first was a valid and subsisting judgment between the parties; the judge, therefore, had no power to hear it a second time. There has been nothing urged against the validity of the judgment obtained. The 78th section, which empowers the judges to frame rules, enacts, that, in any case not expressly provided for, the general principle of practice in the superior courts of common law may be adopted. The judge of the county court, therefore, clearly had power to postpone the execution to a future day. The 122nd section does not specify when the warrant shall issue, but leaves it discretionary. In the superior courts, if a judgment is recovered, the plaintiff has no power to bring a second action for the same cause. Sect. 89 enacts, that every order and judgment shall be final and conclusive between the parties. [He cited Franks v. Wicks, (9 Dowl. P. C. 489).] PATTESON, J.-As to the question of value, there is no pretence for saying the section does not apply, whatever the value may be, if the rent is under 50%. As to the other point, I will take time to consider. Cur, adv. vult. On a subsequent day (Nov. 18) judgment was given. PATTESON, J.-The first objection I disposed of on the argument. It is quite clear, that, where the rent does not exceed 50%., the value of the premises is quite immaterial. With respect to the other objection, that judgment had already been given, and thereby the judge's jurisdiction had ceased, I certainly felt some doubt. A doubt also arose in my mind, whether, upon the true construction of the 122nd section, it would apply at all where the tenant appeared. I have, however, looked carefully into the rules and forms framed in pursuance of the act, from which it would appear the judges seem to have considered it did apply. In conformity with this view, my Brother Erle decided the case, In re Fearon v. Norvall, (17 Law Journ., N. S., Q. B., 161). I must, therefore, abide by the ruling there laid down, viz. that the defendant's appearance does not oust the jurisdiction of the Court as to the effect of the former judgment. It appears to have been the intention of the act that there should be an adjudication of the right, and an order for the defendant to deliver up possession forthwith, or in default a warrant may issue, in order to obtain possession within not less than seven nor more than ten clear days. Here the order was for delivering possession on the 24th December, which order was beyond the jurisdiction of the judge. The landlord, perceiving this difficulty, levied another plaint, when an objection is taken in the nature of a plea of judgment recovered, which, no doubt, generally speaking, would be a valid If a judgment is given in one of the superior courts, it matters not in such cases whether it is good or bad, as it can be reviewed by a writ of error; but in a case like the present there is no possible way of reversing the former judgment. I think, therefore, the landlord was at liberty to treat it as a nullity. It would be very strange if there should be a judgment upon which the landlord was unable to act, and which at the same time prevented him from recovering possession of his property. The judgment being a nullity, the landlord was justified in so treating it, and proceeding as he did. The rule, therefore, must be discharged, with costs.—Rule discharged accordingly. answer. COURT OF EXCHEQUER.-EASTER TERM. A Defendant obtained a Rule for a special Jury, which was struck and reduced, but the Jurors not summoned. Neither the Defendant nor the Jurors appearing when the Cause was called on, it was tried as an undefended Cause by a common Jury:-Held, that the Trial was irregular. The defendant obtained a rule for a special jury' which was struck and reduced, according to the stat. 6 Geo. 4, c. 50, but the jurors were not summoned. The cause having been entered in the paper as a special jury cause, was called on in its order on the last day of the sittings; when neither the defendant nor the special jurors appearing, it was taken by a common jury as an undefended cause, and a verdict returned for the plaintiff. A rule having been obtained to set aside the trial as irregular, cause was shewn on the last day of last term, by Martin and E. James, who relied on Archer v. Bamford, (1 Car. & P. 64), where the defendant obtained a rule for a special jury, and the jurors not having been struck or summoned Lord Tenterden took it as a common jury cause. T. Jones, in support of the rule, relied on Holt v. Meddowcroft (4 M. & S. 467) and Hague v. Hall, (1 D. & L. 83). The first was under the old Jury Act, (3 Geo. 2, c. 25), in which a rule for a special jury was obtained by the plaintiff, but a common jury panel was returned with the special jury panel. At the assizes none of the special jury attending, the cause was tried by a common jury at the suggestion of the plaintiff and against the protest of the defendant; whereupon the Court set aside the verdict. Hague v. Hall was under the present statute. There the plaintiff obtained a rule for a special jury, but neglected to summon them, and the marshal on the day for which the notice of trial was given put the cause in the list of common jury causes; and it having been taken as undefended, the Court set aside the verdict. Cur. adv. vult. The judgment of the Court was now delivered by POLLOCK, C. B.