ROLLS COURT. MORRISSEY V. FITZPATRICK.-April, 18. Where tenants have admitted that rent is due, and the Court will not interfere. Mr. W. Smith, on behalf of the receiver, moved that John Duggan and Patrick Duggan, tenants of part of the lands over which the receiver had been appointed, might be restrained from proceeding in replevius brought by them and returnable to the Quarter Sessions, for a distress made by the receiver for non-payment of rent. From the affidavit of the receiver, it appeared that both of the tenants admitted that the sums returned by the former receiver were due by them, and the sum of £13 was paid by one of them on account of the arrear, and £12 by the other. On the 15th of February, 1849, the receiver distrained for the balance, and on the 24th replevins were issued returnable to the Court of Quarter Sessions, and which were to be tried on the 21st of April. There was but one part of the leases, and they had been given to the tenants by the father of the inheritor, for the purpose of registering votes. The affidavits further stated, that the receiver believed these replevins were issued for the purpose of embarrassing him in the discharge of his duty, and without any just reason, and purposely to disqualify him to be examined as a witness; and under such circumstances, it would be difficult as well as expensive to succeed in the suit, and the receiver was likely to be defeated with costs upon technicalities. Also, that the success of the plaintiff would be injurious, and have a bad effect upon the other tenants, who appeared to combine against payment of rents to the receiver; and unless they were restrained from proceeding in this way, and by legal technicalities defeating the right of the receiver, he would be unable effectually to discharge his duty as receiver. MASTER OF THE ROLLS.-In strictness, the notice given, which is but four days, is not suffi cient. The late Master of the Rolls considered that the Court had power to make an order to stay such proceedings, and in the Court of Exchequer similar orders have been made. If the plea had been non tenuit, I do not think the Court ought to interfere, but where the tenants have paid rent, I will make the order. LAWSON, Petitioner, GRIFFIN, Respondent.- Practice-Receiver-Poundage-Costs. Mr. Harris moved that the receiver might be allowed his poundage, his account not having been passed within the time limited by 148th General Order. MASTER OF THE ROLLS.-In this case, I will, under the circumstances, allow the receiver his poundage, but will not give the costs; it was not necessary to have presented a petition. "Let the said Master be at liberty, if he shall think fit in passing the petitioner's present account, to allow him his poundage, and no rule as to the costs of accounting; and let the receiver abide his own costs of this petition." Rolls Petition Book, Lib. 28, p. 270. KIRKWOOD v. LLOYD.-April 20. The court will not make an order to suppress depositions, on the ground that some of the interrogatories which elicited the depositions were leading, unless it be shewn what part of the depositions is an answer to the leading interrogatory, and then only so much as is an answer to the leading interrogatory, will be suppressed. That a deposition is not evidence, is an objection for the hearing not to be taken by motion to suppress interrogatories. In this case, a purchaser having made an objection to the title, on the ground that there had been no evidence of the payment of rent by any of the tenants of certain lands; and the plaintiff in the cause having got liberty to examine witnesses for the purpose of proving payment of rent by the tenants, a certain book was produced to a witness, and he was asked, first, were the entries in that book in his own, or in any other person's handwriting whom he knew, and if in any other person's, in whose? He was then asked, were the entries in that book correct? Mr. Sergeant O'Brien moved, that the depositions in answer to the interrogatories before given should be suppressed. The question has been put in a leading form; whether the book was in the handwriting of the witness, was not sufficiently investigated before the question as to its correctness was put. The interrogatory is manifestly framed for the purpose of suggesting the desired answer to the witness, and to apprise him of the answer he ought to make. Mr. Green, Q.C., contra.