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Superior Courts; Common Pleas.

133

Coleridge, J.—I will consider tlie case, and let you know my opinion shortly.

Cur. adv. vult.

Coieridge, J.—On a subsequent day in term said he had considered the case, and that under the circumstances the writ of mandamus must go. The rule must be absolute in the first instance.

Rule granted, absolute in the first instance.— Ret v. The Directors of the Poor of Parish of St. Puncrus, T. T. 183/. K. B. P. C.

by press of business, and I think we must be considered to have decided it in time.

Talbot pointed out that the only excuse made by the plaintiff's attorney was, that he had been unable to make up his bill of costs.

Tindal, C. J.—Can you shew that you have been injured i

Talbot admitted that he was not then in a condition to do so.

Rule absolute.—Green v. Codgen, C. P. E. T. 1837.

Common $)lra4.

ENTERING UP JUDGMENT.—OPERATION OP

Statute 17 Car. 2, c. 8, s. 1. Where a party has been prevented from entering up judgment by the act of the Court for more than two Terms, the Court trill interfere, and the case does not come within the statute 17 Car. 2, c. 8, s. 1. IP. H. IVutson had obtained a rule, calling; on the defendant to shew cause why the protlionotary should not tax the plaintiff his costs, and why final judgment should not lie signed for the plaintiff; against which—

Talbot shewed cause. It was an action of replevin, tried in Trinity Vacation, 1834, in which a verdict had beeu returned for the avowant, subject to a special case. The avowant died in August 1835, but the special case «a< not set down for argument until Hilary Term 1836, and was argued in the following Easter Term. Judgment was then ordered to be entered for the plaintiff, instead of for the avowant. In Trinity Term a motion was made to set aside the judgment non obstante veredicto, j but the rule was discharged without costs, and then the present rule was obtained. It was submitted that this was not a case within the statute of Charles," which applied to cases where no more than two Terms had been suffered to pass. Here a portion of Easter Term 1836, and the whole of the time up to Trinity Vacation 1837, had been permitted to go over without any thing being done. Where the party died, besides, the Court had no power to enter up judgmeut.

Ttndal, C. J.—Has not the Court such a power, if the parties were detained by the act of the Court?

Talbot.—If the parties were kept by the mere act of the Court, no doubt such a power existed jb but they had no such authority under the act, and it must be sustained as existing at common law. Great inconvenience might arise from the granting of this application, because judgment must be entered as of the time at which the verdict was given, and the executors of the deceased most probably by this time would have settled all accounts.

Tindal, C. J.—That would be a very good answer to a writ of set. fa.; but I think the falls within the principle. It stood over

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IRREGULARITY IN COPY OF WRIT OF
SUMMONS.—WAIVER.

The fuel of a defendant having called twice on the plaintiff's attorney, and (iffered to settle the action, before taking an o/yection to an irregularity in the copy of the writ of summons, is a waiver of the objection.

Shee had obtained a rule for setting aside the copy of the writ of summons in this cause for irregularity, with costs, and

Addison now shewed cause. The writ appeared to have been issued on the 18th April, 1837, and it stood tested on the 19th April, 183 , the figure 7 being omitted. The indorsement on the writ was pointed out to the Court, which was as follows. '* This writ was issued by A. B., at, &c, attorney, on the 8th April, 1887 ;" andit was submitted that the defendant could suffer no inconvenience from the mistake in the date. The application besides, came too late, for the writ was served on the 2lst April, and this application was not made until the 27th. Four days was the time allowed in similar cases, Hinton v. Stevens.* In that case, the irregularity was a misnomer, and the Court held, that the objection must be taken within four days, whether in Terra or Vacation. There had, besides, been a waiver of the irregularity, for the defendant on the 24th April, after the service of the copy of the writ, had called on the plaintiff's attorney, and had admitted the debt to be due, expressing his regret that legal proceedings should have been taken, and declaring that the plaintiff was only entailing expense on himself, for that he (defeudant) was unable to pay. The defendant then said, that he would call on a subsequent day, to learn whether it was the determination of the plaintiff to go on with the case; and on the 28th April, he accordingly called. He was told that theplaiutiffintended to proceed, and he offered to pay the debt and half the costs of the writ. This was refused, however, and on the next day, the present objection was taken. It was pointed out, that the mistake was not in the original writ itself, but in the copy. He cited Raises v. Knight,* in support of the point with regard to the waiver.

