319

302

305

Regina v. Priest Hutton, The Inhabitants of,

(Pauper Order of Removal - Stat. 12 & 13 Vict. c. 103.)

Regina v. St. George, Bloomsbury,

(Apprenticeship-Allowance-3 & 4 Will. 4, c. 63- 2 & 3 Vict. c. 71-
Metropolitan Police Magistrate.)

Regina v. St. James's, Colchester, The Inhabitants of,

(Certiorari to remove order of Sessions — Affidavit of Service on Justices -
Justices present at the Sessions -Justices' Names appearing in Caption of
Order.)

Regina v. St. Maurice, The Inhabitants of,

(Pauper-Settlement- Stat. 8 & 9 Vict. c. 126-Judicial Notice.)

Regina v. Scaife, Rooke, & Smith,

(Evidence - Deposition of absent Witness - When admissible.)

Regina v. Shavington-cum-Gresty,

(Order of Removal- Removability - Relief to Parent on Account of Child
-4 & 5 Will. 4, c. 76, s. 56-9 & 10 Vict. c. 66, s. 1.)

(Conspiracy Customs-3 & 4 Will. 4, c. 53-Limitation of Time - Per

sons to the Jurors unknown, Meaning of.)

Regina v. Uezzell & others,

(Night Poaching-Indictment-Land-Close.)

Reimer v. Ringrose,

(Insurance

Corn free from Average - Total Loss.)

Richardson v. Ward,

(Landlord and Tenant — Distress — Covenant to consume Hay on Premises.)

(Bill of Exchange accepted payable at Bankers'-Payment on forged In-
dorsement Liability of Banker.)

(Joint-stock Companies Winding-up Acts - Executor Contributory.)

Royal Bank of Australia, in re,

(Joint-stock Companies Winding-up Acts - Executor - Contributory.

(Pleading Costs Action of Debt
Payment into
Nunquam Indebitatus - Payment-Acceptance of Sum paid into
Court-Taxation of Plaintiff's Costs.)

(Salvage Agreement - Two Sets of Salvors-Right of Master or Owner
to accept or refuse Assistance — Delay in instituting Proceedings.)

Sharrod v. London and North-western Railway Company,

(Railway Company, Liability of- Damage done by Train - Form of Action
-Trespass or Case.)

Shrewsbury and Chester Railway Company v. Shrewsbury and
Birmingham Railway Company,

(Injunction — Inconvenience - Restraint of Contract.)

Smyth's Settlement, in re,

401

171

107

(Trustee Act, 13 & 14 Vict. c. 60-New Trustees - Transfer of Stock.)

Southall v. Rigg,

366

(Promissory Note-Plea of No Consideration-Evidence-Note obtained
by innocent Misrepresentation of Law.)

Spradbery v. Gillam,

464

(Set-off- Payment after Action brought - Nominal Damages.)

(Practice-Amendments- 68th General Order of May, 1845.)

1

(Costs, Certificate for, under 9 & 10 Vict. c. 95, s. 129 - Time for - Taxa-
tion of Costs.)

Walter v. Selfe, .

Walsh v. Southwell & others,

(Poor Rate Costs, Distress for- Tender - Power of Overseers to appoint
Deputy to execute Warrant- -12 & 13 Vict. c. 14.)

(Brick-burning-Neighboring Land Owners - Injunction.)

15

(Judgment Creditor-1 & 2 Vict. c. 110, s. 12 Accountant General's
Check Sheriff to take under Fieri Facias.)

455

29

Wave, The,

(Bottomry Bond-Duty of Lender - Bond pronounced against.)

(Pleading-Declaration-Express Promise-Good Consideration-Arrest

of Judgment.)

Watts, ex parte,

Construc

(Power to appoint new Trustee in Place of one incapable to act-
tion of Word "incapable"- Vesting Order, under the Trustee Act, 1850,
inapplicable when one only of several Trustees is out of the Jurisdiction.)

Wayne v. Hanham & others,

(Mortgagee of reversionary Interest in Stock, Right of, to Foreclosure.)

Wiles v. Woodward,

(Deed Estoppel - Trover.)

589

208

67

147

Worsley & another v. South Devon Railway Company,
(Railway-Lands Clauses Consolidation Act-8 Vict. c. 18, s. 85 — War-
rant to summon Jury-Interested Under Sheriff-Compulsory Powers-
Taking Land- Pleading-De Injuria-Interest in Land Authority
of Law.)

