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Practice at the Judge's Chambers. -- Suggested Improvements in the Law.
tides of England, Lords Kenyon and Ellen being an issuable plea. Mr. Greenroad, as borough, stated their opinion to be, that the counsel for the defendant, supported the plea; sun allowed coroners for travelling expenses, and Mr. J. Chitty, jun., on the part of the should be sufficient to enable them to travel in plaintiff, opposed the allowance of it. Mr. such a manner as that, on their arrival at the Greenwood contended it was an issuable plea, place where the inquests were to be held, they and insisted there was not any reported authoshould be able to proceed at once, with comfort (rity to shew it had ever been considered otherto themselves, to the discharge of their impor- / wise. Mr. Chilty, on the other hand, cited the tant duties. In Ireland the coroner is allowed case of Sywtell v. Gillard, 5 D. & R. 620, in five guineas an inquest. The commissioners which Abbolt, C. J., decided that “wbere a appointed to enquire into the county rates gave party is under terms of pleading issuably, their opinion in their report Jast sessions, that and by his pleading fails to bring the merits the fee of 208. for taking an inquest, however of the case, or soune question of fact, or some long the enquiry may last, is certainly inade- question of law arising on the facts in issue, quate to the service performed; and that the he does not comply with the condition of the allowance per mile for journeys is also rather | order ;” and also cited a MS. case of Barker scanty. As it is, I now travel to E--, and v, Skinner, a decided in Trinity Term, 1835, by back, a distance of thirty-six miles, out and Mr. J. Pallesun at Chambers, in which that horne, for 338. 6d. During the illness of learned Judge refused to allow the same plea another coroner last year, I went forty miles in a similar case to the present. from home, on a case of murder : the en- Mr. J. Bosanguet intimated his opinion to quiry lasted two days and one night: I was a be, that it was not an issuable plea, but stated day also going down, and another returning that he would consult Mr. J. Patleson and Thus, after spending four days and one night, some of the other Judges on the subject :-the I got paid Il. for my time. I travelled 80 result of which was, the plea of bankruptcy miles by coach, and paid my expenses; and for was disallowed. this my allowance was 40 ninepences, just 30s. The learned Judge stated in the course of -making a total of 50s.--for working hard the discussion, that the bankruptcy might be four days and one night, and travelling 80 given in evidence under the general issue, the miles. Last year I held 81 inquests, consum- action having been brought before the new ing from 90 to 100 days, and travelled out and rules came into operation, but this is incorhome upwards of 2100 miles, and iny fees were rect, as matter of defence arising since action only 1201. 12s. Id."
brought, mu:t always have been specially pleaded. I only mention this, lest any of your readers might fall into the same error; and in
conclusion, I would again caution them to be. PRACTICE AT THE JUDGES'
ware of putting themselves under terms in CHAMBERS.
obtaining time to plead If the before-mentioned plea bad been allowed in this case, a
fresh action must have been brought, which TIME TO PLEAD.-ISSUABLE PLEA.
would have been defeated by the Statute of To the Editor of the Legal Observer. Limitations.
M. M.J. Sir, I ain induced to offer for insertion in the Legal Observer, a report of the following de.
SUGGESTED IMPROVEMENTS IN cision of Mr. J. Bosanquet, in a case lately
THE LAW. before him at Chambers, from its being a novel and important one, and likely perhaps,
PROCEEDINGS IN REPLEVIN. to afford a useful warning to some of your readers to be cautious in taking out suminonses
The action of replevin lies for the recovery for time to plead; for there is no doubt that of all goods and chattels unlawfully taken by many defences of a similar nature to that in the defendant from the plaintiff. Com. Dig. tended to have been set up in this case, are In Buller's Nisi Prius, 52, it is said that re. frequently lost through the party having put plevin may be brought in any case where a himself under the terins consequent on obtain- man has his goods taken from bim by another. ing enlarged time to plead.
