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Superior Courts: King's Bench.

all its appurtenances," these words were suffi. cient to pass the toll. It is clear, therefore, that no particular words are necessary to pass the right to tolls, but that the words used in a grant may be coupled with other circumstances, and the right to tolls may be thus established. It is so in this case. In Stamford v. Pawlett,a

Common Pleas at Lancaster, a defendant was charged with having imputed to the plaintiff that he had forged notes in his possession. A verdict was given for the plaintiff, but the judgment was arrested because it was not alleged whether he had such notes in his possession lawfully or unlawfully. There is nothing in this declaration to shew that the set-it was held that reasonable toll would be ting fire to the premises was unlawful. Rule absolute.-Rigby v. Heron, T. T. 1837. K. B. F. J.

GRANT.-TOLLS.

Consuetudo, in an original grant of a market, does not express toll.

It seems that concessisse and confirmasse are not words, the use of which in a deed will necessarily shew that deed to have been a deed confirming ancient rights. Notwithstanding such words, the deed may, it seems, be a deed originally creating a right.

passed by a grant, though no amount of toll was specified. In Truro v. Reynalds,e it was held that a general exemption in a charter of the inhabitants of a borough from tolls and dues in all the kingdom but London, did not exempt them from tolls due to the corporation of that borough by prescription. It is possible that consuetudo may not mean toll in a charter of creation, but this was clearly a charter of confirmation, where it would have such a meaning.

Mr. Cresswell in support of the rule.-In Heddy v. Wheelhouse, it was held, that by the grant of a fair cum omnibus libertatibus, toll was not due nor demandable; and in Holloway This was an action for tolls, claimed as pay-V. Smithe, the question was argued on demurable in respect of beasts sold in the market of Wilton. The cause was tried before Lord Abinger, at the summer assizes in 1835, when the plaintiff proved the payment of the tolls for a very long time past, and there rested his case. The defendant, to shew that the tolls had not been properly demanded, put in a charter of Edw. 3, in which the words used by the king were concessisse et confirmasse mercatum cum omnibus liberis consuetudinibus, &c. It was contended that the word consuetudo did not mean tolls, and could not in an original grant convey the right to levy them, and that this charter was a grant of a market, but was not a grant of tolls. Lord Abinger, however, told the jury that the word consuetudo was the word usually employed to describe tolls, but if they felt any doubt on that point, they must look at the usage which has been proved, and say whether that justified such an interpretation. A verdict had been given for the plain. tiff, and a rule had since been obtained to set aside that verdict, and have a new trial on the ground of misdirection.

rer, and it was held that a grant of a fair," with all profi's, commodities, emoluments, liberties, and free customs ad hujusmodi ferias pertinen." did not carry toll which was not incident of common right, and therefore not within the words of reference. The words liberis cansuetudinibus are often found in company with customages and theolonium, which last is the proper word for tolls, and is so used in all ancient grants. In the same manner, concessisse et confirmasse, merely mean that the King confirms his then present grant, as in the present day in all deeds of conveyance words are used which seem to have a meaning referring to the past, but which in reality refer only to the earlier words of the same deed. [Mr. Jus tice Coleridge-In Magna Charta, when speaking of the foreign merchants trading hither, the word consuetudines is used. There it ap pears to have meant the payment of what we now call custom duties. May it not have meant in this private deed, a money payment, as it expressed in that great public deed?] No, for in Stafford v. Parlett, there was not Mr. Alexander, Mr. Armstrong, and Mr. one instance in which a grant of tolls had been Watson, shewed cause. In Coke upon Little-made by the word consuetudines. [Lord Denton, a consuetudo is taken to mean a custom. A grant, therefore, of a market, with all preexisting customs, was a confirmatory grant of tolls already taken by the custom of the place. Beales, shews that an old deed claiming tolls, and regulating the amount of payment, is evidence in the nature of reputation of the existence of the tolls. The meaning of the words which were required to carry tolls, was much discussed in that case; and Lord Tenterden there held, that where the king, before the time of legal memory was entitled to the soil of the town of C. and to toll-traverse within it, and afterwards granted to the burgesses of the town, "the town of C. with

Brett v.

a 58, b.

b Moody and Mal. 416 © Id. 426.

man, C. J.-Lord Coke says, that in his time, instructions were issued to the justices in Eyre to enquire into new customs; there he meant money payments.] But the inference to be drawn from that expression is answered by the absence of proof of any grant of tolls by such a word.

Cur, adv. vult.

