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Superior Courts : Common Pleas.

try cause, at the ensuing assizes.” The April 1837, will be set aside for irregulawords of this rule expressly required that the larity. plaintiff should“ have been "prevented setting

| Shee applied for a rule to set a writ of sumthe cause down for trial in the term, and the

mons and service for irregularity, with cost. period of losing the trial must be taken to be

The writ was required, by the Uniformity of at the time of obtaining the rule for the stay | Process Act to be tested on of proceedings against the bail.

ay J Process Act, to be tested on the day on which

Stride v. Hill, it was issued. 4 D. P. C. 709. The objection was a strict 17th April 1837, while the writ bore date the

The service here was on the one, and should be viewed by the Court favo

17th April, 1830. rably to the defendant. There had been an

Tindal, C. J.-That is clearly irregular. affidavit prepared to be delivered in, in support

Rule granted.-Briggs v. Bernard. of the rule, which, however, had been for-1837

E.T.

Ċ p gotten; but on the face of it some circumstances were stated, on which the Court would perhaps make the rule absolute.

APPLICATION 'UNDER FINES AND RECOVERIES Bosanquet, J.-Have you pleaded yet ?

ACT.-TITLE OF AFFIDAVITS. Henderson.—The defendant was not at li

Affidavits in support of an application under berty to say that he had pleaded, because that

the Fines and Recoveries Act, 3 8.4 W.4, circumstance was not stated on the affidavits

c. 74, s. 9, which purport 10 have been before the Court now.

sworn before a commissioner for taking Tindal, C. J.-As the case at present stands,

affidavits for this Court, need not be entitled the defendant is not in a situation to make this

in the Court. application to the Court. The case had better stand over, as there seems to have been some Atcherley, Serjt., applied to the Court under mistake; and Mr. Busby can have an opportu

the act 3 & 4W. 4, c. 76, s. 9, that the deed of nity of seeing the affidavit.

conveyance by a married woman might pass On a subsequent day the rule again came on

without the consent of her husband. It was to be heard.

sworn that the latter had been absent from Henderson then stated the contents of his af-| England for nine years, and had not during that fidavit.-It was sworn that the defendant had time been heard of. pleaded in the original action; and that a no- Tindal, C. J.-The Court will grant your tice had been given to the plaintiff's attorney. I application. that he might proceed against the original del On the affidavits being handed in, Mr. fendant without prejudice to his right to pro- Cancellor, the Secondary, objected to receive ceed against the bail; and by this course them without the direction of the Court, poinbeing pursued, ample time would have been ting out that they were not entitled in the afforded to go to trial in this term on the 28th. Court. The defendant was now willing to accept short Alcherley, Serjt, submitted, that under the notice of trial.

act of parliament no other Court but the Com. Busby submitted that the rule laid down by mon Pleas had jurisdiction in such matters ; Mr. Tidd could not be departed from, and therefore the affidavits had not been entitled. that therefore the notice given to the plaintiff's The jurat, besides, sufficiently pointed out attorney was of no avail. The object in that the affidavits had reference to a matter in forming the rule of Court, was to render the this Court. It was in this form,“ sworn be practice of all the Courts uniform ; but if the fore Joseph Green, a commissioner for taking notice were permitted to govern the case, it affidavits for the Court of Commons Pleas in would have the effect of repealing the rule in Westininster.” fact. The offer to accept short notice of trial, Tindal, C.J.--I think that as jurisdiction is ought not to weigh with the Court, for if such given only to this Court by the act of parliament, an offer were permitted to prevail, the practice the affidavits are sufficient, without being enof the Courts would be rendered uncertain. titled in the Court.

Tindal, C. J.-To bring the case within. Rule accordingly.--Ex parle Bates. E. T the rule, there must have been an absolute, 1837. C. P. substantial prevention from going to trial, which prevention must have occurred before

PARTICULARS.-NOTE.-INTEREST. the motion for the stay of proceedings. Here

A plaintiffs particulars claiming interest in there had been no such prevention, for the plaintiff appeared to have had the power to

respect of a promissory note, which is inad

missible on account of an insufficient stamp, proceed in his own hands. The rule must be

the plaintiff cannot recover in respect of absolute on payment of costs, the defendant

promises to pay interest, unless they are in. taking short notice of trial. . Fule accordingly.-Clark, assignee of the

dependent altogether of the note, as the Sheriff of London, v. Vestris and others. E.T.

note itself must be produced at the trial of 1837. C. P.

the cause. Hoggins shewed cause against a rule oh

tained by Relly for setting aside the verdict in TESTE OF WRIT OF SUMMONS.-SERVICE. this case, and entering a nonsuit. The action, A writ of summons, bearing date the 17th it appeared, was tried before the undersheriff,

April 1830, which is served on the 17th and was for the recovery of two quarters' in

Superior Courts : Common Pleas; Exchequer.

