Digested Index to cases reported. The 5 & 6 W. 4, c. 76, s. 105, gives the recorder all the powers of a court of quarter sessions for the county, except in the matters therein specially excepted. The Queen v. St. Lawrence, Ludlow 189 EJECTMENT. 515 1. In a case where a tenant in possession was bedridden, a service on the daughter, who was residing with the tenant, was held sufficient judgment against the casual ejector. Doe d. to justify the court in granting a rule nisi for Frost v. Roe 285 285 The 5 Geo. 4, c. 85, only gives to the justices of boroughs already having a jail the power of contracting with the justices of the 2. Where a declaration in ejectment was county, or of other boroughs, for the mainten-wrongly entitled, and no date was attached to ance of their prisoners. The 5 & 6 W. 4, the notice of the declaration so as to allow the c. 76, merely puts the town council in the tenant in possession to know the real time in place of such justices, and therefore where the which he should appear, judgment will not be town council of a borough to which under the allowed to be signed against the casual ejector. latter statute a court of quarter sessions had Doe d. Rogers v. Roe been granted, but which had no jail of its own, proposed to enter into such a contract, this Court granted a certiorari to bring up the order of the county justices, under which thed. Pryme v. Roe contract was to be made, on the ground that the two acts, taken together, gave the justices no jurisdiction to make it. The Queen v. The Justices of Lancashire, in the matter of the borough of Manchester 140 3. In entitling an affidavit in a landlord's rule in an action of ejectment, the names of all the lessors ought to be introduced. Doe . 383 4. In ejectment where there were seven cotenants, five of whom only had been served, the Court refused to grant a ule nisi against those upon whom no service had been effected, for Slee v. Roe Doe d. judgment against the casual ejector. 47 3. Before the passing of the Municipal Corporation Act, the members of a corpora5. An action of ejectment was brought to tion authorized one of their body to defend on their behalf, several proceedings taken into a road under the provisions of an act recover possession of a piece of land, taken against them by quo warranto; he did so, and of parliament: a motion being made for judg incurred considerable expence. The corpora- ment against the casual ejector, service having tion then gave him a bond to secure re-pay-been effected on the commissioners, in whom ment of these expences with interest. The the road was vested, the Court refused to grant bond was duly executed: Held, that this con- the rule. Doe d. White v. Roe stituted a lawful debt, in respect of which he might sue the new corporation, elected under the Municipal Act. Wordsworth v. The Corporation of Dartmouth 333 48 6. It is sufficient to serve the Secretary of the East India Company in an action of ejectment. Doe d. Coopers' Company v. Roe EVIDENCE. 77 On a question as to the genuineness of hand 4. The bye law of a corporation must receive a reasonable construction, although its language, taken literally, might appear inconsistent with that construction. Poulterer's Com-writing, a witness cannot be allowed to company v. Phillips COURT OF REQUEST. 430 1. Where from the language of a court of requests act it appears that the plaintiff is only to be deprived of his costs in the event of a verdict being found for him to an amount less than a certain limited sum, taking an an amount less than that limited sum out of court does not come within the meaning of the 78 statute. Jackson v. Cother 2. In an affidavit produced in support of a rule for entering a suggestion on the record to deprive the plaintiff of costs, less than 40s. having been recovered, it was sworn that the defendant, from and since the commencement of the suit, had resided within the jurisdiction of the county court to which he was liable to be warned and summoned: Held, that a sufficient prima facie case was made out, on which to call upon the plaintiff for an answer, and, that an objection that it was not sworn that the cause of action arose within the jurisdiction of the County Court could not be maintained. the Courts here are called on to enforce it, In an action upon a foreign judgment, as they must first be satisfied that it was not obtained by a practice which gives the defendant no opportunity of appearing before the Court which pronounced the judgment. An Irish judgment is subject to be examined in this manner when made the subject of an action in the Courts of this country. In an action on a foreign judgment, the defendant pleaded that he had never had notice of the original action, nor had been served with the process therein. The plaintift replied that he had been served with process, to wit, a certain writ of summons, &c. Held, that the replication was bad. Fergusson v. Mahon 172 FORMA PAUPERIS. It is no answer to such an application that After an action has been commenced, a the plaintiff sues as executrix, since the 3 & 4 plaintiff cannot be admitted to sue in formá W. 4, c. 42. Bishop v. Marsh. 