90 Superior Courts: Vice-Chancellor-V. C. Knight Bruce. report, and payment of the costs of the petitiou by the railway company. Mr. Heathfield appeared on the latter petition for the railway company, and objected that the Master's report was set out at too great a length in the petition, and contended that the petitioner ought to pay the extra costs of the length of the petition occasioned by the so setting out the Master's report, urging the Court at the same time to exercise the power conferred upon it by the 122nd Order of May, 1845, and direct the Taxing Master to ascertain the costs so occasioned, and make such order for the payment of the same as was just. for that part only under the 85th section, but must deposit the price or give security for the whole before such entry. The bond must be given with two sureties, notwithstanding that the company is incorporated. ད་བ་ ། The company must clearly and satisfactorily show that they have complied with the requisitions and fulfilled the conditions of the 85th section, before they can enforce it.. against a landed proprietor. THIS was an injunction bill filed by the lessee of certain salt works at Sandbach, in Cheshire, against the company to restrain them from entering on any part of the portions which they had given notice of their intention to take for the purposes of their line of railway, until they had deposited the value of, or given security for, the price of the whole. It appeared that the company not requiring all the land which they had given notice to take for their immediate purposes, had given security by bond under their common seal, they being incorporated, for the value of so much as they did immediately require, but there were not two sureties to the bond. land which they had given notice of their intention to take, without depositing its value or giving security for the whole. They also contended that the bond ought to have been given with two sureties. Mr. Gaselee appeared for the petitioner. The Vice-Chancellor said, a reference was directed to the Master to report on this purchase, and he made his report. On such a reference no persons were allowed to attend except those interested in the purchase; the railway company, however, had not attended, and they had therefore no knowledge of what had been done on such reference, except by service of the petition after the report had been made. The petition merely stated the order of reference and the report, and then asked that the purchase might be carried into effect. Mr. Heathfield had suggested that the petition was of too great a length, and therefore impertinent, Mr. Russell and Mr. W. T. S. Daniel moved and had urged him to act under the 122nd for the injunction, insisting that the company Order of May, 1845. This was the first time had no right to enter upon any part of the he had ever been called on to act upon that order, and he was of opinion that he ought not to make any order as to the impertinence. On the coming on of the petition he had not been favoured with any discussion of the point, but on the contrary, there had been merely a Mr. Malins, for the company, opposed the general suggestion that because the petition motion, contending that by the 89th section of had set forth the facts too fully, that therefore the act the company had authority to enter some part must be impertinent, and forthwith upon the land they may require for the purhe was to proceed under the 122nd Order of poses of their undertaking, and did not require May, 1845. That appeared to him not a proper them at once to enter on or give security for. mode of acting on the order. A judge should all they had given notice under the 18th not, without hearing counsel, say what was section to take. Nor did the 84th or 85th right or what was wrong, and more especially sections make any difference. It is admitted in the present case where the railway company that the company must take all the land of could not know what the Master's report was, which they have given notice, but it does not it was proper to state the report on the petition, therefore follow that they must deposit the and although he must say that some of the value of acres, when perhaps they only want to words might have been struck out, yet it did enter upon a rood. The 68th section provides not differ from the report as made by the for the settlement of claims by arbitration or a Master, and he was of opinion that as he had jury, and it contains nothing in any way inconhad no discussion on the subject, the proper sistent with this. On these facts of the case course for him to adopt would be not to inter-counsel cited Bridges v. The Wilts, Somerset, fere at present; he should therefore make the order for the confirmation of the report as prayed, as a matter of course. and Weymouth Railway Company, 11 Jurist, 315; and Stone v. The Commercial Railway Company, 1 Rail. Cas. 375. With regard to the bond, it was argued that the 85th section, when it said that the promoters are "to give 3.