Superior Courts: Vice Chancellor; Queen's Bench.

answer, except one suggesting that any further communication should be made through his solicitor. She wrote to the same effect to the solicitor, and his answer was that he had no instructions in the matter. Before the act under which the petition was presented was passed the petitioner had instituted a suit for conjugal rights in the Ecclesiastical Court. That suit being defended was still pending. The petitioner stated that she was labouring under great anxiety of mind respecting her six young children, none of whom she had been permitted to see. The husband was a gentleman of large fortune, and resided at Southgate, where, so late as the 10th of October, he was known to have been. The lady's solicitor had since made inquiry for him, and he could nowhere be found. It was supposed he had gone abroad with the children, and the object of this application was to substitute service of the petition.

The Vice Chancellor asked what jurisdiction ke had to substitute service?

Mr. Knight Bruce.-The act said nothing about service. The Court might grant the order merely on the petition, although it was consistent with the practice of the Court to require service.

His Honor replied, that to grant an order ex parte would not be doing common justice. He could readily conceive so gross a case as to require the interference of the Court in that way, but this case did not disclose such circumstances. He should take the affidavits and read them.

The Vice Chancellor, on a subsequent day, said there was a preliminary question, whether he had jurisdiction under the recent statute, upon which subject he would first say a few words. The 53 Geo. 3, c. 24, under which he was appointed, required that the Vice Chancellor should have full power to hear and determine all causes which shall be at any time depending in the Court of Chancery in England, &c., or which shall be submitted to the jurisdiction of the said Court, or of the Lord Chancellor for the time being, by the special authority of any act of parliament. Now the doubt which was suggested arose from the circumstance that the power of the act, 2 & 3 Vict. c. 54, was given to the Lord Chancellor and the Master of the Rolls, without mentioning the Vice Chancellor. He had gone to the fountain head to find out how that was, and he had the very best authority for stating that the act, as originally drawn, contained the words "The Vice Chancellor," but that they were afterwards struck out, as being virtually comprehended in the words The Lord Chancellor." He had no doubt, therefore, that he had jurisdiction under the Custody of Infants Act.

Mr. K. Bruce said there were circumstances which might render it at present unnecessary for his Honor to give judgment on the point whether he would order substituted service of the petition; but if it should become necessary to trouble his Honor on the point, he would take care to do so before his Honor

45

should have forgotten the mass of affidavits he had taken the trouble to read.

Ex parte Mrs. T., in re the Custody of Infants Act.-At Westminster, November 4th and 8th, 1839.

Queen's Bench.

[Before the Four Judges.j

FREEMAN BY BIRTH.-QUO WARRANTO.

The charter of the borough of Maldon granted
the right to the freedom of that borough to
different classes of
and
persons, among
other things, declared, that every daughter
of an admitted freeman should have a right
to nominate and appoint her husband a
freeman; and further, that if any daughter
of an admitted freeman died "leaving her
husband and child or children or any of
them behind her," he and they should be
respectively entitled to the freedom of the
borough in the same way as if her husband
had been admitted during her life. A, a
stranger, married the daughter of a free-
man—she died before her husband was ad-
mitted a freeman-he married again, and
had a son by his second marriage. Held,
that this son was entitled to the freedom by
birth.

This was a proceeding in the nature of a Quo Warranto, to try by what authority the defendant claimed to exercise the privileges of a freeman of the borough of Maldon. The defendant had pleaded a right to the freedom in virtue of his birth, his father having been the husband of the daughter of a freeman. The plea stated in substance, that long before the passing of the statute in the information mentioned, (the Municipal Corporation Act) his Majesty Geo. 3 was pleased to grant to the borough of Maldon a charter, which, after reciting that the borough was an ancient borough, but had then (in 1810) fallen into decay, declared that for the purpose of restoring the borough to its ancient state, his Majesty had been graciously pleased to grant it certain rights, liberties, and privileges. The letters patent described six classes of persons who might be entitled to the freedom of the borough. The first class was to consist "of every person who had been admitted into the freedom of the borough before the corporation had fallen into a state of decay." The second class "of every person who by the usage and custom of the borough would have been entitled by birth and servitude to his admission into the freedom of the borough, and to be of the commonalty thereof, in case the corporation had not fallen into decay so as to prevent his obtaining such admission." The third class. "Every person who, if such last-mentioned persons had been admitted unto the freedom of the borough, would by the said usage and custom have derived title to the same freedom by birth or servitude, by, through, or under them, or any of them, in case the said corporation had not fallen into decay, shall and may within six calendar months from the date of these presents, &c." be admitted.