Shee contended, in support of his rule, that the date was of the greatest importance, as the time for which the writ should run, was governed by it; and the Uniformity of Process

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134

Superior Courts: Common Pleas; Exchequer.

Actc required every such writ to be tested on the diiy on which it should he issued. The defendant could know nothing hut what was conveyed to him by the copy of the writ of summons with which he was served. With regard to the application being too late, he submitted that the case of Hntton v. Stevens was not analogous* for that was an objection to a notice of declaration It was provided by the rule of H. T. 2 VV. 4, that all applications to set aside process for irregularity, should be made within a reasonable time. See Tyler v. GreenA An application was made to set aside a writ on the 3d November, which had been served on the 25th October, the 2d November being Sunday, and the Court said tlut the application should have been made on the 1st November, thus holding six days to be reason ible time. With respect to the question of waiver, the mere oiler to settle an action, would not amount to a waiver of such an objection. The indorsement on the writ which had been alluded to, was unimportant, for the writ need not be indorsed on the day of its being issued.

Tindnl, C. J.—The only material question •here is, whether the defendant has not waived the objection. After he has been served with the copy of the writ, he sees the plaintiff's attorney twice, and consults with him upon entering into some arrangement. It seems from the cases cited, that when a party has means of knowing so trifling an objection to exist, he should take advantage of it as early as possible. The rest of the Court concurred.

Rule discharged.—Briggs v. Bernard, E. T. 1837. C. P.

©rrfirqurr.

PLEADING.—DEMURRER.

Assumpsit hy indorsee against drawer of three bills of exchange. The defendant having pleaded thai the hills irere indorsed hy one J. E., who pretended In he his ag"nt, Without authority, and the plaintiff' having replied, denying that the hills tcere indorsed hy J. E., the Court refused to set aside a demurrer to the replication, assigning for cause that an immaterial issue was raised, and to allow the plaintiff to sign judgment. fFighiman had obtained a rule in this case for setting aside the demurrer to the replication, and for signing judgment as for want of a plea, against which.

If. H. Watson shewed cause. It was an action of assumpsit, brought by the indorsee against the drawer of three bills of exchange. The defendant pleaded that the three bills were made and indorsed by one J. E., in the name of the defendant, he then pretending to be an agent of the defendant, and duly authorised by him to draw and indorse the said bills; whereas the said ./. E. was not so authorised, and the defendant had not in any way confirmed his act. To this the plaintiff replied that the hills were not, nor

« 2 & 3 W. 4, c. 39, s. 12. "3 D. P. C. 439.

was any or cither of them, made or indorsed by the said ./. E., modo et forma. Demurrer, assigning for cause that an immaterial issue was raised by the replication. It was now contended that there was no good ground of demurrer, for if it were found that J. E. did not makethebills.it did not follow that the plaintiff did, and in that case there must be a repleader. The plaintiff should have demurred to tbe plea

ff'ightman.—The demurrer admitted that •/. E. did not make the bills, and the so'e defence set up was that he did. Supposing that to be found for the plaintiff therefore, there would in effect he no defence. The plea amounted to an admission that if ./. E. did not make the bills, the defendant did.

Lord Ahinger, C. B.—The point urged for the plaintiff is not so obvious as to entitle him to have this rule made absolute.

Parke, B.—There is a doubt, and the rule must be discharged.

Rule discharged.—Walker v. Cattey, E. T. 1837. Excheq.

SIGNING JUDGMENT ON A COGNOVIT, NUNC PRO TUNC.

Judgment cannot be signed on a cognovit, until the defendant is in Court.

Godson obtained a rule for setting aside judgment signed on a cognovit for irregularity. The irregularity complained of was, that an appearance had not been entered until the third day after judgment signed.

Petersdorff now shewed cause, and contended, upon the authority of Davis v. Hughes, 7 T. R. 206, that the appearance having been entered nunc pro tunc, the defendant was estopped from objecting to the irregularity.

