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Digested Index to cases reported.

515 The 5 & 6 W. 4, c. 76, s. 105, gives the re

EJECTMENT. corder all the powers of a court of quarter

1. In a case where a tenant in possession sessions for the county, except in the matters

was bedridden, a service on the daughter, who therein specially excepted. The Queen v. St. Lawrence, Ludlow

189

was residing with the tenant, was held sufficient The 5 Geo. 4, c. 85, only gives to the judgment against the casual ejector. Due di

to justify the court in granting a rule nisi for justices of boroughs already having a jail the Frist v. Roe

285 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. lalter statute a court of quarter sessions had Due d. Rogers v. Roe

285 been granted, but which had no jail of its own, proposed to enter into such a contract, this rule in an action of ejectment, the names of

3. In entitling an affidavit in a landloril's Court granted a certiorari to bring up the all the lessors ought to be introduced. Doe order of the county justices, under which the d. Pryme v. Roe

383 contract was to be made, on the ground that the two acts, taken together, gave the justices

4. In ejectment where there were seven copo jurisdiction to make it. The Queen v. The tenants, five of whom only had been served, the Justices of Lancashire, in the matter of the Court refused to grant a rule nisi against those

upon borough of Manchester

140 3. Before the passing of the Municipal judgment against the casual ejector. Doe d.

47 Corporation Act, the members of a corporation authorized one of their body to defend recover possession of a piece of land, taken

5. An action of ejectment was brought to on their behalf, several proceedings taken into a roald under the provisions of an act against them by quo warranto; he did so, and of parliament: a motion being made for judgincurred considerable expence. The corpora- ment against the casual ejector, service having tion then gave him a bond to secure re-pays 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. Doed. White v. Roe stituted a lawful debt, in respect of which he might sue the new corporation, elected under the East India Company in an action of eject.

6. It is sufficient to serve the Secretary of the Municipal Act. Woritsuorth v. The Corpo

Due d. Coopers' Company v. Roe rution of Dartinouth

333 4. Tie bye law of a corporation must receive a reasonable construction, although its language, taken literally, night appear

inconsis

On a question as to the genuineness of handient with that construction. Poulterer's come writing, a witness cannot be allowed to com

pare the document impugned with writings of puny v. Phillips

430

the party to whom it is ascribed, and which are

alleged to be authentic, unless such writings COURT OF REQUEST. are in evidence in the cause for other pur.

269 1. Where from the language of a court of poses. Griffith v. Ivery requests acı it appears that the plaintitt is only

FOREIGN JUDGMENT. to be deprived of his costs in ihe event of a verdict being found for him to an amount

In an action upon a foreign judgment, as less than a certain limited sum, taking an

the Courts here are called on to cnforce it, an amount less than that limited suin out of they must first be satisfied that it was not obcourt does not come within the meaning of the tained by a practice which gives the defendant statute. Jackson y. Cother

78 no opportunity of appearing before the Court 2. In an allidavit produced in support of which pronounced the judgment. à rule for entering a suggestion on the record

An Irish judgment is subject to be exato deprive the plaintiff of costs, less than 40s, mined in this manner when made the subject having been recovered, it was sworn that the of an action in the Courts of this country. defendant, froin and since the commencemeni

In an action on a foreign judgment, the of the suit, had resided within the jurisdiction defendant pleaded that he had never had of the county court to which he was liable notice of the original action, nor had been to be warned and summoned : Held, that a served with the process therein. The plaintift which to call upon the plaintiff for an answer, 1 that the replication was bad. sufficient prima facie case was made out, on replied that he had been served with process,

to wit, a certain writ of summons, &c. Held, and, that an objection that it was not sworn

Fergusson v. that the cause of action arose within the juris.

Muhon

172 diction of the County Court could not be maintained. It is no answer to such an application that

After an action has been commenceri, a the plaintiff' sues as executrix, since the 3 & 4 plaintiff' cannot be admitted sue in formi W. 4, c. 42. Bisrop v. Marsh . 30 pauperis, Lovewell v. Curtis

78

mert.

77

EVIDENCE.

FORMA PAIPERIS.

GUARDIAN.

INTERPLEADER.

HABEAS.

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ILIGIIWAY.