Lord Denman, C. J.-The question in this case was, whether the plaintiff was entitled to certain tolls of a market. There was proof of the grant of a market to the ancestors of the plaintiff, and the words of the grant, as used by the King were, concessesse et confirmasse, and the word by which tolls were supposed to

a 1 Crom. & Jer. 57.

e 1 Moore & S. 272; and 8 Bing. 275.
f Cro. Eliz. 558-591. g 2 Str. 1171.

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

be mentioned was, consuetudinus. It was considered possible, and had been so argued, that the words first referred to might mean a confirmation, in which case consuetudines would clearly be sufficient to convey_the_tolls, but the learned Judge who tried the cause (Lord Abinger,) had gone further and stated it as his opinion, that in the creation of a new right, that word might mean the same thing. It was possible that the jury who gave a verdict for the plaintiff might have done so upon this direction of the learned Judge in point of law, and might consequently have thought themselves bound to declare that this was a grant of tolls, and so have put a construction on the instrument. With all possible respect for the learned Judge, we have thought it right to pause upon this rule laid down in his direction, and to examine the authorities on which it was founded, and we can find no instance whatever in which the word consuetudo, in an original grant, has received such a meaning. There does appear to be one passage in Coke upon Littleton, in which it seems to have borne such a construction, but there is one case in Coke's Reports, and there was another in Strange's Reports, where the direct contrary had been held. The verdict, therefore, which had been given for the plaintiff in this case cannot stand, but the rule for setting it aside must be made absolute,

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King's Bench Practice Court.

TRIAL BEFORE UNDER-SHERIFF. JUDGMENT
AS IN CASE OF A NONSUIT.

Issue being joined on the 2d February, and
an order for the trial of the cause before
the under-sheriff being obtained the next
day, a motion for judgment as in case of a
nonsuit in Easter Term, several court days
having passed and no notice of trial being
given, is too early.

George had obtained a rule calling on the plaintiff to shew cause why the defendant should not have judgment as in case of a nonsuit. Issue, it appeared, had been joined on the 2d February, and on the next day a judge's order was obtained for the trial of the cause before the under-sheriff. Several days on which trials were had, had since passed, but no notice of trial had been given.

229

was a country cause, before the sheriff in June, and no notice of trial was given; and a motion for judgment as in case of a nonsuit in Michaelmas Term was held to be too early, although two court days had passed. The mere fact of an order for the trial of the cause before the sheriff, did not alter the plantiff's right in respect of the time which he had for proceeding to trial. Wright v. Skinner, 4 D. P. C. 727, was an authority from which that might be collected; for it was held that a defendant having obtained an order for trial before a sheriff under the Writ of Trial Act, a Judge could not impose terms upon the plaintiff as to the time of proceeding to trial.

George, in support of his rule.-The case of Wright v Skinner, was different from the present. There the defendant had obtained the order, while here the plaintiff had been the active party. He therefore having taken such a step, by which he would be enabled to proceed to trial at an earlier time than if the cause had gone on in its ordinary course, had no right to suffer several court days to pass without proceeding to trial.

Cur, adv. vult.

Williams, J.-This case does not appear to be distinguishable from that of Fox v. M'Culloch, recently decided by Mr. Justice Patteson, where it was held that a motion for judgment as in case of a nonsuit under similar circumstances was too early. The rule must be discharged, but without costs.

Rule accordingly.-Stacey v. Jeffries, E. T. 1837. K. B. P. C.

AFFIDAVIT OF JUSTIFICATION.-RULE OF
T. T. I W. 4.

The bail will not be rejected because in the
affidavit of justification, under the rule of
Ï. T. W. 4, they are described as being
"possessed" of the requisite amount, in-
stead of "worth," but it is only a ground
for depriving the defendant of the costs of
justification.

The bail in this case attended to justify, but

Busby objected to the justification, on the ground that the bail were described in the affidavit of sufficiency to be "possessed" of the requisite amount, instead of its being alleged that they were worth" the money.

