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Superior Courts: King's Bench.

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

{'udgment was arrested because it was not aleged whether he had such notes in his possession lawfully or unlawfully. There is nothing in this declaration to shew that the setting lire to the premises was unlawful.

Rule absolute.—Rigby v. Heron, T. T. 1837. K. B. F. J.

GRANT.—TOLLS.

Consuetudo, in an original grantof a market, does not e.rpreis toll.

It seems thai concessisse and confirmasse are nut words, the use of which in a deed ttitl necessarily shew thai deed to have been a deed confirming ancient rights. Notwithstanding such words, the deed map, it seems, be a deed originally creating a right.

This was an action for tolls, claimed as payable in respect of beasts sold in the market of Wilton. The cause was iried before Lord whinger, 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 inercatum cum omnibus liberis cousuetudinibus, ffc. 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 plaintiff, and a rule had since been obtained to set aside that verdict, and have a new trial on the ground of misdirection.

Mr. Alexander, Mr. Armstrong, ami Mr. IValson, shewed cause. In Coke upon Littleton/ 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. Brett v. 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,c 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

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all its appurtenances," these words were sufficient to pass the toll. It is clear, tkerefore, that no particular words are necessary to pass the right to tolls, but that the words used iu a grant may he coupled with other circ umstance-, and the right to tolls may be thus established. It is so in this case. In Stamford v. t'awlrtt& it was held that reasonable toll would he passed by a grant, though no amount of toll was specified. In Truro v. Reynolds* 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, hut this was clearly a charter of confirmation, where it would have such a menning.

Mr. Crerswell in support of the rule.—In Heddy v. If'heel/iouse,* it was held, that by the grant of a fair cum omnibus libertalihus, toll was not due nor demandahlc; and in Hulloicay v. Smiths, the question was argurd on demurrer, and it was held that a grant of a fair, " with all profi'S, commodities, emoluments, liberties, and free customs ad hujtsmodi ferins pertinen." did not carry toll which was not incident of common right, and therefore not within the words of reference. The words liberis consueludinibus are often found in company with customages and theoloniuin, which last is the proper word for tolls, and is so used in all ancient grants. In the same manner, concestisse 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 relerring to the past, but which in reality refer only to the earlier words of the same deed. [Mr. Justice Coleridge —In MagnaCharta, when speaking of the foreign merchants trading hither, the word consuetudines is used. There it appears to have meant the payment of what we now call custom duties. May it not have meant in this private deed, a moncv payment, as it expressed in that great public deed?] No, for in Stafford v. Pairlelt, there was not one instance iu which a grant of tolls had been made by the word consuetudines. [Lord Denman, 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 he drawn from that expression is answered by the absence of proof of any grant of tolls by such a word.

Cur. adv. cult.

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 i by the Kiug were, concessesse et confirmasse, and the word by which tolls were supposed to

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

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be mentioned was, consuetndinus. It was considered possible, and bad been so argued, that the words first referred to might mean a confirmation, in which case consnetudines 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 Lave 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 (he rule for setting it aside must be made absolute,

Rule absolute. — Lord Egremont v. Saul, T.T. 183/. K. B. F. J.

Sing's* 3Bctirfj 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 tierl dai/, a million 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 bad, had since passed, but no notice of trial had been given.

Archhold now shewed cause, and contended that the application came too early. It was a town cause, and the plaintiff was entitled to three terms in which to proceed to trial, and the present rule had been moved in Easter Term. He pointed out the case of Hurl v. Wilson, 3 D. P. C. u'5", where the issue in a country cause, ordered to be tried before the sheriff, having been joined on the 9th August, an application for judgment as in case of a nonsuit, no notice of trial having been given in the next Hilary Term, was held to be premature. In liutteneorth v. Crabtree, 3 D. P. C. 184, issue was joined in the cause, which

'was a country cause, before the sheriff in June, and no notice of trial was given; and a motion fur judgment as in case nf a nonsuit in Michaelmas Term was held to be too early, although two court days had passed. The mere tact 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 <o 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. null.

Williams, J.—This case does not appear to be distinguishable from that of Fox v. M'Culloch, recently decided by Mr. Justice Palteson, 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. 1 W. 4.