516

Digested Index to Cases reported.

of the crew was an abandonment of the voyage Whoever enters on the land of an heir, when the ground that if not in itself a deviation, the

insured. The Court sustained the verdict, on the heir is under fourteen years of age, may be discharge of the crew was strong evidence to treated by the heir at his election either as guardian in socage or as a trespasser; and shew that the delay was unnecess where the heir, becoming of full age, sues such being so, it would amount to a deviation. Tr

ving v. Burnand person in ejectment the judge must, on the

Page 429 facts being found, direct the jury that such is the law, and cannot leave it to them to say In an action to recuver 1831., a second claim in what character the person entering on the having been set up, the defendant applied to land of the heir did so enter. Doe d. Cozens the Court under the Interpleader Act, and an v. Cozens

Page 61 order was made for the trial of a feigned issue

between the two claimants. A verdict having

been found for the plaintitl in the original The House of Commons has the power of action, for 501., the learned Judge ordered committing for contempt for breach of its pri- each party to pay his own costs : Held, that vileges. A return stating that “A. B. having it was a reasonable exercise of the discretion been guilty of a breach of the privileges of this vested in him by the statute, upon an applicaHouse,” is a suflicient statement of the offence tion to set aside the order, which he made. for which he is so committed.

Carr v. Eduards

111 The warrant need not set out with greater particularity the nature of the offence.

JUDGMENT AS IN CASE OF A NONSUIT. Though if the warrant stated an insufficient 1. Where, after issue joined, it is discovered causc of commitment, as by alleging some fri- that the defendant is in a state of great poverty, volous contempt, this Court would enquire it is a sufficient excuse for not proceeding io into it. This Court has no jurisdiction to do so trial, and for discharging a rule for judgment where the statement is in general terms that as in case of a nonsuit, if the defendant will not the party has been guilty of a contempt. Ex consent to a stet processus. Lettice v. Sawyer purte Sheriff of Middlesex, in re Stockdale v.

336 Hansard

298 2. It is not a good excuse for not proceed.

ing to trial that the client is in the country, Where a rule has been obtained for imposing lan v. Jopson

but the attorney does not know where. Mal.

. 302 a line on a parish for non-repair of a bighway, the Court will enlarge it, if the state of the been given to try at the first sittings in term,

3. Where a peremptory undertaking has season is such as to render it inconvenient to and which is not fulfilled, judgment as in case proceed with the repairs of the highway. The of a nonsuit may be obtained in the same Queen v. Inhabitants of Walton

507
Ashton v. Johnson

235, 462
4. In order to excuse a default in proceediug

to trial pursuant to notice, some excuse must The Vice Chancellor, although he is not be alleged in shewing cause against the rule named in the Custody of Infants' Act (2 & 3 for judgment as in case of a nonsuit, beyond Viet. c. 51), is comprehended under the words the mere fact of being unprepared to go to - The Lord Chancellor of England” by virtue trial. Willis v. Jopkin

48 of the act appointing the Vice Chancellor (53

5. Where a plaintiff has made default in not G. 3, c. 24). Ex parte Mrs. T.

44, 74 proceeding to trial pursuant to notice, and

that default is cured by the defendant ob.

taining 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 naine,

à subsequent default in not giving notice of does not authorise them to etect it in their trial. Smith v. Pole

. 112 own name and that of another, so as to charge 6. Where a peremptory undertaking has the assured with the premium paid. Burron v: been given to proceed to trial at a particular Mitzgerald

366

sittings in a term, and the plaintiff does not 2. A vessel was insured on a voyage from give votice for those sittings, judgment absoLiverpool to Sydney and back, witli liberty to lute as in case of a nonsuit may be moved for call and stay for the purposes of the voyage at in the same term, after those sittings have all and every port and ports, &c. on either side

passed. Ashton v. Johnson

285, 462 of the Cape (the Mauritius being expressly mentioned), such calling and staying not to be deemed a deviation. The vessel arrived at A testator gave the dividends of a fund to the Mauritius in the Spring of 1834, but could | A. the widow of B., as long as she should re. Let no homeward cargo. After the season main single and unmarried; and in case of was over, the master discharged the crew and her assigning or anticipating the dividends, said the ship up. At the beginning of the next then to go over. A. had been privately inar. cason he put it into sailing order, but could ried to a second husband, who was living, Set no cargo, ind, at the end of April 1935, though she passed as the widow of her first Cailed for Lurope in ballast. The ship was husband, but she did not misrepresent her Lust at sca, The jury found that the discharge condition to impose on the testator, who was

term.