-We have made inquiries in every direction as to the practice of the officers on this point, and find it in favour of the defendant. We have moreover an express decision in one case to the same effect; and the Lord Chief Justice of the Common Pleas, whose professional experience has been very great, has communicated to us that he has acted on this view in more than one instance; and although I was much struck with the decision before Lord Tenterden, and had always considered that the rule was otherwise than as I have stated, I do not think that view can be sustained, either as in accordance with the authorities on the point or the express provisions of the statute. If the jury be not struck and reduced, as in the instance before Lord Tenterden, the case does not come within the statute, which expressly says that the jury so struck shall be the jury for the trial of the cause. We are bound by that, and in deciding that this rule ought to be made absolute are really walking in the path of authority and complying with the literal words of the act. I come to this conclusion in some respect with regret, because our decision will undoubtedly supply a mean whereby a defendant, by moving for a special jury and merely taking the trouble of getting it struck and reduced, leaving nothing undone but summoning the jurors, may impose on his adversary the expense of summoning the jury, possibly of paying them; and the defendants in undefended causes will thus have, through the medium of costs, the strongest weapon that they have hitherto had of making terms which are contrary to justice although not contrary to law. We cannot however resist the authorities and the direct meaning of the statute, and this rule must therefore be made absolute.-Rule absolute. COURT OF CHANCERY. North British Railway Company v. Tod, (12 Cl. & Fin. that cross-section 60 was incorporated into the act of 722; S. C., 10 Jur. 975). The other side must prove Parliament; otherwise the Company have the power of deviating both vertically and laterally. [They cited also, on this point, Breynton v. The London and Northwestern Railway Company, (11 Jur. 28).] This injunction being asked for only on the ground of private injury, your Lordship would not grant an injunction on that ground until damages had been ascertained by a jury. (The Attorney-General v. Nichol, 16 Ves. 338). There was another question discussed in this case, namely, as to the power of the Paving Commissioners of Birmingham, under their act, (the 9 Geo. 4, c. liv), to authorise the Railway Company to alter the level of Hill-street, as proposed; but, the case being disposed of entirely upon the powers of the Railway Company itself, this part of the argument is omitted. The Plans and Sections of a proposed Railway, deposited with the Clerk of the Peace in compliance with the Standing Orders of the Houses of Parliament, do not form any Part of the Act of Parliament, except so far as they may, by Enac'ment, be incorporated into the Act; nor can they otherwise be referred to for the Construction of the Act. And this is so, whether there be a Deviation from the Line of Railway, or not. Such Plans and Sections are only referred to by the Act of Parliament, as shewing the Datum Line and Level of the Railway, and the Lands which may be required; but not as shewing the surface Level or Appearance of the adjoining Land; unless the Act of Parliament inStuart and Craig, contra.-The question is, whether corporates them into it for those Purposes. there is a parliamentary power for the Company to do The Term "other engineering Works described in the as they have done. How far the plans are to be consaid Plan or Section," occurring in the 14th Section of sidered a part of the special act depends not only upon the Railway Clauses Consolidation Act, 1845, means the special act, but also upon the acts incorporated into other engineering Works relating to the Formation of that act. The Company do not attempt to bring their the actual Line of Railway, and not to a collateral case within the limits of the 14th section of the Railway Work, such as building Bridges over the Railway, and Clauses Act. In The North British Railway Company making the Approaches thereto; and there is no Con- v. Tod, there was a deviation from the line of railway; flict between the 14th and 16th Sections of that Act. and, therefore, that case is no authority for saying, This was a motion, on the part of the London that, although the line of railway is not deviated from, and North-western Railway Company, to dissolve an the plans deposited may be departed from. Here the injunction which had been granted by the Vice-Chan- line of railway is not deviated from. If the Company cellor of England, restraining the Company from pro- have the power to build a bridge of an unlimited ceeding to alter the level of Hill-street or of Naviga- height, the consequence would be, that they would have tion-street, in Birmingham, otherwise than was shewn the power of extending their approaches thereto to an upon the plans and sections deposited with the clerk unlimited extent. We subinit, that, where there is no of the peace of the county of Warwick, for the pur- deviation from the line of railway, the deposited plans poses of the Birmingham, Wolverhampton, and Stour form an integral part of the special act. [Lord ChanValley Railway Act, 1846, Birmingham, Wolverhamp- cellor.