certain deed mentioned in the bill had been lost, the want of which affidavit was one of the grounds of demurrer. On the 26th, the plaintiff's solicitor went to the office for the purpose of making amendments in the bill, but was not allowed to do so, the officer being of opinion that an amendment had been already made. On the 27th, the notice was served by permission. The motion is premature. The account has not yet been passed. The court will not make an order in anticipation. The receiver may not have a balance in hands. Mr. M'Oboy appeared for the receiver, and stated that the balance would not amount to the sum stated in the notice, as the receiver was entitled to large deductions for costs, but was ready to pay whatever would be the balance, as the court should direct. Mr. Sherlock, contra-The cause is out of court. There are several grounds of demurrer; the affidavit has only rectified one. If it alone were necessary, why apply now for liberty to amend? The application proves that the demurrer has been allowed on other grounds which have not been amended within the time specified, and the facts sought to be introduced were either known previously to the plaintiff, or are statements to avoid a demurrer, such as the insertion of a state-control of the court, and which he cannot recover ment of the confusion of boundaries. MASTER OF THE ROLLS.-The 64th General Order is very precise. Where a demurrer is taken to the whole bill, there are two courses for the plaintiff to pursue either to set the demurrer down for argument, or to allow it by notice; and if allowed, the plaintiff has ten days to amend. Now, in this case there was a clear amendment, within the ten days, by the filing of the affidavit; its absence was a ground of demurrer, the reason why a Court of Equity requires it, being that the jurisdiction shall not be transferred from a court of law to this court, on a bare suggestion of the loss of the deed. The affidavit is an essential part of the plaintiff's title, and the filing of it was an amendment, and a compliance with the rule. I shall permit the amendments to be made. Motion granted. DONOVAN v. SWEENY.-March 9. Head Landlord-Right to Arrears out of Fund in Court, after Interest evicted. Deasy, Q.C., on behalf of the head landlord, moved that the receiver should, out of the balance appearing on his account then in course of being passed, pay to the head landlord the sum of £161 19s. 9d., being the amount received by him out of the lands in the notice specified, in part discharge of the arrears of head rent, or that, if necessary, it should be referred to the Master to ascertain what amount had been received out of the lands since the passing of the last account, properly applicable to the payment of head rent. Mr. Collins, contra, resisted the motion, on the ground that the landlord had evicted the tenant's interest, and that his remedy was either at law, or by filing a bill. The point has never been decided, but the cases of Haynes v. Colthurst (1 Hog. 377), and O'Keefe v. Dennehy (Fla. & Kel. 404), are analogous. Where a landlord obtains liberty to bring an ejectment, his remedy, so far as this court is concerned, is at an end, and he does not obtain the costs of the motion. (Master of the Rolls. That is a misapprehension; although where he brings his ejectment he does not get them in this court, they are taxed at law, and he receives them in that way; and if he be paid by the receiver, or out of a fund in court, he then gets them here.) MASTER OF THE ROLLS.-The practice of the court is not unsettled. It is the common course of the court, if no ejectment has been brought, to direct the receiver to pay the head landlord. Has the landlord lost his right, by bringing his ejectment, to recover those rents which it was impossible for him to have received, the property being under the from the tenants who have already paid. It would be extremely unjust to hold that he had, and contrary to the statute law of this country, which, after judgment in ejectment, gives him the same remedies for recovery of arrears as he had previously to the ejectment being brought. I shall therefore declare that the Master be at liberty to direct payment to the head landlord of the balance on the receiver's account after all just credits. EQUITY EXCHEQUER.