46

Superior Courts: Queen's Bench.

:

The case was argued by Mr. Serjeant Stephen, in support of the quo warranto, and by Mr. Butt for the defendant. The points taken in argument are fully adverted to in the judgment.

Lord Denman, C. J.-I think that the words of the charter are clear. I shall not enter into the argument as to what was intended, nor refer to reasons of analogy drawn from other parts of the instrument, for I find words which shew me that the party is clearly entitled to the right he claims. He has the same right as his father had conferred on him. That brings us to the question what that right was. I think his right is fully established by the words describing the 6th class. The only doubt that was raised in my mind was on the words in the fourth clause, which gave the right of conferring the freedom hereafter; on which it was argued, that if it was intended that he should have the right complete at the time, it would have been so stated. But I think that the words "confer the freedom hereafter" do not mean the right of transmitting from son to son, but the right of transmitting by marriage. I think that the son here had the same right as if the title had been fully conferred on the father during the wife's life, and he had been duly admitted on such title.

The fourth class. "All the children or ap- I had not been admitted into the corporation prentices of such persons so admitted by virtue before the corporation fell into decay that of these presents shall have the same right, he did not fall within the second class, because title, and claim to their freedom, and to the he was not a person who by the usage of the power of conferring the same hereafter, as if borough would have been entitled to be adtheir respective parents or masters had been mitted by birth or servitude: that he did not admitted to their freedom so soon as they fall within the third class, because that referred would have been entitled thereto in case the only to persons who by usage or custom would same corporation had not fallen into decay." derive their title through those who claimed The fifth class. "Each and every daughter by birth or servitude: and that he did not fall of every person who was heretofore admitted within the fourth class, because he was not the unto the freedom of the said borough, or who child or apprentice of a person who had been shall be duly admitted to the freedom of the admitted under the charter within six months, same by these presents, or, being now deceased, as provided for in the regulations respecting would be entitled to be admitted into the same the third class. if he were now living, shall have the same right to nominate and appoint her husband to be a freeman of the said borough as the daughters of freemen possessed before the said corporation fell into dissolution and decay." The 6th class.-" And that in all cases in which a woman, being the daughter of any person who was duly admitted into the freedom of the said borough before the said corporation had fallen into decay, or of any person who by the usage and custom of the said borough would have been entitled by birth or servitude to his admission to the freedom thereof, in case the said corporation had not fallen into decay, hath been married and hath died before the granting of these our letters patent, leaving her husband and child or children, or any of them behind her, or who being now living and a widow hath a child or children lawfully begotten, shall respectively have, enjoy, and be entitled to the same rights as he and they would have been entitled to if such woman had upon her said marriage conferred the freedom of the said borough upon her said husband according to the usage of the said borough, and her said husband had been thereon duly admitted thereto. And all ancient customs, &c. shall be observed."-Before the grant of the letters patent, every daughter of a freeman of the borough could, during her life, confer upon her husband the right to the freedom of the borough, and he would then have a right to be admitted to the same. The plea stated that Bunting the elder, before the grant of the letters patent, and after the corporation had fallen into decay, was lawfully married to Sarah, the daughter of Isaac Nevitt, who had been duly admitted a freeman of the borough. She died, leaving John Bunting the elder, her husband, her surviving. She had nominated him a freeman, but he had never been admitted to his freedom. After her death her husband married one Elizabeth Richardson, and the defendant was the son of this second marriage. The defendant claimed to be a freeman in right of his father, in the same way as if his father had been an admitted freeman of the borough. There was a demurrer to the plea, and the question intended to be raised was, whether there was any thing in the charter to restrain the right of a person so circumstanced. It was argued for the prosecution that the father did not fall within the first class of persons mentioned in the charter, because he

Mr. Justice Patteson.-I am entirely of the same opinion. I was struck in the course of the argument with the construction attempted to be put, for the prosecution, on the 4th clause; and if it was necessary for the defendant to avail himself of that part of the charter, I should probably be of opinion that he could not do so, because he had not been admitted. But he does not found his claim on that clause, but on a subsequent one. The words of the 4th clause, too, appear to me to bear the construction of relating to the daughters of persons who have been so admitted, so that the words "confer hereafter" have a full meaning given to them, without applying them to a case like the present.

Mr. Justice Williams.-I am of the same opinion. What was the object of this charter? It was to remedy, as much as possible, the decay of the corporation. The plain meaning of the words "any of them," in the 6th clause, is any husband or any child, &c. The husband, then, clearly stands in the same predicament as if he had been admitted in his wife's lifetime.