29

terest on 7001., due at the rate of five per cent., and the evidence was on that ground properly The defendant had become indebted to the rejected. plaintiff in the sum of 7001., and repeated ap- Purk, J.-I do not agree with the opinion plications bad been made for payment by the expressed by the Lord Chief Justice. I clearly plaintiff's attorney. The defendant at length think that the particulars delivered were of offered to give a promissory note at a year's | little importance, because that portion of them date for the payment of the money, and also which refers to the note is mere surplusage. for the payment of interest from that time on and was introduced for the purpose of pointing the debt quarterly, at the rate of five per cent. out the manner in which the demand arose. This instrument bore date February 1834, and There was in my opinion, evidence enough to the defendant continued to pay interest upon it, I go to the jury without the production of the until the time at which the present cause of ac-note, and that need not have been put in. The tion arose. Applications had been made to statement of one of the witnesses was, that the him for the first of the two quarters' interest | defendant had admitted the money now sought sought to be recovered, when, after some delay to be recovered to be due for interest, but he paid 91. : the amount due being 81. 158. On nothing was said at that time with regard to this, the plaintiff's attorney said he would the note. It seems to me, therefore, that the keep the odd 58. in satisfaction of a demand calling for the note in evidence, and its rejec. which he had for the letters; when the defend- tion on the ground of its being improperly ant said“ Very well, I will settle with you when stamped, would defeat the justice of the case. I pay next time.” At the trial, before the un-| Gaselee, J.--I think the objection good. If dersheriff, it was proposed to put in the pro-chere had been parol evidence of an undertakmissory note as evidence, but it was objected to ing to pay any interest without the promissory on the ground of its not bearing a proper note, that would have been enough, but no stamp. The undersheriff however received it; such evidence existed ; on the contrary, the and a verdict was returned in favour of the interest was made a part of the terms of the plaintiff for 81. 158 , half the amount sought to note. I think the verdict would not have been be recovered. It was now admitted that the good, without the production of the note. stamp was not legally sufficient; but it was Daughan, J.-The simple question was on contended that as there had been admissions the contract, and whether none existed exby the defendant that the debt as well as the cept such as was reduced to writing in the interest was due, its production was unneces- promissory note. I agree with Mr. Kelly that sary. The particulars, which the plaintiff had every written agreement must be produced in given, stated that the money was claimed as in- evidence, but I think that there was sufficient terest on the note, a copy of which was given; evidence here of the existence of a parol conbut it was urged, that ihis did not shew the tract, before the note was given. "The case action to have been brought on that note, but must therefore stand as it originally did, and was a mere surplusage, without which the par- | Mr. Kelly takes nothing by his motion. ticulars would have been incomplete.

Rule accordingly.-Rimington v. Baker, F. Kelly, contri, submitted that the produc-|H. T. 1837. C. P. tion of the note at the trial was necessary to establish the plaintiff's case, and it not bearing

Erchequer. a legal stamp, it could not be given in evidence.

AFFIDAVIT OP JUSTIFICATION OF BAIL. Whenever a written contract existed, that must be produced in preference to parol evidence.

The bail swearing that they are worth property By giving the note, a new state of things was

over and above their just debts," instead produced between the parties, and in fact a new

of " over and above what will pay their just contract was made. There was before nothing

debts,will not prevent their justifying ; said of interest being paid, nor was any specific

but the plaintiff will not be required to puy period fixed for the payment of the principal

the costs of opposition in the event of their sum. But for the note, the claim would justifying: have been barred by the Statute of Limitations. Rathbone opposed the bail in this case. He From the particulars, it was also evident that objected to the affidavit of justification, which, it could only be on this note that the recovery he contended, was insufficient. The bail swore was claimed.