-MICHAELMAS TERM. ELLIOTT V. ELLIOTT. When the interest in lands over which a receiver has been appointed, is evicted for non-payment of rent, if there be a fund in court received out of those lands, the landlord is entitled to have them applied in payment of the arrears of rent. In this case, one year's head rent became due in November, 1846, and on the 10th of February, 1847, an order was made, giving liberty to the head landlord to proceed at law. In Easter Term, 1847, an ejectment was brought, and on the 19th of November following, judgment was marked, and the habere subsequently executed, and the period for redemption expired in May, 1847. The head landlord now applied that the accountant-general might, out of the fund in court to the credit of the cause, pay the costs of the order giving liberty to proceed at law, and that the balance might be applied in discharge of the arrears of rent due on the 1st November, 1847. Battersby, and Forbes Johnson, for the motion, contended that the funds in court being the produce of the lands would have been paid to the landlord but for the appointment of the receiver, and should now be applied in part discharge of the arrears. Ormsby and Concannon contra.-On behalf of the reported creditors, resisted the motion, on the ground that the landlord had evicted the tenant's interest, and the time for redemption had expired, and the court having given liberty to bring the ejectinent and recover possession, would not interfere further. The case of O'Keefe v. Dennehy, (Fl. & K. 404,) was referred to, in which a tenant who was plaintiff in a redemption suit, having dis missed his own bill with costs, was allowed, after Motion granted. became liable to pay the rent, and then comes the statement of the rent not being due in 1844). (Blackburne, C.J.It is quite clear that the real question between the parties was not tried). (Jackson, J.-You argue that a material question has been joined, but not tried, and, in place of it, an immaterial issue has been tried). J. E. Walsh, with him Harris, contra-No ruling of the judge appears on the record on the subject. They contended-1st. That the plea was bad, repugnant, and insensible, and that the parties might fall back on the plea, and have judgment on the whole record, although the defect had been passed over. 2dly. That the issue joined was immaterial, and a repleader could not be awarded. 1st. The date is not immaterial in every sense, for it may make the pleading bad. Ring v. Roz borough, (2 Cr. & Jer. 418). (Crampton, J That was on special demurrer.) The court will presume that the pleader mistook the effect of the statute, and that he supposed the half year's rent became due immediately after the service of the notice to quit. Also, it will not presume against the verdict, but rather that the real intention of the parties has been found by the jury. (Doherty, C.J. The defendant avowed for rent due on a particular-It is plain that 1845 was meant.) They might day. The plaintiff pleaded in bar "riens in arrear” and the jury found no rent due on the particular day named in the avowry. Held, that such find ing of the jury did not dispose of the actual issue knit between the parties, the precise day specified by the avowry not constituting a parcel of the issue; and in such case the time is imma terial. This was error from a judgment of the Court of Queen's Bench. The postea not having been returned to the court below, the question was not argued there. The action was replevin for goods distrained on the 17th of April, 1845. There were three avowries, and one cognizance; it was upon the third avowry that the question arose; the judgment was entered generally upon the avowries and cognizance. The third avowry, after deducing title to the defendant, (the plaintiff in error) shewed an entry by the plaintiff in replevin under a demise by defendant on the 29th of July, 1840. That before the 25th of March, 1844, plaintiff gave notice in writing that he would quit the demised lands on the 29th of September, 1844; that plaintiff did not quit, but held until the said time, when, &c. That plaintiff thereby became liable to pay double rent; that because it was not paid on the 25th of March, 1844, defendant avowed the taking, &c. Riens in arrere. Verdict for plaintiff below. It did not appear on the record that the judge refused to leave it to the jury whether the double rent was due on the 25th of March, 1845. Plea Foley. The defect was cured by pleading over. The rent became due under statute 15 Geo. 2 c. 8, s. 9. The allegation of time is immaterial in an avowry. Forty v. Imber, (6 East. 434); Smith v. Nangle, (7 Cl. & Fin. 405). (Crampton, J. This is clearly an immaterial issue. A court of error cannot award a repleader.) (Pigot, C.B. -There is a distinct averment that the plaintiff as well argue that the dates in 1844 should mean 1843, and thus support the allegation of the nonpayment of the rent in 1844. (Moore, J.