30 pauperis. Lovewell v. Curtis 78 516 GUARDIAN. Digested Index to Cases reported. Whoever enters on the land of an heir, when the heir is under fourteen years of age, may be treated by the heir at his election either as guardian in socage or as a trespasser; and where the heir, becoming of full age, sues such person in ejectment the judge must, on the facts being found, direct the jury that such is the law, and cannot leave it to them to say in what character the person entering on the land of the heir did so enter. Doe d. Cozens v. Cozens Page 61 HABEAS. The House of Commons has the power of committing for contempt for breach of its privileges. A return stating that "A. B. having been guilty of a breach of the privileges of this House," is a sufficient statement of the offence for which he is so committed. The warrant need not set out with greater particularity the nature of the offence. Though if the warrant stated an insufficient cause of commitment, as by alleging some frivolous contempt, this Court would enquire into it. This Court has no jurisdiction to do so where the statement is in general terms that the party has been guilty of a contempt. Ea parte Sheriff of Middlesex, in re Stockdale v. Hansard 298 The Vice Chancellor, although he is not named in the Custody of Infants' Act (2 & 3 Vict. c. 54), is comprehended under the words The Lord Chancellor of England" by virtue of the act appointing the Vice Chancellor (53 G. 3, c. 24). Ex parte Mrs. T. 44, 74 INSURANCE. In an action to recover 1837., a second claim having been set up, the defendant applied to the Court under the Interpleader Act, and an order was made for the trial of a feigned issue between the two claimants. A verdict having been found for the plaintiff in the original action, for 507., the learned Judge ordered each party to pay his own costs: Held, that it was a reasonable exercise of the discretion vested in him by the statute, upon an application to set aside the order, which he made. Carr v. Edwards 111 JUDGMENT AS IN CASE OF A NONSUIT. 1. Where, after issue joined, it is discovered that the defendant is in a state of great poverty, it is a sufficient excuse for not proceeding to trial, and for discharging a rule for judgment as in case of a nonsuit, if the defendant will not consent to a stet processus. Lettice v. Sawyer 336 2. It is not a good excuse for not proceeding to trial that the client is in the country, but the attorney does not know where. Mallan v. Jopson . 302 3. Where a peremptory undertaking has been given to try at the first sittings in term, and which is not fulfilled, judgment as in case of a nonsuit may be obtained in the same term. Ashton v. Johnson 285, 462 4. 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. Willis v. Jopkin 48 5. Where a plaintiff has made default in not proceeding to trial pursuant to notice, and that default is cured by the defendant obtaining the costs of the day, that does not 1. Directions from an assured to two per-preclude the latter from taking advantage of sons to effect a life policy in their own name, a subsequent default in not giving notice of does not authorise them to effect it in their trial. Smith v. Pole . 112 own name and that of another, so as to charge the assured with the premium paid. Barron v. Fitzgerald 366 2. A vessel was insured on a voyage from Liverpool to Sydney and back, with liberty to call and stay for the purposes of the voyage at all and every port and ports, &c. on either side of the Cape (the Mauritius being expressly mentioned), such calling and staying not to be deemed a deviation. The vessel arrived at the Mauritius in the Spring of 1834, but could get no homeward cargo. After the season was over, the master discharged the crew and Faid the ship up. At the beginning of the next season he put it into sailing order, but could get no cargo, and, at the end of April 1935, sailed for Europe in ballast. The ship was lost at sea, The jury found that the discharge 6. Where a peremptory undertaking has been given to proceed to trial at a particular sittings in a term, and the plaintiff does not give notice for those sittings, judgment absofute as in case of a nonsuit may be moved for in the same term, after those sittings have passed. Ashton v. Johnson 285, 462 LEGACY. A testator gave the dividends of a fund to 4. the widow of B., as long as she should remain single and unmarried; and in case of her assigning or anticipating the dividends, then to go over. A. had been privately mar ried to a second husband, who was living, though she passed as the widow of her first husband, but she did not misrepresent her condition to impose on the testator, who was Digested Index to Cases reported. 