Parlte, B.—When that case was decided, there was relation to the first day of term. You cannot have relation of an appearance.

Peursdwff.—The defendant by his cognovit authorises any attorney to appear tor him, if necessary. He cannot therefore repudiate the act of his own agent.

Parke, B.—It was the duty of the plaintiff to see that the defendant was in Court, before he signed judgment. The rule must be absolute, no action to be brought.

Rule absolute.—Wutson v. Dow, E. T. 1837Excheq.

JUDGMENT AS IN CASE OF A NONSUIT.

Issue being joined on the day after Michael, mas Term, it is too soon to more for judgment as in case of a nonsuit in Easter.

Bain applied for judgment as in case of a nonsuit. It appeared that'issue was joined on the day after Michaelmas Term, and it was contended that the present application was not too soon.

Parlte, B., si'id that as there were other cases in which the point had arisen, he would consult the Judges.

On a subsequent day, he said that the opi135

Superior Oourts: Exchequer—Parliamentary Proceedings.

nion of the Judges was, that the application was too early.

Rule refused.—Wyatti. Hotcell.E. T. 1837. Excbeq.

Sril RULE OF 2 W. 4.—PLEAS IN ABATEMENT.

Pleas in abatement at trilhin the 8th ruin of the 2 W. 4.

Cowbng obtained a rule for setting aside the judgment signed in this case and subsequent proceedings for irregularity. The declaration was delivered on the 8th March, and a plea of privilege (the defendant being an attorney of another Court) was delivered on the 13th, (the 12:h being Sunday.) Judgment was however, signed by the plaintiff<, who imagined that the plea should have been delivered within four days inclusive. The 8th rnle of H. T. 2 W. 4, was now pointed out, by which it was provided, that whenever a particular number of days, not expressed to be clear days, was prescribed by the practice of the Court, they should be reckoned exclusively of the first, and inclusively of the last day, unless the last day should fall on a sunday, &c., when the time should be reckoned exclusively of that day also. This, it was contended, applied to pleas in abatement as well as to other pleas.

Channell shewed cause against the rule, and submitted that the rule of Court cited, did not extend to pleas in abatement, and that it had always recently been the practice to plead within four days inclusive.

Parke, B.—There are words used in this rule, the grammatical construction of which extends the time.

Ablerson, B.—This is a case in which a certain length of lime is prescribed by the practice of the Court, and the Srst day is inclusive, the last exclusive. The Courts' have always thought that pleas in abatement should not be favored. Jennings v. Webh, P. R. 279 j I»ong v. Miller, 2 Stra. 1191,

Cowling pointed out the case of Pepperell v. Burr ell, 1 C. M. & R. 372.

Parke, B.—I cannot tell whether pleas in abatement were contemplated by the Iramers of the rules, but the best rule of construction, is that which is grammatical. The rule has not before been applied to pleas in abatement, and the present rule must be absolute, but without costs.

Rule accordingly.—Ryland v. Wormieald, E. T. 1837. Excheq.

PARLIAMENARY PROCEEDINGS.

©aus'c of aortrrf.

BILLS FOR SECOND READING.

To establish Local Courts.
Education aud Charities.
Pluralities Prevention.
Residence of Clergy.
Judge's Opinions.
M irriages and Registration.

IN COMMITTEE.

Concealment of Births.
Shire-halls.

Irish and Scotch Affidavits.
Municipal Corporations.
Turnpike Roads continuance.
Pillory Abolition.

THIRD READING.

Recorders' Courts, ©nitsr of Command.

BILLS TO BE BROUGHT IN.

Local Courts Mr. Roebuck.

Abolishing Grand Juries . . Mr. Prime. To extend the Suffrage of Householders.

Mr. Hume.

To amend the Marriage Act. Mr. Wilks. Parish Vestries.—To abolish Plural Voting.

Mr. Wakley.

Qualification of Members. Mr. Warburton. Mortgages on Ships. Mr. G. F. Young.

Law of Costs and General Issue. Sir F. Pollock. Powers of Tenants for life of Estates in Ireland

Mr. Lynch.

Repealing Septennial Act. Mr. Williams.

