and no such objection as this suggested. The judgment of the Court was pronounced by Sir Michael Foster, a Judge eminently versed in criminal law. This is an authority of the gravest character, governing the present case, completely putting to rest the difficulties raised on supposed dicta of Judges and arguments of counsel. It is an express and solemn judgment of the Court of King's Bench upon a conviction at the Assizes, imposing discretionary sentences upon the two prisoners, varying according to the Court's sense of their respective demerits, pronounced after the greatest deliberation, within a very few years after the case of Rex v. Nicolls, and by two of the same Judges who ruled that case; to whom, therefore, it is impossible to impute not only that they did, twelve or thirteen years before, decide that the Court had no jurisdiction to pronounce the solemn and grave judgment they then awarded, but that the former contradictory judgment was within that period forgotten in Westminster Hall, or sub silentio overruled. Upon these grounds then, I am satisfied that no such decision was made in Rex v. Nicolls, and that this Court has, by the common law, jurisdiction to give judgment upon this conviction, the record being duly removed and filed here together with the prisoner. I also think we might have remanded the case and prisoner, if deemed more convenient and advisable to do so. For it seems to me, with every respect for the learned Baron whose opinion to the contrary has been stated, but whose reasons are not reported, that a Judge at a subsequent Assizes has jurisdiction to pronounce sentence upon a conviction had at a former Assizes, as well in misdemeanours, as in all felonies, whether capital or not. It appears to me that the latter clause of the 6th sec. of 10 Car. I. c. 14, clearly comprises the case, "And over that no manner of processe or suite, "made, sued, or had before any Justices of Assize, gaole delivery, oyer "and terminer Justices of peace, or other of the King's Commissioners, "shall in anywise be discontinued by the making and publishing of a new commission or association, or by altering of the names of the "Justices of Assize, gaole delivery, oyer and terminer Justices of peace, or other of the King's Commissioners; but that the new Justices of "Assize, gaole delivery, and of the peace and other commissioners, may "proceed in every behalfe as if the old commissions, and Justices and "commissioners had still remained and continued not altered;" it confers complete jurisdiction on the new commissioners to proceed in every behalfe as if the old commissioners had still remained and continued not altered, either to try an indictment found, but not tried, at the former Assizes, or to give judgment, upon a conviction had thereat, but on which no judgment was pronounced; and numerous cases shew that such has been the practice in England. 66 66 The prisoner having been called upon, Mr. Napier stated he had left town, under the belief that the judgment would not be delivered until next term, and an arrangement was made with the Attorney-General, by which he was ordered to attend the first day of the ensuing term to receive his sentence. K 1839. THE QUEEN v. CHARLETON. to discharge a Thursday, November, 7th. PRACTICE-NOTICE-ARREST—MOTION TO DISCHARGE KING v. KEENAN. Upon a motion MR. O'HAGAN applied on behalf of the defendant, a married woman, defendant from that the bail-bond in this case might be delivered to be cancelled, and custody, upon that she might be discharged from custody upon entering a common the ground that she is a mar- appearance. He moved upon the affidavit of the defendant, in which woman, she stated she was a married woman, and had contracted the debt since her coverture.-[PERRIN, J. Have you served notice of this application?]-We only seek a conditional order. ried notice of the motion must be served on the opposite party, even to obtain PERRIN, J. You must serve notice of this application before I can make any rule upon the motion. No rule. Thursday, Nov. 7th. PRACTICE-COSTS IN THE CAUSE-FRIVOLOUS DEMURRER. ANON. Where a frivo lous demurrer was filed, and on motion to take it off the file, that motion was grant ed, and the party who filed it ordered to cay costs: , that an attachment may issue for hese costs, as hey could not MR. NAPIER applied in this case for a conditional order for an attachment, for non-payment of costs. A scire facias had been filed, and a frivolous demurrer put in, which was subsequently ordered to be taken off the file, and the costs to be paid to the plaintiffs.-[PERRIN, J. Could you include these costs in the execution?]-We could not; they are not costs in the case. PERRIN, J.-Take a conditional order. Mr. Napier, on a subsequent day, made this order absolute, upon a e included in certificate of no cause shewn. he execution, not being costs in the cause. Monday, Nov. 25th. PRACTICE-JUDGMENT-STATUTE OF LIMITATIONS- M'CARTHY v. O'BRIEN. MR. BERWICK applied for liberty to issue a scire facias to revive a judgment against the heir and tertenants of the conuzor. It appeared that the judgment was of Michaelmas Term, 1814; that the conuzor of the judgment, upon the 1st of December, 1819, presented a petition to be discharged as an insolvent debtor, and filed a schedule of the debts he then owed, pursuant to the Act for the relief of Insolvent Debtors, and set forth this judgment debt, thus acknowledging that it was then due. It was submitted that this case was out of the 8 G. 1, c. 4, the judg. ment being alive when the 3 & 4 W. 4, c. 27, was passed.