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Practice at the Judge's Chambers. - Suggested Improvements in the Law.

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tices of England, Lords Kenyon and Ellen- being an issuable plea. Mr. Greenwood, as borough, stated their opinion to be, that the counsel for the defendant, supported the plea; sum 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. Chitty, on the other hand, cited the tant duties. In Ireland the coroner is allowed case of Sawtell v. Gillard, 5 D. & R. 620, in five guineas an inquest. The commissioners which Abbott, C. J., decided that "where a appointed to enquire into the county rates gave party is under terms of pleading issuably, their opinion in their report last sessions, that and by his pleading fails to bring the merits the fee of 20s. for taking an inquest, however of the case, or some 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. Patteson at Chambers, in which that home, for 33s. 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 enquiry lasted two days and one night: I was a day also going down, and another returning. Thus, after spending four days and one night, I got paid 1. for my time. I travelled 80 miles by coach, and paid my expenses; and for 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 home upwards of 2100 miles, and my fees were only 1201. 12s. 9d."

PRACTICE AT THE JUDGES'
CHAMBERS.

TIME TO PLEAD.-ISSUABLE PLEA.

To the Editor of the Legal Observer.
Sir,

I am induced to offer for insertion in the Legal Observer, a report of the following decision of Mr. J. Bosanquet, in a case lately before him at Chambers, from its being a novel and important one, and likely perhaps, to afford a useful warning to some of your readers to be cautious in taking out suminonses for time to plead; for there is no doubt that many defences of a similar nature to that intended to have been set up in this case, are frequently lost through the party having put himself under the terins consequent on obtaining enlarged time to plead.

Mr. J. Bosanquet intimated his opinion to be, that it was not an issuable plea, but stated that he would consult Mr. J. Patteson and some of the other Judges on the subject:-the result of which was, the plea of bankruptcy was disallowed.

rules came into operation; but this is incor-
rect, as matter of defence arising since action
brought, must 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-
ware of putting themselves under terms in
obtaining time to plead If the before-men-
tioned plea had been allowed in this case, a
fresh action must have been brought, which
would have been defeated by the Statute of
Limitations.
M. M. J.

SUGGESTED IMPROVEMENTS IN
THE LAW.

PROCEEDINGS IN REPLEVIN.

The action of replevin lies for the recovery of all goods and chattels unlawfully taken by the defendant from the plaintiff. Com. Dig. In Buller's Nisi Prius, 52, it is said that re plevin may be brought in any case where a man has his goods taken from him by another. 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 summons 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; viz. 1st. Non without rendering to the party who distrained assumpsit. 2nd. Bankruptcy of one of the the duty or demand in respect of which the plaintiffs since action brought. The action distress was made, but upon his having given was commenced 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 issua

ly. The last plea was objected to, as not a See Chitty, jun., Prec. in Pleading, p. 11.

Suggested Improvements in the Law. Superior Courts: Rolls.

The peculiarity of this action is, that the party complained of, on avowing or acknowledging the taking, justifies it, and seeks to recover in the same action damages for being delayed in his remedy, by the plaintiff having replevied the distress. He also seeks to have the distress returned to him, and so to be put into the same situation he was in before the plaintiff replevied; and where the distress was for rent, he generally seeks to recover the rent itself. So that in the great majority of cases the defendant, or, as he is called, the avowant, is the party whose interest it is to prosecute the action, for he has something substantial to recover; but all that the plaintiff has to recover are damages for the temporary taking of his property, which are generally nominal. If the plaintiff fail in the replevin suit, the sureties are liable absolutely to the extent of the penalty of the replevin-bond (if the rent, or damages and costs recovered amount to so much), and cannot get rid of their liability, as in the case of a bail-bond, by rendering the party to prison. If the plaintiff do not enter his plaint at the next County Court, the replevin-bond will be forfeited. The plaint having been entered may go on in the County Court, if no question of title to land arise. The cause may be removed into one of the Superior Courts, either by plaintiff or defendant. The difference in the practice in replevin from that in other causes arises chiefly before declaration, and after issue is joined. The difference in practice after issue joined is chiefly this, that in other actions the plaintiff

SUPERIOR COURTS.

Rolls Court.

PLEADING.-DEMURRER.

