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Superior Courts: Common Pleas.

The

try cause, at the ensuing assizes."
words of this rule expressly required that the
plaintiff should" have been "prevented setting
the cause down for trial in the term, and the
period of losing the trial must be taken to be
at the time of obtaining the rule for the stay
of proceedings against the bail. Stride v. Hill,
4 D. P. C. 709. The objection was a strict
one, and should be viewed by the Court favo-
rably to the defendant. There had been an
affidavit prepared to be delivered in, in support
of the rule, which, however, had been for-
gotten ; but on the face of it some circum-
stances were stated, on which the Court would
perhaps make the rule absolute.

Bosanquet, J.-Have you pleaded yet?

Henderson. The defendant was not at liberty to say that he had pleaded, because that circumstance was not stated on the affidavits before the Court now.

Tindal, C. J.-As the case at present stands, the defendant is not in a situation to make this application to the Court. The case had better stand over, as there seems to have been some mistake; and Mr. Busby can have an opportunity of seeing the affidavit.

On a subsequent day the rule again came on

to be heard.

Henderson then stated the contents of his affidavit. It was sworn that the defendant had pleaded in the original action; and that a notice had been given to the plaintiff's attorney, that he might proceed against the original defendant without prejudice to his right to proceed against the bail; and by this course being pursued, ample time would have been afforded to go to trial in this term on the 28th. | The defendant was now willing to accept short notice, of trial.

Busby submitted that the rule laid down by Mr. Tidd could not be departed from, and that therefore the notice given to the plaintiff's attorney was of no avail. The object in forming the rule of Court, was to render the practice of all the Courts uniform; but if the notice were permitted to govern the case, it would have the effect of repealing the rule in fact. The offer to accept short notice of trial, ought not to weigh with the Court, for if such an offer were permitted to prevail, the practice of the Courts would be rendered uncertain.

Tindal, C. J.-To bring the case within the rule, there must have been an absolute, substantial prevention from going to trial, which prevention must have occurred before the motion for the stay of proceedings. Here there had been no such prevention, for the plaintiff appeared to have had the power to proceed in his own hands. The rule must be absolute on payment of costs, the defendant taking short notice of trial.

Fule accordingly.—Clark, assignee of the Sheriff of London, v. Vestris and others. E. T. 1837. C. P.

TESTE OF WRIT OF SUMMONS.-SERVICE.

A writ of summons, bearing date the 17th
April 1830, which is served on the 17th

April 1837, will be set aside for irregula larity.

mons and service for irregularity, with cost. Shee applied for a rule to set a writ of sumThe writ was required, by the Uniformity of Process Act, to be tested on the day on which it was issued. The service here was on the

17th April 1837, while the writ bore date the 17th April, 1830.

Tindal, C. J.-That is clearly irregular. Rule granted.-Briggs v. Bernard. E. T. 1837. C. P.

APPLICATION UNDER FINES AND RECOVERIES
ACT.-TITLE OF AFFIDAVITS.

Affidavits in support of an application under
the Fines and Recoveries Act, 3 & 4 W. 4,
c. 74, s. 9, which purport to have been
sworn before a commissioner for taking
affidavits for this Court, need not be entitled
in the Court.

Atcherley, Serjt., applied to the Court under the act 3 & 4 W. 4, c. 76, s. 9, that the deed of conveyance by a married woman might pass without the consent of her husband. It was sworn that the latter had been absent from England for nine years, and had not during that time been heard of.

Tindal, C. J.-The Court will grant your application.

On the affidavits being handed in, Mr. Cancellor, the Secondary, objected to receive them without the direction of the Court, pointing out that they were not entitled in the Court.

Atcherley, Serjt, submitted, that under the act of parliament no other Court but the Common Pleas had jurisdiction in such matters; therefore the affidavits had not been entitled. The jurat, besides, sufficiently pointed out that the affidavits had reference to a matter in this Court. It was in this form, " sworn before Joseph Green, a commissioner for taking affidavits for the Court of Commons Pleas in Westminster."