was

He pointed out the rule of Court, 1 R. G. H. T., 2 W. 4, s. 19, in which there was an amendArchbold now shewed cause, and contended ment on the form given in the previous rule of that the application came too early. It was T. T. 1 W. 4. The word "possessed a town cause, and the plaintiff was entitled employed in the form, but by the subsequent to three terms in which to proceed to trial, rule "worth" was required to be used, and this and the present rule had been moved in Easter had been establ shed now to be the proper term Term. He pointed out the case of Harl v. by a series of decisions. If the defendant Wilson, 3 D. P. C. 658, where the issue in a adopted the rule of T. T. 1 W. 4, he must purcountry cause, ordered to be tried before the sue it strictly, and if he did not, he had not sheriff, having been joined on the 9th August, now placed himself in a position to justify. an application for judgment as in case of a The decision in Penson's bail, 4 D. P. C. 627, nonsuit, no notice of trial having been given was, that if a defendant in justifying bail adopt in the next Hilary Term, was held to be pre-ed the new practice under R. G. T. T. 1 W. 4, mature. In Butterworth v. Crabtree, 3 D. P. he must conform to it strictly, and an affidavit C. 184, issue was joined in the cause, which therefore of sufficiency, good under the old

230

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

'practice, but defective under the new, was held to be insufficient. The bail therefore should not be permitted to justify.

Knowles, in support of the bail.-The only effect of the informality, if the exact form of the affidavit had not been complied with, would be to deprive the defendant of the costs of justification, to which, otherwise, he would have been entitled.

Williams, J., thought the bail might justify, and that the only effect of the informality was to prevent the defendant from obtaining the costs of justification.

Bail justified.-Carter's bail, E. T. 1837K. B. P. C.

JUDGMENT ON OLD WARRANT OF ATTORNEY.

EVIDENCE OF DEFENDANT BEING ALIVE.

An affidavit stating that a check, written by the defendant, and dated thirteen days before the application, had been paid four days before the application, is sufficient evidence of the defendant being alive to entitle the plaintiff to judgment on an old waraunt of attorney.

Common Pleas.

PROFERT.-WHAT GOOD OYER.

Profert of a deed of administration being made in the declaration, an inspection of the deed at the Registrar's office, Doctor's Commons, is not good oyer.

Wilde, Serjt., had obtained a rule calling on the plaintiff to shew cause why an order of Mr. Justice Gaselee, dated the 14th of April, 1835, for a stay of proceedings in this action, should not be set aside, and why the defendant should not be deemed to have had good oyer of a deed of administration, of which there was a profert in the declaration on its being produced to him at the office of the Registrar at Doctor's Commons, the costs of procuring a copy of the deed, and the costs of the plaintiff's attorney's attendance at Doctor's Commons being paid by the plaintiff. It was an action brought on an administration bond, in the name of the Archbishop of Canterbury, as trustee for the plaintiff, and the declaration contained a profert of the deed. A copy of the deed had been Palmer moved for leave to enter up judg-given to the defendant, but oyer had not been ment on an old warrant of attorney. The proof of the defendant being alive rested on an affidavit dated the 1st May, (this being the 4th) made by an army agent, who swore that the defendant was in the army, and that he had on that day paid a check, written in his hand writing, and purporting to be drawn nine days previously.

Williams, J., thought that this would do, and granted a rule.

given in the usual way, the office-keeper in whose custody the deed was, having refused to permit it to be taken from his office. A summons for the stay of proceedings until good oyer should have been had, was taken out by the defendant, and an order was made to that effect by Mr. Justice Gaselee.

R. V. Richards now shewed cause, and contended that the mode of giving oyer proposed by the plaintiff in this rule was utterly inconRule granted.-Jacobs v. Griffiths, E. T.,sistent with the usual practice. Oyer, accord1837. K. B. P. C. ing to its strict legal meaning, was the duction and reading of any original deed or document in court, and the present mode of

pro

JUDGMENT ON AN OLD WARRANT OF ATTOR- giving oyer at the office of the attorney was

NEY. AFFIDAVIT.

An affidavit, produced to obtain judgment on an old warrant of attorney, is not sufficient in stating that the deponent believes the defendant to be alive, in consequence of information which he has received, unless it is also sworn that he believes the information to be true.

Hoggins moved for leave to enter up judgment on an old warrant of attorney. One defendant was sworn to have been alive within a few days; but with respect to the other, the affidavit was not so explicit. It was stated that from enquiries made by the deponant, he verily believed that the defendant was alive on the 15th of April, this being the 6th May.

Williams, J.-The affidavit is insufficient in not stating that the deponent believed what he had heard to be true; and the rule cannot be granted.