Mr. D'Eyncourt. Power of Judges to commit. Mr. Charlton.

FOR SECOND READING.

Law of Copyright . . Mr. Scrjt. Talfourd.
Controverted Elections . . Mr. C. Duller.
Law of Patents .... Mr. Mackinon.
Offences against the Person . Mr. A. Trevor.
Expences at Elections . . . .Mr. Hume.
Freemens' Admission.

Final Register of Electors. . Mr. Elpinstonc.
Boundaries of Boroughs.
Common Fields Act Amendment.
Bankrupt Laws. Solicitor General.

Small Debt Courts Col. Seale.

Rolls Estate.

IN COMMITTEE.

Custody of Infants . . Mr. Serjt. Talfourd. Bribery at Elections .... Mr. Hardy. Repealing Usury Law on Bills of Exchange. To amend the Law of Wills.

The Attorney General. Registration of Voters. Attorney General. Prisons Regulations . . Mr. Fox Maule. Recovery of Tenements. Mr. Algionby.

Residence of Clergy.

Offences punishable by transportation for life.
Abolishing the punishment of death for forgery.
Offences against the person.
Robbery and stealing from the person.
Burglary and stealing in a Dwelhng-House.
Crime of Piracy.

Burning or destroying Buildings and Ships. Abolishing the Punishment of Death in certain cases. Lord John Russell.

Uniformity of Process Act. Mr. Elphinstoue.

Public Records Mr. C. Buller.

Expences of Coroners' Inquests.

The Solicitor General.

Highway Rates.

Secular Jurisdiction of York and Ely.
I nclosure Awards

136 Parliamentary Proceedings.Notes of the Week.The Editor's Letter Dot.

CONSIDERATION OF REPORTS.

Attorneys and Solicitors . . Mr.Tooke. Abolishing Imprisonment for debt.

The Attorney General.

THIRD READING.

Sheriffs' fees Mr. Tooke.

Common Laiv Officers

Mr. Serjeant Goulburn.

PASSED.

Marriage and Registration Acts.

Lord John Russell.

NOTES OF THE WEEK.

ATTORNEYS AND SOLICITORS* BILL.

The following is the clause, as amended on the re-commitment of this Bill, relating to the examination and admission fees.

That from and after the passing of this act, no fees, gratuities or sums of money whatsoever, other than the fees or sums of money mentioned in the schedule to this act annexed, shall be demanded or received by any person or persons, upon the examination or admission of attorneys or solicitors in any of the said Courts respectively, upon any pretence whatsoever, (s. 3.)

The following clause has been added in committee, on the motion of Mr. Pemberton, enabling attorneys or solicitors, admitted of one Court, to practice in and recover costs for business transacted in another.

That any person who shall have been duly admitted an attorney or solicitor in any of his Majesty's Courts of Law or Equity at Westminster, shall he at liberty to practise in any other of his Majesty's Courts, although he may not have been admitted an attorney or solicitor thereof; and that no person having been duly admitted an attorney or solicitor as aforesaid, shall be prevented from recovering or receiving the amount of any costs, which would otherwise have been due to him by reason of his not being admitted an attorney or solicitor of the Court in which such costs shall have been incurred: Provided always, That any attorney or solicitor practising in any Court of Law or Equity shall be subject to the jurisdiction of such court as fully and completely to all intents and purposes whatever as if he had been duly admitted an attorney or solicitor of such court.

The following is the Schedule to which the act refers.

Fees to be paid on the Examination and Admission of Attorneys in the Courts of Common Law.

£. s. d.

On leaving articles of clerkship and assignments for inspection, and inquiry as to due service ,, 5 ,,

On the examination into the fitness and capacity of the clerk, and for the certificate thereof „ 15 6

For the Judge's fiat ..10 6

For the oath in Court 1 .,

To the Usher on signing the

roll ii 5 ..

To the Master's clerk for certificate of Inrolment 5 „

Fees to be paid on the Examination and Admission of Solicitors in Chancery.

£. s. d.

