Analytical Digest of Cases: Common Law Courts.—Chancery Cause Lists.

37

place of abode was described as "St. W.," and also the property of A., but used by the tenant his qualifying property, as "The Oaks." of the adjoining house in common with him: Held, that the description was insufficient-Held, that the shop could not be joined with and could not be aided by a reference to the the other premises, so as to constitute one enlist of voters, so as to show that the place call-tire qualification under the statute 2 W. 4, c. ed "The Oaks" was in the parish of St. W.; 45, s. 27. Powell, app., Price, resp., 4 C. B. and that the objection was not removed by the 105; see 2 W. 4, c. 45, s. 27. finding of the revising barrister that the place referred to was in fact in the parish of St. W. Woollett, app., Davis, resp. 4 C. B. 115, See 6 & 7 Vict. c. 18, s. 7.

NOTICE OF APPEAL.

RENT CHARGE.

Seisin in law. Actual possession.-The assignee of a rent-charge is not entitled to be registered, unless he has been in the actual receipt of it for six months before the last day of July. Hayden, app., Twerton, resp., 4 C. B. 1. See 2 W. 4, c. 45, s. 26..

SCOT AND LOT.

1. Postponing the hearing.-The court will pot postpone the hearing of an appeal, in order to afford time to give the necessary notice, upon a suggestion that the difficulty has arisen from the circumstance of their having appoint- Reserved rights.-A party entitled, before ed an unusually early day for the hearing of the passing of the 2 Wm. 4, c .45, to vote as appeals; there having been ample time to give an inhabitant householder paying scot and lot, the notice between the day appointed and the does not, by the 33rd section of that act, lose day on which the decision of the revising bar- his qualification by having omitted for one rister was pronounced. Adey, app., Hill, resp., year to pay his rates before last day of July. 4 C. B. 38. See 6 & 7 Vict. c. 18, s. 62. Nicks, app., Field, resp., 4 C. B, 63.

2. Constructive appearance.-An application by the respondent for leave to deliver paper books after the proper time, does not dispense with the notice required to be served upon him by the 6 & 7 Vict. c. 18, s. 62. Grover, app., Bontems, resp. 4 C. B. 70.

3. Signature of appellant.-The notice of the appellant's intention to prosecute his appeal under the 6 & 7 Vict. c. 18, s. 62, must be signed by the appellant himself; the signature of an agent will not suffice.

Where an appeal was tendered within the first four days of the term, with a notice imperfectly signed, the court refused to allow the appeal to be entered (the defect being cured) on the 5th day. Petherbridge, app., Ash, resp., 4 C. B. 74; see 6 & 7 Vict. c. 18,

s. 62.

ap

4. Postponement of hearing.-Where it peared that ten clear days' notice of appeal had not been given to the respondent before the first day appointed by the court for the hearing of the appeals, the notice, however, having been served within the four first days of the term, the court refused either to hear the appeal, or to postpone the hearing under the discretionary power given by the 62nd sec. of the 6 & 7 Vict. c. 18, sufficient time for giving the notice having elapsed since the decision of the revising barrister, S. C. 4 C. B. 32. Norton, app., the Town Clerk of Salisbury, resp., 33 L. O. 114.

QUALIFICATION.

House and shop not within one curtilage.Appurtenances.-A. occupied a shop, which, together with a house and other premises, also occupied by him, constituted a sufficient qualification in point of value, but neither being sufficient alone. The shop was separated from the rest of the premises by a yard, in the exclusive occupation of A., but there was no complete curtilage or fence surrounding the whole, the yard being approached by a passage at the side of the shop, open to the street, which was

First cause day after Term, Hooper v. Denoon,{Myers vs Macdonald

Master v. Marquis de Croismare, fur. dirs. and Hitchcock v. Jaques, fur, dirs.

Superior Courts: Court of Bankruptcy.-Analytical Digest.

15

and makes no admission as to the residue, the form required, that he believes he has a is not in compliance with the provisions of good defence to the residue, then, upon failing the statute 5 & 6 Vict. c. 122, and amounts to satisfy the debt, the trader shall be deemed to an act of bankruptcy on the part of the to have committed an act of bankruptcy on the debtor. fifteenth day after service of such summons. The statute contemplated that the trader debtor should discharge himself from the whole demand, by admitting or denying the whole, or admitting a part and denying the residue, or denying a part and admitting the residue. Here the debtor swore to a good defence as to 561. 6s., leaving the balance of the demand unanswered. He denies a part and admits nothing.