Tindal, C. J.-I think that as jurisdiction is given only to this Court by the act of parliament, the affidavits are sufficient, without being entitled in the Court.

Rule accordingly.-Ex parte Bates. E. T 1837. C. P.

PARTICULARS.-NOTE.-INTEREST.

A plaintiff's particulars claiming interest in respect of a promissory note, which is inadmissible on account of an insufficient stamp, the plaintiff cannot recover in respect of promises to pay interest, unless they are independent altogether of the note, as the note itself must be produced at the trial of the cause.

Hoggins shewed cause against a rule obtained by Kelly for setting aside the verdict in this case, and entering a nonsuit. The action, it appeared, was tried before the undersheriff, and was for the recovery of two quarters' in

Superior Courts: Common Pleas; Exchequer.

terest on 7007., due at the rate of five per cent. The defendant had become indebted to the plaintiff in the sum of 700/., and repeated applications had been made for payment by the plaintiff's attorney. The defendant at length offered to give a promissory note at a year's date for the payment of the money, and also for the payment of interest from that time on the debt quarterly, at the rate of five per cent. This instrument bore date February 1834, and the defendant continued to pay interest upon it, until the time at which the present cause of action arose. Applications had been made to him for the first of the two quarters' interest sought to be recovered, when, after some delay he paid 91.: the amount due being 84. 15s. On this, the plaintiff's attorney said he would keep the odd 5s. in satisfaction of a demand which he had for the letters; when the defendant said " Very well, I will settle with you when I pay next time." At the trial, before the undersheriff, it was proposed to put in the promissory note as evidence, but it was objected to on the ground of its not bearing a proper stamp. The undersheriff however received it; and a verdict was returned in favour of the plaintiff for 81. 15s, half the amount sought to be recovered. It was now admitted that the stamp was not legally sufficient; but it was contended that as there had been admissions by the defendant that the debt as well as the interest was due, its production was unnecessary. The particulars, which the plaintiff had given, stated that the money was claimed as interest on the note, a copy of which was given; but it was urged, that this did not shew the action to have been brought on that note, but was a mere surplusage, without which the particulars would have been incomplete.

F. Kelly, contrà, submitted that the production of the note at the trial was necessary to establish the plaintiff's case, and it not bearing a legal stamp, it could not be given in evidence. Whenever a written contract existed, that must be produced in preference to parol evidence. By giving the note, a new state of things was produced between the parties, and in fact a new contract was made. There was before nothing said of interest being paid, nor was any specific period fixed for the payment of the principal sum. But for the note, the claim would have been barred by the Statute of Limitations. From the particulars, it was also evident that it could only be on this note that the recovery was claimed.

Tindal, C. J.-The simple question here is, whether there was any contract beyond the promissory note to pay interest, or whether that note was the first contract made to that effect. It appeared that the defendant contracted to give that note some days before it was actually drawn; but at that time the debt was on other grounds, being for money lent, and money unpaid on certain bills of exchange. There was no evidence of the contract therefore but the promissory note, without the production of which the Court ought not to have put the case to the jury. There, however, the fact of the insufficient stamp interposed,

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and the evidence was on that ground properly rejected.

Purk, J.-I do not agree with the opinion expressed by the Lord Chief Justice. I clearly think that the particulars delivered were of little importance, because that portion of them which refers to the note is mere surplusage, and was introduced for the purpose of pointing out the manner in which the demand arose. There was in my opinion, evidence enough to go to the jury without the production of the note, and that need not have been put in. The statement of one of the witnesses was, that the defendant had admitted the money now sought to be recovered to be due for interest, but nothing was said at that time with regard to the note. It seems to me, therefore, that the calling for the note in evidence, and its rejection on the ground of its being improperly stamped, would defeat the justice of the case.