-You must carry your argument to this-that if ton, and Dudley lines, &c. The bill was filed by the Company deviated one inch in the line of railway, Rupert Beardmer, a shoeing and jobbing smith, who then all the consequences flowing from The North occupied business premises situated partly in Hill- British Railway Company v. Tod would arise.] Not street and partly in Navigation-street. The case made unless it would be an inevitable result from the deviaby the bill was, that the Company, having made their tion. This bridge and its approaches are engineering railway to cross Hill-street and Navigation-street in a works within the meaning of the 14th section of the cutting, and having erected bridges over the railway Railway Clauses Act, and, therefore, the plans cannot for the purpose of continuing those streets, they were be departed from further than is thereby permitted; in the act of making embankments or approaches for and the 16th section must be read in conjunction with the ascent to the bridge, and that such embankments, it, and modified by it. [Lord Chancellor.-Every term by reason of the increased height of the bridge, ex- used in the 14th section, with the exception of the getended much further than, by the plans and sections neral words "other engineering works," is confined to deposited with the clerk of the peace, they were enti- the railway itself. Suppose they had not introduced any tled to do, and by reason thereof the level of Hill-engineering works into their plan other than those restreet was being altered, whereby the approach to lating to the actual line of railway, the 35th section of plaintiff's shop was injured, and also the access of light the special act would be complied with. What obligaand air thereto was prevented; and it prayed an in- tion was there to introduce into the plans these other junction accordingly. The Vice-Chancellor, proceeding works?] The Standing Orders of Parliament require upon the principle, that, by the deposit of the plans all these works to be set forth upon the plans. [On and sections with the clerk of the peace for the purpose this point they referred to the 7th, 8th, 9th, and 10th of obtaining their act, the Company had made those sections of the Railway Clauses Act.] [Lord Chancelplans a part of the act, granted the injunction, cross-lor.-The plans deposited before the act of Parliament section 60 being manifestly departed from. The 14th and 16th sections of the Railway Clauses Consolidation Act, 1845; 8 & 9 Vict. c. 20; and the 35th section of the special act, were the sections chiefly commented upon. These several sections are stated in the judg ment. was passed cannot be referred to upon the construction of any part of the act, unless they are made a part of that act. In Tod's case the House of Lords rejected all the plans except what were incorporated into the act.] [They referred to Squire v. Campbell, (1 My. & C. 459).] Bethell and Speed, in support of the motion to dis- Bethell, in reply.-The only attempt made to discharge the injunction.-The decision of the Vice-Chan- tinguish this case from that of The North British Railcellor involves this proposition-that if the plan depo-way Company v. Tod was, that there there was a lateral sited point out any collateral works, this representation in the plan deprives the Company of their ordinary powers of deviation. [Lord Chancellor.-The case seems to be precisely the same as that of The Feoffees of Heriot's Hospital v. Gibson, (2 Dow, 301).] The case cannot be differed from that, or the more recent case of The VOL. XIII. P deviation, and that it was upon that circumstance that the House of Lords proceeded. That was not so: the House proceeded upon this-that the mere exhibition of the plans was nothing, and that the enactment did not make the plans a part of the contract. The only other argument that has been advanced is, that this bridge is an engineering work within the terms of the 14th section; but, from examining the 8th to the 14th sections, it will be seen that the only obligation thrown upon the Company was to deposit the plans of the actual line of railway, and the deviation of that line. These are the only engineering works referred to in the 14th section. If this argument, as to the terms "other engineering works," was of any use, it would equally have prevailed in Tod's case. so added very much to the annoyance and the disfigurement of the ground which was within view from his house; and he applied for an injunction, or an interdict, which is the same thing, to prevent the Railway Company from so far deviating from the plans exhibited. The House of Lords had that question to decide; and the House of Lords did not adopt any new rule, but applied the rule-which one would suppose very easily understood, though it appears not to have Feb. 24.-LORD CHANCELLOR.