-The test of a leading interrogatory is given 1 Phil. on Evidence, 301; Lincoln v. Wright (4 Bea. 165), form of the interrogatory is given at page 168 of the same report. Mr. A. Graydon cited Aylward v. Kearney (2 Ball & B. 463). Mr. M.Mahon in reply. MASTER OF THE ROLLS-This is an application which is seldom made, and I do not recollect such an one since I sat in this court. According to the English cases, this motion is not regularly brought forward. The course in England is to refer it to the Master to report which or what part of the interrogatories is leading, and the depositions in answer to the leading interrogatories, or the part of the deposition which is in answer to the leading interrogatory is ordered to be suppressed, Here the application is to suppress the whole of several depositions; and counsel does not argue that more than one interrogatory is leading. I shall not entertain such an application, that because a few lines in an interrogatory are leading, the whole of several depositions is to be suppressed. The objection in this case is evidently mistaken, it This was an application for an order to give liberty to the plaintiff's solicitor to bid for property to be sold under a decree in this cause. The solicitor had discharged himself for the purpose of bidding. Mr. Deasy-Though the rule is laid down strictly that a solicitor should not bid without the permission of the Court, and that on grounds of public policy; yet it seems there is no objection that the Court should make an order in a proper case for it. The cases only go to shew that it is not permitted without the order of the Court. April 23-MASTER of the ROLLS.-The fact of a solicitor discharging himself from the office, cannot justify the Court in permitting him to bid, unless upon the consent of all parties to the cause; for if, in general, he were permitted to purchase, he would then acquire an interest in depreciating the value of the property to be sold under the court; also, during the progress of the cause, a solicitor has an opportunity of becoming acquainted with any flaw in the title. My present impression is, that without a consent, I ought not to make this order. Lord Eldon considered that the fact of a solicitor discharging himself does not make any difference. KELSON AND WIFE v. LEWIS.-May 11. Practice-Notice to Respite Publication. Mr. Hobart applied to the court under the following circumstances. On the 4th instant, a notice of motion had been served in this cause to respite publication from the 7th to the 21st instant. The defendant offered to consent to appear without service of subpoena, so that the cause would be heard next Term, before the motion could be heard. The solicitor for the opposite party lodged with the Examiner the certificate of the rule having been served, and the Examiner stated he would pass publication. [Master of the Rolls. Where a notice of motion to respite publication has been served, it is a very improper proceeding for any solicitor to pass publication.] The Examiner having informed his Honor that publication had been passed, MASTER OF THE ROLLS-Publication should not have been passed, and I expect that such a proceeding will not, in future, be taken by any solicitor of this court. I will hear the motion to respite publication notwithstanding. EQUITY EXCHEQUER. REILLY v. SHIEL-April 28, May 5. Practice-Certificate of lis pendens under the 11 and 12 Vic. c. 120. s. 12. Mr. Leech moved that the proper officers might be directed to issue a certificate of lis pendens, under the 11 & 12 Vic. c. 120, s. 12. There was a diffi culty as to who was the proper officer, within the meaning of the act. PER CURIAM. For the purposes of the present application, we shall direct the Filacer to issue the certificate; and for future cases of a similar kind, we shall provide by a general order. Note. 7 & 8 Vic. c. 90, s. 10, enacts, "that from and after the first day of November, one thousand, eight hundred, and forty-four, no lis pendens shall bind or affect a purchaser or mortgagee, without express notice thereof, unless and until a memorandum or minute containing the name and the usual or last-known place of abode, and the be intended to be affected thereby, and the Court of title, trade, or profession of the person whose estate shall Equity, and the title of the cause or information, and the day when the bill or information was filed, shall be left with such officer so to be appointed as aforesaid, who shall forthwith enter the same particulars in a book as aforesaid, in alphabetical order, by the name of the person whose estate is intended to be affected by such lis pendens, and which book is to be intituled "the Index to Lis Pendens," and such officer shall be entitled for every such entry to the sum of two shillings and sixpence; and the provisions herein before contained in regard to the re-registering of judgments every twenty years, and the operation