129

The plaintiff, in a bill of discovery in aid of an action at law, must shew that he has cause of action, and that the discovery is material. Otherwise the bill is demurrable.

which stated, among other things, that the This was a demurrer to a bill of discovery, plaintiff and defendant, both officers in the but in consequence of an error in the exchange army in 1817, then exchanged commissions; papers, the plaintiff was gazetted by a wrong description, and the authorities at the War office refused to rectify the description, or the defendant, and he refused to give one. The bill therefore prayed that the defendant be ordered to disclose and certify, &c.

make any

alteration without a certificate from

To that bill the defendant demurred.
Mr. Williams supported the demurrer: Mr.
Rogers was for the bill.

view appeared hard on the plaintiff. He was
Lord Langdale, M. R.-The case at the first
certainly entitled to a discovery to assist him
shew that he had ground of action, and that
in an action at law; but there he was bound to
the discovery sought by him would be material.
It was contended for the plaintiff, that because
some error was committed in the transaction

between the parties in 1817, a right accrued
the performance of a duty-that it was the
to the plaintiff to demand from the defendant
duty of the defendant to give the certificate,
(which) if given, would entitle the plaintiff to
certain advantages. It did not appear from
the bill that the defendant was bound to grant
what was asked, or that, if granted, it would
demurrer must therefore be allowed.
confer any legal right on the plaintiff The

Tolson v. Jarvis, at Westminster, May 30th, 1837.

only can give notice of trial, and take down the record to the assizes, but in replevin, both parties being considered as actors, and indeed the defendant being most frequently the party prosecuting the action, the defendant also may do the same thing. So that in replevin it often happens that both parties give notice of trial, and two records are brought down, and the cause is twice entered 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, whether the trial have taken place upon it or upon his opponent's record. After trial the' proceedings to judgment are the same as in other cases, except that where the distress was for rent, and the defendant succeeds, he is entitled to double costs.

The Common Law Commissioners, in their Second Report, recommend that all actions of replevin should be commenced in the Superior Courts, and that the conditions of all replevinbonds should be framed accordingly; and that it should be lawful for the plaintiff in any ac tion of replevin to bring his action in any one of the Courts of Westminster; and that every action which should be brought in any one of the Courts at Westminster should be commenced by writ of summons issuing out of such Court:-which regulations would certainly and effectually do away with the anomalous proceedings in this action.

T. R.

ANCING.

A bill of costs incurred by a solicitor for conveyancing business is subject to taxation, if he detains the client's deeds; the power to order the bill to be taxed being held to be incidental to the court's undoubted jurisdiction to order the deeds to be delivered on payment of what is due to the solicitor. The petition of Louisa Anne Brooke, supported by a long affidavit, prayed that Mr. Edward Rice, a solicitor, be ordered to deliver up to her all deeds and other papers in his custody or power, belonging to her, on her paying what should be found justly due to him. The petition stated that the deeds formed the title deeds of certain freehold and copyhold estates mortgaged to the petitioner, and that they came into Mr. Rice's possession as her solicitor; that the petitioner changed her solicitor, and Mr. Rice delivered his bill of costs, which the petitioner proposed to refer for tax

130

Superior Courts: Rolls; King's Bench.

ation, offering to pay whatever should be found|tioner may take the order prayed for, but she

due on it when taxed by the proper officer. The costs were not incurred in respect of any action at law, or suit in this court, but related wholly to conveyancing business, except one charge, which was for entering up a judgment 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 the full amount of his bill, challenging her, at the same time, to point out any one item of excessive or unreasonable charge.

Mr. Coleridge for the petitioner.-The question was, whether the petitioner was not entitled to the delivery to her of her title deeds and other papers, on offering to pay the costs when taxed. The petitioner did not so much complain that any of the charges were unreasonable, as that some charges were improperly made when no business was done; and that she thought would be made appear before the taxing officer. It was proper to mention that application was made to a judge of the Court of Common Pleas, in which the judgment was entered up, but it was refused on the ground that that charge was not enough to give jurisdiction at law to refer a bill for conveyancing for taxation. The application was made to this Court on the authority of the case In re Murray, and the other cases cited in the report of that case. This Court had undoubted jurisdiction to order the deeds to be given up on payment of what was due; and as incident to this jurisdiction, it will cause the costs to be taxed.

a

must pay the costs of her unnecessarily long atidavit. The costs of the petition are reserved to abide the event of the taxation.

Ex parte Brooke, in re Rice, at Westminster, May 23rd, 1837.

King's Bench.

[Before the Four Judges.]

NEW TRIAL.-RULE ABANDONED.

Where a plaintiff obtained a verdict, and the defendant then applied for a rule for a nonsuit, or for a new trial; and on agreement the rule was discharged as to the nonsuit, but made absloute as to the new trial, on the ground that improper evidence had been admitted; and the defendant did not draw up the rule, but it was drawn up by the plaintiff, and served by him on the defendant, who then said that he would not try the case a second time, the Court held that he must be taken to have abandoned his rule, and that the plaintiff was entitled to sign judgment, and tax costs in the same manner as if no rule had been obtained.