Rule refused.-Reeder v. Whip and another, E. T. 1837. K. B. P. C.

merely adopted for the sake of convenience. The production of deeds had been dispensed with only when there was a good excuse pleaded, Reud v. Brookman, 3 T. R. 157, but here profert was made and no reason suggested for the non-production of the deed. Had such an excuse been made, the matter would have been on record, and proper steps might have been taken by the defendant to object to it. Thoresley v. Sparrow, 1 Wilson 16, and Strange 1185, shewed that the court could not dispense

with

oyer when a deed was pleaded. In the case, as reported in Strange, it was said that the plaintiff was in fault for commencing his action before he was in a condition to produce the deeds, and that observation applied here with twofold force; because the plaintiff was himself in possession of the deed. There was a note to the case, as in Strange, and there was besides the cases of Totty v. Nesbitt, 3 T. R. 153, and Mattison v. Atkinson, ib., (referred to in a note to the case of Read v. Brookman,) in which the principle laid down was that the Court had not the power to dispense with oyer, and could only assist the plaintiff

Superior Courts: Common Pleas; Exchequer.

in declaring, if they desired to shew him any

favor.

Tindl, C. J.-The Court have process to mike the officer produce the deed on the trial; but they cannot compel him to produce it in any intermediate proceeding.

R. V. Richards.-The Archbishop of Canterbury must be looked upon as the real plaintiff, as the action stands, but the bond might have been assigned by him to the plaintiff in fact. In the Archbishop of Canterbury v. Robertson, 1 C. & M. 690, an assignment had been made; but no assignment having been made here, the action must be supposed to have been brought without the consent of the Prerogative Court. Reference was also made to the case of White v. Montgomery, Strange, 1198. Arnold, on the same side, cited Stephen on Pleading, in which oyer was defined. There was no case in which an assignment had been made before the commencement of proceedings, and it was a question for the Ecclesiastical Court, whether there had been such a forfeiture as would induce them to make the

assignment.

without costs.

231

that the rule therefore must be discharged Rule discharged.-Archbishop of Canterbury v. Tubb, E. T. 1837. C.P.

Exchequer.

NEW TRIAL.-UNDERSHERIFF.-AFFIDAVIT.

Affidavits stating facts to have been proved at a trial before the undersheriff, but which do not appear on the undersheriff's notes, are admissible in shewing cause against a rule for a new trial, on the ground of the verdict being against evidence.

tained by Cottingham for a new trial, on the G. T. White shewed cause against a rule obThe cause was tried before the under-sheriff of ground that the verdict was against evidence. Yorkshire, and affidavits were now produced, in which some facts were stated to have been proved at the trial which did not appear upon

the undersheriff's notes.

inadmissible, but admitted that if they were reCottingham contended that the affidavits were ceived, they would be an answer to his rule.

Per Curiam.-The affidavits may be admit

charged.

Rule discharged.-Lilley v. Johnson, E. T. 1837. Excheq

Wilde, Serjt., contra-This case was not one in which an assignment ought to take place. The action was brought under the Act of Parliament for the security of the Arch-ted, and the rule must, in consequence, be disbishop, and the creditor had right to sue. The Archbishop of Canterbury v. House, Cowp. 140. Giving oyer was matter of law, and the mode in which it was given was matter of practice. This was not an attempt to get rid of giving oyer, but only an application that it might be given in a particular way. The case of Totty v. Nishett was in favour of the application; for Buller, J. said, "all we can do is to order that the production of a copy shall be oyer." A copy here had already been given, but oyer was immediately claimed by the defendant, who was aware of the difficulty of the plaintiff's position. Such an objection ought not to be permitted to interfere with the rights of the plaintiff.

CHANGING VENUE.-MATERIAL EVIDENCE.

An undertaking having been given by the plaintiff to give material evidence in a particular county, on an application to change the venue, an objection that such evidence has not been given must be made at the trial.

Balguy moved to set aside the verdict in this cause, and enter a nonsuit. It appeared that it was an action brought against a wharfinger for negligence, and the venue was laid in Lincolnshire. An application was made to change it to Yorkshire, but the venue was retained on the plaintiff giving an undertaking to give material evidence in Lincoln. A verdict was found for the plaintiff, and the present application was made on the ground that material evidence had not been given according to the undertaking. No objection was made at the trial.

Tindal, C. J., thought that the Court had no power to substitute the mode of oyer suggested by the rule for that which had been established by custom; for the whole observations made in support of the rule shewed the case to be so much one of excuse, that it ought to have been put upon record. If the rule were made absolute, the Court would be deciding upon motion a point most important as concerning the rights and privileges of the Prerogative Court. The proper course would have been for the plaintiff to apply to the Court for a mandamus for the production of the bond, when the Archbishop would have had an opportunity of deciding whether he would pro-late. duce it or not. The rule must be discharged, but without costs.