INFINTS.

INSURANCE.

LEGACY.

LIEN.

MANDAMUS.

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Digested Indler to Cases reported.

517 attached to her, and whose misrepresentation to B., to secure payment of a loan from him, of her condition was not alone the motive of B. had notice of A.'s claim : Held, that A. his bounty : Held, a valid legacy. Rishton v. was entitled to a prior mortgage. Stead v. Cobb Page 331 Nelson

Page 75

3. Circumstances under which it was hell!, Where goods are held by a party as a lien, had given a bill of exchange for a debt con

upon a bill filed by a creditor to whom the wife they are not seizable under a writ of fi: Su., 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 deeri

, under such a writ, the bailee may maintain liable to payment of her debts and to the trover against him. Legg v. Sherif of Midi jurisdiction of this Court, from which, hoiva dleser

474

ever, an additional 801., being alimony, was

exempt. Quare, as to the legality of the decit. 1. Where a disputed right to an office can Pandergucht v. De Blaquire

106 be conveniently tried on a return to a munda

4. A testator gave his daughter, then unmus, the Court will direct that writ to be is married, all his leasehold estate, and all lis sued, though an action of money had and monies, public stocks, and all his personal received would lie. The fact that such an

estate and effects, to her separate use, free action will lie is not of itself sufficient to pre

from the controul of any husband she miglı: vent the issuing of the writ. The Queen v. marry, and from his debts, and appointed ber Hopkins and the Commissioners of the Small sole executrix. She proved the will and marDebt Courts at Boston

460

ried. By articles executed on the marring?', 2. The steward of a manor belonging to the part of the public stocks were settled in trust Crown, is, by the 10 Geo. 4, c. 50, the proper to her separate use : Held, by the Vice Chanperson to grant admittance to such inanor, cellor, that the leasehold estate and other perand if he refuse to grant it, this Court will sonal property given by the will

, were to her issue a mandamus to compel bim to admit separate use, and not liable in equity to be Quære, whether a writ of mandamus will lie to taken in execution for the husband's debts. the steward of any other than a Crown manor But the Lord Chancellor suspended his judge to admit a person claiming a right to be tenant ment, and required security for the property of such manor.

The Queen v. The Stercard pending the suit. Newlands v. Holmes : 123 of the Manor of Richmond

25

5. A testator gave his daughter, then un3. An inforination founded on an act of married, all his leasehold houses, all his mo. parliament, must describe it as an act passed nies, public stocks, and all his personal estate in a session holden in a particular year, and whatsoever, to her separate use, free froin the not merely in the year itself. Ex parte Wil- controul or debts of any husband she might liams

462 marry, and he appointed her sole executrix of

his will, which she proved, and then married ;

and by the marriage settlement, part of the 1. Gifts by will in trust (after a life interest) public stock was vested in trustees for her for an unmarried woman, during her life, for separate use for life, remainder to the husher separate use, independent of any husband band: Held, upon motion before the hearing she may marry, and as to some of the gifts of the cause, that no part of the property bewith a prohibition against anticipation, but queathed, whether leasehold or moveable, was without words of gift over on anticipation. liable to the husband's debts, and an injunction The legatee took a vested interest in some of was granted till the hearing. Newlands v. the gifts while she was single, and all of them Holmes

364 took effect in possession after her marriage : 6. A., being entitled in right of his wife to 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 benetrit 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 entitleil 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 while discovert her separate estate was sus-Chancellor (overruling the Vice Chancellor's pended, but would again become eflectual 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 mainteif not alienated during her discoverture. Sem nance. Sturgis v. Champneys .

