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PUBLIC PETITIONS.

HEARING OF ORIGINAL CAUSES BEFORE

328

House of Commons-Public Petitions.-Notes of the Week.
HOUSE OF COMMONS. many able attorneys and solicitors in the Com-

mon Council, we doubt not their attention will

bé directed to the details of the plan of these Every Member presenting a Petition to the New Court rooms, and that the convenience of House must affix

his name at the beginning attorneys attending the trials will be duly prothereof. (Vide Commons' Journals, 1833, vided for. March 20.)

Every Petition must be written and not printed or lithographed. (Vide Commons'

THE LORDS JUSTICES.
Journals, 1793, May 6; 1817, March 12.)
Every Petition must contain a prayer. (Vide

Vice-Chancellor Wood, whose Cause List is Commons' Journals, 1843, July 10.)

very heavy, intimated some time ago that the Every Petition must be signed by at least Lords Justices were willing to hear a limited one person on the skin or sheet on which the number of the causes which stood for hearing Petition is written. (Vide Commons' Journals, in this branch of the Court, if any parties de1817, March 12.)

sired it. His Honour has since expressed his Every Petition must be written in the Eng- surprise that no parties had availed themselves lish language, or be accompanied by a translation certified by the member who shall present of the opportunity thus presented of having it. (Vide Commons' Journals, 1821, Mar. 16; their causes speedily disposed of. Mar. 21.)

Every Petition must be signed by the parties NON-DELIVERY OF PAPERS FOR THE COURT. whose names are appended thereto by their names or marks, and by no one else except in

In a cause called on before Vice-Chancellor case of incapacity by sickness. (Vide Com- Kindersley, it appeared that no copies of the mons' Journals, 1675, Nov. 8; 1689, Nov. 14; pleadings had been left for the use of the 1774, June 2; 1826, Dec. 13; 1836, June Judge ; and the solicitor, whose duty it was 28.)

to see that this was done, not being in Court, No letters, affidavits, or other documents, His Honour said, that he should in future take may be attached to any Petition. (Vide Commons' Journals, 1826, Feb. 20; Nov. 28.) measures for preventing a recurrence of that

No reference may be made to any Debate in dereliction of duty on the part of solicitors. Parliament. (Vidé Commons' Journals, 1822, Sir J. Leach would in such a case have ordered Mar. 28.)

the cause to be struck out. He should, howNo application may be made for any grant ever, content himself with causing the name of of public money, except with the consent of the solicitor, and a note of the matter to be 'the Crown. (Vide Standing Orders.)

communicated to the Taxing Masters, in order All Petitions, after they have been ordered that the solicitor should suffer in costs for his to lie upon the Table, are referred to the Committee on Public Petitions, without any ques

neglect. tion being put; but if any such Petition relate to any matter or subject with respect to which

LAW APPOINTMENT. the Member presenting it has given notice of

The Queen has been pleased to appoint a Motion, and the said Petition has not been Christopher Temple

, Esq., to be a Puisne ordered to be printed by the Committee, such Judge of the Supreme Court of Ceylon.Member may, after notice given, move that from the London Gazette of 15th Feb. such Petition be printed with the Votes. (Vide Standing Orders.)

NEW MEMBERS OF PARLIAMENT.

Gervaise Tottenham Waldo Sibthorp, Esq., NOTES OF THE WEEK.

for the city of Lincoln, in the room of Charles De Laet Waldo Sibthorp, Esq., deceased.

George Ridley, Esq., for Newcastle-on-Tyne, The power given by the Common Law Pro- in the room of John Fenwick Burgoyne cedure Act for two Courts of Nisi Prius to sit at Blackett, Esq., who has accepted the office of the same time, has induced the City authorities

Steward of her Majesty's Manor of Northstead.

Samuel Warren, Esq., Q.C., for Midhurst, to inquire of the Judges whether such Courts in the room of the Right Hon. Spencer Horatio were likely to be permanent, and being in- Walpole, who has accepted the office of Steward formed in the affirmative, the Common Council of her Majesty's Chiltern Hundreds.