Superior Courts: Q. B. Practice Court; Common Pleas.

47

Littledale, J.-I do'nt think the Uniformity of Process Act can be considered as applying to proceedings by sci. fu. However, you may take a rule, as it is fit the question should be discussed.

Rule granted. Doe d. Phillips v. Roe, M. T. 1839. Q. B. P. C.

Common Pleas.

Mr. Justice Coleridge. The defendant not been given by plaintiff in the proceedings claimed under his father, J. Bunting, the by scire facias. The question was, whether elder. Then the question is, in what situation imparlances were abolished in proceedings by the father stood. It seems to me that his case sci. fa. as in ordinary cases. In the case of fell within the words of the 6th clause. His Frean v. Chaplin, 2 Dowl. 523, it was held wife was the daughter of a person entitled to that imparlances were not abolished by the the freedom. She had died before the charter Uniformity of Process Act, but that decision was granted, leaving her husband her survi- was overruled by Wigley v. Tomlins, 3 Dowl. ving; but then the charter says "leaving 7. It seemed by analogy that the imparlances a husband or child or children or any of were abolished in the case of proceedings by them." The word "any" here, must apply sci. fa. to the husband as well as to the children. She having died, such husband shall have the same right as he would have had if on her marriage she had conferred the freedom upon him, and he had been duly admitted. If the husband falls within these words, then what is the true construction of them? It is contended that the husband was only intended to enjoy the freedom for his life. I do not see any good ground for such a construction. The prosecutor is bound to make out that it exists. The husband was a freeman of a corporation, and as he had the same sort of freedom as other persons in the corporation, he was within the letter and spirit of the charter, and so is his son. As to the argument of convenience, I think it is in favour of this claim, for the rejection of the claim would go to restrict the freedom to freedom for life, instead of making it transmissible: besides which it would create two classes of freemen in the borough, enjoying different rights, and that would affect the borough in many respects; for instance, in the taking of apprentices, as one set of masters would be able to confer the freedom, and another would not. Looking, therefore, at the words and spirit of the act, and at the convenience and justice of the case, the construction clearly demanded seems to me to be

in favour of the defendant.

Judgment for the defendant.-The Queen v. J. Bunting the younger. M. T. 1839. Q. B. F. J.

Queen's Bench Practice Court.

IMPARLANCE.SCIRE FACIAS.-JUDGMENT IN
EJECTMENT.-WRT OF RESTITUTION.

Semble, that imparlances in proceedings by
sci. fa. are not abolished since the passing
of the Uniformity of Process Act.
Chilton moved for a rule nisi to rescind an
order made by Mr. Baron Maule, for setting
aside a judgment under these circumstances.
It was an action of ejectment, and judgment
was obtained by the lessor of the plaintiff. This
was allowed to remain more than a year without
issuing execution upon it. A scire facius was
then issued on the judgment, and without giving
the defendant an imparlance, a writ of habere
facias possessionem was then issued, and pos-
session given to the lessor of the plaintiff. An
application was then made to Mr. Baron
Maule, to set aside the judgment so signed,
and the writ of possession so executed. His
Lordship accordingly made an order to that
effect, on the ground that an imparlance had

JUDGMENT AGAINST CASUAL EJECTOR.

In ejectment where there were several co-tenants, five of whom only had been served, the Court refused to grant a rule nisi against those upon whom no service had been effected, for judgment against the casual ejector.

James moved for judgment against the casual ejector. There were seven tenants, of He moved that whom five had been served. there should be a rule nisi against those who were not served, and a rule absolute against the rest He cited Doe dem. Right v. Wrong, 2 Chit. Rep. 175; they were not joint-tenants.

Tindal, C. J.-You might turn two persons out of possession who never heard of the proceedings. They are not joint tenants, but only co-tenants. You may take a rule as against five, but not as regards the other two.

Rule accordingly.-Doe dem. Slee v. Roe, M. T. 1839. C. P.

FILING ACKNOWLEDGEMENT OF MARRIED WO

MAN.-AFFIDAVIT.

Where, in an application to file the acknowledgement of a married woman, it duly appeared by the certificate that the party was of full age, but in the affidavit the same fact was stated, the deponent adding, "as he verily believed; "the Court refused to order the officer to file the acknowledgement, and directed the affidavit to be amended. Bere moved that the Court would direct the clerk of the enrolments to file the acknowledgement of a married woman, under the Fines and Recoveries Act. The certificate was regular, and stated that the married woman, who was in Van Dieman's Land, was of full age, but in the affidavit it was stated that the party was of full age, "as the deponent verily believed." It was submitted that this was sufficient, especially as there was no doubt of the fact alleged.