In this action the person distrained upon seeks Staples and another v. Holdsworth. This to recover damages for an illegal taking of his was a sumpinons for leave to plead the two property, but before bringing this action he following pleas to an action of assumpsit | has already obtained his property back again, for money had and received; vix. Ist. Non without rendering to the party who distrained assumpsil. 2nd. Bankrupicy of one of the the duty or demand in respect of which the plaintiff's since nction brought. The action distress was made, but upon his having given was coir.menced in 1827, but nothing further security to try the right of the distress, and to was done beyond delivering the declaration, restore if the right be adjudged against him. until a few months ago, when the usual steps After which the distrainer may keep it till were taken to revive and continue the pro-tender made of sufficient amends, but must ceedings. The time for pleading had been then redeliver it to the owner. 8 Rep. 147, enlarged on the usual terms of pleading issunWly. The last plea was objected to, as notla Sec Chitty, jun., Prec. in Pleading, p. II,
Suggested Improvements in the Law. Superior Courts : Rolls. 129 The peculiarity of this action is, that the party SUPERIOR COURTS. complained of, on avowing or acknowledging the taking, justifies it, and seeks to recover in the same action damages for being delayed in
Rolls Court. his remedy, by the plaintiff haviny replevied
PLEADING.-DEMURRER. the distress. He also seeks to have the dis The plaintiff, in a bill of discovery in aid of an tress returned to him, and so to be put into
action at Inw, must shew that he has cause the same situation he was in before the plain of action, and that the discovery is material. tiff replevied; and where the distress was for Olherwise the bill is demurrable. rent, he generally seeks to recover the rent itself. So that in the great majority of cases
This was a demurrer to a bill of discovery, the defendant, or, as he is called, the avowani,
which stated, among other things, that the is the party whose interest it is to prosecute
plaintiff and defendant, both oficers in the the action, for he has something substantial to
army in 1817, then exchanged commissions ; recover; but all that the plaintiff has to re
but in consequence of an error in the exchange cover are damages for the temporary taking |
papers, the plaintiff was gazetted by a wrong of his property, which are generally nominal.
description, and the authorities at the War If the plaintiff fail in the replevin suit, the
office refused to rectify the description, or sureties are liable absolutely to the extent of
make any alteration without a certificate from the penalty of the replevin-hond (if the rent,
the defendant, and he refused to give one.
The bill therefore prayed that the defendant or damages and costs recovered amount to so
be ordered to disclose and certify, &c. much), and cannot get rid of their liability, as in the case of a bail-bond, by rendering the
To that bill the defendant demurred. party to prison. If the plaintiff do not enter
Mr. Williams supported the demurrer : Mr. liis plaint at the next County Court, the re
Rogers was for the bill. plevin-bond will be forfeited. The plaint
Lord Langdale, M. R.—The case at the first having been entered may go on in the County
view appeared hard on the plaintiff. He was Court, if no question of title to land arise.
certainly entitled to a discovery to assist him The cause may be removed into one of the
in an action at law; but there he was bound to
shew that he had ground of action, and that Superior Courts, either by plaintiff or de- | fendant. The difference in the practice in
the discovery sought by him would be material. replevin from that in other causes arises chiefly
It was contended for the plaintiff, that because before declaration, and after issue is joined.
some error was committed in the transaction The difference in practice after issue joined is!
edi: between the parties in 1817, a right accrued chiefly this, that in other actions the plaintiff
ning to the plaintiff to demand from the defendant only can give notice of trial, and take down
the performance of a duty—that it was the the record to the assizes, but in replevin,
duty of the defendant to give the certificate, both parties being considered as actors, and
(which) if given, would entitle the plaintiff' to indeed the defendant being most frequently
certain advantages. It did not appear from the party prosecuting the action, the defendant
the bill that the defendant was bound to grant also may do the same thing. So that in
what was asked, or that, if granted, it would replevin it often happens that both parties comeram
confer any legal right on the plaintiff The demurrer must therefore be allowed.