-In this case an in- been very distinctly understood-laid down long before junction has been granted by the Vice-Chancellor, re- in The Heriot's Hospital case, which decided that the straining the Company, in these terms:- "That an in-plan per se constituted no obligation and conferred no junction be awarded to restrain the defendants, the right, but that the plan, so far as it was incorporated London and North-western Railway Company, (and so and referred to in the act, became part of its enactment: on), from continuing to make the embankment or in- of course, therefore, it was material in order to construe cline in the course of being made by them in Hill- the enactment. For instance, if the act of Parliament street, Birmingham, in the county of Warwick; and enacted that the railway should join the line described from continuing to make the embankment or incline in in a particular plan, it is obvious that that plan must the course of being made by them in Navigation-street, be referred to in order to understand the enactment: in Birmingham, to the westward of the point at which the so far, therefore, as it was incorporated in the act, east side of Hill-street crosses Navigation-street, and it was part of the act; and, so far as it was not incorfrom in any manner altering the level of Hill-street, and porated in the act, it was a matter not creating any from in any manner altering the level of that part of Na- right between the parties. That was the rule which vigation-street which lies to the westward of the point has been established for a great number of years; and at which the east side of Hill-street crosses Navigation- in Tod's case it was again acted upon in the House of street aforesaid, to any other extent or in any other Lords. Now, the plan, so far as it represented the surmanner than is shewn upon the plans and sections de- face, was departed from. The surface, after the railway posited with the clerk of the peace of the county of had been finished according to the deviation, no longer Warwick, for the purpose of the Birmingham, Wolver- exhibited the same surface appearance as it would have hampton, and Stour Valley Railway." Now, that is an had according to the plan: the railway was no longer injunction restraining the parties from deviating from carried at the same distance from the surface. But the the levels as appearing on the face of the plans depo- House of Lords came to this conclusion, that the plan sited with the clerk of the peace, under the act. And, was not referred to for the purpose of exhibiting the upon looking at the bill, I find the equity put by the surface appearance, but it was referred to for the purbill is quite in conformity with the injunction granted pose of shewing what was the datum line-what was by the Court; the equity being, that, previously to the the level at which the railway itself was to be carried; act passing, according to the rules and regulations of and, therefore, inasmuch as the act refers to it only for the Houses of Parliament, certain plans were deposited the purpose of the datum line, it is nothing to say that with the clerk of the peace, on the face of which there the plan of the surface now would be in every respect was represented the line that the railway was to take, different from the surface as represented on the plan, crossing Navigation-street, and which Navigation-street because the plan is not part of the act. That is a very is again intersected, at a short distance from the place intelligible rule, and very easily applied to the various where the railway crosses Navigation-street, by Hill- cases. Now, here, the plan exhibited shews, no doubt, street. It represents those two streets, and it repre- Hill-street-shews Navigation-street in the state in sents the line which the railway is to take; and the bill | which it existed before the railway was made, and puts it on the ground, that, these plans having been ex- shews the line of the intended railway, and shews all hibited, and being, I presume, therefore, part of the those parts of the neighbourhood which were within contract, the parties are not at liberty to deviate from the operation of the act-that is to say, all those pieces the plan as represented by those two descriptions. Now of land which the Railway Company had power to deal that, in point of fact, is neither more nor less than with, according to the provisions of the act: but it rebringing forward, over again, what the House of Lords presented them as they then existed; it did not reprehave twice decided is no ground for the interference of sent them for the purpose of shewing in what state they a court of equity. The last of those cases, the case of were to exist after the railway was made, but repreThe North British Railway Company v. Tod, was iden-sented a portion of the land which might or might not tical with the present case. In that case the plan deposited with the clerk of the peace before the act was passed represented the line of the railway, and of course represented the level at which the railway was intended to pass through certain land, and it also represented the surface level of the land. It represented, therefore, the line that the railway was to pass through the land by a cutting, and represented the surface level of the land. The Railway Company, in pursuance of their powers, deviated within the prescribed limits-did not carry their railway precisely in the line which was described by the plan, but varied it within the limits allowed under the act; and, being on the side of a hill, to preserve the same level would necessarily have affected its proximity to the surface level. If it was higher up the hill, of course there would be a deeper cutting; and if it was lower down the hill, there would be a less deep cutting-it would be nearer the surface; and the proprietor of the land would find himself very much annoyed by their having so altered the line of their railway, and approached nearer the surface, and be affected by the railway, and