517 attached to her, and whose misrepresentation | to B., to secure payment of a loan from him. LIEN. Page 75 3. Circumstances under which it was held, upon a bill filed by a creditor to whom the wife Where goods are held by a party as a lien, had given a bill of exchange for a debt conthey are not seizable under a writ of fi. fu., tracted by her, that the sum of 3001. a-year, and therefore, if seized and sold by the sheriff still existed as separate estate under the deed, under such a writ, the bailee may maintain liable to payment of her debts and to the trover against him. Legg v. Sheriff of Mid-jurisdiction of this Court, from which, however, an additional 807., being alimony, was exempt. Quare, as to the legality of the deed. Fandergucht v. De Blaquire dlesex MANDAMUS. 474 1. Where a disputed right to an office can be conveniently tried on a return to a mundamus, the Court will direct that writ to be is sued, though an action of money had and received would lie. The fact that such an action will lie is not of itself sufficient to prevent the issuing of the writ. The Queen v. Hopkins and the Commissioners of the Small Debt Courts at Boston 460 2. The steward of a manor belonging to the 50, the proper Crown, is, by the 10 Geo. 4, c. person to grant admittance to such manor, and if he refuse to grant it, this Court will issue a mandamus to compel him to admit. Quare, whether a writ of mandamus will lie to the steward of any other than a Crown manor to admit a person claiming a right to be tenant The Queen v. The Steward of such manor. 25 of the Manor of Richmond liams MARRIED WOMAN. 462 106 4. A testator gave his daughter, then unmarried, all his leasehold estate, and all his estate and effects, to her separate use, free monies, public stocks, and all his personal from the controul of any husband she might marry, and from his debts, and appointed her ried. By articles executed on the marriage, sole executrix. She proved the will and marto her separate use: Held, by the Vice Chanpart of the public stocks were settled in trust cellor, that the leasehold estate and other personal property given by the will, were to her separate use, and not liable in equity to be But the Lord Chancellor suspended his judgtaken in execution for the husband's debts. ment, and required security for the property pending the suit. Newlands v. Holmes. 123 5. A testator gave his daughter, then unmarried, all his leasehold houses, all his monies, public stocks, and all his personal estate whatsoever, to her separate use, free from the marry, and he appointed her sole executrix of controul or debts of any husband she might his will, which she proved, and then married; and by the marriage settlement, part of the public stock was vested in trustees for her separate use for life, remainder to the husband: Held, upon motion before the hearing of the cause, that no part of the property be364 queathed, whether leasehold or moveable, was liable to the husband's debts, and an injunction was granted till the hearing. Newlands v. Holmes 1. Gifts by will in trust (after a life interest) for an unmarried woman, during her life, for her separate use, independent of any husband she may marry, and as to some of the gifts with a prohibition against anticipation, but without words of gift over on anticipation. The legatee took a vested interest in some of 6. A., being entitled in right of his wife to the gifts while she was single, and all of them took effect in possession after her marriage: Held, that the legatee's separate estate in the real estates for her life, subject to outstanding bequests, as well without as with the clause terms, created for raising portions, &c. and against anticipation, took effect on her subse- having, on taking the benefit of the act for quent marriage, and continued during that relief of insolvent debtors, assigned his estate coverture: that she might at any time dispose and effects, the assignee filed a bill to be deof the gifts to her separate use independent of clared entitled to the rents of the estates, her husband, and of those with the clause subject to prior incumbrances during the joint against anticipation after his death only; that lives of A. and his wife: Held, by the Lord 427 while discovert her separate estate was sus- Chancellor (overruling the Vice Chancellor's pended, but would again become effectual decree) that the wife was entitled in equity to with the like restrictions on her next marriage, a provision out of the rents for her mainte7. Where in an application to file the acif not alienated during her discoverture. Sem-nance. Sturgis v. Champneys. ble, that Newton v. Reid, 4 Sim. 141; Brown v. Pocock, 5 Sim. 663, and the dictum in Mas-knowledgment of a married woman, it duly Tullett v. of full age, but in the affidavit the same fact sey v. Parker, 2 Myl. & K. 174, and other appeared by the certificate that the party was 263 was stated, the deponent adding, as he verily cases of that class, are overruled. Armstrong 2. A married woman, having property set- believed, the Court refused to order the officer tled to her separate use, agreed to mortgage to file the acknowledgement, and directed the it to 4., to secure payment of a loan. She affidavit to be amended. Re Ann Coverdale. becomes discovert, and mortgages the property 47 518 NUISANCE. Digested Index to Cases reported. Certain individuals formed themselves into a company, and obtained an