Tindal, C. J.-You had better supply the fact in your affidavit, as it is so easy of authentication,

Rule refused.-Re Ann Coverdale, M. T. 1839. C. P.

48

Superior Courts: Common Pleas; Exchequer of Pleas.-The Editor's Letter Box.

JUDGMENT AGAINST THE CASUAL EJECTOR.

An action of ejectment was brought to recover possession of a piece of land, taken into a road under the provisions of an act of parliament. A motion having been made for judgment against the casual ejector, service having been effected on the commissioners, in whom the road was vested, the Court refused to grant the rule.

Robinson moved for judgment against the casual ejector. The action of ejectment was brought to recover land taken into a public road under the provisions of an act of parliament, as it was alleged, illegally. The road was declared by the act to belong and be vested in certain commissioners as trustees, and service had been effected on one of the commissioners, and upon their clerk.

Exchequer of Pleas.

JUDGMENT AS IN CASE OF A NONSUIT.

INSUFFICIENT AFFIDAVIT.-EXCUSE.

In order to excuse a default in proceeding to trial pursuant to notice, some excuse must be alleged in shewing cause against the rule for judgment as in case of a nonsuit, beyond the mere fact of being unprepared to go to trial.

Tindal, C. J.-I do not see that you have adopted the right course in seeking your re-trial at the next assizes. medy. There is no one in possession, and how can you swear that you have served the tenant in possession? You cannot term the commissioners tenants in possession. They are not so much so as the public who pass over the road.

Peacock shewed cause against a rule nisi for Tomlinson. The affidavit on which cause was judgment as in case of a nonsuit, obtained by shewn stated, that the defendant's attorney notice of trial, as he was not then prepared to had been desired by his client to countermand try. Pursuant to this direction he had countermanded it; and since that time he had been lieved that his client would be able to go to unable to find the plaintiff; but he verily be

Rule refused.-Doe d. White v. Roe, M. T.

1839. C. P.

COPY OF WRIT OF SUMMONS.-INDORSEMENT.

-AMENDMENT.

The indorsement on the copy of a writ of summons directing the defendant to pay the amount of the debt and costs" to the plaintiff or his attorn:"-the Court refused to set aside the copy of the writ, and held that the indorsement might be amended. Martin moved for a rule to set aside the copy of the writ of summons served on the defendant in this action, on the ground of an irregularity in the indorsement. An indorsement was necessary to be made, stating the amount of the plaintiff's claim for debt and costs, and that the amount should be paid to the " plaintiff or his attorney." Here the words quoted were written the plaintiff or his attorn," and the indorsement there stopped. It was admitted that the attorney's name was given in the writ, but it had been repeatedly held that the rule must be strictly followed.

Tindal, C. J.-The indorsement may be amended on an application to the Court. It is evidently an error.

Martin urged that it had been laid down that such an amendment could not be made.

Coltman, J.-The distinction has been drawn between the cases arising under any statute, and under a rule of the Judges. In the former instance an amendment will not be allowed, but under the latter the Court has decided that it may be made.

Tindal, C. J.-On an application the amendment might be made, as the indorsement is ordered by a rule of the Judges.

Rule refused.-Anon., M. T. 1839. C. P.

that although a very slight excuse might be Tomlinson, in support of the rule, contended sufficient for not proceeding to trial, yet that there must be some excuse; here, however, there was none.

Lord Abinger.-No excuse is here stated for not proceeding to trial, and therefore the present rule must be absolute for judgment as in case of a nonsuit.

Rule absolute.-Willis v. Jopkin, M. T. 1839. Excheq.

We are informed that the case reported p. 30, ante, of an application to the Court by a candidate to be examined this term, who had omitted to give one of his notices through a misunderstanding with one of the Judge's clerks, was that of "Ex parte Goode," and not "Ex parte Rowland."

The long Lists of Causes in all the Courts, which we gave on the first day of term, has thrown some matter into arrear, but we shall speedily dispose of it.

The List of Re-admissions for the last day of this Term, which we gave last week, were more pressing than the Admissions, which relate only to Hilary Term. Objections to any of the Re-admissions intended to be made through the Law Society should be stated without delay.

The "Un-Common Law Rhymes" have been received, and will probably appear in the next Monthly Record.