a give notice of trial, and two records are
h brought down, and the cause is twice entered
| Tolson v. Jarvis, at Westminster, May 30th, in the cause paper at the assizes, though, of course, if the trial take place on one record, nothing is done on the other. The successful
PRACTICE.-TAXATION OF COSTS FOR CONVEYparty will be allowed the costs of his record,
ANCING. whether the trial have taken place upon it or upon his opponent's record. After trial the
A bill of costs incurred by a solicitor for conproceedings to judgment are the same as in
veyancing business is subject to laxation, other cases, except that where the distress was
if he detuins the client's deeds; the power for rent, and the defendant succeeds, he is
to order the bill to be tuxed being held to be entitled to double costs.
incidental to the court's undoubted jurisdicThe Common Law Commissioners, in their
lion to order the deeds to be delivered on pay. Second Report, recommend that all actions of
ment of what is due to the solicitor. replevin should be commenced in the Superior The petition of Louisa Anne Brooke, supCourts, and that the conditions of all replevin. ported by a long affidavit, prayed that Mr. bonds should be framed accordingly; and that Edward Rice, a solicitor, be ordered to deli. it should be lawful for the plaintiff in any ac. ver up to her all deeds and other papers in his tion of replevin to bring his action in any one custody or power, belonging to her, on her of the Courts of Westminster; and that every paying what should be found justly due to him. action which should be brought in any one of The petition stated that the deeds formed the the Courts at Westminster should be com.title deeds of certain freehold and copyhold menced by writ of summons issuing out of estates mortgaged to the petitioner, and that such Court:-which regulations would cer- they came into Mr. Rice's possession as her Lainly and effectually do away with the ano- solicitor; that the petitioner changed her soliwalous proceedings in this action.
citor, and Mr. Rice delivered bis bill of costs, Ț. R. which the petitioner proposed to refer for tax
Superior Courts: Rolls ; King's Bench. ation, offering to pay whatever should be found I tioner inay take the order prayed for, but she due on it when taxed by the proper officer. inust pay ihe costs of her unnecessarily long The costs were not incurred in respect of any affidavit. The costs of the petitions are reserved action at law, or suit in this court, but related to abide the event of the taxation. wholly to conveyancing business, except one Ex parie Brooke, in re Rice, at Westininster, charge, which was for entering up a judginent May 3rd, 1837. in the Court of Common Pleas. Mr. Rice refused to refer the bill for taxation, on the ground that it was not taxable; or to deliver up the petitioner's papers until she paid him
King's Bench. the full amount of his bill, challenging her, at the same time, to point out any one itein of
[Before the Four Judges.] excessive or unreasonable charge. Mr. Coleridge for the petitioner.—The ques.
NEW TRIAL.-RCLE ABANDONED. tion was, whether the petitioner was not enti Where a pluintiff obtained a verdict, and the tled to the delivery to her of her title deeds defendunt then applied for a rule for a non. and other papers, on offering to pay the costs suil, or for a new trial; and on "grepwhen taxell. The petitioner did not so much meni the rule iras discharged as to the noncomplain that any of the charges were unrea. suit, but mude absloute as to the new trial, sonable, as that sonic charges were inproperly on the ground that improper evidence had made when no business was done; and that been admitled ; and the defendant dill not slie thought would be made appear before the draw up the rule, but it wous drawn up by taxing officer. It was proper to ineption that the plaintif, and served by him on the deapplication was made to a judge of the Court fondant, who then said that he would not of Cominon Pleas, in which the judgment ivas try the case a second time, the Court held entered up, but it was refused on the ground that he must be taken to hure abandoned his that that charge was not enough to give juris rule, and that the plaintiff uus entitled to diction at law to refer a bill for conveyancing sign judgment, and tax costs in the same for taxation. The application was made to manner us if no rule had been obtained. this Court on the authority of the case In re Murray,a and tbe other cases cited in the re. In this case the plaintiff had brought an acport of that case. This Court had undoubted tion against the defendant for improperly, and jurisdiction to order the deeds to be given up without lawful authority, setting up a market on payment of what was due ; and as incident in the neighbourhood of a market lawfully to this jurisdiction, it will cause the costs to be granted to certain persons, under whom the taxed.