Gaselee, J.-I think the objection good. If there had been parol evidence of an undertaking to pay any interest without the promissory note, that would have been enough, but no such evidence existed; on the contrary, the interest was made a part of the terms of the note. I think the verdict would not have been good, without the production of the note.

Vaughan, J.-The simple question was on the contract, and whether none existed except such as was reduced to writing in the promissory note. I agree with Mr. Kelly that every written agreement must be produced in evidence, but I think that there was sufficient evidence here of the existence of a parol contract, before the note was given. The case must therefore stand as it originally did, and Mr. Kelly takes nothing by his motion.

Rule accordingly.-Rimington v. Baker, H. T. 1837. C. P.

Exchequer.

AFFIDAVIT OF JUSTIFICATION OF BAIL.

The bail swearing that they are worth property

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over and above their just debts," instead of" over and above what will pay their just debts," will not prevent their justifying; but the plaintiff will not be required to pay the costs of opposition in the event of their justifying.

Rathbone opposed the bail in this case. He objected to the affidavit of justification, which, he contended, was insufficient. The bail swore that they were worth property to the amount of 50%. "over and above all their just debts." The form given by R. H. T. 2 W. 4, s. 19, was "over and above what will pay all their just debts."

Mansel, in support of the bail, contended that the omission of the words pointed out did not affect the sense of the sentence.

Per Curiam.-The form given by the rule should be strictly adhered to. The objection, however, will not prevent the bail justifying; but the plaintiff will not have to pay the costs of opposition.

The bail justified.-Miller's Bail, E. T. 1837, Excheq.

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Superior Courts: Exchequer -Parliamentary Proceedings.

DEFENDANT SUPERSEDABLE.-89 R. G. H.
T. 2 W. 4.

The warden cannot be compelled to judge
when a prisoner is supersedable, in order
to discharge him under the 88th rule H. T.
2 W. 4; but the defendant must apply to a
Judge or to the Court.

Udall, moved for a rule calling on the warden of the Fleet prison to discharge the defen. dant out of custody, he being supersedable. It was directed by the 88th rule of H. T. 2 W. 4. that all prisoners who should be supersedable, and should after that remain in the custody of the marshal or warden, without being superseded, should be discharged forth. with as to all such actions in which they were supersedable. The defendant had been supersedable more than a month, in consequence of his not having been charged in execution, and he had applied to the warden for his discharge, but it was refused. It was urged that under the rule he was entitled to his discharge

from the warden.

Lord Abinger, C. B-The warden cannot be compelled to judge of the fact whether the defendant is supersedable or not. You may take a rule against the defendant.

Alderson, B.-The defendant's proper course would have been, to apply to a Judge to discharge him.

On the following day an application was made by Munsel to charge the defendant in execution, against which Udall shewed cause, and contended that as the other rule had been obtained, the application could not be granted.

Per Curiam.-The objection is insufficient; the defendant was guilty of neglect in not applying sooner for his discharge.

Rule accordingly.-Robinson v. Creswell, E. T. 1837, Excheq.

JUDGMENT AS IN CASE OF NONSUIT.

When a plaintiff has given notice, but has failed to go down to trial in consequence of the absence of a witness, and the defendant having given one day's notice, mores for judgment as in case of a nonsuit, but the plaintiff subsequently gives fresh notice, and obtains a verdict in the absence of the defendant, the verdict is a sufficient answer to the rule for judgment as in case of a nonsuit, but the Court will set aside the verdict with costs, the plaintiff giving a peremptory undertaking.

Addison had obtained a rule for judgment as in case of a nonsuit, against which

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given, as two inconsistent entries would then appear on the record.

Addison submitted that there had been a failure on the part of the plaintiff in his not going to trial, pursuant to the practice of the Court, and that, therefore, notwithstanding his having obtained a verdict, the defendant was entitled to have his present rule absolute. It had been decided that a defendant was not deprived of his right to judgment as in case of a nonsuit, by fresh notice of trial being given before motion, when he had previously become entitled to it by the plaintiff's default in not giving notice of trial. Smedley v. Christie, 2 D. P. C. 152. Bainbridge v. Purvis, 1 D. P. Parke, B.-The notice was not a stay of proceedings.