John Villiers Stuart Townshend, commonly have promptly directed plans and estimates to called Viscount

Raynham, for Tamworth, in the be prepared. We have been favoured with an room of John Townshend, Esq., now Marquis inspection of them, and knowing there are Townshend, summoned to the House of Peers.

NEW COURTS FOR TRIALS AT NISI PRIUS.

Superior Courts: Lord Chancellor.-Lords Justices.-Rolls.-V.C. Kindersley. 329 Philip Wykeham Martin, Esq., for Rochester, Sir Andrew Agnew, Bart., for the county of in the room of the Honourable Francis John Wigton, in the room of John Dalrymple, Robert Villiers, who has accepted the office of (commonly called Viscount Dalrymple), who Steward of her Majesty's Chiltern Hundreds. has accepted the office of Steward of her Ma

Adam Black, Esq., for the City of Edinburgh, jesty's Manor of Northstead. in the room of the Right Honourable Thomas The Right Honourable Spencer Horatio Babington Macaulay, who has accepted the Walpole, M.A., for Cambridge University, in office of Steward of her Majesty's Manor of the room of the Right Hon. Henry Goulbourn, Hempholme.

deceased.

RECENT DECISIONS IN THE SUPERIOR COURTS.

Lord Chancellor.

a printed copy thereof shall in the meantime In re Papps. Feb. 13, 1856.

have been filed, and the plaintiff in the suit, or PAYMENT OF SURPLUS PENSION OF OPFICER his solicitor, who shall personally have underOF COURT TO MORTGAGEES THEREOF.

taken to filé such printed copy, shall pay to Order made on petition under the 16 & 17 Vict. the suit, such costs to be taxed by the Taxing

the defendant all the costs incurred by him in C. 98, s. 8, for payment to the mortgagees Master, without further order, upon production of the pension of a former officer of the to him of the certificate of the Clerk of Records Court of the surplus thereof after payment and Writs, that a printed copy of the bill has of the portion directed to be appropriated not been filed pursuant to such undertaking, for the liquidation of moneys due in re- and to be recoverable in like manner as costs spect of his ofice, which were ordered to ordered to be paid by a party in a suit to anbear interest at 5 per cent from the period other party in a suit are now recoverable.", the same became due.

Lloyd and Currey in support; R. Palmer This was a petition under the 16 & 17 Vict. and H. C. Jones contrà. c. 98, s. 8, for payment to the mortgagees of the The Lords Justices said, that the Court had pension of Mr. Papps, formerly an officer of power to relax its rules in such manner as, acthe Court, of the surplus thereof, after payment cording to its view of justice and right, would of the portion ordered to be appropriated for he proper, and the appeal was accordingly disthe liquidation of certain moneys due from him missed. in respect of his office. G. Lake Russell in support ; Bacon for Mr.

Master of the Rolls. Papps ; Taylor for the solicitor to the Suitors' In re London, Brighton, and South Coast RailFund. The Lord Chancellor granted the petition as

way Company, exparte Earl of Abergavenny.

Jan. 31, 1856. prayed, and directed interest at 5 per cent. to be paid on the debt in respect of his office from LANDS' CLAUSES' ACT. — INVESTMENT OF the period it was incurred. Lards Justices.

Order on the petition of the tenant in tail of

certain lands taken by a railway company Ferrand v. Corporation of Bradford. Feb. 19, for the investment of the purchase-money, 1856.

which had been settled by arbitration and INJUNCTION SUIT:-FILING PRINTED BILL.

paid to him instead of into Court under the

8 8.9 Vict. c. 18, 8. 69. The plaintiff in an injunction suit omitted to

This was a petition by the tenant in tail of file a printed bill under the 15 & 16 Vict. certain lands taken by the above railway c. 86, 8, 6, within the 14 days limited by company, for the investment of the purchase

which had been settled by arbitration the 3rd Order of August 7, 1852; Held; and paid to him instead of into Court under dismissing an appeal from the Master of the Rolls, that the Court had power to give

the 8 & 9 Vict. c. 18, s. 69. leave to file the printed bill.