thereof, and the fee payable to the officer thereon, shall extend to under the provisions of this act." every case of lis pendens which shall be re-registered The 11 & 12 Vic. 120, s. 11 & 12, enacts, "That from and after the passing of this Act, every Court, Judge, Commissioner, or other person by whom any decree, rule, or order has been or shall be pronounced or made, which, under the said Act of the third and fourth years of the reign of her Majesty, has the force and effect of a judgment, upon its being made to appear to them or him that such decree, rule, or order has been fully performed, complied with, or satisfied, shall direct the proper officer to give a certificate thereof, and record the same in his office; and in case said decree, rule, or order, shall have been or shall be registered under the provisions of the said Act of the third and fourth years of the reign of her Majesty, or under the provisions of the said recited Act of the seventh and eighth years of the reign of her Majesty, the Registrar of judgments shall, upon the lodgment with him of such certificate, cause a memorandum thereof to be annexed or subscribed to the entry of the Registry of such decree, rule, or order, specifying therein the date of such certificate, and shall sign such memorandum, and shall, if required, cause a minute of the entry of such memorandum to be endorsed upon a duplicate of such certificate; and in every search made in said judgment office after the entry of such memorandum, whereon such decree, rule, or order shall appear, the entry of such memorandum of satisfaction shall also be stated. And be it enacted, That from and after the passing of this Act, no judgment, crown bond, or recognizance, rule, decree, order, or iis pendens, shall be registered by the said registrar of judgments, pursuant to the provisions of the said Act of the seventh and eighth years of the present reign, unless and until there shall be subscribed to the memorandum or minute by said Act required to be left with said Registrar, a certificate of the existence of the judgment, crown bond or recognizance, rule, decree, order, or lis pendens, described in said memorandum or minute, such certificate to be signed by the proper officer of the court in which such judgment, crown bond or recognizance, rule, decree, order, QUEEN'S BENCH. Lessee Hobson and oTHERS v. BURNS.—April 28. Ejectment Adverse Possession-Acknowledgment of Title-Statute of Limitations—3 & 4 Wm. 4, c. 27. sion. oath, and was subsequently discharged from custody The schedule contained by order of the court. the following passages:-" 1823, Morgan Rattler, lessee of Edward Hobson, also of George Holmes Sumner, and also of William Davis, £76 16s. 3d. costs of an ejectment in an ejectment cause, in A statement in the schedule of an insolvent debtor, which said Morgan Rattler was plaintiff and myself 7" defendant." defeated" in the year 1828, that she had been " "1824, or thereabouts, the said Morin 1824 in a former ejectment brought on the gan Rattler, debt and costs, £108 16s. 4d. claimed demises of three lessors of the plaintiff, one for mesne rates of the lands of Cloonarcan, in the only of whom was a lessor in the present county of Galway, together with the costs of judg"My husband was, in his action, held, that this was no acknowledgment of ment and execution." title within the 14th section of the 3 & 4 Wm. 4, life-time, possessed of the lands of Cloonarcan, in c. 27, in any one of the said lessors. the county of Galway, containing about forty acres, Held, also, that such statement did not amount to besides bog, under a lease executed by Edmund more than a mere narrative of a past transaction, Kelly, &c., for lives and years. After my husband's and was not an acknowledgment of title within death, my husband and myself continued in possesthe 14th section. In 1824, an ejectment on the title was Quare-Whether a statement by an insolvent in brought in the name of lessee Sumner and others, his schedule is, under any circumstances, a suffi- to which I took defence, not knowing any title the cient acknowledgment within the 14th section. plaintiff had. However, on the trial a mortgage Barrett v. Bermingham (Flan. & Kel. 556). was proved which had been executed by Kelly prior to his making the lease to my husband, and I Ejectment on the title for the lands of Cloonarcan, was defeated." On the face of the balance-sheet in the county of Galway. The declaration con- in the front of the schedule was this statementtained four demises that chiefly relied upon being "Since my husband died, my children and myself laid in the name of Charles Davis, in whom the resided on the lands of