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IN THE COMMON PLEAS.

LAWRENCE,

J.

FINLAY v. SEATON (1).

1808.

Jay 5. (1 Taunton, 210—211.)

U . MANSFIELD, Neither a certificate from the Judge, nor a suggestion on the roll, is

Ch. J. necessary to entitle a defendant to double costs, under 11 Geo. II. c. 19, s. 21.

HEATH, J. TRESPASS for seizing a cable. The defendant pleaded the general LA issue, and upon the trial proved in evidence that he had taken it [ 1 Taunt.

210 ] as a distress for rent due from a third person, on whose premises it had been placed by the plaintiff. Double costs having been taxed for the defendant under the directions of the statute 11 Geo. II. C. 19, s. 21, Vaughan, Serjt. had obtained a rule nisi that the prothonotary might review his taxation. Being called upon to support his rule, he contended that, to authorize the allowance of double costs, it was necessary, either that the defendant should previously obtain from the Judge who tried the cause a certificate that the case came within this Act; or that a suggestion should first be entered on the record, whereby the nature of the action might appear. He urged that the prothonotary could not again try the cause at the taxation of costs ; he could only look at the roll; and upon the roll the circumstances of the cause of action do not appear. If a certificate was necessary, it was now too late to obtain it *according to the doctrine laid down in the case of [ *211 ] Grindley v. Holloway (2), which arose on the statute 7 Jac. I. c. 5. He also contended, that the owner of the cable not being the lessee, this could not be considered as a question between landlord and tenant.

MANSFIELD, Ch. J.:

This Act gives the Judge no authority to certify, therefore the omission to apply to the Judge cannot in this case deprive the landlord of his remedy. There is no question but that the double costs are to be paid : the only remaining question then is, whether a suggestion upon the record is requisite to show on what ground they are given. But it does not appear on the record that the defendant has double costs; therefore it is not necessary to suggest on the record that there is a cause for double costs. It is not necessary that the judgment should specify more than that a

(1) Discussed by ROMER, J., in 145, 148, 67 L. J. Ch. 449, 450. North Metropolitan Tramways Co. v. (2) 1 Doug. 308. London County Council (1898] 2 Ch.

FIXLAY

SEATON,

certain sum is allowed for costs, and then all will be right; and it is admitted that no precedent of such a suggestion is to be found. No fact was in dispute between the parties before the prothonotary; it was not denied that the action was brought against the landlord for a distress, so that the prothonotary had sufficient information for his guidance.

HEATH, J., observed, that in cases on the Small Debt Acts the Courts have allowed a suggestion to be made on the record, although no suggestion is given in the Acts.

LAWRENCE, J. (adverting to Vaughan's last argument) :

This case clearly comes within the Act, the purpose of which is to enable landlords the better to recover their rents.

Shepherd, Serjt. contrà.

Rule discharged.

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DAVIES AND WIFE, DEMANDANTS; WILLIAM SELBY

LOWNDES, TENANT (1). (1 Bing. N. C. 597—631 ; S. C. 2 Scott, 71; 1 Hodges, 125; 4 L. J. (N. S.)

0. P. 214.) Writ of right.

Where an estate is devised on condition of the devisee's changing his name, it is sufficient if he changes it within a reasonable time, and it is not necessary that he should apply for the royal sign manual. Plea, general issue. The cause was tried at Bar.

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Talfourd, Serjt., Sir W. Follett, and E. V. Williams, for the demandants.

The Attorney-General, Sir John Campbell, Kelly, and R. V. Richards, for the tenant.

The four knights, girt with their swords, and the other twelve recognitors having entered the jury-box, Sir John Campbell, after six or seven of them had been sworn, tendered the demi mark.

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Talfourd objected that it ought to have been tendered before any of the recognitors had been sworn.

(1) The passage here reprinted is example of a writ of right. Otherwise cited by Lord LINDLEY in Cowley v. the decision is on a very peculiar Cowley [1901] A. (. 450, 460. The devise, and of no modern practical case is believed to be the latest utility.-F. P.

The Court, however, ordered the trial to proceed, postponing the discussion of the objection to a future opportunity, and the rest of the recognitors were sworn (1).