Waller in support.

Cur, ad. vult. This was an appeal from the decision of the

The Master of the Rolls granted the petition Master of the Rolls, giving leave to file, within

as asked. a limited time, the printed copy bill in this injunction suit, under the 15 & 16 Vict. c. 86,

Vice-Chancellor Kindersley. s. 6, although the time for so doing had expired.

In re Tofts Estate and Northern and Eastern By the 3rd Order of August 7, 1852, it is

Railway Company. Feb. 8, 1856. directed, that “the Clerks of Records and RAILWAY COMPANY. Writs shall at the expiration of 14 days from the filing of any written bill or written copy of a bill, take off the file of the Court, without Under a railway company's private Act they further order, the bill or copy so filed, unless were to pay the costs and expenses of ob

PURCHASE-MONEY ON PETITION OF TE-
NANT IN TAIL.

-EXTENSION OF TIME.

PAYMENT OF COMPENSATION MONEY OUT OF COURT ON DEATH OF TENANT FOR LIFE.

X

RIGHT OF BANKRUPT ASSIG

VENCY ASSIGNEES TO LEGACY.

330

Superior Courts : V. C. Kindersley.--V. C. Stuart.V. C. Wood. laining the proper orders and of other pro- the Court, or by or before an examiner to be ceedings for the purpose of the payment of specially appointed by the Court, the examiner the dividends and interest on investments in being furnished by the plaintiff with a copy of Government securities, and of the payment the bill, and of the answer, if any, in the cause; of the principal or compensation money : and such examination shall take place in the Held, that the company were liable for the presence of the parties, their counsel, solicitors, costs of a petition for payment out of Court or agents, and the witnesses so examined orally on the death of the tenant for life and shall be subject to cross-examination and reattaining 21 of the party entitled in re-examination; and such examination, crossmainder.

examination, and re-examination shall be conThis was a petition for the payment out of ducted as nearly as may be in the mode now Court of a sum of 691. odd, together with a in use in Courts of Common Law with respect small sum of cash, which stood to her separate to a witness about to go abroad, and not exaccount. It appeared that the dividends had pected to be present at the trial of a cause." been directed to be paid to her mother for life,

Bacon and Baggallay, contrà. who was now dead, -and the petitioner had

The Vice-Chancellor said, the objection that also attained her majority.

the affidavit was matter of reply and not part of C. Hall, in support, asked for costs against the plaintiff's case, was insufficient. There the railway company.

was a discretionary power vested in the Court, J. T. Wood, contrà, referred to the special and the fact of the evidence being closed did Act, 6 & 7 Wm. 4, c. ciii., s. 72, which enacts, not imply that all additional evidence was to that “all the reasonable costs charges and ex- be shut out. The motion would be granted to penses attending such purchase, &c., or which read the affidavit and to enlarge the time to may be incurred in consequence thereof, and cross-examine as asked—the cause to be set also the investment of the purchase or compen

down immediately for hearing. sation money, &c., together with the costs, charges, and expenses of obtaining the proper

Vice-Chancellor Culood. orders and of the other proceedings for such purposes, and of the payment of the dividends

In re Bissell's Trust. Feb. 16, 1856. and interest of the said Government or real se- LEGATEE. curities, and of the payment of the principal of NEES AS AGAINST SUBSEQUENT INSOLthe said purchase or compensation money, and of the Government or real securities purchased therewith out of Court, to be paid by the said

legatee under a will was twice bankrupt

before the death of the testatrix, and obcompany," and citing Exparte Cooke, 3 Rail. Ca. 135; In re Strachan's Estate, 9 Hare, 185;

tained her certificates. Under the second

bankruptcy a dividend under 158. was paid, Exparte Molyneux (V.C. B.), 2 Coll. 273. The Vice-Chancellor said, that the costs of

and the assignees, immediately on the death obtaining the orders for payment of the divi

of the testatrix, claimed the legacy from

the executors. She subsequently became indends and principal which formed part of the

solvent : Held, that the assignees in bankmachinery of the payment, were included in the act, and must be paid by the company.

ruptcy were entitled to the legacy, and that they had not waived their right by allowing

the bankrupt to continue to trade. Vice-Chancellor Stuart.