-The real question is, whether the double rent was due.) (Blackburne, C. J.-We are bound to reverse the judgment, and the matter will go down to trial, and there will then be a finding upon the real question.) (Pigot, C. B.-The jury have found a question which confessedly does not touch the merits of the case.) (Perrin, J.-It is not denied that the holding existed, it is only denied that the rent was in arrear.) 2dly. There is only a hiatus in the record, and therefore a mere discontinuance. (Pigot, C. B. There cannot be a discontinuance, if it appear on the record that there is a substantial material issue not tried.) (Pennefather, B.-Can it be said that an imperfect record can bind the parties for ever.) The statements become liable to pay the double rent, are merely preceding the averment of the plaintiff's having by way of inducement. averment that the rent was actually due. An immaterial issue is defined in Bennett v. Holbech, (2 Wms. Saund. 319); Thomas v. Willoughby, (Cro. Jac. 585.) (Perrin, J.-The statements were not inducements, for they are the very foundation of the avowry.) (Pigot, C. B.-If it were a case for a repleader, when it comes to this court the course is to reverse the judgment simpliciter.) R. v. Phillips, (1 Burr. 294.) No venire de novo could issue, for the question would be the same as already tried. There is no positive Napier, Q. C., in reply. The avowry is for the double rent. the avowry to be due; being due, it was impossible The plea denies the rent alleged in to go for anything else than the double rent in this avowry. Marks v. Lahee, (4 Scott, 137). BLACKBURNE, C. J.-I consider the finding or the jury to be absolutely immaterial. The avowry was repugnant, so far as it stated the day of the rent being due. The dates are plain, and shew that the right to the double rent accrued on the 25th of March, 1845, i. e. at the expiration of the six months after the notice of surrender, and the whole of the avowry is pointed to that fact. It would have been ground for special demurrer. The plea in bar traverses the right to the double rent, and, notwithstanding the parties have taken issue on the false date, and have vitiated the finding which would have settled the rights of the parties; the judgment must be reversed. PERRIN, J.-I feel some difficulty in the case. The avowry states grounds for claiming double rent. I think that if there had been a general demurrer to that avowry, it would have been held bad. The party, instead of demurring, joins issue, and he either joins issue upon the particular day, or not: if it were on the particular day, the finding was right. I feel great difficulty in reversing the judgment on the ground of a wrong finding. Judgment reversed. Venire de novo. COMMISSION OF OYER AND TERMINER. CORAM PERRIN, J. AND RICHARDS, B. The Attorney-General, on behalf of the crown, having called on the court to pronounce their final judgment on those portions of the indictment decided to be valid, (see ante, 81) it was directed to stand for argument on this day. is a direct opinion in favour of this position. In King The Solicitor-General-The crown is now entitled to have sentence passed upon the prisoner in the same manner as if he had been found guilty by a jury. It may be contended, on the other side, that the prisoner is entitled to a respondeat ouster, but Napier, Q.C. with Butt, Q.C.-The court is now that is not the case; for, by taking this general called on to make a decision, in its nature prejudicial demurrer, the facts have been admitted as set out to the administration of justice. It is the duty of in the indictment, 2 Hale, P. C. 258, cap. 33. the counsel on behalf of every prisoner to see that According to the older authorities, even in the indictment is properly framed, and if he should capital cases where there is a general demurrer consider its frame likely to embarrass the prisoner to an indictment, the prisoner is not entitled in his defence, and the consideration of that questo plead over, and if any exception is made to tion is submitted to the court, shall it be at the this rule, it is only made in favorem vitæ, and