427 ble, that Neuton v. Reid, 4 Sim. 141.; Broun 7. Where in an application to file the acv. Pocock, 5 Sim. 663, and the dictum in Nas- knowledgment of a married woman, it duly sey v. Parker, 2 Myl. & K. 174, and other appeared by the certificate that the party was cases of that class, are overruled. Tullett v. of full age, but in the atlidavit the same fact Armstrong

263 was stated, the deponent adding, as he verily 2. A married woman, having property set- believed, the Court refused to order the officer tled to her separate use, agreed io inorigage to file the acknowledgement, and directed the it to 1., to secure payment of a loan. She allidavit to be amended. Re Ann Corerdale. becomes discovert, and mortgages the property

47

MARRIED WOMAN.

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NUISANCE.

a8

POOR LAWS.

OUTLAWRY.

· 412

L'ARENT AND CILD.

518

Digested Inder to Cases reported.

“other persons," within the meaning of the Certain individuals formed themselves into legislature. Quære, whether such an action a company, and obtained an act of parliament can be maintained. Deveux v. Steinkiller 202 to make a navigable canal and to receive tolls.

4. Debt will lie by the payee of a promissory The act did not in terms impose on thein the note against the maker, and by the drawer of duty of keeping the navigation clear from ob- a bill of exchange against the acceptor, with. struction : But held, that by common law that out the words “value received” being conduty was imposed on them, and that in a case tained in the instrument. Hatch v. Trayes, where damage had arisen from an obstruction

Watson v. Reightley .

Page 317 which had not been removed after reasonable notice, and to provide against the dangers of

1. The Poor Law Commissioners have no au. which, by placing lights &c., reasonable care had not been used, the proprietors were re

thority to issue toanincorporated union formed sponsible in damages to the party injured, and under Gilbert's act, an order, parts of which that he might recover if he set forth in his de- impose new duties on one of the officers of the claration such a state of facts as would raise union, and thus occasion a necessity for a new in law this implied duty and liability. Burnaby salary to be granted to him; and such order, v. The Lancaster Canal Company Page 126 being bad as to part, and being an entire order,

is bad as to the whole, and must be quashed.

The Queen y. The Poor Law Commissioners, in A plaintiff brought an action while lie was

the matter of the Allstonefield Incorporation 365 an outlaw; he recovered damages in the action. parliament was vested in the county justices,

2. A building crected under a local act of A motion was made, and a rulegranted to stay who held sessions and transacted the county the levy of the daniages on the ground of the business there. Some of the rooms were fitted outlawry. The outlawry was afterwards shewn to have been set aside before the trial. The up as bed rooms. A certain quantity of plate rule was discharged, but without costs. Somers; building for the use of the Judges at the as

was bought by the county, and kept in this 11.P. v. Holt

sizes. Some of the Justices subscribed for a

quantity of wine, which was kept in the cellars In order to maintain an action for seduction, when attending at sessions. A person was al:

of the building, and was used by the justices it must appear that the daughter was in the actual service of the father at the time the ways resident in the building, and took care of alleged cause of action arose. · Blamire v.

the wine and the plate: Held, that these cir

cumstances did not constitute such an occu. Haley

415

pation by the county justices as to make the

whole body liable to be rated to the relief of The Court will not stay the execution of a cestershire

the poor. The Queen v. The Justices of Ior

218, 237 writ of inquiry by the sheriff on the ground 3. Circumstances under which certain prothat it is suggest that the sheriff inay incur prietors of a navigation were held liable to he the consequences of a breach of privilege of rated in the relief of the poor. Bruce and the the House of Commons. Slochdale v. llana Bath River Company r. The Churchirardens of sard 62 Hanham Mills

50 PLEADING (COMMON LAW).

PRACTICE (EQUITY). 1. To a count for use and occupation, tbe 1. This Court, after making a decree for an defendant plearles 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 : bield bad, its amounting to non ing actions against the defendants for the same assumpsit. Prentice v. Elliott,

170 matter in Scotland. But if some of the de2. A count in a declaration alleged that the fendants and their property be within the plaintiff hard placed certain paper in the foreign jurisdiction, and the plairtiffs' objeet hunds of the vetendant for the purpose of by the actions there be to fix that property printing a certain work for the plaintiff, but with a lien to answer the result of the acihat the defendant wrongfully pawned the pa counts in the snit here, this Court will, on per : Hell, that the count was properly framed special application, grant leave to proceed in case. Smith v. White

