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Superior Courts; Common Pleas.

133

Coleridge, J.-1 will consider the case, and by press of business, and I think we must be let you know my opinion shortly.

considered to have decided it in time.

Cur. adv. vull. Talbut pointed out that the only excuse Coleridge, J.-On a subsequent day in term made by the plaintiff's attorney was, that he said he had considered the case, and that under had been unable to make up his bill of costs. the circumstances the writ of mandnmus must | Tindal, C. J.-Can you shew that you have yo. The rule must be absolute in the first in- | been injured ? stance.

Tulbot admitted that he was not then in a Rule granted, absolute in the first instance.- condition to do so. Rexr. The Directors of the Poor of Parish of Rule absolute.-Green v. Codgen, C. P. Si. Pancras, T. T. 1837. K. B. P. C.

E. T. 1837.

Cammon pleas.

IRREGULARITY IN COPY OF Writ of

SUMMONS.WAIVER.
ENTERING UP JUDGMENT.-OPERATION OF
STATUTE 17 Car. 2, c. 8, s. I.

The fruct of a defendant having called trice

on the plaintiff's attornry, and offered 10 Where a party has been prevented from en

settle the action, before taking un objection tering up judgment by the act of the Court

to an irregularity in the copy of the writ for more than tro Terms, the Court will

of summons, is a waiver of the objection. interfere, and the case does not come within the statute 17 Car.2, c. 8, s. 1.

Shee had obtained a rule for setting aside

the copy of the writ of summons in this cause W. H. Watson had obtained a rule, calling

for irregularity, with costs, and on the defendant to shew cause why the pro

Addison now shewed cause. The writ apthonotary should not tax the plaintiff his costs,

peared to have been issued on the 18th April, and why final judgment should not be signed

1837, and it stood tested on the 19th April, for the plaintiff'; against which

183 , the figure 7 being omitted. The indorseTalbot shewed cause. It was an action of

ment on the writ was pointed out to the Court, replevin, tried in Trinity Vacation, 1834, in

which was as follows. “This writ was issued which a verdict had been returned for the

by A, B., at, &c., attorney, on the 8th April, ayowant, subject to a special case. Tbe avow.

1837 ;” and it was submitted that the defendant ant died in August 1835, but the special case

could suffer no inconvenience from the miswas not set down for arguinent until Hilary

take in the date. The application besides, Term 1836, and was argued in the following

came too late, for the writ was served on the Easter Terin. Judgment was then ordered to

21st April, and this application was not made be entered for the plaintiff, instead of for the ...

until the 27th. Four days was the time alarowant. In Trinity Term a motion was made

| lowed in similar cases, Hinton v. Stevens.a In to set aside the judginent non obstante veredicto, ith:

CCO; 1 that case, the irregularity was a misnomer, and but the rule was discharged without costs, and

the Court held, that the objection must be then the present rule was obtained. It was

taken within four days, whether in Term or subunitted that this was not a case within the

Vacation. There had, besides, been a waiver statute of Charles, a which applied to cases where

of the irregularity, for the defendant on the no more than two Terms had been suffered to

24th April, after the service of the copy of the pass. Here a portion of Easter Term 1836, and the whole of the time up to Trinity Vaca

writ, had called on the plaintiff's attorney,

| and had admitted the debt to be due, exprestion 1837, had been permitted to go over with

sing his regret that legal proceedings should out any thing being done. Where the party has

they have been taken, and declaring that the plaindied, besides, the Court had no power to enter tiff was

tiff was only entailing expense on hiinself, for up judgment.

that he (defendant) was unable to pay. The Tindal. C. J.-Has not the Court such a defendant then said, that he would call on power, if the parties were detained by the act

cained by the ach a subsequent day, to learn whether it was the of the Court?

determination of the plaintiff to go on with the Talbot.-If the parties were kept by the mere

case; and on the 28th April, he accordingly act of the Court, no doubt such a power ex

called. He was told that the plaintiff intended isted;b but they had no such authority under

to proceed, and he offered to pay the debt and the act, and it must be sustained as existing at

half the costs of the writ. This was refused, common law. Great inconvenience might arise

however, and on the next day, the present obfrom the granting of this application, because

jection was taken. It was pointed out, that judgment must be entered as of the time at

the inistake was not in the original writ itself, which the verdict was given, and the executors

but in the copy. He cited Rnwes v. Knight, of the deceased inost probably by this time

| in support of the point with regard to the would have settled all accounts.