within which the powers of the Railway Company were to be confined. It also shewed the line of the intended railway; and then that intended railway, of course, was not to be necessarily carried into operation precisely in that line, because the act of Parliament authorises, to a certain extent, a deviation. In the course of making these works, the Railway Company, their railway passing in a cutting, had to make a bridge, for the purpose of continuing Navigation-street over their railway; they were obliged to cut through Navigation-street, and, having done so, they were obliged to restore it and make it good, in order to enable passengers, horses, and carriages to pass over it, to continue the passage along Navigation-street. Now, the act contains no restriction as to the height at which any bridge over a street is to be made: it contains a restriction as to the ascent of a bridge; but it is left entirely to the discretion of the Company what height any bridge should be made over the cutting through which their railway is to pass; and it is obvious, that, as they had a power of deviation-a vertical power of deviation to a certain extent-the height of their bridge would depend on whether they did or did not exercise the power of vertical deviation. If they made their bridge lower, the bridge might be less high with reference to the surface level; if they made it higher, then of course the bridge must necessarily be higher; but it contained no restriction on that subject at all, the only restriction being in the 50th section, which only provides the ascent to be made to the bridge, that the ascent shall not be more than one foot in thirty feet, if it be a turnpike-road; or one foot in twenty, if it be a public carriage-road; or one foot in sixteen, if it be a private carriage-road. Those are the only restrictions; subject to that, they were at liberty to make their bridge to any height they might find it convenient. Now, the whole argument turned on the construction to be put on the 16th section, which provides, "Subject to the provisions and restrictions in this and the special act, and any act incorporated therewith, it shall be lawful for the Company, for the purpose of constructing the railway, or the accommodation works connected therewith, hereinafter mentioned, to execute any of the following works-that is to say, they may make or construct in, upon, across, under, or over any lands, or any streets, hills, valleys, roads, railroads or tramroads, rivers, canals, brooks, streams, or other waters within the lands described in the said plans or mentioned in the said books of reference, or any correction thereof, such temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, ways, passages, conduits, drains, piers, arches, cuttings, and fences, as they think proper." And then "they may alter the course of any rivers not navigable, brooks, streams, or watercourses, and of any branches not being themselves navigable, within such lands, for the purpose of constructing and maintaining tunnels, bridges, passages, or other works under or over the same; and divert or alter, as well temporarily as permanently, the course of any such rivers or streams of water, roads, streets, or ways, or raise or sink the level of any such rivers or streams, roads, streets, or ways, in order the more conveniently to carry the same over, or under, or by the side of the railway, as they may think proper," making compensation to the parties injured by the course they think proper to adopt. Here is a very distinct parliamentary authority to deal with all the lands within the plans deposited, or mentioned in the books of reference, as they think proper; they may make roads, inclined planes, and so on; and they may deal with them in such way as they may think it right, for the purpose of more effectually carrying their works into effect, and rendering them of the least possible inconvenience to the proprietors of the adjoining land. But the power is unlimited; and the restriction as to the land over which these unlimited powers are to be exercised is confined only to such lands as are described in the plans or mentioned in the books of reference. Now, it is not in dispute that Hillstreet and Navigation-street are within the plans, and are described in the books of reference. Then, having this power, what are they doing? They are raising the level at a particular point of these two streets; and the 16th section says that that is precisely what they may do-they may alter the level of roads, streets, or ways these are roads, streets, or ways; and what they are doing is raising the level of those streets, roads, or ways. It is difficult to conceive any parliamentary authority more clear and distinct than that which is conferred by the 16th section. Then they say, "Though that is true, there may be other parts of the act which make the representation of these plans conclusive between the parties." It would be very strange if there were any such parts of the act, because it would be a direct contradiction to the 16th section: still we must look to see whether there is any truth in the allegation that there are other parts of the act referring to the plans, as conclusive between the parties that the line shall not vary from what appears to be described on the face of the plan itself. Now, it would be very extraordinary if we found it, and for this reason-that there