It appeared that a legatee under the will of Phillips v. Ward. Feb. 11, 1856.

a testatrix had been twice bankrupt before her EQUITY JURISDICTION IMPROVEMENT ACT. but under the second bankruptcy the dividend

death, and had duly obtained her certificates, -USING AFFIDAVIT FILED AFTER EVI.

was under 158. Upon her decease, the assigDENCE CLOSED.

nees thereunder claimed the legacy from the Leave, under the 15 & 16 Vict. C. 86, s. 31, executors. The legatee afterwards became in

to the plaintiff to use at the hearing an af, solvent, and the assignees presented this pefidavit filed three days after the enlarged tition for payment of the legacy, which had time for closing the evidence had expired, been paid into Court under the 10 & 11 Vict. and order to enlarge time for cross-exami- c. 96. nation.

De Gex, in support, urged that the 6 Geo. 4, Malins and Jessel appeared in support of c. 16, 2. 127,' did not apply, as the testatrix this motion on behalf of the plaintiff, for leave died after the 12 & 13 Vict. c. 106, came into to use at the hearing an affidavit filed three operation, and which did not re-enact that days after the enlarged time for closing the section, and also that the assignees under the evidence had expired, and to enlarge the time second bankruptcy, by allowing the legatee to for cross examination until March 10, or fur- continue to trade, had waived any prior title: ther to enlarge the time for closing the evi. Tucker v. Hernaman, 1 Smale & G. 394 ; 4 De dence.

G., M'N. & G. 395 ; Troughton v. Gitley, Ambl. By the 15 & 16 Vict. c. 86, s. 31, it is en- 630. acted, that “all witnesses to be examined orally under the provisions of this Act shall be so 1 Which enacts, that "if any person who examined by or before one of the examiners of shall have been so discharged by such certifi

WHERE JURY DIS

-AFFIDAVIT.

Superior Courts : V. C. Wood.- Queen's Bench.-Exchequer.

331 Cracknell for the assignees, contrà, referred porate, of their attorney or agent, stating that to the 12 & 13 Vict. c. 106, 8. 4, which enacts, the deponents or deponent believe or believes that “this Act, unless where otherwise specially that the party proposing to interrogate, whether provided, shall commence and take effect from plaintiff or defendant, will derive material beneand after October 11, next, &c.: Provided, fit in the cause from the discovery which he &c., that nothing in this Act contained shall ” seeks, that there is a good cause of action or « lessen or affect any right, title, claim, de- defence upon the merits, and, if the application mand, or remedy which any person now has be made on the part of the defendant, that the or hereafter may have under or by virtue there- discovery is not sought for the purpose of of, or lessen or affect any right, title, claim, de-delay; provided that where it shall happen, mand, or remedy which any person now has from unavoidable circumstances, that the or hereafter may have upon or against any plaintiff or defendant cannot join in such aftibankrupt against whom any fiat has or shall davit, the Court or Judge may, if they or he have been issued."

think fit, upon affidavit of such circumstances The Vice-Chancellor said, that the claim of by which the party is prevented from so jointhe legacy by the assignees in bankruptcy ing therein, allow and order that the interrogaamounted to taking possession before the in- tories may be delivered without such affidavit.” solvency, and their right to recover could not Phipson in support; Lush showed cause in be defeated on the ground of acquiescence. the first instance. The most reasonable construction of the Statute The Court said, that the affidavit was insuffiwas, that it did not disturb the rights under cient to enable the Judge to exercise a discrethe former law, and the assignees in bank- tion, and the rule would therefore be refused. ruptcy were therefore entitled to the legacy.

Court of Erchequer.
Court of Queen's Bench.

Wall v. London and South Western Railway
Creus v. Morrison. Jan. 28, 1856.

Company. Jan. 22, 1856.