plaintiff claimed. The cause was tried in PemMr. Pemberton and Mr. Norton, for Mr. brokeshire before Mr. Baron Gurney, when Rice, said, the application was in reality an ap-a verdict passed for the plaintiff. A rule peal from the Court of Common Pleas, which was subsequently obtained to enter a nonsuit, declined the jurisdiction sought to be forced on or have a new trial. In the discussion of this it against the established construction of the rule, the opinion of the Court was very fully act 2 G. 2, c. 23, and decided cases. -Ex parte elicited upon the question of the rights respecLow ; b Cox v. Harman.c This Court had no tively claimed by the plaintiff and defendant, inore jurisiliction than a Court of law in this and the rule was, as to the nunsuit, discharged; matter; having precisely the same control but as to the having a new trial, it was, on the over solicitors that the courts of law had over ground of the improper admission of evidence, attorneys. But these papers did not coine into made absolute. Shortly after the decision of Mr. Rice's hands as solicitor ; the charges, all the Court had been pronounced, the defendant's except the one meolioned, related to convey- attorney wrote to the plaintiff's attorney, a let. ancing. The petitioner took advautage of Mr. ter, in which he thus expressed the intentions Rice having possession of the deeds, to make of the defendant :-“My client will not avail the bill indirectly subject to taxation, to which himself of the privilege of a new trial, the it would clearly not be subject, if he had not points relating to the nonsuit having been de
possession of the deeds. The cases referred cided against bim.” The plaintiff then applied · to, were cases in which the papers came into to the Court for a rule to shew cause why the
the hands of solicitors as soliciiors ; but Mr. foriner rule for a new trial should not be disRice was not acting as solicitor in the matters charged ; and why the postea should not be of his bill.
delivered up to the plaintiff: and why he Lord Langdule, M. R.--The respondent should not be allowed to sign judgment thereavailed himself of his character of solicitor to on, and to tax his costs. This was the rule obtain that employment through which he against which cause was now shewy by came into possession of the papers. Had he "Mr. V. Williams.-This rule cannot be supnot been a solicitor, he would not be employed ported. There is no ground for asking this to enter up the judgment. The cases cited Court to rescind the rule granted in the formaintained the Court's jurisdiction. The peti-mer case. No inention having been made of
the costs in that rule, it is clear that whatever a 1 Russ. 519.
might have been the result of a second trial, b 6 East. 404.
the plaintiff could not get the costs of the first, c 8 East. 237.
which had in fact been a mis-trial. The new
Superior Courts : King's Bench.
131 rules are decisive on that point. From the case of Pencock v. Harris apply to the present? opinion expressed by the Court, it was clear There the defendant availed himself as far as that the defendant could gain no advantage he could of the rule for the new trial, but then from another trial; and therefore in the most withdrew his plea : here the defendant did not proper manner he desired to put an end to an avail hiinself at all of the rule, but would not useless litigation. In the spirit of that desire, bare it; and it was drawn up by the plaintiff.) he caused his attorney to write the letter now That is the true distinction. In fact the defen. in question. Is it to be said that because of dant abandoned his own rule, but now wants his writing such a letter he is to be subjected to use it to deprive us of costs. [Mr. Justice to the cists of the first trial. Such a conse- Parteson,-My difficulty here arises from the quence of such conduct would be most unjust. plaintiff having taken out the rule and served Suppose that instead of writing this letter, the it. If he had not done so, there would not defendant had applied to withdraw his plea, have been any rule in existence. The new and had so given the plaintit' judgment by de- rules make no difference in the present case ; fault; it is clear that in that case the plaintiff for the rule referred to on the other side, would not bave been entitled to the costs of though now adopted in all the Courts, was al. the mis-trial. Peacock v. Harris,b is an au- ways the rule of practice in this Court. That thority on this point. In that case there had practice had been fully established by the cases been a mis-trial by reason of the aduission of of Hankey v. Smith,d and Smith v. Haile,e; improper evidence. The Court had, as in the but where in a like case the defendant, without present instance, granted a rule for a new trial. going to trial again, gave a cognovit, the Court After the rule' was granted, the defendant ob-held that he was liable to pay the costs of the tained leave to withdraw his plea, and suffered forıner trial, the cognovit being a confession of judgment by default. Application was then want of merits. Booth v. Ather!on ; Jackson made to the master to tax the costs of the first v. Hullam ;5 and Elvin v. Drummond.h The trial; and the master yielded to the application case of Robertson v.Liddell,i was one where, after on the authority of Jackson v. Hallam, where, a verdict for the defendant, and a new trial after verdict against hiin, the defendant applied awarded, upon a questior of law, without any for, and obtained a rule for a new trial; but thing being said as to costs, the parties agreed instead of again going to trial, gave a cognovit, to state the facts as if on a case reserved at the and the Court held that he was liable for the trial, and the plaintiffs obtained judgment, and costs of the former trial. The authority of that the Court then held that they were entitled to case was disputed before the master, and an the costs of the first trial. That case carries appeal was subsequently made from his deciI the principle much further than the present. sion to the Court ; and a rule olitained to It was fully confirmed in Jockson v. Hallnm. direct the Master to review his taxation. The Lord Denman, C.J.-My first impression was, case was fully argued, and the Court decided that the defendant having abandoned the rule, that it had no power to grant the costs of the had placed things in the same situation as if ipis-trial. It is impossible to distinguish that no rule bad been granted, and that the plaintiff case from the present. (Mr. Justice Lillledale. I was therefore entitled to the posten. I must -Suppose that in that case, when the defen- however freely say that my mind has fluctuated dant applied for leave to withdraw his plea, much in the course of the argument. I that leave bad been refused. The withdraiving thought it was hard that the defendant should the plea inaile all the difference. The record be in a worse situation in consequence of saythen assumed a new appearance.) If leave had / ing that he did not intend to put the plaintiff been refused, there would have been a second to further expence; and I cannot now well trial, and the defendant would have been de-l reconcile iny mind to that. It is not easy at feated, but that would not have given the first sight to distinguish the case from Pencock plaintiff the costs of the first trial. Why should lv. Hurris ; but when fully considered, the cirthe defendant be in a worse situation because cumstances of the two cases are certainly differhe has saved the plaintiff the expense and lent. There the plair: tiff has drawn up the rule, trouble of a second trial. The plaintiff, in or-land served it on the defendant who then disder to support this rule, is compelled to try to Itinctly abandons it. The ordinary conscset aside a former decision of this Court, by Iquences of such a course must happen. We are an admission of the defendant in pais. The bound to consider that though the defendant Court will not suffer this to be done.
succeeded on the first trial, he must, as in any Mr. Cressicell, in support of the rule. If cominon case, be supposed to have succeeded, the plaintiff had gone to a new trial after this not upon the merits, but upon some technical letter, the Court would never have allowed ground, which now fails him, and the rule him the costs. Mr. Justice Palleson,- Did/must therefore be absolute. the defendant in this case draw up the rule for Mr. Justice Lilllelule.-It appears to me
Mr. Justice Lilllelule.-t the new trial ?] He did not; it was drawn up that this rule must be absolute. It is true that by the plaintiff, and by him served on the defendant, whose attorney then wrote the let.
d 3 Term Rep. 507. ter. (Mr. Justice Parleson.-How does the
e 6 Term Rep. 71.
f Ibid. 144. a Reg. Gen. H. T. 2 W. 4, s. 64.
8 2 Barn. & Ald. 317. bi Nev. & Perry, 240.
h 4 Bing. 415. ¢ 2 Barn. & Ald, 317.
i 10 East, 416.
132 Superior Courts : King's Bench ; King's Bench Practice Curi. if the plaintiff liad succeeded on the second nected with the infant except from morites trial, he would not have had to pay the costs of of charity, direct a urit of mandamus, absothe first. But is he to put the plaintiff in a lute in the first instance, lo compel the di. worse situation than if he had not made any rectors of ihe poor of the parish 10 receive application at all? I do not know whether, if it into the workhouse of the parish. the application to withdraw the plea in Peacock In this case an application was made by v. Hurris had been properly brought before the Budkin, for a rule to shew cause, or absolute in Court, the defendant would have been allowed the first instance, according to circumstances, to withdraw it without payment of costs, as the why a writ of mandamus should not be issued effect of his doing so, was to make the record and directed to the Directors of the poor of altogether a new record. Here the defendant the parish of St. Pancras, commanding them bas completely abandoned his rule, and brought to receive a certain male child, of an age pot the case within the principle of those where exceeding two months, which had been de. the defendant, having withdrawn from the de- serted under the following circuinstances :fence, the Court has held the plaintiff entitled | The affidavit on which the present application to the costs.