- Vice-Chancellor Knight Bruce. to such party a bond under the common seal Barker v. The North Staffordshire Railway of the promoters if they be a corporation, or if Company. Nov. 18, 1847, and Feb. 9, 1848. they be not a corporation, under the hands and seals of the said promoters, or any two of THE LANDS CLAUSES CONSOLIDATION ACT them with two sufficient sureties," meant that $128 VICT. c. 18, ss. 18 & 85. the sureties were to be found only in those A railway company giving notice of its in-cases where the promoters were not a corpora, tention to take lands under the 18th section,tion. A similar mode of construction had been cannot enter upon part and give security put upon the Statute of Frauds, where deeds Superior Courts: V. C. Knight Bruce.-Queen's Bench. directed to be signed and sealed were held, as to corporations, to be necessary only to be sealed. 591 terials before me, to infer that in fixing a sum of 531. the valuer had regard to the provisions or the principles of the 63rd section. I further His Honour said, that his impression upon may observe that the subject of valuation both points was with the landowner. He seems to me to differ from the subject that he should grant the injunction, with liberty upon is alleged to have been appointed to value-a 24 hours notice to move to dissolve it. remark which I make independently of the obFeb. 9, 1848.-The defect in the bond hav-servation that the language of the valuation ing been cured, the company had had the value may be thought not sufficiently to identify the of the land for which they had given notice in subject to which it related, or the authority, due course, according to the act, and having nomination, or appointment under which he Moreover, I think it right to paid into court the amount assessed, viz. 537. was acting. moved to dissolve the injunction. The sum state, that I doubt very much whether, if the demanded by the plaintiff was 4,600l. and up- defendants were to be assumed to be right in wards, he contending that his property would this matter as to everything but the bond, that be ruined by part of the salt-works being instrument is so worded or so expressed as to severed from the remainder. On the other be conformable to the statute. hand, the evidence of the defendants, went to show that the part of the works taken could at small expense be reinstated on some other part of the property. Malins, in support of the motion to dissolve the injunction. W. T. S. Daniel opposed it, objecting that the value could not be relied on as a just computation, having regard to the severance of the brine pits from the remainder of the salt works. The valuation thereof was wrong, for although the party appointed was directed to value the estate and interest of the plaintiff, yet he had in the body of the valuation set a price upon the land itself. The plaintiff was willing and was able to sell the whole of his manufactory, and the defendants were bound to take all under the 92nd section. Malins, in reply, said, that the point of severance amounted to nothing, for it was quite easy for the plaintiff to dig his brine pits upon some other part of his land at a small expense; and as to the valuation, no evidence was before the court to impugn it. The company had fulfilled the requisitions and performed the conditions of the 85th section of the act, and were entitled to have the injunction dissolved. Upon the whole, considering what is the nature of the 85th section, and what are the rights and duties of the parties before me, independently of it; considering also that the defendants put their case for dissolving the injunction solely and merely upon that section, and their alleged compliance with its terms, I must I think say, they have not shown grounds upon which they seek to be relieved from the injunction. I refuse to do so, reserving the costs. I may add that I have not omitted to observe the 91st and 92nd sections, although in what I have hitherto said I have treated the case as not affected by the 92nd section, which, however, may possibly be thought relevant. I am not sure that the defendants are not seeking to take part only of a manufactory, the parties being able and willing to sell the whole. One of the meanings of the word "manufactory may be, a place where manufactures are carried I doubt whether the parcels which the on. company seek to take are not parcels of the plaintiff's salt manufactory. Injunction continued.