peril of the prisoner, and is he to be liable to transdoes not apply to the present case, which is not portation for an error of his counsel ? In 2 Hale, capital. Also where a party is permitted to plead 225, it is laid down, that "if a confession be extraover, it is in the case of a plea, and not a demurrer. judicial, though it be in court, as where the pri(The Year Book, 14 Ed. 4; Coke, 2 Inst. 178). If soner freely tells the fact, and demands the opinion a party demurs in law, and it be adjudged against of the court whether it be a felony-though upon him, he shall have judgment to be hanged (P. C. the fact thus shewn it appears to be a felony-the lib. 2, cap. 34, fol. 98); and the same distinction is court will not record his confession, but will admit taken between a plea and a demurrer to the in-him to plead to the felony not guilty." The condictment. Hawkins 2, P. C. cap. 31, s. 7, says, "But it seems that in criminal cases not capital, if the defendant demur to an indictment, whether in abatement or otherwise, the court will not give judgment against him to answer over, but final judgment. The present not being a capital case that fession is made, not for the purpose of admitting guilt in the abstract, but to know from the court whether the offence charged constitutes guilt or not. And in 4 Bl. Com. 334, it is said "some have held that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment of exe cution, &c." But this is denied by others, who hold that in such case he shall be directed, and received to plead the general issue, not guilty, after a demurrer determined against him. All the authorities upon this point are to be found in 2 Gab. Cr. Law. 325-6. The distinction attempted to be made between capital cases and others no longer exists. Gray's case, (11 Cl. & F. 482,) establishes that where there was any privilege, in favorem vitæ, granted to a prisoner, it is now extended to all cases of felonies. There is certainly some obscurity concerning the ancient rule as laid down in the year books, but that may be cleared up by considering that when a party demurred he could not be considered as mute, and the penance of pein forte et dure could not be applied, which was only to compel a party to plead, and, in such a case judgment was final, not because he demurred, and was afterwards willing to put himself on the country, but because he rested on his demurrer, and would not go to trial at all. In the Year Book 14 Ed. 4, p. 7, pl. 10, the words are, s'il demur sur un plea, that is, if he rests on a plea, and goes no further, if he does not put himself on the country. Brook. Pl. 86, where he says "peremptory plea," but that does not now seem to be law, for in King v. Gibson, (8 E. 110,) Le Blanc, J. says, "The general rule is against the defendant, and the current of authorities shew that pleading over is only allowed in case of felony in favorem vitæ, and in the case of the King v. Taylor, (3 B. & Cr. 502,) Ld. Tenterden says, on a plea which confesses a fact, if the decision is against the prisoner, it must be final, (2 Hale, 257; 2 Coke, Inst. 178.)" In favour of life a man may plead a double plea, Sir H. Vane's case, (6 St. Tr. 143.) There is no distinction between appeals (Com. Dig. tit. Appeal). After demurrer overruled, a party may plead, Gavan v. Hussee, (1 Dyer, 39, B. Pi. 65); Hume v. Ogle, (Cr. El. 196); Wilson v. Law, (1 Ld. Ray. 20); Reg. v. Bowen, (1 C. & K. 503); Reg. v. Houston, (J. & B. 103). În Reg. v. B. R. Co., (1 G. & Dav. 459, Sc. 3 Q. B. R. 224,) judgment was given for the crown, and the parties had liberty to plead over. The 11 & 12 Vic. c. 12, under which this indictment is framed, plainly contemplates a conviction by verdict. The fourth The fourth and seventh sections relate only to convictions in open court. A demurrer cannot be considered such. In Rastall, (Ent. 584,) after a plea of sanctuary, the prisoner is told if he wished he might plead over, he did so, and was acquitted. Bacon, Ab. (tit. demurrer,) states that the judgment in demurrer is respondeat ouster. A demurrer to an indictment is the same as a plea in abatement, (2 Hale, c. 30, p. 236). The sense in which a demurrer can be said to confess, is only because it does not deny the facts. It is only an implied admission of what is well pleaded, but here the prisoner says nothing is well pleaded. (2 Hale, c. 29, p. 225). Blackstone's Com. 239, does not agree with the opinion that the prisoner was not to In Reg. v