4 on the day in said avowries mentioned, and that the said G. N. did not, nor did the person making said distress, at the time of making the said distress, deliver to the person in possession of the premises, for the rent of which the said distress was made, or affix on a conspicuous part of the said premises, a particular, in writing, of the rent demanded, specifying the amount thereof, the time or times when the same accrued, and the name and place of abode of the persons of whose authority said distress was made," modo et forma, verification. Special demurrer to said third plea assigning, inter alia, for causes, that the plea was uncertain for want of shewing who was in possession, or in fact that any one was in possession, and should have shewn and stated, that no particular in writing corresponding in the amount of the rent demanded in each avowry, and the times when said rent accrued due was delivered or posted, or required by said act of parliament, and that the said plea offered immaterial issues. Joinder in demurrer; of the points noted by the defendant for argument, two were as follows: That the plea should have stated, that no particular corresponding with the rent claimed, in each avowry was delivered or posted, as the case might be, and should not have been in the alternative. That the plea offers immaterial issues; posting the particulars not being valid, if any one be found in possession of the premises. Longfield, Q. C., for the demurrer. The plea is bad for uncertainty. It is founded on the 10th sec. of the 9 & 10 Vic., c. 111, the plea negatives merely the delivery of the particulars of rent, to the person in possession without naming him. The the party distraining should likewise have been stated, Rowe v. Roach, (1 Maule & Selwyn, 304). The plea negatives in the alternative the delivery and the posting on a conspicuous part of the premises-posting is proper only where no one is in possession, and that there was a person in possession is not avered with sufficient certainty. The form of the plea is calculated to embarrass the plaintiff, it is impossible to say on which branch of the plea to take issue upon, and is consequently bad. Deasy, Q. C., and O'Loghlen, contra.-The question bere merely arises with respect to the certainty of the plea, as no objection has been raised time of making such distress, deliver to the person in possession of the premises, for the rent of which such distress shall be made, or in case there shall not be any person found in possession, shall affix to some conspicuous part of the premises, a particular in writing of the rent demanded, specifying the amount thereof, the time or times when the same accrued, and the name and place of abode of the person by whom and (if the person who acts in the making of the distress be not the party claiming to be entitled to the rent for which such distress is made,) the name of the person by whose authority such distress is made, or other wise, such distress shall be unlawful and void. Provided always, &c., &c. Provided also, that if any such distress shall be in other respects sustainable and well founded, the same shall not be unlawful or void, by reason, that the amount of rent demanded by such notice, shall not be the exact amount due, if the mistatement of such rent in such notice shall have been made by mistake, and without fraud or malice or want of reasonable care. by the demurrer on the ground of duplicity. Here the words of the statute have been literally followed. In fact the position of the defendant has been improved by the form of the plea, as a traverse might have been taken simultaneously on both branches. [Blackburne, C. J.-The act contemplates two different states of things, and prescribes accordingly.] [Perrin, J.-Here is a difficulty. If there had been no person in possession, posting the particulars would suffice-but on the contrary, if there had been a party in possession, such a traverse would be immaterial]. The defendant might have replied, that he delivered the particulars to the person in possession. It is a general rule that a plea may be framed in the very words of the statute. [Perrin, J.-You do not say in this plea, that the particulars were not delivered to a person in possession, or affixed to the premises; but you speak of the person in possession. This seems to admit that there was a person in possession, in which case this branch of the plea would tender a inaterial issue]. [Crampton, J.Could any human being tell with certainty, as your plea is framed, on what defence you intended relying?] The names of persons need not be set forth in a plea like the present, seeing that it is not to be intended that such lay within the knowledge of the plaintiff who might have been a mere stranger, whose goods had been casually deposited on the premises of the tenant at the time of the distress. Sale v. Read, (8 East. 80,) non constat, but that a party may have been in possession, and that the landlord may not have discovered him therein, and have accordingly posted the particular. This would satisfy the statute. [Perrin, J.