was founded, stated, that some days previous a Mr. Justice Patteson.-The defendant having stranger, a woman, came to the gate of the obtained the rule, it was for him to draw it up; Foundling Hospital, bringing with her a bundle. and if neither he nor the plaintiff had drawn it She knocked at the gate, and it was accordup, it would have been the same as if no rule ingly opened to her by the porter. On being had been obtained. But, as is often the case, asked her business, she stated that she had the plaintiff here drew up the rule, and served brought a parcel for the treasurer of the hosit on the defendant. Then the defendant said pital, and accordingly produced the bundle. that he would not have his own rule. What This sbe gave to the porter, desiring him to then was the plaintiff to do? He could not let take it to the treasurer. The porter left the the matter rest there ; for this notice put him gate for a few minutes, in order to find some in the same situation as if there had been no one to carry the bundle to the house of the rule at all. This case will not be inconsistent treasurer. When he returned, the woman was with the case of Peacock v. Harris. There gone, but the parcel remained, which was di. soinebody drew up the rule, and then the defen- rected to the treasurer. It was shortly obdant applied to withdraw his plea. Here the served that the bundle moved, and on examindefendant would not draw up the rule at all, buting it, the contents were discovered to be a from the very first, abandoned it. Roberts v. male child, not inore than two months old. Liddell went upon an entirely different principle. Search was immediately made for the woman, There the parties agreed that instead of going and inquiries instituted, but without effect, for to a new trial, they would shape a case as if the she could not be found. The child was taken facts had been found specially on the first trial; care of by the treasurer, and a nurse procured and the judgment being for the plaintiff in for it. Application was made to the guardians that case, it was the same as if a case had been of the poor of the parish, and they refused to reserved in the first instance. I do not pretend receive it ; and intimated that the Foundling tv reconcile Jackson v. Hallam with Peacock v. Hospital must be an hospital for foundlings, Harris ; but I do not think that the latter is and the infant in question was a foundling, and inconsistent with the present case. The rule consequently a fit object for the charity. The must be absolute.
question was, whether the poor law guardians Mr. Justice Williams.- The circumstances were to be relieved from the liability to support of this case are very peculiar. I have felt the euch casual poor as this deserted infant. apparent hardsbip on the defendant. But the Coleridge, J.-Are you not volunteers ? difficulty created by that hardship admits of Bodkin.-Yes, my lord ; but only from mo. this solution,-chat the conduct of the defen- tives of charity, as without such an interference dant has now placed him in the same situation the child must have perished. It could hardly as if he had not made any application at all be said that a child was to be allowed to die in for a new trial. Then the usual result must the streets for want of food. follow.
Coleridge, J.-The cases in which the writ The Court was then applied to on the sub- of mandumus issues are where there is a legal ject of costs, and directed that this rule should right, and no legal remedy without it, and the be absolute, but without costs as to either application must be made by the party alleged rule.
to be aggrieved. De Rutzen v. Lloyd, T. T. 1837. K. B. F.J. Bodkin.-It is hardly possible that the in
fant, under such circumstances, should give an
authority to make the application. King's Bench Practice Court.
Coleridge, J.-Either the parish is liable, or
| it is not. If it is liable, then those who pay DESERTED CHILD.-FOUNDLING HOSPITAL.
UNDLING HOSPITAL.- money to relieve it from the burthen of the DIRECTORS OF THE POOR.
child, inay have a right of action against the Where a child of tender age has been deserted parish : if the parish is not liable, then they
in the street, and it does not appear that the cannot compel the parish to support the child. parents or friends of il can be found, the Bodhin.- The parish are liable to relieve Court will, under such circumstances, and casual poor ; and, if no one interfered, the ut the instance of a person who is uncon. child would die of starvation.