waiver. Tindal, C. J.—That would be a very good

Shee contended, in support of his rule, that answer to a writ of sci. fu.; but I think the

the date was of the greatest importance, as the case falls within the principle. It stood over

time for which the writ should run, was goa 17 Car. 2, c. 8, s. 1.

verned by it; and the Uniformity of Process Lawrence v. Hodgson, 1 Younge & Jervis, 363.

a 4 D. P. C. 283. b | Bing. 132.

134

Superior Courts : Common Pleas; Exchequer.

Actc required every such writ to be tested on | was any or either of them, made or indorsed by the day on which it should be issued. The the said J. E., modo pl forma. Demurrer, asdefendant could know nothing but what was signing for cause that an immaterial issue was conveyed to him by the copy of the writ of raised by the replication. It was now consuminons with which he was served. With re-tended that there was no good ground of degard to the application being too late, he sub. murrer, for if it were found that J. E. did not mitted that the case of Hinton v. Struens was make the bills, it did not follow that the plaintiff not analogouse for that was an objection to a did, and in that case there must be a repleader. notice of declaration. It was provided by thc | The plaintiff should have demurred to the rule of H. T. 2 W. 4, that all applications to plea set aside process for irregularity, should be Highlman. The demurrer adınitted that made within a reasonable time. See Tyler v. J. E. did not make the bills, and the so'e Grren.d An application was made to set aside defence set up was that he did. Supposing a writ on the 3 Noveinber, which had been that to be found for the plaintiff therefore, served on ihe 25th October, the 211 November there would in effect be no defence. The being Sunlay, and the Court said that the ap. plea amounted to an adınission that if J. E. plication should have been made on the Ist did not make the bills, the defendant did. November, thus holding six days to be real Lord Abinger, C. B.-The point urged for sunable time. With respect to the question of the plaintiff is not so obvious as to entitle him waiver, the mere offer to settle an action, would to have this rule made absolute. not amount to a waiver of such an objection. Parke, B.-There is a doubt, and the rule The indorsement on the writ which had been must be discharged. alluded to, was unimportant, for the writ nerd Rule discharged.-Walker v. Culteu, E. T. not be indorsed on the day of its being issued. 1837. Excheq.

Tindal, C. J.-The only inaterial question here is, whether the defendant has not waived the objection. After he has been served with SIGNING JUDGMENT ON A COGNOVIT, NUNC the copy of the writ, he sees the plaintiff's

PRO TUNC. attorney twice, and consults with him upon

Judgment cannot be signed on a cognovit, entering into some arrangeinent. It seems

until the defendant is in Court. from the cases cited, that when a party has ineans of knowing so trifling an objection to

Godson obtained a rule for setting aside exist, he should take advantage of it as early judgment signed on a cognovit for irregularity. as possible. The rest of the Court concurred.

The irregularity complained of was, that an Rule discharged.-Briggs v. Bernard, E.T.

appearance had not been entered until the 1837. C. P.

third day after judgment signed.

Petersdorff now shewed cause, and contend

ed, upon the authority of Duvis v. Hughes, 7 Erchequer.

T.R. 206, that the appearance having been PLEADING. - DEMURRER.

entered nunc pro (unc, the defendant was Assumpsit bu indorsee against draurer of estopped from objecting to the irregularity.

three bills of exchange. The defendant, Parke, B.-When that case was decided. huving pleased that the bills were indorsed | there was relation to the first day of terın.

arba pretender in be his arene | You cannot have relation of an appearance. without authority, and the plaintif huving replied, denying that the bills were indorsed authorises any attorney to appear tor him, if bij J. E., the Court refused to set aside a necessary. He cannot therefore repudiate the demurrer to the replication, assigning for

vion ussionine for act of his own agent. cause that an immaterinl issue was raised, Purke, B.-It was the duty of the plaintiff and to allow the plaintiff to sign judgment. I to du llwer the plaintiff to sierindorment to see that the defendant was in Court, before

he signed judginent. The rule must be absoWighlmin had obtained a rule in this case

ise lute, no action to be brought. for setting aside the demarrer to the replica: Rule absolute.-Watsun v. Doir, E. T. 1837. tion, and for signing judgment as for want of Esches a plea, against which,

W. H. Watson shewed cause. It was an action of assumpsit, brought by the indorsee JUDGMENT AS IN CASE OF A NONSUIT. against the draiver of three bills of exchange.