The bail will not be rejected because in the affidavit of justification, under the rule of T. T. I W. 4, they are described as being "possessed" of the requisite amount, instead of "worth," hut it is only a ground fur 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. He pointed out the rule of Court, 1 R. G. H. T., 2 W. 4, s. 19, in which there was an amendment on the form given in the previous rule of T. T. 1 W. 4. The word "possessed" wai employed in the form, but by the subsequent rule " worth" was required to be used, and this had been establ shed now to be the proper term by a series of decisions. If the defendant adopted the rule of T. T. 1 W. 4, he must pursue it strictly, and if he did not, he had not now placed himself in a position to justify. The decision in Penson't bail, 4 D. P. C. 627, was, that if a defendant in justifying bail adopted the new practice under R. G. T. T. IW. 4, he must conform to it strictly, and an affidavit therefore of sufficiency, good under the old 230

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

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

Knorrles, 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 inforinHlity was to prevent the defendant from obtaining the costs of justification.

Bail justified.—Carter's bail.E. T. 1837 — K. 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, bud 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. Palmer moved for leave to enter up judgment 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 be had on that day paid a check, written in his hand writing, and purporting to be drawn nine tlavs previously.

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

Rule granted.—Jacobs v. Griffiths, E. T., 1837. K. B. P. C.

JUDGMENT ON AN OLD WARRANT OF ATTORNEY.—AFF1DA VIT.

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 loth 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.

Common f)Irarf.

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 Nth 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 plaintiffs 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 given to the defendant, but oyer had not been 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. f. Richards now shewed cause, and contended that the mode of giving oyer proposed by the plaintiff in this rule was utterly inconsistent with the usual practice. Oyer, according to its strict legal meaning, was the production and reading of any original deed or document in court, and the present mode of giving oyer at the office of the attorney was merely adopted for the sake of convenience. The production of deeds had been dispensed with only when there was a good excuse pleaded, Read v. Broohman, 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 hare been on record, and proper steps might hare 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. Broohman,) in which the principle laid down was that the Court had not the power to dispense with oyer, and could only assist the plaintiff in declaring; if they desired to shew him any favor.

Superior Courts: Common Pleas; Exchequer.

Tindd, C. J.—The Court have process to m ike 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 artion stands, hut 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 denned. There was no case in which an assignment had been m;ide 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.

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 ihe security of the Archbishop, 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 ot Totty v. Nisbett was in favour of the application ; for Duller, 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, hut oyer was immediately claimed by the defendant, who was aware of the difficulty of the plaintiffs position. Such an objection ought not to be permitted to iuterfere with the rights of the plaintiff.

T'mdal, 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 beeu put upon record. If the rule were made absolute, the Court would be deciding upon ■notion 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 produce it or not. The rule must be discharged, but without costs.

Park, J., and Bosani/uet, 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

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that the rule therefore must be discharged without costs.

Rule discharged.— Archbishop of Canterbury v. fubb, E. T. 183/. C. P.

(SFjrchequrr.

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, ore admissible in shewing cause against a rule for a new trial, on the ground of the verdict being against evidence.

G. T. While shewed cause against a rule obtained by Coitingham for a new trial, on the ground that the verdict was against evidence. The cause was tried before the under-sheriff of Yorkshire, and affidavits were now produced, in which some facts were stated to have beeu proved at the trial which did not appear upon the undersherifPs notos.

Coitingham contended that the affidavits were inadmissible, but admitted that if they were received, they would lie an answer to his rule.

Per Curiam.—The affidavits may be admitted, and the rule must, in consequence, be discharged.

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

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.

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

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

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MISCELLANEA.

ANCIENT OFFICERS ON THE PLEA SIDE OF TUB
QUEEN'S BENCH.

(.Concludedfrom p. 21G.) "Fifthly, the Clerk of the Declaration, ia 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 hills 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, aud Postens, holds his office by appointment under the hand and seal of the chief clerk. He files all common bails, makes out cenificates 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 lute 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 signahle 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 hails; 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 he tried by nisi prius in the said Court, and to examine the same with the plea roll (except as aforesaid;; aud after they are examined, he seals them for trial, and by his clerks he give* 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 Custos Brevium. There are also under clerks, who claim fees.

"The Clerk for transaibing 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 persans 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, 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. The 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 1 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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