Cloonarcan, in the county interest in a certain term of years in the lands in of Galway, the produce of which was barely suffi question was alleged to be vested. It appeared cient to support us." Mrs. Mannion, after her disthat by a deed dated the 12th of February, charge, continued in possession of the premises in 1777, this property was demised to one William question until her death, in 1840, and she was sucBirch, for the terin of 500 years, for the purpose ceeded therein by the defendant Burns, who had of securing the re-payment of £1,300 to a mort- married her daughter. No rent had been paid gage, and subject thereto, upon trust, for the from 1820 down to the bringing of the present owner of the inheritance. Some time after the action in Easter Term, 1847. Charles Davis, the execution of this deed, Kelly, the beneficial owner principal lessor of the plaintiff, was the adminisof the property, granted a lease of the same to a trator de bonis non of W. Davis, one of the lessors person named Mannion, at a yearly rent. The of the plaintiff in the ejectment of 1822, who was interest on the mortgage debt having fallen into the representative of Birch, the termor for five arrear, proceedings were taken in Chancery for hundred years. At the trial of the cause at the the recovery of the same, and a series of receivers last Spring Assizes for the county of Galway, were appointed, to whom Mannion, and afterwards before Moore, J., a draft of a special verdict which his widow, paid rent up to the 1st of November, had been previously agreed to, and signed by the 1820. Mrs. Mannion having subsequently become respective counsel on both sides, was read in evia defaulter, an ejectment was brought against her dence on the part of the plaintiff. This set forth in the year 1822, by leave of the court, which con- the facts enumerated above. The jury, however, tained three demises, one of them being in the under his lordship's direction, found for the dename of William Davis, the personal representa- fendant, the learned Judge being of opinion that tive of Birch. In that action, judgment was had the Statute of Limitations had sufficiently barred for the plaintiff, as of Trinity Term, 1823. An An the claim of the lessors of the plaintiff. On the habere was subsequently issued, but never exe- 18th of April, a conditional order was obtained cuted. In Easter Term, 1825, an action for mesne to set aside the verdict for defendant, and enter rates was commenced against Mrs. Mannion, and one instead thereof for the lessors of the plaintiff, judgment was therein recovered against her for the parties consenting that the case should be £108 16s. 4d., for which sum, and the taxed argued as a special verdict on the facts stated costs of the ejectment, £76 16s. 3d., she was in the draft. The point chiefly relied on for the lessors arrested in October, 1827. of the plaintiff was, that the passages quoted above, in Mrs. Mannion's schedule, constituted a sufficient acknowledgment of title in them, within the 14th section of the 3 & 4 Wm. 4, c. 27, to avoid the bar of the statute. Mrs. Mannion, thereupon, on the 14th of March, 1828, filed her petition and schedule in the Insolvent Court, duly signed by herself and verified on or lis pendens shall have been entered or obtained; and that the said registrar of judgments, upon the lodgment with him of any such memorandum or minute, shall, if required, endorse upon a duplicate thereof a certificate of the lodgment and entry thereof, for which certificate no fee shall be paid to him beyond the fee authorized by the said Act for such entry." We contend, first, that an acknowledgement in an insolvent's schedule is not within the scope of the act; and, secondly, that even though such were the case, there is here no such admission as the act requires. There has been much discussion, both in this court and the Exchequer, as to whether an admission in a schedule is one within the meaning of the 40th section. There is, however, one decision of a Court of Equity on the affirmative, Barrett v. Bermingham (Flan. & Kel. 556, per Sir M. O'Loghlen, M. R.); see also cases of M Carthy v. O'Brien (2 Ir. L. Rep. 67), and Dugdale v. Vize (5 Ir. L. Rep 568), in this court, where no express decision was given on the principal point. There is a marked difference between the operation of the 40th and 14th sections; the latter requires the admission to be made to the party himself, not to his agent. Can a statement in an insolvent's schedule be considered as made to a party in the character of a claimant of land? There was no intention in the mind of the insolvent to give any new right to the land, Grenfell v. Girdlestone (2 Y. &. Coll., Exchequer, 676); Holland v. Clarke (1 Y. & Coll. 151). It cannot be said that any such intent appears in the present case. Has the acknowledgment been made to the party entitled? Blackburne, C. J.