463 with the actions, so far as to get the security 3. Where, in an action on the case for deceit of the property according to the practice of the plaintiff alleged in his declaration that the the foreign court. Wedderburn v. W'edder. defendant was partner in a firm with two bun

471 others, and that he made certain false repre- 2. The delivery of exceptions to a bill for sentations with a view to procure goods to be impertinence, will not save a defendant from advanced to the firm on credit, and the de- contempt for want of answer, unless an order fendant pleaded that the representations were to refer them be obtained before the time tor not in writing within 9 Geo. 4, c. 14, s. 6 : answering expires. An attachment issued Held, that the plea was a good answer to the for want of answer after the time for answeraction, and that the terms of that section must ing has expired is regular, although excerbe taken to apply to the defendant's partners, tions to the bill for impertinence were deli.

PARLIAMENTARY PRIVILEGE.

92

Digested Index to Cases reported.

519 vered the same day the attachment issued. on the premises of the former, for the purPetty v. Lonsdale

Page 283 poses of an action then pending between the 3 Upon an issue directed by decree of the parties. Turguand v. Strand Union Page 319 Court, and the plaintiff therein not going to 11. A summons to amend a declaration by trial, the Court will not on a single default, a plaintiff, operates as a stay of proceedings for order a verdict to be taken pro confesso against one day, though not followed up by a second him, but will make an order that unless he go summons, and notice is given by the plaintiff to trial next assizes, a verdict pro confesso shall after the return of the summons that he will be taken against him. Casborne v. Barsham 199 not proceed with the amendment. Hodgson 4. It is irregular to allow a demurrer in part, v. Cayley

234 and disallow it in part.

12. Where it becomes necessary for the purIt is too late to appeal from an order to poses of justice to consider the fraction of a amend, after the amendments have been made day, the Court will do so; and, therefore and submitted to by the applicants demurring where a defendant died between eleven and to the amended bill, without having applied twelve o'clock, and a writ of f. fa. was sued to the Court. Wellesley v. Wellesley 186 out before one and two o'clock on the same

day against the defendant's goods, it was held PRACTICE (COMMON LAW).

to be irregular. Clinch v. Smith . 334 1. Where a judge's order for taxing costs is 13. It is ground of setting aside a demurmade a rule of Court, execution may be issued rer, that the words “in the year of our Lord” on it at once, without application to the Court. are omitted in its title. Holland v. Thealdi. Wallis v. Sheffield 64

334 2. It is regular to arrest a defendant on a 14. Where the alli davit is regular, with reswrit of cri, 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 judginent. 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 distringus 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 16. Semble, that imparlances in proceedings of the application being made, although he is by sci. fa, are alolished since the passing of usually resident abroad. Dowling v. Harman. the Uniformity of Process Act. Doe d. Phillips 240 v.

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. 5. When an order for time to join in de- Anon. murrer bas been obtained, it ought to be ser- 18. A rule being moved for, and the Court ved within a reasonable time after making it, taking time to consider, the rule being granted or the opposite party may sign judgment. may be dated after the day on which it was Kenney v. Hutchinson 415 applied for. Egan v. Rowley.

77 6. A judge at chambers has no power, with- 19. 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

301 at his ordinary place of abode, and by sticking 7. A rule to compute cannot be successfully up a copy of the rule in the master's office opposed, by shewing that the judgment is ir- shall be deemed good service. Neilson v. Slee regular; but a separate application must first

78 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 writissues, and, 8. A similiter by the party whose pleading therefore, although he has returned it to the it is, requires to be dated. The objection to a Chancellor after being ruled to return it to want of a date, is not waived by not opposing the original Court or the Chancellor, he is not a judge's order for a writ of trial on that liable to an attachwent. The Queen v. Sheground. Midilleton v. Hughes. . 302 riff of Lancaster

. 173 9. In enlarged rules, nothing but an inevit- 21. Where two actions were brought against able accident can excuse not filing affidavits a executors, the former against them as execuweek before term. Wright v. Lewis 383 tors, and the latter in their own right, the

10. A judge has no power without consent plaintiff was allowed to amend his particulars to order a defendant to allow the plaintiff to in the former by adding items sought to be enter and inspect the work done by the latter recovered in the latter. Jones v. Corrie . 508

48

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