-Another objection arises in my mind to this plen-the dates of the accruing of the gales of rent differ in their respective avowries, whereas the plea is common to both, as to the delivery of one particular. Here is an inconsistency. Each avowry ought to have been separately pleaded to.] One object of the second proviso to the 10 sec. is to exonerate the party pleading from stringency of proof. [Perrin, J.-Is not proviso confined to the amount of rent, without interfering with the question of dates, the plea is pointed at two inconsistent avowries.] The plea has been adopted for the sake of brevity. If the plaintiff had pleaded separate pleas, the very same words would have been employed in either. The defendant might, if he pleaded, have replied severally. Longfield, Q. C., in reply was stopped by the court BLACKBURNE, C. J., (after saying that he felt some difficulty as to the last objection)-A landlord would be materially embarrassed by a plea in this form. tives. The act provides for two distinct alterna a The plea, by alleging a delivery to the person in possession, assumes that there was party in possession, and should, therefore, have merely negatived the fact of the defendants having complied with the requisitions of the statute, with reference to this state of things. Instead thereof, the one branch of the plea assumes a person to have in possession, and the other the reverse. This uncertainty must embarrass the defendant. CARRICKFERGUS SPRING ASSIZES. BEFORE THE LORD CHIEF BARON. THE CORPORation of BELFAST V. TISDALL Where a corporation purchased houses, pursuant to powers given them by certain Town Improvement Acts of Parliament, which did not directly authorise a letting by will from year to year, and which houses, at the time of the purchase, were in the possession of yearly tenants, whose interests had not been purchased, nor had they been remunerated for damages done by the works of the corporation. Held, that the corporation might sue them in use and occupation for rent accruing after the purchase. CRAMPTON, J.-No objection has been taken CIRCUIT CASES-CIVIL BILL COURT. here on the ground of duplicity, but merely from uncertainty. The plea is clearly uncertain. statute was not passed to embarrass the landlord, or to enable a litigious tenant to baffle his landlord. The legislature has provided differently for the two cases, of a person being in possession of premises distrained, or the contrary. In one case, service is necessary; in the other, posting is sufficient. If there be a default by the landlord in complying with the terms provided by the act, according to the state of facts, the distress, though valid at common law, is rendered void by statute. Here the pleader, having an opportunity of relying on either ground of defence, set up both, but in such a manner as to render it impossible for any man reading the plea to say whether the default relied upon is the non-service, or the omission of posting. If the defendant had taken issue on the whole, then it would have been said that the traverse was irregular. The defendant certainly might have aided this objection by his replication, but no pleading is so bad as to be incapable of being so aided. PERRIN, J.—I consider that this pleading is not only bad in form, on the ground before adverted to, but also that it tenders an issue incapable of being sustained by evidence, involving, as it does, the necessity of proving two distinct particulars, although contemplating one merely. Moore, J., was absent. Demurrer allowed. Another objection was started to this plea, on the ground of the qua est eadem being improperly averred, it having been pleaded to several avowries, which are in the nature of counts of a declaration containing distinct causes of action. Edmund v. Walter (2 Chitty, Rep. 291), and This Walsh v Shaw (Al. & Nap. 9), were cited hereon. objection was, however, disposed of in the course of argument, the court being of opinion that the taking itself, which was single, was the subject of the averment. It appeared that the Appellants had purchased the premises occupied by the respondent, under the powers contained in the Lands' Clauses Act, 1845, and three local acts obtained by them in 1845-4647-that the Respondent, before the purchase, was a tenant from year to year, under a Mr. Dunbar, and had not received any compensation from the corporation for injury sustained