C. 444.

Addison. In the other Courts one day's notice is sufficient, and it is by implication made a stay of proceedings by the R. H. T. 2 W. 4. lute, the plaintiff having obtained a verdict. Parke, B.-This rule cannot be made absoThe defendant is to blame in not making such a motion as could have operated as a stay of but it may be incorporated with a rule that the proceedings. The rule must be discharged, verdict should be set aside, on payment of the costs thereof and of this rule, the plaintiff giving a peremptory undertaking.

Rule accordingly.-Jones v. Hows, E. T. 1837. Exch.

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BILLS TO BE BROUGHT IN.
To establish Local Courts... Mr. Roebuck.
To abolish Grand Juries
Mr. Prime.

To consolidate and amend the Laws relating
to Copyright, in Books, Musical Compo-
sitions, Acted Dramas, Pictures aud En-
gravings, to provide remedies for the vio-
lation thereof, and extend the Term of
its duration. 18th May.

Hoggins shewed cause. From the affidavits
it appeared that notice of trial had been given
for the 31st March, but in consequence of the
absence of a material witness, the record was
withdrawn. On the 10th April the plaintiff
gave a fresh notice for the 18th of that month;
but the defendant did not appear, and he gained
a verdict. The defendant obtained the present
rule on the 14th April, having given one day's
notice of his intention to apply. It was now
urged that the plaintiff having gained a verdict, To amend the Marriage Act.
judgment as in case of a nonsuit could not be

To extend the suffrage of Householders.
Mr. Serjeant Talfourd.
Mr. Hume.

Mr. Wilks.

Parliamentary Proceedings.-Notes of the Week.

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Parish Vestries -To abolish Plural Voting. For restraining and regulating the holding Mr. Wakley.

To amend the Law relating to the Property
Qualification of Members.

Mr. Warburton.
To alter and amend the Law relating to
Mortgages on Ships and Vessels.
Mr. G. F. Young.
To amend the Law of Costs and the Genc-
ral Issue
Sir F. Pollock.
To enable Tenants for Life of Estates in
Ireland to make Improvements in their
Estates, and to charge the Inheritance
with the Monies expended in such Im-
provements....
Mr. Lynch.
To repeal the Septennial Act, 1 G. 1, c.
Mr. Wm. Williams.
Mr. D'Eyncourt.
To regulate and restrain the Power of
Judges to Commit for Contempt.
Mr. Charlton.
To explain the Marriage, and Registration
Acts
..Lord John Russell.

38.

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IN COMMITTEE.

of Benefices in Plurality, and amending
the Laws relating to the Residence of the
Clergy.
Lord John Russell.
Offences punishable by Transportation
for Life.

Abolishing the punishment of death in
cases of forgery.
Offences against the person.
Robbery and stealing from the person.
Burglary and stealing in a Dwelling

House.
Crime of Piracy.

Burning or destroying Buildings and
Ships.

Abolishing the punishment of Death in
certain cases.

Abolishing the punishment of the Pillory.*
For extending the provisions of the Uni-
formity of Process Act. Mr. Elphinstone.
To regulate the Keeping of the Public Re-
cords,
Mr. C. Puller.
To allow certain expences on Coroners In-
quests.
The Solicitor General.
Annual Indemnity.

CONSIDERATION OF REPORTS.

To amend the Law of Debtor and Creditor,
and abolish Imprisonment for Debt.
To abolish useless Offices in the Common
The Attorney General.
Law Courts, and Consolidate the Offices.
Mr. Serjeant Goulburn.

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NOTES OF THE WEEK.

INTENDED NEW RULES OF COURT.