is a power of deviating laterally. It is quite obvious, that, if the line of the railway be deviated from, it would bring it nearer to the land on one side of the projected railway, and further from the land on the other side of the projected railway; therefore, you immediately alter the relative situation of the railway with the adjoining land, as described on the plan. But, according to the argument, all the other lands must remain exactly as they are; they are described as of a certain level; and although the Company would have power to deviate laterally, to a certain extent, from the line laid down on the plan, they have no power to accommodate the neighbouring estates to the line so adopted by the deviation. It is quite obvious it would reduce the case to an absurdity to give them a power to do that in one part of the act, and in another part deprive them of the means of carrying it into effect. But, upon looking through the other clauses of the act, I find that there is nothing like a recognition of the plan, as describing the neighbouring lands, and providing that they shall remain in the state there represented. Now, the only one that is referred to with anything like an appearance of confidence is the 14th. Now, the 13th and 14th must be read together. The 13th says, "where, in any place, it is intended to carry the railway on an arch or arches;" clearly confining it to the railway. Then comes the 14th, which says, "that it shall be lawful for the company to deviate from or alter the gradients, curves, tunnels, or other engineering work described in the said plan or section: that it shall not be lawful to depart from the plans, as to the tunnels or other engineering works described in the plan, except within the following limits and under the following conditions:"-[Then come the limits and conditions, all confined to the line of the railway itself.] Now, these words are relied upon to shew that this is an enactment that there shall be no departure from the engineering works; and those engineering works mean all works which might become necessary in consequence of the making of the railway. It is clear that those other engineering works mean other engineering works ejusdem generis-that is, other engineering works in the formation of the railway itself. There is nothing in the 13th section, nor is there anything in the 14th section, referring to anything but the works for the purpose of making the railway itself; and the exceptions and conditions are all exceptions and conditions confined exclusively to the works of the railway itself. Now, those are the only words which admit of any argument at the Bar that there is this gross inconsistency on the face of the act-that, by the 14th section, they have provided that there shall be no deviation from the works as represented on the plan, and the 16th section gives the Company the power to alter the level of the roads as they shall think proper. Of course, where there are two sections, which, according to one construction, would be directly opposed to each other, and another construction, by far the most natural and obvious, and consistent with the common use of language, which would create no such inconsistency, there is no choice between adopting the one and the other of those constructions. The 13th and 14th clauses being confined to the railway itself, and the 16th clause being intended generally to relate to everything that the Company might think it expedient to do throughout for the purpose of the undertaking, and which in that section are called "accommodation" works-a word not to be found in the 14th section at all-introduced into the 16th section because that 16th section is meant to apply to those collateral works which may become necessary in consequence of the principal works being carried into effect-there is no use in looking through the other sections of the act. I do not think that there are any which come at all near the point which the plaintiff wished to attain; and that 14th clause, which I observed upon, is not at all aiding the construction. So much for the general act. Now, the only description we find in the particular act is in the 35th clause, which it is quite clear refers only to the line of the railway :-" And whereas plans and sections of the railway, shewing the respective lines and levels thereof, and also books of reference, containing the names of the owners, lessees, and occupiers, or reputed owners, lessees, and occupiers of the lands through which the respective lines of railway are intended to pass, have been deposited with the clerks of the peace of the counties of Warwick, Stafford, and Worcester; be it enacted, that, subject to the provisions of this and the recited acts contained, it shall be lawful for the said Company to make and maintain the said railway and works in the line and upon the lands delineated on the said plans." Now, the result, therefore, of the whole is, that that 16th clause gives a power, which is clearly the power that these parties are about to exercise, and is not restricted or controlled by any other part of the act. It is, therefore, distinctly brought within the case of The North British Railway Company v. Tod, that the purposes for which the plans are referred to are the line of the railway: they are not referred to for the purpose of maintaining the position of other lands described and referred to in