by him under said acts, nor had his interest been purchased-that he remained in possession from the time of purchase until service of civil bill, which was for reut for use and occupation, due to the appellants. The Assistant Barrister dismissed the case. W. Macartney, for respondent, contended that the appellants had purchased for the purposes mentioned in their acts, and could not let from year to year, or sue for rent for use and occupation; and that no act could be done by them which was not expressly authorised by those acts. The Mortmain Acts prohibited the holding or letting of lands by corporations (Com. Dig. Tit. Capacity, b. 2; 2 Inst. 75; Viner. Ab. Tit. Mortmain, A. 2). These acts were extended to Ireland by 10 Hen. 7, c. 22, Incorporated Society v. Richards (1 Dru. and Warren, 258). The appellants, therefore, must EXCHEQUER OF PLEAS.-EASTER TERM. look to their local Acts of Parliament to see what CORAM PIGOT, C. B. GOVERNOR OF BANK OF IRELAND v. Orpen. T. Galwey, applied for liberty to amend the judgment roll, by inserting in the blank left for that purpose the amount of taxed costs, which amounted only to £11. The judgment had been entered in March, 1848. In Farrell v. Ruseell, (3 Ir. L. Rep. 40); the court allowed the judgment to be amended in this respect, the amount sought to be inserted being small; and the Court of Common Pleas, in the case of the Irish Society v. The Bishop of Derry, (5 Ir. Law Rep. 236), permitted a similar amendment. PIGOT, C. B. Since those cases were decided, the court has settled its practice. You must have an affidavit of the judgment not having been registered in pursuance of the provisions, 7 & 8 Vic., c. 90. they were authorised by them to do (Dwarris on Stat. 564, 583, 604); Haworth v. Ormerod (6 Q. B. 307); Stourbridge Canal Company v Wheeler (2 B. & A. 792); Webb v. Manchester and Leeds Railway Company (1 Q. C. 576); Blakemore v. Glarmorganshire Canal Company ( M. & K. 162); R. v. Inhabitants of Edgelane (4 A. & E 723); Lee v. Milner (2 Y. & Col. 618); Kemp v. London and Brighton Railway Company (1 R. C. 508). These cases shew that a private Act of Parliament must be construed strictly, and that these companies must do all that their acts direct, and "nothing else." Acts like those in the present case are private, Dawson v. Power (5 Han. 434); Fellowes v. Clay, referred to in Dwarris on Stat. 506. The acts of the appellants do not authorise lettings from year to year, but, on the contrary, they seem, by implication, to prohibit any letting at all except in the way their acts direct. It is true they are authorised to grant leases of superfluous lands, but these must be by deed, and there are many requisites to render them valid; and the appellants are bound to sell their reversion within ten years from the making of the lease. Where the legislature contemplated a power to let from year to year, they expressed it, as in the case of shops, &c., in the markets, which the appellants were expressly authorised to let from year to year. The principle expressio unius est exclusio alterius, therefore, applies against the appellant's claim. The object of the legislature was apparent by preventing the appellant from letting in any way except that authorised, to compel them quickly to sell, and thus pay off the money raised for making the improvements in the town. If they wanted the house occupied by the respondent, they could easily get it by the 121st section of the Lands Clauses Consolidation Aet, but were not authorised to get it indirectly in the present way. Meade and W. C. Dobbs, for the appellants, contended, that as purchasers of the reversion, they had a right to all its incidents. The CHIEF BARON said, he thought that the respondent could not object to pay rent for use and occupation, certainly the legislature could not have intended that tenements should be idle and valueless during the progress of improvements that if the appellants did not perform their duties, a mandamus, or bill in Chancery, would lie against them; but he did not consider that the respondent could refuse to pay rent because they might not possibly perform their duty. Dismiss reversed. DROGHEDA SPRING ASSIZES. REGINA v. DARCY.