TAXATION OF COSTS.COMMON LAW PROCEDURE ACT, 1854.-IN

CHARGED WITHOUT GIVING VERDICT. TERROGÅTORIES BEFORE DECLARATION,

A rule was refused to review the Master's A motion will not be granted for leave to the

taxation, disallowing on a rule to discon

tinue the defendant's costs of a trial, where plaintiff to deliver interroga!ories under

the jury disagreed and were discharged the 17 8 18 Vict. c. 125, 8. 51, before de.

without returning a verdict. claration upon an affidavit, stating that he

This was a motion for a rule nisi to review believes he would derive material advuntage from the answers of the defendants to such the taxation of the Master, disallowing the interrogatories, and also that he has a good defendants their costs of a trial in which the cause of action.

jury being unable to agree as to a verdict, had This was a motion for leave to the plaintiff wards obtained a rule to discontinue.

been discharged, where the plaintiff had afterto deliver interrogatories to the defendant un

Bovill in support. der the 17 & 18 Vict, c, 125, s. 51, before de

The Court said, that in accordance with Seely claration, on the ground alleged in the affida- v. Powers, 3 Dowl. P. C. 372, and Wood v. vits in support, that he believed he would de- Duncan, 6 M. & W. 87, the costs of a trial rive material advantage from the answers were not allowed where the jury had been disthereto, and also that he had a good cause of charged without returning a verdict, and the action.

rule would therefore be refused. By s. 52 it is enacted, that “the application for such order shall be made upon an affidavit

Cook v. Hopewell. Jan. 22, 1856. of the party proposing to interrogate, and his attorney or agent, or, in the case of a body cor

PLEADING RULES, TRINITY TERM, 1853.

REPLICATION cate as aforesaid, or who shall have compounded with his creditors, or who shall have been

To an action for goods sold and delivered, the discharged by any Insolvent Act, shall be or defendant pleaded, except as to 221. odd, become bankrupt, and have obtained or shall never indebted, and as to that sum payment hereafter obtain such certificate as aforesaid,

thereof after action to the plaintif, who unless his estate shall produce (after all charges)

accepted it in satisfaction of the debt and sufficient to pay every creditor under the Com

of all damages accrued in respect thereof. mission 15s. in the pound, such certificate shall

The plaintiff replied, taking issue on the only protect his person from arrest and impri

plea: Held, that in order to prove the plea sonment, but his future estate and effects (ex

the defendant should show that the plaintiff cept his tools of trade, &c.) shall vest in the accepted the sum in satisfaction of debt and assignees under the said Commission, who

of the costs, or that the costs were paid, or shall be entitled to seize the same in like man

tendered, and that the plaintiff was not ner as they might have seized property of

bound under the 22nd pleading rule of which such bankrupt was possessed at the

Trinity Term, 1853, to confess the plea in issuing the commission."

question,

OF

PAYMENT

ON PLEA
AFTER ACTION-COSTS.

332

Superior Courts : Exchequer. A rule was therefore made absolute to set document to the production of which he is en

aside the verdict for the defendant, and to titled for the purpose of discovery or otherenter it for the plaintiff, with nominal da- wise, is in the possession or power of the opmages.

poeite party, it shall be lawful for the Court or This was a rule nisi to set aside the verdict Judge to order that the party against whom for the defendant and enter it for the plaintiff such application is made, or if such party is a with nominal damages in this action, which was body corporate that some officer to be named brought for goods sold and delivered, and to of such body corporate, shall answer on affi. which the defendant pleaded, except as to 221. davit, stating what documents he or they has odd, never indebted, and as to that sum pay- or have in his or their possession or power rement thereof after action to the plaintiff

, who lating to the matters in dispute, or what he accepted it in satisfaction of the debt and of all knows as to the custody they or any of them damages accrued in respect thereof. The are in, and whether he or they objects or object plaintiff'replied, taking issue on the plea. It (and if so, on what grounds), to the production appeared that the debt was paid to and taken of such as are in his or their possession or by the plaintiff without any mention of costs. power ; and upon such affidavit being made On the trial before Wightman, J., the defendant the Court or Judge may make such further obtained a verdict,

order thereon as shall be just." Finlason showed cause against the rule, cit.