THE trader, John Pink, who was described as, of and carrying on business at the Lord Hill public-house, Westbourne Park, in the county of Middlesex, was served with a summons under the 5 & 6 Vict. c. 122, by William Nicholson, and William Nicholson the younger, who claimed, by their particulars of demand, from the trader (Pink) a debt amounting to 436l. 17s. 2d. Pink appeared by counsel beSturgeon, contrà. The trader debtor has fore Mr. Commissioner Shepherd, at the time complied with the requirements of the Act. appointed by the summons, and stated that he The 12th section provides, that "it shall be had filed an affidavit, in the form provided by lawful for such court to allow such trader the Act. [Schedule B. No. 2.] The affidavit upon his said appearance to make a deposition was as follows." Thomas Pink of, &c., being upon oath, in writing under his hand, to be sworn, &c., upon his oath saith, that he verily filed in such court, in the form specified in the believes he has a good defence to 561. 6s., part schedule, [B, No. 2.] that he verily believes of the demand hereinafter mentioned of Wil- he has a good defence to the said demand, or liam Nichols and William Nicholson the to some and what part thereof." The debtor <a of the said Thomas has sworn to an affidavit precisely in the form Pink the sum 0 40 07.178. 2d., for a debt prescribed, which is already filed. According alleged to be due and owing from the said to the arguments now used, the trader should Thomas Pink to the said William Nicholson, sign an admission as to part of the debt, and and William Nicholson the younger, as stated make an affidavit of a good defence as to the in the affidavit of the said William Nicholson residue, using the two forms specified in the the younger, filed in this honourable court, schedule B. "This has never been the practice. and bearing date the 4th day of October, 1847. Sworn," &c.

younger

Upon motion to discharge the summons with costs, the question raised was, whether the affidavit, without more, was a sufficient compliance with the statute to prevent an act of bankruptcy?

Mr. Commiss. Shepherd observed, that if the arguments of the debtor's counsel prevailed, a debtor prepared to deny only one shilling of a large debt, might render the Act inoperative. He could not conceive that such an absurd result was contemplated. As the practice, however, had been referred to, he should consult his brother commissioner who was then sitting. The learned commissioner afterwards stated, that Mr. Commiss. Evans entirely agreed with him, that the debtor had not complied with the Act, and he therefore refused to discharge the summons.

Cooke, on behalf of the summoning creditor. Under the 12th section of the Act, the trader summoned is bound to state, "whether or not he admits the demand of such creditor so sworn as aforesaid, or any and what part thereof; and if such trader shall admit such demand, or any part thereof, to reduce such At the expiration of fifteen days from the admission into writing in the form specified in date of the summons, a fiat issued against the the schedule." [B. No. 1.] The 15th section trader Pink, who was adjudicated a bankrupt, then provides, that if the trader so summoned upon an act of bankruptcy founded on this shall sign an admission for part only of such proceeding, and was gazetted on the 22nd demand, and shall not make a deposition in October.

ANALYTICAL DIGEST OF CASES.

REPORTED IN ALL THE COURTS.

Common Law Courts.

of the new parliament may render these adREGISTRATION OF VOTERS AT ELEC- judged points more than usually interesting.]

TIONS FOR MEMBERS OF PARLIA-
MENT.

[In commencing a New Series of the Analytical Digest, we select most of the decisions from the able report on Registration Appeals by Messrs. Manning, Granger, and Scott, to which we have added some cases which were first reported in the Legal Observer. The assembling

BIRTH RIGHT.

Reserved Rights.-Burgesses or freemen by right of birth.-The corporation of M. consists of four classes of burgesses or freemen,-1. Capital burgesses, (in whom alone was the right of voting prior to the passing of the Reform Act); 2. Assistant burgesses; 3. Landholders; 4. Free burgesses or commoners. Vacancies in the third class are supplied from

16

Analytical Digest of Cases: Common Law Courts.

the fourth by seniority, and in the other classes 18, should be signed by the revising barrister respectively by election: Held, that one who was a member of the fourth class, by right of birth, before the 1st March, 1831, and became a "capital burgess" by election, after that day, is not disqualified as an elector by the 2 W. 4, c. 45, s. 32. Gale, App., Chubb, Resp., 4 C. B. 41.

BURGAGE TENURE.

before the appeal from his decision can be properly entered. Where, however, it appeared that such signature could not be obtained in time to enter the appeal within the first four days of the Term, as required by the 62nd section, the court allowed a subsequent entry nunc pro tunc, the respondent being at liberty to object to such entry. Pring, app., Estcourt, resp., 33. L. O. 47; S. C. 4 C. B. 71.