-[BURTON, J. To whom was the acknowledgment given upon which you rely?]-The schedule contains the names of the several persons to whom the petitioner is indebted, with the respective sums he owes to them, and it is subscribed by the petitioner, and verified on oath. knowledgment in writing, within the 3 & 4W.4 c.27, the BURTON, J. Be it so, upon the terms of serving the heir personally, Court allowed and not revivng on nils. 68 Q. as accoun tant of the Longford branch of the COMMON PLEAS. Tuesday, January 14th. OYER OF DEED. Honorable LEICESTER STANHOPE and others, Trustees of the National In an action IN last vacation Mr. Rickard O'Connell, on behalf of defendant, applied against R. F. to the Chief Justice in chamber, that plaintiffs be compelled to lodge with the proper officer, the deed of settlement of the 6th January, 1835, mentioned in the alleged writing obligatory, dated the 13th June, 1836, &c., in order that said defendant, or his attorney, may inspect said deed and take a copy, &c.; or of such parts as relate to the appointment and duties of the several officers of the said Banking Company, &c. The motion was refused, without prejudice to its being made before the Court, after further consideration by the defendant. National Bank he applied to the Court to compel oyer of the deed of set tlement. The application was refused with costs. Mr. O'Connell now renewed his application. This is an action against defendant as clerk of the National Bank, upon his bond to the trustees. The bond recites that the plaintiffs were trustees under the deed of settlement, &c. The condition of the bond is for the faithful services of defendant at the Longford branch of the said bank, or at any other place in Great Britain or Ireland, &c.; either as accountant or in any other capacity. If the defendant continued at Longford, and were not sent anywhere else, he would have no right to see the deed here. Under the old practice he would be entitled to oyer. [On inquiry of the officer it was learned that such was not the practice for the last fifty years.] Notice was served on plaintiffs, that if they would confine their breaches to acts done at Longford, we would not make this claim, and I repeat it now. If a party be interested in a deed, the Courts will enforce its production. Lord Arlington v. Merricke (a), Blakey v. Porter (b), Bateman v. Philipps (c), Radcliffe v. Bleasby (d), Blogg v. Kent (e), The King v. Justices of Buckingham (f), Alexander v. Alexander (g). Our affidavit states that oyer is necessary, and the application not made for delay.-[COURT. But does it suggest why it's necessary to see the deed?]-No, it does not; in Radcliffe v. Bleaby, Chief Justice Best says "I for one agree with the observation made by Sir James Mansfield in Clifford v. Taylor, that the practice of compelling the delivery of copies of papers, is most convenient, as it saves the delay and expense of a bill in equity."-[BALL, J. Do you think you could compel the plaintiffs here by a bill in equity?]-I think I could. I called on them by notice to say what breaches they would assign. TORRENS, J.-This is not a Court to search the conscience of a party.] Mr. Monahan, contra.-They have no right, either now or at any stage of the case, to see the deed. In Lord Arlington v. Merricke the condition was, that if the party should perform certain instructions annexed to the deed, &c. The bond here does not refer to the deed, except as to the plaintiffs being partners. The condition of the bond is, that if defendant shall account with plaintiffs from time to time, &c.; shall not make false entries, &c. Now this action is against the defaulting gentleman himself. The deed is not necessary for his defence, and even if it were, the Court cannot compel the plaintiffs to produce their property; it is not the defendant's deed. Pickering v. Noyse (a), shews that the Courts will not attempt to compel a party to produce a deed unless he be a trustee of it. In Alexander v. Alexander (b), a similar application was refused with costs.-[TORRENS, J. I recollect an extreme case referred to in Portmore v. Goring (c), where the Court refused to compel a party to allow the inspection of one part of an indenture where the other was lost at sea.] DOHERTY, C. J. When this case was before me in chamber, I felt no doubt about it, and of the consequences of persevering in the application. I did not visit the defendant with the costs of that motion, warning him, while I allowed him to consider and look into the cases, that if he persevered and failed, it would be at the peril of costs. He has done so, and we think that this application, so far as relates to the production of the deed, must be refused with costs. The costs of the motion in chamber to be costs in the cause. Application refused. 1840. STANHOPE. v. QUILL. (a) 2 D. & R. 386, & 1 B. & C. 262. (b) Alc. & Nap. 109. (c) 4 Bing. 152. |