that they were worth property to the amount Tindal, C. J.-The simple question here is, of 501. “ over and above all their just debts." whether there was any contract beyond the The form given by R. H. T. 2 W.4, s. 19, was promissory note to pay interest, or whether “over and above what will pay all their just that note was the first contract made to that debts." effect. It appeared that the defendant con- Mansel, in support of the bail, contended tracted to give that note some days before it that the omission of the words pointed out did was actually drawn ; but at that time the debt not affect the sense of the sentence. was on other grounds, being for money lent, Per Curiam.—The form given by the rule and money unpaid on certain bills of exchange. should be strictly adhered to. The objection, There was no evidence of the contract there- however, will not prevent the bail justifying ; fore but the promissory note, without the but the plaintiff will not have to pay the costs production of which the Court ought not to of opposition. have put the case to the jury. There, however, The bail justified.- Miller's Bail, E. T. 1837, the fact of the insufficient stamp interposed, Excheq.

Superior Courts: Exchequer Parliamentary Proceedings.

DEFENDANT SUPERSEDABLE.-89 R. G. H. : given, as two inconsistent entries would then T. 2 W. 4.

appear on the record. The warden cannot be compelled to judge Addison submitted that there had been a when a prisoner is supersedable, in order failure on the part of the plaintiff in his not to discharge him under the 88th rule H, T. going to trial, pursuant to the practice of the 2 W. 4; but the defendant must apply to a Court, and that, therefore, notwithstanding his Judge or to the Court.

having obtained a verdict, the defendant was Udall, moved for a rule calling on the war. entitled to have his present rule absolute. It

- had been decided that a defendant was not den of the Fleet prison to discharge the defen..! dant out of custody, he being supersedable. deprived on

hie deprived of his right to judgment as in case of It was directed by the 88th rule of H. T. 2 W. a nonsuit, by fresh notice of trial being given 4. that all prisoners who should be supersed. before motion, when he had previously become able, and should after that remain in the en

the entitled to it by the plaintiff's default in not custody of the marshal or warden, without giving no

but giving notice of trial Smedley v. Christie, 2 being superseded, should be discharged forth.

D. P.' C. 152. Bainbridge v. Purvis, 1 D. P. with as to all such actions in which they were ,

no C. 444. supersedable. The defendant had been super-!

Parke, B.—The notice was not a stay of sedable more than a month, in consequence proces

proceedings. of his not having been charged in execution, ' tice is sufficient, and it is by implication made

Addison. In the other Courts one day's noand he had applied to the warden for his dis- tice is sufficient, and it is by implication made charge, but it was refused. It was urged that a stay of proceedings by the R. H. T. 2 W. 4. under the rule he was entitled to his discharge !

Parke, B.- This rule cannot be made absofrom the warden.

lute, the plaintiff having obtained a verdict. Lord Abinger, C. B _The warden cannot ! The defendant is to blame in not inahing such be compelled to judge of the fact whether the a motion as could have operated as a stay of

proceedings. The rule must be discharged, defendant is supersedable or not. You may

but it may be incorporated with a rule that the take a rule against the defendant. Alderson, B.-The defendant's proper course ver

. verdict should be set aside, on payment of the would have been, to apply to a Juuge to dis- ;

his costs thereof and of this rule, the plaintiff charge him.

giving a peremptory undertaking. On the following day an application was

Rule accordingly.-Jones v. Hous, E. T. made by Munsel to charge the defendant in : 1037. Exch. execution, against which Udull shewed cause, and contended that as the other rule had been

PARLIAMENTARY PROCEEDINGS. obtained, the application could not be granted.

Per Curiam.-The objection is insufficient; the defendant was guilty of neglect in not

House of Lords. applying sooner for his discharge.

BILLS FOE SECOND READING.
Rúle accordingly.--Robinson v. Creswell, E. To establish Local Courts.
T. 1837, Excheq.

Education and Charities.
Pluralities Prevention.