Issue being joined on the day after Michuel. The defendant pleaded that the three bills

mas Term, it is too soon to more for judgwere made and indorsed by one J. E., in

ment as in case of a nonsuit in Easter. the name of the defendant, he then pretending to be an agent of the defendant, and Bain applied for judgment as in case of a duly authorised by hiin to draw and indurse nonsuit. It appeared that issue was joined on the said bills; whereas the said J. E. was not the day after Michaelmas Term, and it was so au horised, and the defendant had not contended that the present application was not in any way conSrmed his act. To this the too soon. plaintiff replied that the bills were not, nor Parke, B., said that as there were other

cases in which the point had arisen, he would e 2 & 3 W. 4, c. 39, s. 12.

consult the Judges. d 3 D. P. C. 439.

On a subsequent day, he said that the opiSuperior Courts : Exchequer.- Parliamentary Proceedings.

135

nion of the Judges was, that the application

IN COMMITTEE. was too early.

Concealment of Births.
Rule refused.-Wyattv. Howell, E. T. 1837. Shire-halls.
Excheq.

Irish and Scotch Affidavits.

| Municipal Corporations. STI RULE OF 2 W. 4.-PLEAS IN ABATEMENT. I Turnpike Roads continuance.

Pillory Abolition. Pleus in abatement us within the 8th rule of the 2 W. 4.

THIRD READING. Corling obtained a rule for setting aside

Recorders' Courts. the judgment signed in this case and subsequent proceedings for irregularity. The de

House of Commans. claration was delivered on the 8th March, and

BILLS TO BE BROUGHT IN. a plea of privilege (the defendant being an ...

Local Courts . . . . . Mr. Roebuck. attorney of another Court) was delivered on

** | Abolishing Grand Juries . Mr. Prione. the 13th, (the 12th being Sunday.) Judgment

To extend the Suffrage of Householders. was however, signed by the plaintiff, who

Mr. Hume. imagined that the plea should have been de

The 8th

To amend the Marriage Act. livered within four days inclusive.

Mr. Wilks.

Parish Vestries. To abolish Plural Voting. rule of H. T. 2 W.4, was now pointed out,

Mr. Wakley. by which it was provided, that whenever a

Qualification of Members. Mr. Warburton. particular number of days, not expressed to

Mortgages on Ships. Mr. G. F. Young. be clear days, was prescribed by the practice

Law of Costs and General Issue. Sir F. Pollock. of the Court, they should be reckoned exclu

Powers of Tenants for life of Estates in Ireland sively of the first, and inclusively of the last day, unless the last day should fall on a sun.

Mr. Lynch.

Repealing Septennial Act. Mr. Williains. day, &c., wben the time should be reckoned exclusirely of that day also. This, it was

Mr. D’Eyncourt.

Power of Judges to commit. Mr. Charlion. contended, applied to pleas in abatement as well as to other pleas.

FOR SECOND READING. Channell shewed cause against the rule, and Law of Copyright . . Mr. Serjt. Talfourd. submitted that the rule of Court cited, did not | Controvertec Elections. Mr. C. Buller. extend to pleas in abatement, and that it had Law of Patents . . . . Mr. Mackinon. always recently been the practicc to plead Offences against the Person .Mr. A. Trevor. within four days inclusive.

Expences at Elections . . . . Mr. Hume. Parke, B.-There are words used in this Fre

Freemens' Admission. rule, the grammatical construction of which Final Register of Electors. . Mr. Elpinstone. extends the time.

Boundaries of Boroughs. Alderson, B. This is a case in which a cer

Common Fields Act Amendıpent. tain length oí line is prescribed by the prac-| Bankrupt Laws.

Solicitor General. tice of the Court, and the Srst day is inclusive, | Small Debt Courts. . . . . . Col. Seale. the last exclusive. The Courts have always Rolls Estate. thought that pleas in abatement should not be favored. Jennings v. Webb, P.R. 279; Long v. Miller, 2 Stra. 1191.