-Costs reserved. Queen's Bench. (Before the Four Judges.) Wright v. Rice. Easter Term, 1848. PROHIBITION. REPLEVIN. COUNTY In actions of replevin the jurisdiction of the His Honour said:-This application to dissolve the injunction is grounded altogether upon matter which has arisen subsequently to the time of granting it, and the question argued now has been whether the defendants have fulfilled the conditions and complied with the requisitions of the 85th section of the act called the Lands Clauses Consolidation Act, 1845, so as to entitle them under that section to enter upon and use the lands in question. Now as to this, I think generally, if not universally, and in the present instance certainly, it is incumbent upon those who seek to avail IN this case Mr. Archbold applied for a writ themselves of the section against a landed pro- of prohibition in order to prohibit the trial of prietor to show satisfactorily and clearly that an action of replevin in one of the County they have fulfilled its conditions and complied Courts established under the 9 & 10 Vict. C with its requisitions. If there is room for 95, in which the damages were laid at 2001, doubt, the landed proprietors must, I conceive, and the amount of rent claimed was 751. HeT have the benefit of the doubt. Viewing the contended that the jurisdiction of the Court case in this way, I cannot represent myself as was limited by section 58 to cases where the satisfied that the defendants have fulfilled these debt or damage claimed is not more than 204. conditions or complied with those requisitions. [Wightman, J. Before this late act passed, the I am not satisfied that I ought, from the ma-sheriff in his County Court might in replevin 1592 Superior Courts: Queen's Bench-Common Pleas. by plaint hold plea to any amount, though above 40s., by virtue of the Statute of Marlbridge.] The jurisdiction under the new County Courts Act is limited and restricted to a certain amount. Lord Denman, C.J. The statute 9 & 10 Vict. c. 95, by section 121, enacts, that in an action of replevin either party, where the rent or damage in respect of which the distress shall have been taken amounts to more than 207., may, under certain conditions, remove the action into any court competent to try the same in such manner as hath been accustomed. The effect of the act I take to be, that when the rent or damage claimed is more than 207., that either party may remove the case out of the County Court, but that does not affect the jurisdiction of the Court, but leaves it as it was before. Mr. Justice Patteson. The jurisdiction of the County Court is not affected, but remains as it was under the Statute of Marlbridge. The Court, therefore, has jurisdiction over the cause, and that is the only question to which a writ of prohibition applies. Mr. Justice Wightman. It is clear the sheriff in his County Court had jurisdiction in replevin to any amount before the late act passed, and that act does not appear to me to restrict the jurisdiction. Mr. Justice Erle concurred. Common Pleas. Rule refused. been adjudged to forfeit and pay the sum of 3, and 21. for costs, on or before the 25th of Nevember then next ensuing, and for default that he should be imprisoned for two calendar months, then went on further to state,-“And whereas we the said justices (the defendants) did then and there further order that the said sum of 31. should be paid to the Treasurer of the said county of Chester in which the said offence was committed, to be by him applied according to the directions of the statute in such case made and provided; and that the aforesaid sum of 21. for costs should be paid to the said M. G. And whereas the said Thomas Chaddock hath not paid the said sums of 31. and 21., or either of them, pursuant to the above-mentioned adjudication, but herein hath made default. These are therefore to command you the said constables to apprehend the said Thomas Chaddock, and him to convey to the said house of correction at Nether Knut ford aforesaid, and him to deliver to the keeper thereof together with this warrant. And we do hereby command you the said keeper of the said house of correction to receive the said Thomas Chaddock into your custody in the said house of correction, and him there safely keep for the space of two calendar months, unless the said sums shall be sooner paid; and for you so doing this shall be your suffi cient warrant." Given, &c. Being arrested under this warrant, and whilst on his way to prison, the plaintiff, at his own request, was taken to the magistrates' clerk' office, and there paid paid the sum of 51., upon Chaddock v. Wilbraham and another. Hilary which he was immediately discharged. The Term, 1848. FALSE IMPRISONMENT.