INDORSEMENT OF APPEAL.

Freehold interest.-A. claimed to vote in respect of a burgage tenement in an ancient borough. The case found, that burgage tenements within the borough had always been Consolidated appeal.—Who may be named as conveyed by deed of grant, or bargain and sale, appellant.-The indorsement of an appeal not without livery of seisin, and without a lease for having been signed by the revising barrister a year, or any inrolment; that no surrender or until the 5th day of Michaelmas Term, the admittance was required, nor was any fine paid court refused to allow the appellant to be heard. upon descent or alienation; that the mode of descent was agreeably to the common law, ex-interested in the subject-matter, can be named Quare, Whether a mere agent, not personally cept that females inherited, not as coparceners, but by seniority; that the interest of a feme Wanklyn, app., Wollett, resp., 4 C.. B. 86. as appellant to prosecute a consolidated appeal. covert was passed without any separate exami- See 6 & 7 Vict. c. 18, ss. 42, 44, 45. nation of the wife; that the widow of a person dying seised of a burgage tenement had the whole during her chaste viduity; that burgage tenements had always been devisable in the same way as ordinary freeholds; that they were held subject only to the payment of certain fixed annual rents, payable to some individual; and that no other services had been performed, or payments made in respect of them :

Held, that, in the absence of evidence on the

face of the case to show that the freehold was
in
person, it must be assumed that
any other
A. had such a freehold tenure as to entitle him

to be registered, the value being sufficient.
Busher, app., Thompson, resp., 4 C. B. 48.
See 2 W. 4, c. 45, s. 19.

DELIVERY OF PAPER BOOKS.

In registration appeals, the delivery of the paper books is a matter entirely within the discretion of the court, and where they had not been delivered to the judge's clerks four days before the first day of hearing the appeals, the court allowed the delivery of them nunc pro tunc, there appearing, from the position of the particular appeals in the list, to be sufficient time before they could be heard, and where the appeal stood fourth in the list, it was ordered to be put at the bottom. Elliott v. The Overseers of St. Mary Within, Cumberland; Busher v. Thompson; and Gale v. Chubb, 33 L. O. 191; S. C. 4 C. B. 76.

ENTERING APPEAL.

1. Application to enter nunc pro tunc.Where it appeared that owing to delay on the part of the appellant's attorney, the requisite notice of appeal had not been procured, so as to be lodged with the Master within the first four days of the Term, as required by the 62nd section of the 6 Vict. c. 18, the court refused to allow the appeal to be entered nunc pro tunc. Petherbridge, app., Ash, resp., 33 L. O. 72; S. C. 4. C. B. 74.

2. Entering an appeal after the 4th day of the Term. It is necessary that the indorsement required by the 42nd section of the 6 Vict. c.

NOTICE OF OBJECTION.

66

of objection, under the 6 & 7 Vict. c. 18, s. 17, 1. Description of the objector.-In a notice the objector was described as, “ R. F., of, &c., The register of voters for the borough of L. on the list of voters for the borough of L" consists of four separate lists, viz.:-one of 107, householders for each of three townships comprised in it; and one of the freemen of the borough. The objector's name was on the last-mentioned list only: Held, that he was insufficiently described in the notice; and that the 101st section. Eidsforth, app., Farrer, the inaccuracy of description was not cured by resp., 4 C. B. 9.

2. Date and service of notice.-A notice of objection under the 6 & 7 Vict. c. 18, s. 17, dated of the day and month, without the year, is insufficient. The list of voters was signed by three of the overseers and one of the churchwardens, and the service of the notice of who had not signed the list: Held, that the objection was upon another churchwarden, notice was well served. Beenlen, app., Hockin, resp,, 4 C. B. 19..

3. How addressed.-A. notice of objection addressed to the voter at A., described as his place of abode in the borough list, was left at his office in B. The office in B. was not the voter's place of abode, and he had no residence in A.

The revising barrister decided that the notice had not been given to or left at the place of abode of the voter as stated in the list, within the meaning of the 6 & 7 Vict. c. 18, s. 17..

Held, that his decision was correct. Allen, app., Greensill, resp. 4 C. B. 100.