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It has been more than once asked by a learned gentleman of the Grand Assize, whether the name has been changed in the way which the law prescribes. In this will the condition is, that Mr. Lowndes changes his name to Selby. It appears, that at first he retained the name of Lowndes, while the receivership was going on; and that afterwards he took the name of Selby in addition to the other; and I am not prepared to say that that was not changing his name: but at all events he afterwards changed it entirely, and left out the name of Lowndes. There is nothing in the will that purports that the condition is to be executed in a very limited or precise time; therefore, though he took it a little later, and though in some particular acts he might use the other name, it would not at all interfere with the general act of changing his name. And there is no necessity for any application for a royal sign manual to change the name. It is a mode which persons often have recourse to, because it gives a greater sanction to it, and makes it more notorious; but a man may, if he pleases, and it is not for any fraudulent purpose, take a name and work his way in the world with his new name as well as he can. Therefore it does not appear to me that that is an objection which can, upon the present occasion, succeed. It is an objection which is quite out of Court if the fine has been levied, or if the demandant has failed in her pedigree; and, in my judgment, and that of my learned brothers, it is equally out of Court if this will is one, as we think it is, which *intended only to benefit, first, the heir of the blood of the Selbys, and, failing in that, the testator's constituted and adopted heir.

Such, then, is the case, and therefore, whatever may be the opinion which you may form upon the pedigree, I have no doubt that, when you come to a conclusion upon it, you will still hold that the law we are endeavouring to lay down is the correct law, and that your recognition must be for the tenant.

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Talfourd tendered a bill of exceptions to the construction put on the will, and to the ruling as to the effect of the fine; which being accepted, the recognitors were requested to say, first, whether

(1) The objection does not appear to have been insisted upon.-F. P.

DAVIES

LOWNDES.

they found that the demandant had established her pedigree; but, after retiring for half an hour, they returned, finding a verdict generally for the tenant; and declined any separate finding as to the demandant's pedigree.

It seemed to be agreed both by the counsel and the Court that in a writ of right the jury could not find a special verdict.

Verdict for the tenant.

CASE AT NISI PRIUS.

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GOLDSCHMIDT V. MARRYAT (1).

(1 Camp. 559—363.) In policy causes, a Judge at Chambers will make an order for the assured to produce to the underwriters, upon affidavit, all papers in the possession of : the former relative to the matters in issue.

This and several other actions, upon the same policy of insurance, were commenced in the Court of Common Pleas in Hilary Term, 1809. As soon as the defendants had pleaded, they filed a bill in the *Court of Exchequer, praying [among other things] that the assured should set out all papers in their possession relative to the matter in issue.

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In the course of the discussion it was stated, on the part of the defendants, that they had applied to Mr. Justice Heath for an order upon the plaintiff to produce, upon affidavit, all the papers in his possession concerning the cause, but that that learned Judge had refused to make any order, except for the production of specific papers mentioned by the defendant, or generally, for all papers without any affidavit.

SIR JAMES MANSFIELD said:

I have great difficulty in believing this statement to be correct. I have made fifty such orders since I became Chief Justice of this Court. I was, to be sure, a good deal surprised when they were first applied for, as nothing of the sort was known when I practised in the King's Bench. But I consulted the other Judges,

(1) Cited by CHITTY, L. J., China Ass. Co. [1898] 2 Q. B. 187, 192, 67 TrailersIns. ('0. v. Royal Exchange L. J. Q. B. 736, C. A.

and found they had become extremely common. I think they Gold

SCHMIDT have been very properly introduced; as they often obviate the

pot dool MARRYAT. necessity of going into a court of equity, and save a *great deal M

stift { *563 ] of delay, expense, and litigation. Without requiring the plaintiff to produce the papers on affidavit, the order would be nugatory. He would only select such as could be of no use to the opposite party. Nor would it answer to limit the order to such papers as are specifically named; since there may be others which the party has not the means of describing, and which may be got at through the medium of a court of equity. I cannot believe, therefore, that my brother HEATH refused to make an order on the plaintiff to produce upon oath all papers in his possession concerning the cause now at issue.

It turned out that the application had not been made to Mr. Justice Heath in the regular manner.

Best, Marshall, Vaughan, Serjeants, and Wigley, for the plaintiff.

Shepherd and Lens, Serjeants, for the defendant (1).

CHANCERY.

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RIDER V. KIDDER (2).

(10 Ves. 360—369.) A purchase in the name of another, not a child or wife is a trust for the person advancing the money; unless the presumption from that circumstance

is repelled by evidence. By indentures of settlement, previous to the marriage of John Rider and Catharine Gray, dated the 7th of August, 1769, John Rider covenanted with the trustees, in case Catharine Gray should survive him, within 12 months next after his decease to pay her 3,0001., with 4 per cent. interest for her own use: and, in case

(1) Vide Clifford v. Taylor, 1 Taunt. given him, the plaintiff should make a 167, where, in a policy cause, the Court special affidavit, denying the relevancy ordered the plaintiff to produce all of what were withheld. papers, in the most general terms, and (2) In re a Policy of the Scottish directed, that if the defendant was not Equitable Life A88. Society (1902] 1 Ch. content with such as were thereupon 282, 285, per JOYCE, J.

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