Lord Brougham
JUDGMENT AS IN CASE OF NONSUIT. Residence of Clergy.
When a plaintiff has given notice, but has To amend the Limitation of Real Actions

fuiled to go down to trial in consequence of Act. ............................. Lord Abinger, the absence of a witness, and the defendant Recorders' Courts. having given one day's notice, mores for

IN COMMITTEE. jndgment as in case of a nonsuit, but the

Commissions for taking Irish and Scotch plaintiff subsequently gives fresh notice, und wbtuins a verdict in the absence of the Affidavits. ..............The Lord Chancellor. defendant, the verdict is a sufficient answer Ivíunicipal Corporations. to the rule for judgment as in case of a nonsuit, but the Court will set aside the

House of Commons. verdict with costs, the plaintiff giving a

BILLS TO BE BROUGHT IN. peremptory undertaking:

To establish Local Courts...Mr. Roebuck. Addison had obtained a rule for judgment | To abolish Grand Juries ................Mr. Prime. as in case of a nonsuit, against which

To consolidate and amend the Laws relating Hoggins shewed cause. From the affidavits it appeared that notice of trial had been given to Copyright, in Books, Musical Compofor the 31st March, but in consequence of the sitions, Acted Dramas, Pictures aud Enabsence of a material witness, the record was gravings, to provide remedies for the viowithdrawn. On the 10th April the plaintiff lation thereof, and extend the Term of gave a fresh notice for the 18th of that month; its duration 18th May. but the defendant did not appear, and he gained

. Mr. Serjeant Talfourd. a verdict. The defendant obtained the present rule on the 14th April, having given one day's

To extend the suffrage of Householders. notice of his intention to apply. It was now

Mr. Hume. urged that the plaintiff having gained a verdict, To amend the Marriage Act. judgment as in case of a nonsuit could not be !

Mr. Wilks.

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Parliamentary Proccedings.- Notes of the Week. Parish Vestries -To abolish Plural Voting. For restraining and regulating the holding

Mr. Wakley of Benefices in Plurality, and amending To amend the Law relating to the Property the Laws relating to the Residence of the Qualification of Members.

Clergy.

Lord John Russell.
Mr. Warburton. Offences punishable by Transportation
To alter and amend the Law relating to for Life.
Mortgages on Ships and Vessels. | Abolishing the punishment of death in

Mr. G. F. Young. cases of forgery.
To amend the Law of Costs and the Gene- Offences against the person.

ral Issue ................ Sir F. Pollock. | Robbery and stealing from the person. To enable Tenants for Life of Estates in Burglary and stealing in a Dwelling

Ireland to make Improvements in their House. Estates, and to charge the Inheritance Crime of Piracy. with the Monies expended in such Im- Burning or destroying Buildings and

provements..................... Mr. Lynch. Ships. To repeal the Septennial Act, 1 G. 1, c. Abolishing the punishment of Death in .............Mr. Wm. Williams. I certain cases.

Mr. D’Eyncourt. Abolishing the punishment of the Pillory.* To regulate and restrain the Power of For extending the provisions of the UniJudges to commit for Contempt. formity of Process Act. Mr. Elphinstone.

Mr. Charlton. To regulate the Keeping of the Public ReTo explain the Marriage, and Registration cords, ... .............. Mr. C. Puller, Acts ..................Lord John Russell. To allow certain expences on Coroners InFOR SECOND READING.

quests.

The Solicitor General. To declare and amend the Law relating to | Annual Indemnity.

the Custody of Children of tender age, CONSIDERATION OF REPORTS. and to regulate the operation of the Writ | To amend the Law of Debtor and Creditor. of Habeas applicable thereto.

and abolish Imprisonment for Debt. Mr. Serjeant Talfourd.

The Attorney General. To amend the Law of Controverted Elec- To abolish useless Offices in the Common

tions, ...................... Mr. C. Buller. Law Courts, and Consolidate the Offices. To amend the Law of Patents, 31st May

Mr. Serjeant Goulburn. Mr. Mackinnon.

THROWN OUT. To amend the Law as to Offences against the Person ....... ... .Mr. A. Trevor.

To Repeal so much of the Reform Act, as For regulating the Expenses at Elections,

makes the right of Registration condi. Mr. Hume.

tional on payment of Poor Rates and To consolidate and amend the Law relating

Assessed Taxes. to Bribery at Elections. Mr. Hardy.

WITHDRAWN.

To amend the Laws relating to Turnpike To amend the Law of Wills. The Attorney General.

1 Trusts and Tolls. Mr. Mackinnon.

PASSED.
Repealing Usury Law on Bills of Exchange.

* | Turnpike Roads continuance.
IN COMMITTEE.
For amending the several Acts for the
Regulation of Attorneys and Solicitors.