-The detaining creditor, in the present instance, was the party entitled.] But here there is, in fact, no acknowledgment. She states in her schedule that she does not know what title the plaintiff had. If the acknowledgment is good for anything, it is so with respect to the title of Kelly, the mortgagor; but the ejectment is by the representatives of the testator, who claims paramount to Kelly. - Fitzgibbon, Q.C., Mr. West, and Mr. Beytagh for the lessors of the plaintiff.-it is said in this case, that the admissions in the schedule are merely made to the court, but they were for the benefit of all parties intended to be affected by the proceedings. (See 1 & 2 Geo. 4, c. 59, s. 10, the Insolvent Act of the day.) The acknowledgment amounts to this, that the representatives of William Birch had rightfully recovered judgment. Is not this a present recognition of title? [Blackburne, C. J. This may be a present recognition of right, but not a recognition of present right.] [Perrin, J.-This seems to me to amount to nothing more than a narrative of facts. There are four lessors of the plaintiff in the present case.] If we shew title under one, I am entitled to refer the acknowledgment to him. The recognition of the lease admits, by implication, the title of the mortgagee. [Crampton, J.-Your argument goes this length, that an acknowledgment by implication of law is sufficient, whereas the statute appears to contemplate an express acknowledgment.] No precise form of acknowledgment is necessary, St. John v. Boughton (9 Sim. 219). There is no distinction between sections 40 and 14, so far as the essence of the acknowledgment is concerned. Incorporated Society v. Richards(1 Dr. & War. 290), there the nature of the acknowledgment required by the 14th section of the statute is discussed. The reason why the widow Mannion disclaims previous knowledge of the lessor's title is to exclude the conclusion of the court that she had taken a vexatious defence, Doe dem. Lord Spencer v. Beckett (4 Q. B. 601). Mr. Concannon, in reply.-Scott v. Nixon (3 Dr. and War. 388) shews that a present right to an estate accrues from the time when the Statute of Limitations begins to run. Can it be contended that an admission to-day that a party paid rent to another in 1820, amounts to an acknowledgment of present title. This is a mere relation of antecedent facts. Hill v. Stawell (2 1. & Sy. 385,) per Burke, C. J., as to what should be in the mind of the person making the acknowledgment. The Act of Parliament contemplates a present, and not a past right. Here there is not even an admission that rent was due by the insolvent from the time when her possession became tostious by construction of law, which was from the day of the demise in the ejectment. BLACKBURNE, C. J.-This was an application to set aside a verdict had for the defendant in this action, and to enter one for the plaintiff, pursuant to leave reserved. The whole question turns upon the legal effect of certain statements contained in a schedule filed by an insolvent debtor, pursuant to the statute, as amounting to an admission of title within the 14th section of the 3 & 4 Wm. 4, c. 27. With respect to the question, whether such an acknowledgment can, under any circumstances, be contained in an insolvent's schedule, the court, at present, gives no opinion. [After stating the 14th section, his Lordship observed, that the pas sage in the schedule relied on was that commencing with the words, "My husband was, in his life-time, possessed of the lands of Cloonarcan, &c.] Two objections have been taken to the position, that these statements comply with the requirements of the statute. The first was, that there was no acknowledgment of the title of any one in particular. There are here four lessors of the plaintiff, and the name of the party who now seeks to avail him self of the acknowledgment was not specified in the schedule. In fact, the only party at present before the court who was so named, was the lessor Hobson. It is quite ambiguous of whose title this was an acknowledgment. In my opinion, it is quite impossible to hold it to be an admission of the title of any person. The other objection is more substantial in its nature; namely, that there is no recognition of any existing title. That objec tion appears to me a perfectly valid one. The recognition which the statute contemplates is such as when once made by a party in possession, shall actually and virtually vest in the