A rule

In this case the plaintiff had brought an action against the defendant for improperly, and without lawful authority, setting up a market in the neighbourhood of a market lawfully granted to certain persons, under whom the 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. 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; Cox v. Harman. This Court had no tively claimed by the plaintiff and defendant, more jurisdiction than a Court of law in this and the rule was, as to the nonsuit, 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 come 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 mentioned, related to convey-attorney wrote to the plaintiff's attorney, a letancing. The petitioner took advantage of Mr. Rice having possession of the deeds, to make the bill indirectly subject to taxation, to which it would clearly not be subject, if he had not possession of the deeds. The cases referred to, were cases in which the papers came into the hands of solicitors as solicitors; but Mr. Rice was not acting as solicitor in the matters

of his bill.

ter, in which he thus expressed the intentions of the defendant:-" My client will not avail himself of the privilege of a new trial, the points relating to the nonsuit having been decided against him." The plaintiff then applied to the Court for a rule to shew cause why the former rule for a new trial should not be discharged; and why the postea should not be delivered up to the plaintiff: and why he should not be allowed to sign judgment thereon, and to tax his costs. This was the rule against which cause was now shewn by

Lord Langdale, M. R.-The respondent availed himself of his character of solicitor to obtain that employment through which he came into possession of the papers. Had he not been a solicitor, he would not be employed to enter up the judgment. The cases cited maintained the Court's jurisdiction. The peti-mer case. No mention having been made of

a 1 Russ. 519. b 6 East. 404. € 8 East. 237.

Mr, V. Williams.-This rule cannot be supported. There is no ground for asking this Court to rescind the rule granted in the for

the costs in that rule, it is clear that whatever might have been the result of a second trial, the plaintiff could not get the costs of the first, which had in fact been a mis-trial. The new

Superior Courts: King's Bench.

131

former trial, the cognovit being a confession of want of merits. Booth v. Atherton ; Jackson v. Hallam 5 and Elvin v. Drummond. The case of Robertson v.Liddell, was one where, after a verdict for the defendant, and a new trial awarded, upon a question of law, without any thing being said as to costs, the parties agreed to state the facts as if on a case reserved at the trial, and the plaintiffs obtained judgment, and the Court then held that they were entitled to the costs of the first trial. That case carries the principle much further than the present. It was fully confirmed in Jackson v. Hallam.

rules are decisive on that point. From the case of Peacock 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 himself at all of the rule, but would not useless litigation. In the spirit of that desire, have 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 defenin 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 costs of the first trial. Such a conse- Patteson. 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 plaintiff 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 have been entitled to the costs of though now adopted in all the Courts, was althe mis-trial. Peacock v. Harris, 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 admission of of Hankey v. Smith, 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 judgment by default. Application was then made to the master to tax the costs of the first trial; and the master yielded to the application on the authority of Jackson v. Hallam, where, after verdict against him, the defendant applied for, and obtained a rule for a new trial; but instead of again going to trial, gave a cognovit, and the Court held that he was liable for the costs of the former trial. The authority of that case was disputed before the master, and an appeal was subsequently made from his decision to the Court; and a rule obtained to 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 mis-trial. It is impossible to distinguish that no rule had been granted, and that the plaintiff case from the present. (Mr. Justice Littledale. was therefore entitled to the postea. 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. that leave had been refused. The withdrawing thought it was hard that the defendant should the plea made 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-reconcile my mind to that. It is not easy at feated, but that would not have given the first sight to distinguish the case from Peacock plaintiff the costs of the first trial. Why should v. Harris; 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 ent. There the plaintiff has drawn up the rule, trouble of a second trial. The plaintiff, in or- and served it on the defendant who then disder to support this rule, is compelled to try to tinetly abandons it. The ordinary conscset aside a former decision of this Court, by quences 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 common case, be supposed to have succeeded, not upon the merits, but upon some technical ground, which now fails him, and the rule must therefore be absolute.

Mr. Cresswell, in support of the rule.-If the plaintiff had gone to a new trial after this letter, the Court would never have allowed him the costs. [Mr. Justice Patteson.-Did the defendant in this case draw up the rule for the new trial?] He did not; it was drawn up by the plaintiff, and by him served on the defendant, whose attorney then wrote the letter. [Mr. Justice Patteson.-How does the

a Reg. Gen. H. T. 2 W. 4, s. 64.

b 1 Nev. & Perry, 240.

2 Barn. & Ald, 317.

I

Mr. Justice Littledule.-It appears to me that this rule must be absolute. It is true that

d 3 Term Rep. 507.
e 6 Term Rep. 71.
f Ibid. 144.

g 2 Barn. & Ald. 317.

h 4 Bing. 415.

i 10 East, 416.