On leaving articles of clerkship

and assignments for inspection, and inquiry as to due

service :, 5 „

On the examination into the

fitness and capacity of the

clerk, and for the certificate

thereof ,15 6

For the admission at the Rolls,

including the fees of the

clerk of the Petty Bag

Office, usher, &c 117,,

THE EDITOR'S LETTER BOX.

Subscribers who wish to receive by post the Country Stamped Edition of the Legal Observer, will please to give directions accordingly. The price of the stamped edition is 7d, except the last Saturday in each month, when the double sheet is \3d. The work in all other respects remains the same ; and the London subscribers, and those who can receive it by the Booksellers' parcels, may continue it at the same price and in the same form as heretofore.

The Cover of the Weekly number, comprising the Advertisements and Contents, will in future be stamped for the Country, and sent, without any extra charge, to all the subscribers.

We will endeavour to insert the letters of H. W.; "An AgentJ. A; "An Articled Clerk ;" and G. M., in our next Number.

We will do our best to satisfy E. S. at an early opportunity.

We regret that we have no room at present for Queries or Answers, and must defer a selection from those we have received till the long Vacation.

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PARLIAMENTARY DEBATES RELATING TO THE LAW.

PARLIAMENTARY AGENTS.

Lord George Lennox.—Sir, In pursuance of the instructions I have received from the London and Birmingham Railway Committee, I beg to move that the resolution of the House of the 20th February 1830, he now read. I will state to the House what has taken place, with reference to the case I am about to submit, in the Committee; it will then be for the House to decide in what manner it should be treated. A petition from Mr. Goldsmid was referred to that Committee, and upon asking -who appeared in support of it, the Committee were informed that it was Mr. Freshfield, jun.; and Mr. Freshfield being asked whether he was in partnership with his father, a Member of this House, replied that he was in partnership with his father in general business, but not in parliamentary business, or as regarded this particular case. The Committee have therefore directed me to bring the subject under the notice of the House.

The resolution having been read by the elerk, that no Member of the House be permitted to engage, either directly or indirectly, in the management of private bills before Committees of that House, for pecuniary reward,

Mr. Frethfield said,—I thank the noble Lord for the courteous manner in which he has brought this subject under the notice of the House, although there is no mode in which such a question could be brought before ParKament which would not of necessity occasion to me considerable regret and pain. Regret, that the time of the House should be occupied upon any subject that merely concerns me as an individual,—and pain, that, after having served in this House for three successive Parliaments, during which I have always refrained from forcing myself, more than was consistent with my public duty, upon the notice of the House, I should now find I am compelled to solicit its attention upon a matter entirely personal, and involving-Tis it does my own personal

Vol. Xiv.—No. 405.

conduct, and which, if treated in the mildest form, does certainly impute to me an obliquity of moral judgment. As to the imputation itself, it certainly does appear to me, and with great submission to the House I assert it, to have no more connection with my conduct than it has (if I may take so great a liberty,) with your own, Sir. There is no individual more remote from any interest of a pecuniary nature, in any questions on any subject that can possibly come before the House as a matter of parliamentary enquiry, than I am. I understand the resolution to be to this effect :— that no member shall, either by himself or by his partner, be engaged in the management of private bills in this or in the other House of Parliament for pecuniary reward. Can it be doubted that this resolution was intended to prohibit any individual from acting in his own name or that of his partner in these transactions? Can it be doubted that this resolution meant not to embrace the mere relation of partnership in other transactions, but that only as to parliamentary business? My object at the present moment is. not to argue the question beyond what is necessary to explain it, and make it understood. 1 will state facts, and leave the House to deal with those facts us they may think proper.

1 assert it, that I have no interest, direct or indirect, in soliciting, managing, or conducting any private business cither in this or the other House of Parliament. When I was first returned to Parliament, in 1830, I took the earliest possible opportunity—I did not wait even till my return to London, but wrote to town— to desire that an arrangement should immediately be made, by which my son, and he alone, should take any of the profits that might be derived from parliamentary business. And, j although I remained in partnership with my son in general business, I disclaimed alt interest or participation in parliamentary business. I directed that the accounts should be separately kept, and the profits taken by my son for his own separate and individual use. I have in no way interfered with him, in any matter of parliamentary business from that moment. It must not be supposed that such K

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