Custody of Infants . . Mr. Serjt. Talfourd. Couling pointed out the case of Pepperell Bribery at Elections . . . . Mr. Hardy. v. Burrell, i C. M. & R. 372.

Repealing Usury Law on Bills of Exchange. Parke, B.-I cannot tell whether pleas in | To amend the Law of Wills. abatement were contemplated by the framers

The Attorney General. of the rules, but the best rule of construction, Registration of Voters. Attorney General. is that which is grammatical. The rule has Prisons Regulations .. Mr. Fox Maule. not before been applied to pleas in abatement, Recovery of Tenements. Mr. Algionby. and the present rule must be absolute, but í Residence of Clergy. without costs.

Offences punishable by transportation for life. Rule accordingly.-Ryland v. Wormwald,

Abolishing the punishinent of death for forgery. E. T. 1837. Excheq.

Offences against the person.
Robbery and stealing from the person.

Burglary and stealing in a Dwelling-House. PARLIAMENARY PROCEEDINGS.

Crime of Piracy.
Burning or destroying Buildings and Ships.

Abolishing the Punishment of Death in certain
House of Lords.

cases.

Lord John Russell. BILLS FOR SECOND READING.

Uniformity of Process Act. Mr. Elphinstone. To establish Local Courts.

Public Records. . . . . Mr. C. Buller. Education and Charities.

Expences of Coroners’ Inquests. Pluralities Prevention.

The Solicitor General. Residence of Clergy.

Highway Rates. Judge's Opinions.

Secular Jurisdiction of York and Ely. Marriages and Registration.

Inclosure Awards

IN COMMITTEE.

136

Parliamentary Proceedings.-Notes of the Week.The Editor's Letter Bot.

CONSIDERATION OF REPORTS. Attorneys and Solicitors . Mr. Tooke. Abolishing Imprisonment for debt.

The Attorney General.

THIRD READING.

Sherils' fees . . . . . . Mr. Tooke.
Common Law Officers.

Mr. Serjeant Goulburn.

PASSED. Marriage and Registration Acts.

Lord John Russell.

Fees to be paid on the Examination and Ad.

mission of Attorneys in the Courts of Common Law.

£. s. d. On leaving articles of clerkship

and assignments for inspec-
tion, 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

NOTES OF THE WEEK.

For the Judge's fiat ............
For the oath in Court ......... ,
To the Usher on signing the

roll ....... ATTORNEYS AND SOLICITORS' BILL.

To the Master's clerk for certiThe following is the clause, as amended ficate of Inrolment .... ..... 5 » on the re-commitment of this Bill, relating to the examination and admission fees.

That from and after the passing of this Fees to be paid on the Examination and Ad. act, no fees, gratuities or sums of money mission of Solicitors in Chancery. whatsoever, other than the fees or sums of

£. s. d. money mentioned in the schedule to this act | On leaving articles of clerkship annexed, shall be demanded or received by and assignments for inspecany person or persons, upon the examination tion, and inquiry as to due or admission of attorneys or solicitors in service....... ................. . 5 any of the said Courts respectively, upon On the examination into the any pretence whatsoever. (s. 3.)

fitness and capacity of the

clerk, and for the certificate The following clause has been added in thereof ..........

„ 15 6 committee, on the motion of Mr. Pemberton, For the admission at the Rolls, enabling attorneys or solicitors, admitted of including the fees of the one Court, to practice in and recover costs clerk of the Petty Bag for business transacted in another.

Office, usher, &c.............

1 17 , That any person who shall have been duly admitted an attorney or solicitor in any

THE EDITOR'S LETTER BOX. of his Majesty's Courts of Law or Equity at Westminster, shall be at liberty to practise in any other of his Majesty's Courts, Subscribers who wish to receive by post the although he may not have been admitted an

Country Stamped Edition of the Legal Obser.

ver, will please to give directions accordingly. attorney or solicitor thereof; and that no

The price of the stamped edition is 7d., except person having been duly admitted an attor | the last Saturday in each month, when the ney or solicitor as aforesaid, shall be pre-double sheet is 13d. The work in all other re. vented from recovering or receiving the spects remains the same; and the London subamount of any costs, which would other- scribers, and those who can receive it by the wise have been due to him by reason of his Booksellers’ parcels, may continue it at the not being admitted an attorney or solicitor same price and in the same form as heretofore.