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Superior Courts: King's Bench; King's Bench Practice Court.

if the plaintiff had succeeded on the second trial, he would not have had to pay the costs of the first. But is he to put the plaintiff in a worse situation than if he had not made any application at all? I do not know whether, if the application to withdraw the plea in Peacock v. Harris had been properly brought before the | Court, the defendant would have been allowed to withdraw it without payment of costs, as the effect of his doing so, was to make the record altogether a new record. Here the defendant has completely abandoned his rule, and brought the case within the principle of those where the defendant, having withdrawn from the defence, the Court has held the plaintiff entitled to the costs.

nected with the infant except from motives of charity, direct a writ of mandamus, absolute in the first instance, to compel the directors of the poor of the parish to receive it into the workhouse of the parish.

In this case an application was made by Bodkin, for a rule to shew cause, or absolute in the first instance, according to circumstances, why a writ of mandamus should not be issued and directed to the Directors of the poor of the parish of St. Pancras, commanding them to receive a certain male child, of an age not exceeding two months, which had been deserted under the following circumstances:The affidavit on which the present application was founded, stated, that some days previous a stranger, a woman, came to the gate of the Foundling Hospital, bringing with her a bundle. She knocked at the gate, and it was accordingly opened to her by the porter. On being asked her business, she stated that she hid brought a parcel for the treasurer of the hospital, and accordingly produced the bundle. This she gave to the porter, desiring him to take it to the treasurer. The porter left the gate for a few minutes, in order to find some one to carry the bundle to the house of the treasurer. When he returned, the woman was gone, but the parcel remained, which was di

Mr. Justice Patteson.-The defendant having obtained the rule, it was for him to draw it up; and if neither he nor the plaintiff had drawn it up, it would have been the same as if no rule had been obtained. But, as is often the case, the plaintiff here drew up the rule, and served it on the defendant. Then the defendant said that he would not have his own rule. What then was the plaintiff to do? He could not let the matter rest there; for this notice put him in the same situation as if there had been no rule at all. This case will not be inconsistent with the case of Peacock v. Harris. There somebody drew up the rule, and then the defen-rected to the treasurer. It was shortly obdant applied to withdraw his plea. Here the defendant would not draw up the rule at all, but from the very first, abandoned it. Roberts v. Liddell went upon an entirely different principle. There the parties agreed that instead of going to a new trial, they would shape a case as if the facts had been found specially on the first trial; and the judgment being for the plaintiff in that case, it was the same as if a case had been reserved in the first instance. I do not pretend to reconcile Jackson v. Hallam with Peacock v. Harris; but I do not think that the latter is inconsistent with the present case. The rule must be absolute.

Mr. Justice Williams.-The circumstances of this case are very peculiar. I have felt the apparent hardship on the defendant. But the difficulty created by that hardship admits of this solution,—that the conduct of the defendant has now placed him in the same situation as if he had not made any application at all for a new trial. Then the usual result must follow.

The Court was then applied to on the subject of costs, and directed that this rule should be absolute, but without costs as to either rule.

De Rutzen v. Lloyd, T. T. 1837. K. B. F. J.

King's Bench Practice Court. DESERTED CHILD.-FOUNDLING HOSPITAL.

DIRECTORS OF THE POOR.

Where a child of tender age has been deserted in the street, and it does not appear that the parents or friends of it can be found, the Court will, under such circumstances, and at the instance of a person who is uncon

served that the bundle moved, and on examining it, the contents were discovered to be a male child, not more than two months old. Search was immediately made for the woman, and inquiries instituted, but without effect, for she could not be found. The child was taken care of by the treasurer, and a nurse procured for it. Application was made to the guardians of the poor of the parish, and they refused to receive it; and intimated that the Foundling Hospital must be an hospital for foundlings, and the infant in question was a foundling, and consequently a fit object for the charity. The question was, whether the poor law guardians were to be relieved from the liability to support euch casual poor as this deserted infant.

Coleridge, J.-Are you not volunteers ? Bodkin. Yes, my lord; but only from motives of charity, as without such an interference the child must have perished. It could hardly be said that a child was to be allowed to die in the streets for want of food.

Coleridge, J.-The cases in which the writ of mandamus issues are where there is a legal right, and no legal remedy without it, and the application must be made by the party alleged to be aggrieved.

Bodkin. It is hardly possible that the infant, under such circumstances, should give an authority to make the application.

Coleridge, J.-Either the parish is liable, or it is not. If it is liable, then those who pay money to relieve it from the burthen of the child, may have a right of action against the parish: if the parish is not liable, then they cannot compel the parish to support the child.

Bodkin. The parish are liable to relieve casual poor; and, if no one interfered, the child would die of starvation.

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