act of parliament to make a navigable canal and to receive tolls. The act did not in terms impose on them the duty of keeping the navigation clear from obstruction: But held, that by common law that duty was imposed on them, and that in a case where damage had arisen from an obstruction which had not been removed after reasonable notice, and to provide against the dangers of which, by placing lights &c., reasonable care had not been used, the proprietors were responsible in damages to the party injured, and that he might recover if he set forth in his declaration such a state of facts as would raise in law this implied duty and liability. Barnaby v. The Lancaster Canal Company Page 126 OUTLAWRY. A plaintiff brought an action while he was an outlaw; he recovered damages in the action. A motion was made, and a rule granted to stay the levy of the damages on the ground of the outlawry. The outlawry was afterwards shewn to have been set aside before the trial. The rule was discharged, but without costs. Somers, M.P. v. Holt PARENT AND CHILD. . 412 In order to maintain an action for seduction, it must appear that the daughter was in the actual service of the father at the time the alleged cause of action arose. Haley Blamire v. PARLIAMENTARY PRIVILEGE. 415 1. The Poor Law Commissioners have no authority to issue to an incorporated union formed under Gilbert's act, an order, parts of which impose new duties on one of the officers of the union, and thus occasion a necessity for a new salary to be granted to him; and such order, being bad as to part, and being an entire order, is bad as to the whole, and must be quashed. The Queen v. The Poor Law Commissioners, in the matter of the Allstonefield Incorporation 365 2. A building crected under a local act of who held sessions and transacted the county parliament was vested in the county justices, business there. Some of the rooms were fitted A certain quantity of plate up as bed rooms. was bought by the county, and kept in this building for the use of the Judges at the as sizes. Some of the Justices subscribed for a quantity of wine, which was kept in the cellars when attending at sessions. A person was alof the building, and was used by the justices ways resident in the building, and took care of the wine and the plate: Held, that these circumstances did not constitute such an occupation by the county justices as to make the whole body liable to be rated to the relief of the poor. The Queen v. The Justices of Woracestershire The Court will not stay the execution of writ of inquiry by the sheriff on the ground that it is suggested that the sheriff may incur the consequences of a breach of privilege of the House of Commons. Stockdale v. Han62 sard PLEADING (COMMON LAW). 218, 237 3. Circumstances under which certain proprietors of a navigation were held liable to he rated to the relief of the poor. Bruce and the Bath River Company v. The Churchwardens of Hanham Mills PRACTICE (EQUITY). 50 1. To a count for use and occupation, the 1. This Court, after making a decree for an defendant pleaded specially an eviction during account in a suit pending here, will exercise its the quarter for which the rent was sought to jurisdiction to restrain plaintiffs from bring. be recovered: Held bad, as amounting to noning actions against the defendants for the same assumpsit. Prentice v. Elliott. 170 2. A count in a declaration alleged that the plaintiff had placed certain paper in the hands of the defendant for the purpose of printing a certain work for the plaintiff, but that the defendant wrongfully pawned the paper: Held, that the count was properly framed in case. Smith v. White 463 3. Where, in an action on the case for deceit the plaintiff alleged in his declaration that the defendant was partner in a firm with two others, and that he made certain false representations with a view to procure goods to be advanced to the firm on credit, and the defendant pleaded that the representations were not in writing within 9 Geo. 4, c. 14, s. 6: Held, that the plea was a good answer to the action, and that the terms of that section must be taken to apply to the defendant's partners, matter in Scotland. But if some of the de- 2. The delivery of exceptions to a bill for impertinence, will not save a defendant from contempt for want of answer, unless an order to refer them be obtained before the time for answering expires. An attachment issued for want of answer after the time for answering has expired is regular, although exceptions to the bill for impertinence were deli. Digested Index to Cases reported. vered the same day the attachment issued. Petty v. Lonsdale Page 283 3 Upon an issue directed by decree of the Court, and the plaintiff therein not going to trial, the Court will not on a single default, order a verdict to be taken pro confesso against him, but will make an order that unless he go to trial next assizes, a verdict pro confesso shall be taken against him. Casborne v. Barsham 199 4. It is irregular to allow a demurrer in part, and disallow it in part. It is too late to appeal from an order to amend, after the amendments have been made and submitted to by the applicants demurring to the amended bill, without having applied to the Court. Wellesley v. Wellesley 186 PRACTICE (COMMON LAW). 