4. Description of the objector's place of abode.-In a notice of objection, the place of 66 The abode of the objector was described as Oaks," (without the addition of any parish, township, or other district,) on the register of voters for the parish of St. W." In the list of voters for the parish of St. W. the objector's

Superior Courts: Queen's Bench Practice Court.-Common Pleas.

dispensed with in the case of exparte Blurt, (5 Dowl. 231,) and in the case of exparte French, (Ib. 375,) an attorney was admitted without the usual notices under special circumstances. I am also informed there was a case in last Term of exparte Weymouth, where the notices were dispensed with.

Patteson, J.-I will consult the Master about that case, and give my judgment tomorrow. At present I am of opinion that I have no authority on the subject.

Nov. 3rd.

Cur. ad. vult.

Patteson, J.-I find that the case of exparte Weymouth is not quite a similar case to the one now before the court. There a gentleman had passed his examination, and had been admitted an attorney, but had neglected to take out his certificate within twelve months; he had, however, not practised, and under special circumstances the court dispensed with his giving the requisite notices under the rule of Easter Term, 1846. In the present case there has been a certificate taken out for one year and a practising under it, and the notices for the renewal of the certificate have been given in the regular way. Under these circumstances I do not think I have any authority to interfere. The party must wait until the last day of Term. Rule refused.

(Before Mr. Justice Erle.)

Johns v. Sanders. Trinity Term, June 5th,

1847.

BE SIGNED.

•

13

standing the order made herein on the 14th of August, 1846." Upon being served with this order, the plaintiff took out a summons for time to declare, which was dismissed on the ground of its being premature, as there had been no demand of declaration. On the following 28th of February the defendant obtained an order rescinding the order of the Lord Chief Baron of the 14th of August, and on serving the same upon the plaintiff's attorney, he served also a demand of declaration, which not being delivered, the defendant on the 4th of March signed judgment of non pros. The ground upon which the present rule was obtained was, that during the existence of the order for particulars of demand, time did not run against the plaintiff.

Couling, who showed cause, contended that, inasmuch as the delay in delivering the particulars was the plaintiff's own neglect, he ought not to be permitted to take advantage of his own wrongful act, and that time, therefore, was against him. Kirby v. Snowden, 4 Dowl. 191.

Petersdorff, contrà, argued that the order for particulars being a bar to all further proceedings until they were delivered, the plaintiff had the same time after the order was set aside, that he had before it was made; the general rule being that where proceedings are stayed, they are to be resumed at the point at which they were arrested. 13 Car. 2, stat. 2, c. 2, Cur, adv. vult.

s. 3.

Wightman, J. (delivering the judgment of JUDGMENT OF NON PROS.-WHEN IT MAY Erle.) In this case the defendant had obtained an order for particulars of the plaintiff's deThe defendant obtained an order for particu-mand before declaration, with a stay of prolars of the plaintiff's demand before decla- ceedings until delivery, and when two terms ration, with a stay of proceedings until had elapsed without any delivery, he sbtained delivery; and when two terms had elapsed manded a declaration, and after four days an order to rescind the former order, and dewithout any delivery, he obtained an order to rescind his former order, and demanded signed judgment of non pros. The plaintiff a declaration, and after four days signed has moved to set aside this judgment, contendjudgment of non pros. On a motion to set ing that he had the same time for declaring aside such judgment for irregularity :after the order rescinding the order for partiHeld, that the judgment was regular. culars had been obtained, as he had when the THIS was a rule calling upon the defendant of opinion that the judgment is regular. The order for particulars was obtained. But I am to show cause why the judgment of non pros. non-delivery of particulars by the plaintiff was signed in this cause should not be set aside for a default on his part, and his default does not irregularity. The writ of summons in this case deprive his opponent of any benefit from the having been duly served, an appearance was lapse of time. entered by the defendant on the 11th of August, 1846, who immediately afterwards took out a summons for particulars of the plaintiff's demand, whereupon, on the 14th of the same month, an order was made by the Lord Chief Grand Junction Waterworks Company v. Roy.

Rule discharged, with costs.

Common Pleas.

Trinity Term, 1847.

ING APPEARANCE.

Baron for the delivery of such particulars, with a stay of proceedings in the meantime. The WRIT OF SUMMONS, SERVICE OF.-ENTERplaintiff not complying with this order, the defendant, on the following 24th of February, applied for and obtained an order of Mr. Justice Erle, that he (the defendant)" should be at liberty to proceed in this action, notwith

•Reported in the Legal Observer for July 10, 1847.

The admission by the defendant, an attorney carrying on business in London, of the receipt of an original writ of summons, issued into Middlesex, and a copy, both having been sent by post, accompanied by the defendant's promise to enter an appearance, is not sufficient to entitle a plain