NOTES OF THE WEEK.
17th May .................. ..Mr. Tooke.
For the better regulation of the Offices of
Sheriff, Undersheriff, Deputy Sheriff, and

INTENDED NEW RULES OF COURT. 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 atten

4, 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 atten

Justice,”.................. 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

32

Notes of the Week.-Chancery Sittings.- Editor's Letter Bot.

ing attendance 'Thursday

June Motions.

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from 2 till 5; and the evening attendance | Thursday, June 1s Appeal Motions and is rarely of importance. The fees demanded for the keys of the Friday

Friday , June 23
Treasury, which were always considered as

Saturday -
Monday -

Rehearings, Appeals, a grievance, are intended, we believe, to be

Tuesday.

and Causes. abolished.

Wednesday We also understand that a Rule of Court has been proposed for simplifying the notices

of Appeal Motions and Thursday

Motions. of admission of attorneys. At present the Friday - · 91 Rehearings, Appeals, notice to the Master must be given three Saturday - - 10 ] and Causes. days' before term. And it must be put | Monday And it must be put Monday

- 12 - 12

Appeal Motions and up in the King's Bench Office the day be- IN. B. Such days as his Lordship sits in the fore term, and entered in the Judges' Books. House of Lords on Appeals are excepted. Now, the printed tabular Lists, which are placed outside of the Court, are much more Before the Vice Chancellar. easily consulted than the old detached no- !

Ai Westminster. tices and promiscuous entries : and it is I Monday • May 221 Motions.

| Tuesday - - 23 | Petitions. therefore proposed to place these alphabetical Wedne

. 24) Lists in the Judges' Chambers and the Thursday: Offices; and to require only one notice of Friday . - 261 Pleas, Demurrers, admission to be left with the Master a week Saturday. - 27 ) Exceptions, Causes, and before term, so as to give time for printing Monday - • 29 Further Directions. and placing up the Lists by the first day of Tuesday, • term.

of Examination is also of Wednesday 31) A notice of Examination is also of

Thursday, June 1 | Motions. course to be given.

Friday

Saturday. - 3 Pleas, Demurrers, NOTICE OF ADMISSION OF ATTORNEYS Monday - 5 SExceptions, Causes, and

The term's notice of admission in Mi. | Tuesday - - 6 Further Directions, chaelmas term, must be served at the Mas

Wednesday

Thursday • ter's Office on or before Wednesday the

8! Motions.

Pleas, Demurrers, 17th instant, pursuant to the rule which Friday - 9 Exceptions, Causes, and requires such notice to be left three days

(Further Directions. at the least before the commencement of the Saturday. - 10 Short Causes & Ditto. term next preceding that in which the party Monday - - 12 | Motions. shall propose to be admitted.

THE EDITOR'S LETTER BOX.

30

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THE NEW ORDERS IN CHANCERY.

The suggestion of a Correspondent at The New Orders for regulating the hear- Knaresborough, with regard to a stamped ing of causes will be found in another part country edition of the Legal Observer, shall of this number. We shall probably have be

of the inconvenience sustained by our subsome observations to make next week on

scribers in the small and distant towns. The the expected benefits to be derived from

reduction of the newspaper duty enables us to them. We hope that the inconveniences reconsider the question, and we will attend to which in some respects are apprehended it without delay. from the change, will not outweigh the The letters of E. H.; R. N.; and J. H., will practical good which is contemplated. be attended to.

We thank “ a Friend and Subscriber.” His

letter arrived too late to act upon last week ; CHANCERY SITTINGS, but he will see that the information has been Trinity Term, 1837.

supplied in the present number.

A Correspondent inquires, “whether an Befare the Lord Chancellor. articled clerk, who does not wish to be admitAt Westminster,

ted till the term after he has been examined, 99 Appeal Motions and must leave his articles, &c, with the Secretary Monday - May 22{m

in the term in which he is examined; or, in Tuesday - 23! Petitions.

other words, do the Examiners require the Wednesday - 24 )

articles, &c. to be left in all cases before exThursday

amination.” The regulations require the artiFriday |

cles, &c. to be left, and there seems no reason Saturday

Rehearings and Ap

to suppose that the Examiners will dispense Monday peals.

with the regulations in this respect. Tuesday.

The Quarterly Digest of Cases will be pub, Wednesday

lished next week.

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