-Feb. 28. J. D., was indicted for the manslaughter of J. M., under the following circumstances. The prisoner, who was a carpenter by trade, was brought down from Dublin to execute certain work, in conse quence of a strike, or combination for higher wages among the carpenters who had been originally employed by the contractor to do it. On the night of the 16th of December 1848, the prisoner, who had been a few days at work, was returning from Drogheda, at 10 o'clock, in company with J. C., another carpenter, who had been brought down with him. Both the prisoner and J. C., had been drinking to an extent to affect them, though not to the degree of drunkenness. At the outskirts of the town, the prisoner and J. C., were violently assaulted by four men, (supposed to be the parties discharged from employment), the prisoner was knocked down, and assaulted in a manner to endanger his life. J. C, who was a witness for the prosecution, swore that to the best of his belief, if the prisoner had remained longer under the attack, his life would have been forfeited. R. P., a surgeon, also swore, that the prisoner had received severe contusions. J. M., the deceased, who lived near the spot where the occurrence took place; having heard the noise, went out for the purpose of ascertaining the cause, the assailing parties then fled, and the deceased proceeded to the spot where he found the prisoner lying on the ground, almost insensible. He was in the act of raising him up, when the prisoner sup posing him to be one of his assailants returning to the attack, drew from his pocket a chisel, and with it, inflicted a wound on the left thigh of J. M., which caused his death. It appeared in evidence, that J. C., seeing J. M., coming to the assistance of the prisoner, said to him, "Here is a friend come to your aid," but it was proved that this observation had not been addressed to the prisoner, till after the fatal wound had been inflicted by him. This was held to be manslaughter. Sir Thomas Staples, Q. C., and Hanna, who conducted the prosecution, having elicited the foregoing facts in evidence. William Gernon on behalf of the prisoner, submitted that the case made by the crown, was clearly one of homicide by mistake. Had the prisoner been right in supposing that J. M. the deceased was one of the assailing parties returning to the attack, the evidence for the prosecution had disclosed a case of sufficient provocation to justify the prisoner in repelling a renewal of it, by inflicting the wound which had caused death. From the abuse he had received, the effects of the liquor, and the darkness of the night, it was impossible for him to have recognised a friend from a foe. He cited Levitt's Case, (Cr., Car. 538), and read in evidence the dying declaration of J. M., in which he had exexpressed his conviction that the prisoner had inflicted the wound upon him, under the impression that he was one of the assailing parties. CRAMPTON, J. charged the jury, telling them that, inasmuch as the prisoner, by the act of drinking immoderately, had helped to deprive himself of the power of recognising J. M., as his friend, which but for that act, he would most probably have been capable of doing; he should be held responsible for the consequence that had ensued, and he was therefore of opinion, that a case of manslaughter had been established against the prisoner. Verdict of guilty accordingly. COUNTY ANTRIM SPRING ASSIZES- BEFORE MR. JUSTICE CRAMPTON. In an indictment against A. B., for the murder of C. D., by having administered to her a potion containing poison; E. F., who had tasted a portion of the same draught as the deceased, was called as a witness, to describe her symptoms, G. H., a medical witness, who had attended the witness E. F., and the deceased, was asked as to the symptoms of E. F. Held that such evidence was admissible. Held also, that the medical witness having heard the witness E. F., give her evidence as to her symptoms, might be asked whether in his opinion as a medical man, such symptoms were those of a person under the influence of poison. The prisoner was indicted for the wilful murder of his wife Jane Thompson, by having administered to her in a draught of gruel, a quantity of arsenic. A witness of the name of Sarah Thompson was called and deposed, (among other things), that she had tasted the gruel, before giving it to deceased, that she had become ill from it, and she described the symptoms she had laboured under. A medical man was then called and asked as to the symptoms which the last witness had presented. Joy, Q. C., (with whom was Ross Moore), for the prisoner, objected to this question-the prisoner was not on trial for poisoning Sarah Thompson, but for the murder of Jane Thompson. [Crampton, J.-I think the evidence quite admissible.] The medical man was then asked whether he had heard the witness Sarah Thompson give her evidence, and describe her symptoms; and whether in his opinion as a medical man, the symptoms she had described were those of a person under the influence of poison. Joy, Q. C., objected to that evidence being received: first, upon the grounds of objection to the former question: and secondly, because a medical man, should give his evidence from what he had himself observed, and not from what he had heard detailed by another witness. CRAMPTON, J.