519 on the premises of the former, for the purposes of an action then pending between the parties. Turquand v. Strand Union Page 319 11. A summons to amend a declaration by a plaintiff, operates as a stay of proceedings for one day, though not followed up by a second summons, and notice is given by the plaintiff after the return of the summons that he will not proceed with the amendment. Hodgson v. Cayley 234 12. Where it becomes necessary for the purposes of justice to consider the fraction of a day, the Court will do so; and, therefore where a defendant died between eleven and twelve o'clock, and a writ of fi. fa. was sued out before one and two o'clock on the same day against the defendant's goods, it was held to be irregular. Clinch v. Smith 334 13. It is ground of setting aside a demurrer, that the words "in the year of our Lord” are omitted in its title. Holland v. Thealdi. 334 1. Where a judge's order for taxing costs is made a rule of Court, execution may be issued on it at once, without application to the Court. Wallis v. Sheffield 64 2. It is regular to arrest a defendant on a 14. Where the affidavit is regular, with reswrit of ca. sa. more than a year after it has pect to attempts to serve a writ of summons, been issued, if that writ has been issued within to which an appearance has not been entered a year after the judgment. Simpson v. Heath by the defendant in due time, and a search 191 for an appearance has been made on Saturday, 3. It is no objection to an application for a rule for a distringas may be obtained on the security for costs on the ground of a plaintiff Monday following. Spence v. Burker . 238 being abroad, that the defendant has obtained 15. The Court will not entertain a rule to time to plead on the usual terms. It is an dismiss a summons, which is pending at chamobjection to such an application that the plain-bers. Abbott v. Hopper . 110 tiff is resident in this country at the time of the application being made, although he is usually resident abroad. Dowling v. Harman. 240 16. Semble, that imparlances in proceedings by sci. fa. are abolished since the passing of the Uniformity of Process Act. Doe d. Phillips v. Roe 47 4. Judgment having passed for the plaintiff 17. The indorsement on the copy of a writ on a demurrer to one plea, and the cause being of summons, directing the defendant to pay taken down for trial upon another plea, when the amount of the debt and costs "to the a juror was withdrawn by consent, the Court plaintiff or his attorney;" the Court refused refused to give the plaintiff the costs of his to set aside the copy of the writ, and held dermurrer. Burdon v. Flower 239 that the indorsement might be amended. Anon. 5. When an order for time to join in demurrer has been obtained, it ought to be served within a reasonable time after making it, or the opposite party may sign judgment. Kenney v. Hutchinson 415 48 18. A rule being moved for, and the Court taking time to consider, the rule being granted may be dated after the day on which it was applied for. Egan v. Rowley. 77 6. A judge at chambers has no power, with19. Where a rule nisi to compute has been out the consent of the parties, to stay pro- obtained, the defendant having gone abroad, ceedings on payment of debt and costs. Rey-it should be made a part of the rule that service nolds v. Sherwood at his ordinary place of abode, and by sticking up a copy of the rule in the master's office shall be deemed good service. Neilson v. Slee 78 301 7. A rule to compute cannot be successfully opposed, by shewing that the judgment is ir regular; but a separate application must first be made to set aside the judgment, for which 20. Where the Chancellor of a county palaapplication time will be given, at the time tine directs his mandate to the Sheriff, the of showing cause against the rule to compute. latter may return it either to the Chancellor Keily v. Villebois 78 or the Court out of which the writ issues, and, therefore, although he has returned it to the Chancellor after being ruled to return it to the original Court or the Chancellor, he is not liable to an attachment. The Queen v. Sheriff of Lancaster . 173 8. A similiter by the party whose pleading it is, requires to be dated. The objection to a want of a date, is not waived by not opposing a judge's order for a writ of trial on that ground. Middleton v. Hughes. 302 9. In enlarged rules, nothing but an inevitable accident can excuse not filing affidavits a week before term. Wright v. Lewis. 383 10. A judge has no power without consent to order a defendant to allow the plaintiff to enter and inspect the work done by the latter 21. Where two actions were brought against executors, the former against them as executors, and the latter in their own right, the plaintiff was allowed to amend his particulars in the former by adding items sought to be recovered in the latter. Jones v. Corrie. 508 |