Houston, be permitted to plead over. (2 Cr. & Dix. C. C. 349, Justice Burton expressed his opinion that in such a case as the present the judgment should be respondeat ouster. Attorney-General in reply. In this case, the court has no discretion, but is bound to give final judgment; and although there may not be any precedent of a case in which final judgment has been given, there is no instance of a case such as the present in which judgment of respondeat ouster was given. I understand the meaning of a de murrer to be, that a party puts himself upon trial by the court, instead of by the country; and the case referred to by Hale, in 2 P. C. 315, reported in the Year Book 14, Ed. 4, was where a party put in an imperfect plea. If an indictment is insuffi cient, the prisoner can move to quash it; but that is different from the course taken. Hawk. book 2, c. 23, s. 137, has been relied on, but the distinction should be borne in mind between an appeal and an indictment. An appeal was not at the suit of the crown, and was allowed to be heard after an indictment. All the precedents of appeals are after indictments for the same offence. One of the most recent cases is Ashford v. Thornton (1 B. & Ald. 404; see 2 Hawk. c. 31, s. 5, ed. 1824; Stanford, lib. 3, 150; and 3 Ld. R. 70); where the pleadings in Wilson v. Law are set out. Gaven v. Hussee (Dyer, 38), was an appeal, and no opinion was founded on the question now before the court. In Hume v. Hume v. Ogle (Cro. Eliz. 196) there was no decision on the subject. In Com. Dig. Tit. Justices, W. 2 & 3, the case of Queen v. Gray does not go so far as has been stated; it only decides that in a trial for felony, the prisoner has a right to a peremptory challenge, but not that any privilege granted in favorem vitæ extends to all felonies. Jan. 18, PERRIN, J.-In this case the court has already pronounced judgment upon the demurrer to the indictment, the effect of which is, that as to the first and third counts, the demurrer has been overruled, and as to the overt acts in all the other counts, except the first, the demurrer has been allowed. The Crown now calls for final judgment, but the prisoner's counsel insists that he is entitled to plead. In the course of the argument several cases have been cited on both sides, and we have looked into them all, but my brother Richards has furnished me with a case which was not mentioned, and it is not only the most modern, but was decided so lately as the year 1845, and since this question was under the consideration of the English judges in Gray's case; I allude to the case of Queen v. Serva, (2 Car. & K. 53), in which, after a demurrer to the indictment was overruled, the prisoner was permitted to plead over to the felony. We consider it right to follow that decision, and, as was done in the precedent referred to by Mr. Butt in Rastall after judgment upon the demurrer, at the desire of the prisoner we will allow him to plead to the felony. £193 ROLLS COURT.-Feb. 17. REEVES v. Cox. IRWIN, Petitioner. Cox, Respondent. A bill filed and a decree pronounced in 1848, directing the defendant to perform a certain agree ment, and to pay a sum of money; and a seques tration granted to compel performance of same; upon the application of a creditor by judgment of 1839, the court refused to interfere with the possession of the sequestrators. In this case it appeared that in Easter Term In this case it appeared that in Easter Term 1839, Henry Irwin the petitioner, obtained a judgment in the Court of Queen's Bench, against the respondent, for the penal sum of £2000, which was duly revived on the 5th of December, 1848. A petition was presented for a receiver on foot of said judgment, and the usual notice order obtained, which on the 30th of December, 1848, was duly served on the respondent. On the 3rd day of March, 1848, the bill in the cause of Reeves v. Cox, was filed to compel the specific performance of an agreement to grant an annuity, and for the payment of the amount of certain judgments. The defendant having neglected to answer; on the 17th of June, 1848, a decree pro confesso was pronounced, by which it was ordered, that the said agreement should be performed, and that the defendant William Cox, should within one month from the date thereof, grant an annuity, and pay to the plaintiff the amount of the judgments, and the interest due thereon, and the costs of the cause. The defendant having neglected to perform this decree; on the 20th of December, 1848, a sequestration was granted against his goods, chattels, and estates, directed to Kennedy Ryan and Michael Ryan, in order to compel performance of same. D. R. Kane, Q.C. now moved in behalf of the petitioner, for the removal of the sequestrators and the appointment of a receiver, and relied on the cases of Burne and wife, v. Robinson and others, (7 L.E.R. 188). White v. Bishop of Peterborough. (3 Swanst. 