c. be sold, commissioners may apportion the 44. On application for sale, or after sale, commis- 45. Partition may be made of land where shares 47. Division of intermixed lands not subject to be 48. Notices of partitions, exchanges, and divisions to be given. 49. Conveyance, assignment, and orders for partition, exchange, or division and allotment, conclusive. 50. Proceedings before commissioners not to be restrained by injunction,, &c. Commissioners not to be liable in respect of Acts done bond fide. 51. Orders may be reviewed by commissioners. Appeal to Privy Council where allowed by commissioners. 52. Who to form the Judicial Committee. 53. Penalty for false swearing. 54. Construction of terms, &c. in this Act: "land: " "estate:" 66 "lease:" "lease in perpe10. Commissioners to make general rules for re-tuity:" "church or college lease:" "incumbrance:" gulating proceedings under this Act. No fees to be payable on proceedings. Rules to be laid before the Privy Council of Ireland. Rules, when confirmed by Privy Council, and enrolled in Chancery, to have the force of an Act of Parliament. Rules may be altered. 11. General rules to be laid before Parliament. 12. Power to commissioners to summon witnesses, &c. 13. Power to commissioners to proceed upon affidavits, and to appoint persons to take affidavits and examinations. per "incumbrancer:" " possession:" owner: CAP. LXXVIII. An Act for the more effectual Taxation of Costs on We give this statute entire. in manner aforesaid; but nevertheless it shall be competent for the other party to shew that the bill so delivered, sent, or left was not such a bill as constituted a bona fide compliance with this Act: Provided also, that it shall be lawful for any judge of the Superior Courts of Law or Equity in England or Ireland, or of the Court of Session in Scotland, to authorise a parliamentary agent, attorney, or solicitor to commence an action or suit for the recovery of his costs, charges, and expenses against the party chargeable therewith, although one month has not expired from the delivery of a bill as aforesaid, on proof to the satisfaction of the said judge that there is probable cause for believing that such party about to quit that part of the United Kingdom in which such judge hath jurisdiction. 3. Taxing officer to be appointed by the clerk of parliaments, or clerk assistant.-That the clerk of the parliaments, when discharging the duties of his office in person, or in his absence the clerk assistant, shall appoint a fit person to be the taxing officer of the House of Lords; and every person so appointed shall hold his office during the pleasure of the clerk of the parliaments or clerk assistant, and shall execute the duties of his office conformably to such directions as he may from time to time receive from the clerk of the parliaments or clerk assistant. 4. The clerk of parliaments or clerk assistant to prepare list of charges thenceforth to be allowed.— That the clerk of the parliaments, when discharging the duties of his office in person, or in his absence the clerk assistant, may from time to time prepare s list of such charges as it shall appear to him that, after the present session of parliament, parliamentary agents, attorneys, solicitors, and others may justly make with reference to the several matters comprised in such list; and the several charges therein specified shall be the utmost charges thenceforth to be allowed |