223

ARGUED AND DETERMINED

IN THE SEVERAL

COURTS OF CHANCERY;

FROM AND AFTER MICH. TERM, 14 VICT., A. D. 1850.

Practice

STUART V. LLOYD.1

December 21, 1850, and January 11, 1851.

Amendments-68th General Order of May, 1815.

The affidavits in support of the plaintiff's motion for leave to amend his bill under the 68th general order of May, 1845, must not be affidavits of opinion merely, as to the materiality of the proposed amendments, and as to due diligence having been used, but the affidavits must also state circumstances from which the court itself may draw its own conclusion upon those matters.

THIS was a motion by the defendant, that an order made by Lord Cranworth, V. C., dated the 14th of December, 1850, whereby it was ordered that the time limited by an order of his lordship, dated the 7th of December, 1850, for filing a replication in this cause, should be further enlarged, and that the plaintiff should be at liberty to amend his bill in this cause, as he should be advised, within one week from the date of such order, might be reversed, or varied in such manner as should seem meet. The object of the suit was to establish the rights of a partner in a partnership which the plaintiff alleged had subsisted between him and one Foster, deceased, of whom the defendant, Lloyd, was surviving executor. On the 9th of November, 1849, the bill was filed, and on the 24th of May, 1850, the answer was put in, denying the partnership in toto. On the 29th of June the plaintiff gave notice of motion to inspect documents admitted by the answer to be in the defendant's possession, and on the 9th of July, an order was made for production; but it appeared from the affidavits, that the documents were not inspected on behalf of the plaintiff until the 30th of July. On the 5th of July the answer became sufficient, and on the following day the plaintiff filed exceptions to the answer for impertinence. These exceptions were allowed by the master. On the 2d of August the time for obtaining an order of course to amend, under the 32d article of the 16th general

Stuart v. Lloyd.

order of May, 1845, expired, and no order was obtained. The defendant might immediately after the expiration of the 2d of August, have moved, under the 37th article of that general order, to dismiss the bill for want of prosecution; but he did not move to that effect until the Michaelmas term following, when the motion was opposed by the plaintiff, on the ground that the documents which had been ordered to be inspected were so multitudinous that the delay in the prosecution of the suit was absolutely unavoidable; but the court ordered (December 7, 1850) that the plaintiff should file a replication within a week, or that the bill should be dismissed. On the 9th of December the plaintiff gave notice of a motion for the 12th, that the time for filing the replication, under the order of the 7th of December, might be enlarged, and that the plaintiff might be at liberty to amend his bill. In support of this motion there was the affidavit of the plaintiff and his solicitor, which was in the following form: "That we have been advised by counsel that it is necessary for the interest of the above-named plaintiff in this cause, that the bill filed in this cause against the above-named defendant should be amended; that the draft of the proposed amendment has been settled, approved, and signed by counsel, and that such amendment is not intended for delay or vexation, but because the same is considered to be material to the interest of the said plaintiff'; that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into such bill." Lord Cranworth, V. C., granted the motion, and made an order in the terms above stated, and now appealed from.

Wood and T. J. Phillips, in support of the appeal, contended that this mere skeleton affidavit was not such an affidavit as was contemplated by the 68th general order of May, 1845, but only such as was spoken of in the 67th of those orders; that it was quite clear, upon comparing those two orders, that a great distinction was intended, and that in the first of those orders it was intended that a mere affidavit of opinion, as to the materiality of the proposed amendments, was to be sufficient, but that by the 68th it was intended that the affidavit should show the materiality of the proposed amendments, and that due diligence had been used; that, in the present case, the affidavit was a mere affidavit of opinion as to the materiality, not showing what the proposed amendments are, and, therefore, rendering it quite impossible for the court to form any opinion whether the amendments arose out of the inspection of documents, which would necessarily be the most important question in considering "whether the amendments could not, with reasonable diligence, have been sooner introduced into the bill." [They relied on the following cases: The Attorney General v. The Fishmongers' Company, 4 My. & C. 1. Christ's Hospital v. Grainger, 1 Ph. 634. Winnell v. Featherstonehaugh, 9 Jur. 1054. 10 Jur. 235. Phillips v. Goding, 1 Hare, 40.]

Rolt and Bazalgette, contra. We submit that this affidavit is sufficient until it is challenged by a contrary affidavit. The other