109.) Hughes, Q.C. contra. Mr. Hayes in reply cited Brooke v. Horner, (10 I. E. Rep. 305.) MASTER OF THE ROLLS.-In this case, the petitioner on the 9th of December, obtained liberty to serve notice of the conditional order for the appointment of a receiver; that is not, however, to be considered as affecting either the lands or rents, as it is the second order which has that effect. Under these circumstances, the question arises whether the petitioner is entitled to sue out an elegit. I am of opinion he is not so entitled, and that if he attempted to do so, he would be guilty of a contempt. The case of Angell v. Smith, (9 Ves. 336), decides that it is a contempt of court to disturb sequestrators in possession, and Lord Eldon lays it down "That a party cannot claim though by adverse title in any other way, than by coming to be examined pro interesse suo," he goes on to say, "consider the consequence; how are sequestrators to defend their possessions against an ejectment? the Court of King's Bench have decided that where a sequestration is awarded to collect money to pay a demand in equity, if it is not executed, that is, if the sequestrators do not take possession, and a judgment creditor takes out execution notwithstanding the sequestration awarded, that if the sequestration is executed, the other there may be a levy under the execution, intimating though prior must come here, how can any of these parties defend as landlord; after the tenants have attorned to the receiver, the court is the landlord." And in the case of Brooks v. Great head, (1 Jac. & W. 178); the Master of the Rolls speaking of a trial at law, says, "This, however, cannot be done without the leave of the court. It was so settled in Angell v. Smith, where the rule was laid down, both with respect to receivers and sequestrators, that their possession is not to be disturbed without leave. But when a party is prejudiced by having a receiver put in his way, the course has either been to give him leave to bring an ejectment, or to permit him to be examined pro interesse suo, which may perhaps often be the most convenient mode." The court is the landlord, and if the petitioner proceeded by elegit, he would be liable to an attachment. The only question is, whether under the sheriff's act, the receiver being substituted for proceedings by elegit, can I appoint a receiver and disturb the possession of the sequestrators; the proceedings under this act are in the nature of an equitable elegit, and I do not think the possession of the court as landlord, can be disturbed on the application of a person who is not entitled to sue out an elegit. There is some difficulty in the present case, the proceedings by sequestration being not to bring performance of a decree, and according to the case a sum of money alone, but also to enforce the of Goldsmith v. Goldsmith, (5 Hare 123), a sale cannot be had except for payments of costs. Feb. 20-Master of thE ROLLS.-No rule on this motion, the sequestrators undertaking to enter into security by recognizance, to account for the rents and profits of the lands in the writ of sequestration mentioned; this order to be without prejudice to any application which the petitioner out of the rents and profits to be received by the might make, to be paid the amount of his demand sequestrators. QUEEN'S BENCH. O'BRIEN V. QUEEN IN ERROR.-Nov. 22, 1848, Jan. 16, 1849.* Form of Caption-Joint and Several Commission-Treason compassing the Queen's Death— Delivery of list of Witnesses to Prisoner ten days previous to Trial-Challenges-Form of At the conclusion of the argument in this case an application was made on behalf of T. F. Meagher, T. M⭑Manus, and Donohoe, who had been tried and convicted for a similar offence, and had assigned similar errors, that they should be judgment, and Frost's case, (9 Car. & P. 129,) was referred heard by their counsel before the Court proceeded to give to. The Court arranged that one counsel should be heard on behalf of cach, with liberty to the Attorney General to reply. |