Purk, J., and Bosanquet, J., concurred. Coltman, J., said that the giving oyer was an act, strictly speaking, to be done in Court. The Court could sit only at Westminster, and no place out of Westminster could be made a part of the Court. He was also of opinion that the application was a reasonable one, and

Parke, B.-If the objection had been taken at the trial, the plaintiff might have produced material evidence in Lincoln. It is now too

Rule refused.-How v. Pickard, E. T. 1837. Excheq.

232

MISCELLANEA.

Miscellanea.

ANCIENT OFFICERS ON THE PLEA SIDE OF THE
QUEEN'S BENCH.
(Concluded from p. 216.)

"Fifthly, the Clerk of the Declarations, is appointed for life by writing under the hand and seal of the chief clerk. His duty is to receive, file, and alphabet all declarations and bills in the said court; to shew the files to the filacers, clerks, and attorneys of the court; to grant certificates to prisoners to enable them to apply for their discharges; to attend at Westminster or on a judge of the court, with the records in his custody, when required; and to attend at the King's Bench office for the dispatch of the said business.

Sixthly, the Clerk of the Common Bails, Estreats, and Posters, holds his office by appointment under the hand and seal of the chief clerk. He files all common bails, makes out certificates to the marshal on the filing common bails for prisoners on orders for their discharge; marks deliberaturs on posteas, estreats all amerciaments set by the court, and administers the oath taken of the service of writs according to the late act of parliament.

Seventhly, the Signer of the Writs, holds his place by parol appointment of the chief clerk. His duty is to sign all signable writs, and to enter the remembrance of them on rolls of parchment; to take and file affidavits to hold to bail; to receive and deliver out writs of error and certiorari, and to enter them in a book; to file writs and special bails; to make copies of writs and affidavits, and to attend the judges when required.

"The office of Clerk of the Treasury, and custos brevium and recordorum, formerly called the office of custos brevium and recordorum, is an ancient office, granted for life by the chief justice of the Court for the time being. This officer has the possession of the treasury of the said Court at Westminster, and the custody and charge of the records and writs there. Before the beginning of every term he gives notice in writing to one of the judges whose turn it is to keep the essoin; and he attends the judge at Westminster, with the other officers of the Court for that purpose; he likewise gives constant attendance at the treasury by himself, or deputy, every day in term, during the sitting of the Court, and attends with the keys of the treasury in vacation time when required, in order to search for, and make copies and exemplifications of records; and at the end of every issuable term he is supposed to transcribe from the records all issues, fines, amerciaments, and recognizances forfeited, which are to be estreated into the Court of

Exchequer. His duty is to transcribe and ingross from the plea rolls, all issues that are to be tried by nisi prius in the said Court, and to examine the same with the plea roll (except as aforesaid); and after they are examined, he seals them for trial, and by his clerks he gives daily attendance at his office, from the time the judges appoint their circuits, till the circuits are over, for the transcribing, examining, and sealing the records of nisi prius for all the circuits in England, and for making exemplifications, if required.

"There are two treasuries for keeping the records; namely, the inner and the outer treasury. They are both appointed by the There are also under clerks, Custos Brevium. who claim fees.

"The Clerk for transcribing from the Plea Rolls the Records of Nisi Prius, in the county of Middlesex. He is appointed by the chief justice. His duty is to prepare the records of nisi prius, as above mentioned, and to seal the same.

CIRCUMSTANTIAL EVIDENCE.-TRACING A

ROBBER.

The sagacity of savages often transcends all that the boasted learning of schools and colleges can shew. A North American Indian, upon returning home to his cabin, discovered that his venison, which had been hung up to dry, was stolen. After taking his observations on the spot, he set off in pursuit of the thief, whom he tracked to the woods. Meeting with some persons on his route, he inquired if they had seen a little old white man with a short gun, and accompanied by a small dog with a bob-tail. They answered in the affirmative; and upon the Indian assuring them that the man thus described had stolen his venison,

The

they desired to be informed how he was able
to give so minute a description of a person
whom it appeared he had never seen.
Indian replied, "The thief I know is a little
man by his having made a pile of stones to
stand upon in order to reach the venison from
the height at which I hung it while standing
on the ground;-that he is an old man I know
by his short steps which I have traced over the
dead leaves in the woods ;-and that he is a
white man I hnow by his turning out his toes
when he walks, which an Indian never does.
His gun I know to be short from the mark
which the muzzle made by rubbing the bark
of the tree against which it had leaned ;-that
his dog is small I know by his track; and that
he has a bob-tail I discovered by the mark it
made in the dust where he was sitting, while
his master was busied about my meat."-From
Chambers' Edinburgh Journal.

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