the book of reference; they are only introduced there for the purpose of shewing what were the lands that might be affected, and within the power of the Railway Company, in execution of their powers; and, therefore, it is precisely what the House of Lords decided in Tod's case, that the plans were operative only so far as they were intended to be referred to for the purpose of explaining the enactment, and were not operative so far as you shew the plans were not adopted by the act, or incorporated in it by the clauses. It appears to me, therefore, very clear, that this case is one that falls within those which have already been decided, and there is no ground for the injunction which has been granted; and that the order for the injunction must be discharged. Bethell asked for the costs of the motion before the Vice-Chancellor. Craig submitted, that his Lordship would not give those costs. LORD CHANCELLOR.-I think there is no foundation for the motion. I put myself in the situation that the Vice-Chancellor was in. I think, if the motion was made before me, and I took the same view of it as I do now, I should refuse the application, with costs. That is the course I always adopt.-Injunction dissolved, with costs. ROLLS COURT. ARMISTEAD V. DURHAM.-Nov. 2. Practice. the demurrer, within which the plaintiff was to amend his bill, it ought to have been amended within fourteen days, according to the terms of the 16th General Order of May, 1845, article 34, which provides, that "the plaintiff, having obtained an order for leave to amend his bill, has, in all cases in which such order is not made without prejudice to an injunction, fourteen days after the date of the order within which he may amend such bill; and if such bill be not amended within such fourteen days, the order for leave to amend becomes void, and the cause as to dismissal stands in the same situation as if such order had not been made." Turner and Hetherington opposed the application, and contended that the General Order in question applied only to orders of course to amend, and not to an order giving leave to amend on allowing a demurrer; and they said that this was the opinion of the Registrars of the court. Lord LANGDALE, M. R., said, there was no reason for supposing that the above General Order did not apply to all orders giving leave to amend. His strong impression was, that the bill was irregularly amended, in contravention of this General Order. But, as this had been done in accordance with an opinion that the plaintiff had a right so to amend his bill, he should be very slow to put him to the necessity of filing a new bill by ordering the amended bill to be taken off the file. He thought he ought to make no order on the present application, but the plaintiff must pay the costs of it. To this the plaintiff assented. THE ATTORNEY-GENERAL v. SHIELD. Practice. It is irregular for a Defendant in Contempt for want of an Answer to file a Demurrer and Answer; and a Plaintiff, by taking an Office Copy thereof, does_not waire his Right to have it taken off the File for Irregularity. Purvis and Glasse moved, in this case, to take the demurrer and answer of the defendant off the file, with costs, for irregularity. It appeared, that, when the answer and demurrer was filed, the defendant was in contempt for want of an answer; and they contended, that a defendant so in contempt could not file a demurrer and answer, but must put in a full answer to the bill. They cited, in support of the application, Curzon v. De la Zouch, (1 Swanst. 193); Vigers v. Lord Audley, (2 My. & C. 49). It was alleged that the plaintiff had waived the irregularity by taking an office copy of the demurrer and answer. But that rule of practice merely applied to answers, and not to a demurrer and answer. (Woodward v. Twinaine, 9 Sim. 301). Cankrien, contra, said, that the plaintiff, by taking an office copy of the demurrer and answer, had waived the irregularity. (Anon., 15 Ves. 174; Taylor v. Milner, 10 Ves. 445). March 14.-Lord LANGDALE, M. R., said, that he was of opinion that the plaintiff had not waived the irregularity by taking an office copy of the demurrer and answer; and he ordered it to be taken off the file, with costs. The 34th Article of the 16th Order of May, 1845, limiting the Time within which a Bill must be amended, applies not merely to Orders of course to amend, but to all VICE-CHANCELLOR OF ENGLAND'S COURT. Orders giving Leave to amend, including Orders allowing Demurrers. Walpole and Tennant moved, in this case, to take the amended bill off the file, on the ground of irregularity. A demurrer was put in to the original bill, which was allowed generally in March, 1848, and leave was given for the plaintiff to amend, but no time was limited for that purpose by the order allowing the demurrer, or asked for by the plaintiff. The bill was not, in fact, amended till August, 1848, and the ground of irregularity alleged was, that as no time was specified by the order allowing DREVER V. MAWDESLEY.-Feb. 20. Practice-Accounting Party- Trustee Banker. Liability— An accounting Party in a Cause should not apply by Petition for his Discharge. Where a Receiver had been appointed, but Cestuis que Trustent were Infants, and the Trustees, after the Suit was established, allowed a Balance to remain many Years in the Hands of Bankers-Held, that the Trustees were liable on the Failure of the Bankers. |