-ACTION AGAINST learned judge at the trial (an objection to that effect having been taken) thought the warrant bad in not directing that the penalty imposed should be paid to the overseers of the place where the assault had been committed, insteadtf to the Treasurer of the county, and accordingly a verdict was entered for the plaintiff, damages 51., leave being reserved to the defendants to move to set that verdict aside and enter a verdict in their favour. Pursuant to that leave, a rule nisi was obtained in the following Tern, against which Couch now showed cause. The 27th section of the 9 Geo. 4, c. 31, enacts that the fine shall be paid to some one of the overseers of the poor, or to some other officer of the parish, township, or place in which the offence shall THIS was an action of trespass against the have been committed, to be by such overseer defendants as justices of the peace for the or officer paid over to the use of the general county of Chester, for the alleged false im-rate of the county, riding, or division in which prisonment of the plaintiff. The defendants pleaded not guilty by statute. At the trial be fore Coltman, J., at the last Spring Assizes at Chester, it appeared that the plaintiff having been convicted by the defendants of an assault under the statute 9 Geo. 4, c. 31, s. 27, and ordered to pay 51. for such assault, together "with the costs, was for default in payment of that sum arrested. The warrant of commit ment under which the arrest was made, after reciting the offence for which the plaintiff was convicted, and that for the said offence he had such township, parish, or place shall be situate." Now, under this enactment, the collviction in the present case is clearly bad. The person to whom it directs the fine to be paid! has no authority to receive the amount, and it might happen that although the sum we actually paid to the overseers or other officer named in the act, still under the warrant of commitment the plaintiff would be imprisoned. The statute expressly provides for time to be given to the party to pay the penalty impord and it was clearly the intention of the legio Superior Courts: Common Pleas.—Bankruptcy. 503 charge himself to that person during the time Cresswell, J., and Williams, J., concurred. lature that the proper person who was to re-sons expressly named in the statute. By orderceive the amount should be expressly named ing, therefore, the present plaintiff to be imin the conviction. That such is the true con- prisoned for default in nonpayment to the struction of the statute is rendered still more Treasurer of the county of Chester, the magisevident by the form given in the 36th section. trates make the plaintiff liable to an imprison(A great hardship might be inflicted on the ment not warranted by that statute, and for not party convicted were he in each case obliged to paying to a person who is not authorized to go to the Treasurer of the county and pay receive the amount from him. The rule to set him the amount of the fine. The act having aside the verdict found for the plaintiff must specially named certain persons to whom the be discharged. fine is to be paid, and the conviction having Maule, J. By the provisions of the statute directed payment to another and different in question, the person to whom payment is to officer, the plaintiff in the present instance has be made must be expressly named in the conbeen imprisoned for disobedience to an in-viction, to enable the party convicted to disformal conviction, and therefore, it is submitted, entitled to maintain his verdict. Welsby, Townsend, and Egerton, in support of the rule. By directing that the penalty when paid should be transferred to the county rate, the section in question must be taken to authorize a direct payment to the Treasurer, who is the person intrusted with the management of the county rate, and all that the present conviction does is to dispense with payment to the person, who by the act is merely to be an intermediate agent. It would have been enough, had the warrant in the present case merely said, that the penalty was to be distributed as the law directs, and if so, then the conviction may be read just as if it had not named the particular person to whom the fine swas to be paid. [Maule, J. That might be, but when the conviction does express a person, can it be allowed to speak amiss.] All that the conviction means is a payment in the proper course to the Treasurer. In actual practice, the fine is never paid to the overseer. By the 35th Bection of the statute of question, the conviction is to be in the form therein given, or " to the same effect," and here it is submitted the form used, is to the same effect. Again, the misstatement or omission here is not in a material part of the conviction, and therefore, does not invalidate it. Massey v. Johnson, 12 East, 67; Smith v. Sibson, 1 Wills. 