For amending the several Acts for the Regulation of Attorneys and Solicitors. 17th May .Mr. Tooke. For the better regulation of the Offices of Sheriff, Undersheriff, Deputy Sheriff, and Bailiff. 17th May.. Mr Tooke. We understand that a rule has been preSheriffs' Courts-To extend the 3 & 4 W. pared for altering the hours of public atten4, c. 42, "for the further Amendment of dance at the Common Law Offices during the Law, and better Administration of term-time. Instead of the present attenJustice," Captain Pechell. dance from 11 till 2, and 5 till 7, the attenFor the better Registration of Voters, dance will be from 11 till 5, without any The Attorney General. attendance in the evening. It is expected Shire Halls. Mr. Solicitor General. that the Judges will sign the rule before Prisons Regulations.........Mr. Fox Maule. next term. The alteration will evidently For facilitating the Recovery of the Posses- be a very convenient one for practitioners sion of Tenements after the determina-in general. It is a great hindrance to tion of the Tenancy Mr. Aglionby. the despatch of business to close the offices

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Notes of the Week.-Chancery Sittings.-Editor's Letter Box. from 2 till 5; and the evening attendance | Thursday June 1{M is rarely of importance.

The fees demanded for the keys of the Treasury, which were always considered as a grievance, are intended, we believe, to be

abolished.

Friday
Saturday
Monday
Tuesday
Wednesday

Thursday

June 2

Appeal Motions and

Rehearings, Appeals,

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5

6

and Causes.

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Rehearings, Appeals,

10 and Causes.

Appeal Motions and

Friday
Saturday
Monday
N. B. Such days as his Lordship sits in the
House of Lords on Appeals are excepted.

We also understand that a Rule of Court has been proposed for simplifying the notices of admission of attorneys. At present the notice to the Master must be given three days' before term. And it must be put up in the King's Bench Office the day before term, and entered in the Judges' Books. Now, the printed tabular Lists, which are placed outside of the Court, are much more easily consulted than the old detached notices and promiscuous entries: and it is Monday Tuesday therefore proposed to place these alphabetical Wednesday Lists in the Judges' Chambers and the ThursdayOffices; and to require only one notice of Friday admission to be left with the Master a week Saturday before term, so as to give time for printing Monday and placing up the Lists by the first day of Tuesday,

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12 Motions.

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Wednesday
Thursday June 11
Friday
Saturday

Monday

Wednesday
Thursday.

The term's notice of admission in Mi-Tuesday chaelmas term, must be served at the Master's Office on or before Wednesday the 17th instant, pursuant to the rule which requires such notice to be left three days at the least before the commencement of the term next preceding that in which the party shall propose to be admitted.

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Friday
Saturday
Monday

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2

Motions.

Pleas, Demurrers, 5 Exceptions, Causes, and 6 Further Directions.

7.

Motions.

Pleas, Demurrers, 9 Exceptions, Causes, and Further Directions.

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Short Causes & Ditto.
Motions.

THE EDITOR'S LETTER BOX.

The suggestion of a Correspondent at Knaresborough, with regard to a stamped country edition of the Legal Observer, shall be considered. We have always been aware scribers in the small and distant towns. The of the inconvenience sustained by our subreduction of the newspaper duty enables us to reconsider the question, and we will attend to it without delay.

The letters of E. H.; R. N.; and J. H., will be attended to.

We thank "a Friend and Subscriber." His letter arrived too late to act upon last week; but he will see that the information has been supplied in the present number.

A Correspondent inquires, "whether an articled clerk, who does not wish to be admitted till the term after he has been examined,

May 22{Appeal Motions and must leave his articles, &c. with the Secretary

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Petitions.

Rehearings and Ap

Thursday

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Friday

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in the term in which he is examined; or, in other words, do the Examiners require the articles, &c. to be left in all cases before examination." The regulations require the articles, &c. to be left, and there seems no reason to suppose that the Examiners will dispense with the regulations in this respect.

The Quarterly Digest of Cases will be pub lished next week.

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