-I think the evidence quite admissible as a part of the res gestæ. ROSCOMMON SPRING ASSIZES. CORAM, MOORE, J. KANE v. LLOYD. name of Kane who had really been present at the riot, and against whom the informations had been sworn. Upon these facts the plaintiff brought this prosecution. The statute of 43 Geo. 3, cap. 143, regulating actions brought against magistrates for acts done in the discharge of their duty, provides that no writ shall be sued out against any justice of the peace, &c., for things done in the execution of his office, until after one month's notice thereof in writing shall have been delivered to him, or left at his usual place of abode; which notice shall contain the cause of action clearly and explicitly stated, and on the back of which shall be endorsed the name of the attorney, and his place of abode. The following notice was served in this case: "To William Lloyd, Esq., one of her Majesty's Justices of the Peace in and for the County of Ros common. "Sir, I do hereby, as the attorney of and for Patrick Kane, of Clooncoose, in the County of Ros common, according to the form of the statute in such case made and provided, give you notice, that the said Patrick Kane will, at or soon after the expiration of one calendar month from the time of your being served with this notice, cause a writ of capias ad respondendum to be sued out of her Majesty's Court of Queen's Bench in Ireland against you, at the suit of him the said Patrick Kane, and proceed thereupon according to law, for that you, the said William Lloyd, on the 28th day of January Action against Magistrates-Insufficient Notice- in the year 1848, arrested, or caused to be arrested, 43 Geo., 3, c. 143. A notice of action under the provisions of 43 Geo. 3, c. 143, must follow accurately its provisions.When a notice omitted to specify the place where the transaction complained of occurred, the plaintiff was non-suited. This was an action of trespass against a magistrate of the County Roscommon, for assault and false imprisonment. The declaration contained two counts. Plea, Not Guilty-the case was tried at last Spring Assizes at Roscommon, before Mr. Justice Moore. The facts of the case were, In the month of February, 1848, a Mr. Waldron, a magistrate of the County Roscommon lost his life, and a policeman was severely wounded, in an affray caused by an attempt of the coroner of that County to levy an execution in the house of the deceased, when a number of Mr. Waldron's workmen, &c., resisted the attempt. the said Patrick Kane, and him the said Patrick Kane unjustly, unlawfully, and illegally did imprison and detain, or cause to be imprisoned and detained for a long space of time, to wit for a period of seven days, contrary to the laws and customs of this realm, and other wrongs to the said Patrick Kane did to his great damage of £100, and against the peace of our lady the now Queen. Dated the 6th day of March, 1848. Michael Waldron, Attorney for the within named Patrick Kane, 59, Great Brunswick Street, Dublin." Messrs. Blakeney and Keogh having closed their case for the plaintiff, Messrs. R. P. Lloyd, C. Andrews, and Roper, for the defendant, called on the learned judge to non-suit the plaintiff, on the ground that the notice did not specify the place where the said transaction occurred, and cited Martins v. Upcher and Gay, (32 B. R. 662); Jacklin v. Fytche, (14 Mees. & M. 381.) sult Baron Lefroy, then presiding in the Criminal Court, and in a short time returned and stated that Baron Lefroy conceived the court bound by the authority, and accordingly non-suited the plaintiff." Informations having been sworn against several After considerable argument on both sides, persons for being engaged in the occurrence, and Mr. JUSTICE MOORE, feeling he was pressed by amongst others, against three persons of the name the authority adduced by the defendant, but enterof Patrick Kane-the defendant caused the plain-taining some doubts on the subject, retired to con tiff with two others of his name, to be arrested and held them in custody for a period of seven days, during which time, they were once brought up for examination. At the end of that period two of the said Kanes, having been identified as being en. gaged in the affray, were committed for trial.— There being no evidence, sufficient to identify the plaintiff, he was discharged. Some time after a fourth Patrick Kane, was arrested, who was identified as the third person of the The plaintiffs have not since taken any steps to set aside the non-suit. COURT OF CHANCERY. The defendant, a brother of the plaintiffs, having, them with the surplus. [Lord Chancellor.