153: Rex v. Jeffries, 4T. R. 767; Barnes v. White and another, 1 Com. Bench, 192. This is a mere matter of form, and it is sufficient if the form given by the act be followed out in substance, besides which, there is a saving clause in the 36th section, which covers the present defect, Daniell RICHARD JEWISSON was served with par. Phillips and another, 1 Cr. M. &. R. 662; ticulars of demand and notice requiring payIn re Borthroyd, 15 M. & W. 1. On the whole ment, under the 5 & 6 Vict. c. 122, by a crediit is submitted, that the conviction is good, and tor named Octavius Borrodaile Wooller, who that the plaintiff has been legally arrested. afterwards made and filed the usual affidavit, Coltman, J. The directions in the convic-upon which a summons issued returnable this tion as to the payment of the fine imposed by the magistrates, renders it clearly invalid, and the magistrate therefore liable to the present action. Mr. Couch has forcibly shown, that it is important the person convicted should know to whom he is to pay the money during the time given for that purpose. In the convic tion now before us, by a slip on the part of the magistrates, the person to whom payment is directed to be made is not one of the per Wilde, C. J., was sitting at Nisi Prius. Bankruptcy. Wooller v. Jewisson. April 11, 1848. TRADER DEBTOR'S SUMMONS. PRACTICE. NOTICE. The form of particulars of demand and notice under the 5 & 6 Vict. c. 122, as prescribed by the General Rules and Orders of Nov. 12, 1842, must be strictly complied with. Where the particulars of demand and notice requiring payment was signed, "Octavius B. Wooller,' the summoning creditor's name being Octavius Borrodaile Wooller, the summons was holden to be irregular, and dismissed with costs. day before Mr. Commissioner Holroyd. Mr. Crouch, (as solicitor on behalf of the debtor,) took a preliminary objection to the form of the notice requiring payment, which was signed by the creditor with his initial name instead of his christian and surname. The 20th of the General Rules and Orders, (Nov. 12, 1842,) as to the particulars of demand and notice, after providing for the case of a partnership, enacts, that "in cases where the debt deImanded is claimed to be due to any one person, or to two or more persons not being partners, 594 Superior Courts. Bankruptcy Analytical Digest of Cases. such particulars of demand and notice shall be signed by, or in the name of, every such person by his christian and surname," &c., and the form is given thus :-" Edward Jones, residing at," &c. In the present case the prescribed form was not followed. The creditor described himself as "Octavius B. Wooller," whilst it appeared from his own affidavit, that his name was Octavius Borrodaile Wooller." Mr. Commissioner Holroyd. It certainly does appear that the summoning creditor has not exactly followed the rule. of the summoning creditor. The second christian name was not contemplated by the rule, and the insertion of the initial could not mislead. Mr. Commissioner Holroyd. The notice is not signed with the creditors true christian and surname. It is a trifling objection, but if it be insisted upon, I feel myself bound to give it effect. Mr. Crouch said, he must persist in his objection, and submitted, that according to the practice the summons must be dismissed with costs. Mr. Rymer, as solicitor for the summoning creditor, contended, that the rule was sufficiently complied with. "Octavius" was the variable rule. christian name, and "Wooller" the surname Mr. Commissioner Holroyd. That is the in- ANALYTICAL DIGEST OF CASES. REPORTED IN ALL THE COURTS. 2. Damages where payable.—An award made on reference of an action of trespass, is not vitiated by the arbitrator directing damages to be paid at a certain place and time, but the payment may be rejected as surplusage. Re v. Waters, 4 D. & L. 567. 3. Matters in difference. If upon a refer ence of "all inatters in difference," the parties omit to call the attention of the arbitrator fo matter not necessarily before him, they cannot object to the award, on the ground that he has not adjudicated upon it. Upon a reference of "all matters in differ ence" between the plaintiff of the one párt, and the defendants of the other part; quare, if the arbitrator must award in respect of matters in difference between him, and any one or other of them. Rees v. Waters, 4 D. & L. 567. Cases cited in the judgment: Winter v. White 1 B. & B. 350; 3 Moore, 674; Baspole's case, 8 Rep. 98, b. 4. When sufficiently certain. - An action, together with all matters in difference, was re ferred to arbitration. The arbitrators awarded generally, that a certain sum was due from the defendants to the plaintiffs. The Court dis charged a rule calling on the show cause why they should plaintiffs the sum so awarded. 1 Exch. Rep. 151. defendants to not pay to the Rule v. Bryde, 5. Witness, examination of, when not sworn, -The Court refused to set aside an award on the ground that the witnesses had been es amined without being sworn, it appearing that the party objecting had called witnesses in support of his case, and examined them also not upon oath. Allen v. Francis, 4 D. & L 607, n. See Finality of Award; Setting Aside; ficient Finding. |