Blackburn in support on an affidavit of the ing the 22nd pleading rule of Trinity Term, plaintiff's attorney; C. E. Pollock showed 1853.1

cause in the first instance. The Court (without calling on J. Brown in

The Court said, that the motion for a dissupport) said, the defendant, in order to prove covery, could not be granted except on the his plea, must show that the plaintiff agreed to affidavit of the party himself, and as to the rest accept the amount in question in satisfaction of referred the application to Chambers. the debt and costs, or that the costs were paid. In Henry v. Earl, 8 M. & W.228, Lord Abinger Hutchinson v. Gillespie. Feb. 7, 1856. (p. 233) said, “ No doubt costs form part of ACTION ON ORDER OF JUDICIAL COMMITTEE the damages resulting from the detention of the

OF PRIVY COUNCIL FOR COSTS. debt, and if there is no answer to those costs,

Held, overruling a demurrer, that an action the plaintiff may sign judgment for so much." The 22nd rule, cited at bar, was for the purpose

will lie on an order of the Judicial Com. of enabling a defendant to plead matters of

mittee of the Privy Council for the costs of defence arising after action brought, and to en

the plaintiff on an appeal being decided in able the plaintiff to end the action by confessing

his favour against a judgment of the Quebec

Provisional Court, and where such judgment the plea, and to obtain the costs up to the time

was final so far as he was concerned. of plea pleaded, but he was not bound to confess a plea like the present, which was not true. 1,0901. odd on an order of the Judicial Com

This was an action to recover a sum of The rule would therefore be made absolute.

mittee of the Privy Council in an appeal against Herschfield v. Clark. Jan. 25, 1856.

a judgment of the Quebec Provincial Court,

and which amount was for the costs of the COMMON LAW PROCEDURE ACT, 1854.--DIS-appeal and reference to arbitration under their

order. To this declaration there was a deA rule was refused for a discovery under the murrer.

17 & 18 Vict. c. 125, s. 50, on the plain- Bovill and Bullar, in support, referred to the tiff's behalf, where the affidavit was made 3 & 4 Wm. 4, c. 41, and 6 & 7 Vict. c. 38, and

by his attorney, and not by himself, contended the plaintiff's remedy was by attachThis was a motion for a rule nisi for leave

ment. He cited Carpenter v. Thornton, 3 B.& to the plaintiff to deliver certain interrogatories Ald. 52; Hookpayton v. Bussell, 10 Exch. R. to the defendant under the 17 & 18 Vict. c. 24; Fry, v. Malcolm, 4 Taunt. 705; Berkeley 125, s. 51, and for the inspection of a log

v. Elderkin, 1 Ellis & B. 805; Austin v. Mills, book, the survey of the cargo and bill for re- 9 Exch. R. 288 ; Patrick v. Shedden, 2 Ellis & pairing a ship, in this action against its owner. B. 14; Henley v. Sloper, 8 B. & C. 16; Russell

By section 50 of the 17 & 18 Vict. c. 125, v. Smyth, 9 M. & W. 810; 1 Dowl. N. S. 929. it is enacted, that “ Upon the application of

H. Hill and Unthank, contrà, referred to either party to any cause or other civil pro

Henderson v. Henderson, 6 Q. B. 288. ceeding in any of the Superior Courts, upon

The Court said, that as far as the plaintiff an affidavit by such party of his belief that any affirmed the judgment

in his favour. But the

was concerned, the decision was final, and 1 Which provides, that " a plea containing

Statutes creating the Judicial Committee had a defence arising after the commencement of empowered it to order the parties to pay costs, the action may be pleaded together with pleas and the plaintiff had therefore a statutable of defences arising before the commencement of right of enforcing compliance, and might sue, the action, provided that the plaintiff may con.

and the power of the Judicial Committee to fess such plea, and thereupon shall be entitled enforce the order did not affect his right to to the costs of the cause up to the time of the sue. The judgment must therefore be for the pleading of such first-mentioned plea.”

COVERY.-AFFIDAVIT.

plaintiff.

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