The Cover of the Weekly number, comof the Court in which such costs shall have

prising the Advertisements and Contents, will been incurred : Provided always, that any in future be stamped for the Country, and sent, attorney or solicitor practising in any Court without any extra charge, to all the subscribers. of Law or Equity shall be subject to the We will endeavour to insert the letters of jurisdiction of such court as fully and com- H. W.; “ An Agent;" J. A.; “ An Articled pletely to all intents and purposes whatever | Clerk ;” and G. M., in our next Number. as if he had been duly admitted an attorney

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

early opportunity. or solicitor of such court.

We regret that we have no room at pre

sent for Queries or Answers, and must defer a The following is the Schedule to which

selection from those we have received till the the act refers.

long Vacation.

The Legal Observer.

MONTHLY RECORD FOR JUNE, 1837.

-“Quod magis ad nos
Pertinet, et nescire malum est, agitamus."

HORAT.

PARLIAMENTARY DEBATES RE conduct, and which, if treated in the mildest LATING TO THE LAW.

form, does certainly impute to me an obliquity of moral judgment. As to the imputation

itself, it certainly does appear to me, and PARLIAMENTARY AGENTS.

with great submission to the House I assert it, Lord George Lennox.-Sir, In pursuance of to have no more connection with my conduct the instructions I have received from the than it has (if I may take so great à liberty,) London and Birmingham Railway Committee, with your own, Sir. There is no individual I beg to move that the resolution of the House more remote from any interest of a pecuniary of the 20th February 1830, be now read. I nature, in any questions on any subject that will state to the House what has taken place, can possibly come before the House as a matter with reference to the case I am about to sub- of parliamentary enquiry, than I am. I unmit, in the Committee; it will then be for the derstand the resolution to be to this effect : House to decide in what manner it should be that no member shall, either by himself or by treated. A petition from Mr. Goldsmid was his partner, be engaged in the inanagement of referred to that Committee, and upon asking | private bills in this or in the other House of who appeared in support of it, the Committee Parliament for pecuniary reward. Can it be were informed that it was Mr. Freshfield, jun.; doubted that this resolution was intended to and Mr. Freshfield being asked whether he prohibit any individual from acting in his own was in partnership with his father, a Member name or that of his partner in these transof this House, replied that he was in partner-actions? Can it be doubted that this resoluship with his father in general business, but tion meant not to embrace the mere relation not in parliamentary business, or as regarded of partnership in other transactions, but that this particular case. The Committee have only as to parliamentary business) My object therefore directed me to bring the subject at the present moment is not to argue the under the notice of the House.

question beyond what is necessary to explain The resolution having been read by the it, and make it understood. I will state facts, clerk, that no Member of the House be per- / and leave the House to deal with those facts as mitted to engage, either directly or indirectly, they may think proper. in the management of private bills before I assert it, that I have no interest, direct or Committees of that House, for pecuniary re- | indirect, in soliciting, managing, or conducting ward,

any private business either in this or the other Mr. Freshfield said. I thank the noble House of Parliament. When I was first reLord for the courteous manner in which he has turned to Parliament, in 1830, I took the earbrought this subject under the notice of the liest possible opportunity-I did not wait even House, although there is no mode in which till my return to London, but wrote to town such a question could be brought before Par- | to desire that an arrangement should immeliament which would not of necessity occasion diately be made, by which my son, and he to me considerable regret and pain. Regret,

erable recret and pain. Regret, | alone, should take any of the profits that might that the time of the House should be occupied | be derived from parliamentary business. And. upon any subject that merely concerns me as although I remained in partnership with my an individual, -and pain, that, after having son in general business, I disclaimed all intes served in this House for three successive Par- | rest or participation in parliamentary business. liaments, during which I have always refrained | I directed that the accounts should be sepafrom forcing myself, more than was consistent | rately kept, and the profits taken by my son with my public duty, upon the notice of the for his own separate and individual use. I House, I should now find I am compelled to have in no way interfered with him, in any solicit its attention upon a matter entirely per- matter of parliamentary business from that sonal, and involving'as it does my own personal | moment. It must not be supposed that such

VOL. XIV.-- No. 405.

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