person to whom it is made a present title. The construction of the 40th section confirms this view of the 14th section, both having precisely the same object; namely, the recognition of a present right of possession. Could it be for a moment held that a present recognition of a right of entry, no matter how remote, could confer a title to recover? In other words, how could an acknowledment in 1828 of a title in 1824, operate as an admission of a present right? According to the argument of the plaintiff, such a recognition might refer to a period fifty years back, and nevertheless create a title contemporaneous with the making of the statement. What is set forth here amounts to nothing more than that in 1824 the party held the premises under a certain lease which had been evicted by title paramount; and this, as has been observed, is merely a narrative of facts, and by no means such a recognition of title as is required by the statute. CRAMPTON and PERRIN,* J.J., concurred. Cause shewn allowed. the defendant.—We give up that objection.] Two others remain, and the first to which I shall address myself is that which relates to the suggestion of breaches. It is assumed on the other side, that it was necessary to assign breaches before the trial, although the declaration was as on a common money-bond, and the plea thereto the general issue. The defendant's course should have been, to crave oyer, and set out the condition of the bond in his plea, and thus have compelled us to assign breaches in our replication. But not having done so, and having simply pleaded non est factum, the only question in issue is, whether the defendant executed the bond, as stated in the de COMMON PLEAS.-EASTER TERM. THE GUARDIANS OF THE POOR OF THE CASTLEREAGH Union v. DILLON.—April, 28. Bond conditioned for the performance of duties-claration. In Snell v. Snell, (4 B. & Cres. 749,) Assignment of Breaches-Plea of non est factum -Verdict-Vice-guardians of the Poor. A verdict obtained upon a bond conditioned for the discharge of the duties of Poor Law clerk will not be set aside upon the ground that no breaches were assigned before the trial. Bayley, J., says, "If a plaintiff states the legal effect of a deed, the defendant has a right to see it on oyer, and if it varies from that attributed to it in the declaration, in order to take advantage of that variance, he should plead non est factum, without setting out the deed." That was the course taken by the defendant here, and if he was con The paid officers appointed under the 25th and 26th sections of the 1 & 2 Vic. c. 56, may pro-scious, as he must have been, that he had entered perly sue under the style of "The Guardians of the Poor of theUnion." This was an action in debt, tried before the Lord Chief Justice of the Common Pleas, in the sittings after last Hilary Term. The action was brought upon a bond conditioned for the due discharge of the duties of a Poor-law Clerk. The plaintiffs declared as on an ordinary money-bond. There were no common counts. The defendant, without craving oyer, pleaded non est factum; and issue having been taken thereon, the case went to trial, without any breaches having been assigned by the plaintiffs. Upon the plaintiffs' producing and proving the execution of the bond at the trial, Counsel for the defendant objected to the proceed ings as irregular, inasmuch as the bond produced appeared to be conditioned for the due discharge of an office, and no breaches had been assigned; and called upon the judge to non-suit the plaintiffs, or to direct a verdict for the defendant, upon the following grounds:-1st, that no order of the Commissioners to bring the action was shewn; 2nd, that, upon the evidence, the plaintiffs were not entitled to maintain the action; (this objection was founded on evidence adduced at the trial, to the effect that the Guardians had long since ceased to act, and that the present Board consisted of Vice-guardians appointed under the 1 & 2 Vic. c. 56, s. 27;) 3rd, that no breaches were assigned. The learned judge, however, declined to stop the case, but reserved the points, with leave to the defendant to apply to the Court above in case of a verdict against him. Verdict for the Plaintiff. Mr. Meagher, having on a former day obtained a conditional order, "that the verdict had for the plaintiffs be set aside, or that a new trial be had, or a non-suit entered," Mr. Armstrong, Q.C., (with whom was Mr. Charles Kelly,) now shewed cause. The 1st objection is, that there was no order of the Commissioners authorizing the action. [Mr. Meagher for Moore, J., was absent from illness. into a bond to the plaintiffs, the only defence raised He there |