-It Mr. Hickey with Berwick. Patrick Dooner, the father of the plaintiffs, Charlotte and Jane Dooner, and of the defendant, John Dooner, having devised some freehold estates upon trust for the benefit of the plaintiffs, and bequeathed to them the residue of his personal property, and appointed the defendant and the plaintiff, Charlotte Dooner, executors, died in July, 1830, when the defendant alone proved his will, and possessed himLORD CHANCELLOR.-The defendant has comself of the testator's personalty. The trustees plicated this cause against himself by the accounts having refused to act, the legal estate in the free-which he furnished, and has raised almost the only hold descended on the defendant. The rents were either actually received by him, or, on being received by the plaintiffs, were, for the most part, handed over to the defendant. The plaintiffs resided with their brother, the defendant, from their father's death, in 1830, down to 1843. The defendant occasionally paid small sums of money to the plaintiffs during that period, but never accounted with them, either for the personalty of their father, or for the rents of the freeholds. The defendant having married. In 1843, the plaintiffs ceased to reside with him, when, in addition to letting them into receipt of the rents of the freeholds, he, as they alleged, undertook to pay them a sum of £30 per annum, on account of their claims. The plaintiffs having pressed for an account, the defendant furnished one in June, 1847, debiting them with the annual sums of £50 each, for board and lodging, and £20 for dress, during the time they had so resided with him, in addition to sums mentioned to have been occasionally paid to them, and which they alleged to have been the fund from which they provided their dress. The bill stated to the above effect, and prayed accounts of the personalty of Patrick Dooner, and of the rents and profits of the freehold estates. The defendant, by his answer, claimed credit for the sums of £50 and £20 per annum, and alleged that the annuity of £30 had been merely a bounty on his part. It appeared that the rents of the freeholds were small, not exceeding £80 per annum, and some times much less, were the sole property of the plaintiffs, who had been respectably maintained by the defendant while they resided with him. Mr.F.Walsh, for the plaintiffs (Mr. H. P. Jellett with him). The only question here is, whether the defendant is entitled to charge for maintenance. On this point, we have the authority of Arundel v. Lowe (1 Vern. 19), Davies v. Davies (9 Car. & P. 87), showing, that under similar circumstances, an agreement to pay cannot be implied. Berwick, Q.C. for defendant (with him Mr.Hickey & Mr. Dundas). [Lord Chancellor.-I cannot understand that those ladies, out of £100 a-year, agreed to pay £140.] We never intended to charge difficulty in the way of his case. There is no evidence of an agreement one way or the other. These ladies, having small and fluctuating incomes, resided with their brother, the defendant, for a period of thirteen years; during all that time, there never appears to have been an account settled, or asked for, between them. They must have known that their brother received some of these rents; to a certain extent, they constituted him their agent. They all lived together during that time they were supported and clothed by him they had not any means, save that small property; the defendant had no means except his professional gains. Thus they lived together, the rents going in support of the establishment, and being treated as part of a common fund for that purpose; and it is clear, that they went but a small way in the maintenance of these ladies. There is no evidence of an express agreement, but is there not much evidence that they did not consider each other as standing in the position of accounting parties, and that their brother received the money down to the filing of the bill, I should not direct in that way? If that state of facts had continued an account, save from the filing of the bill. I have said that the defendant has thrown the only doubt on the case by his accounts. It is clear that no specific sum for maintenance was agreed on, but he makes this claim as if there had been. However, on the whole, I will not decree that a man cannot create a claim for maintenance against his brothers or sisters; in other words, I will not decree that they can make money by quarrelling with their relation. Each case must be governed by its own circumstances. Here we have parties living together for thirteen years without taking an account; and I do not think, by refusing to give an account of those rents, I shall set a bad precedent, where, if the state of facts had continued to the present time, I should only have given it from the filing of the bill. |