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Superior Courts: King's Bench Practice Court.

fused to open the doors, but he had thrust copies of the declaration under each door, and had explained the nature of the proceedings in a loud voice outside the door.

Williams, J.-You may take a rule nisi, to be served in the same way.

Rule nisi granted.-Doe, d. Lord Summers v. Roe, E. T. 1837. K. B. P. C.

343

|T. 2 W. 4, therefore, the plaintiff was entitled to have the bail bond stand as a security.

Williams, J., with respect to the first objections stopped Henderson, who then proceeded to shew cause as to the third point, whether the bail bond should stand as a security. In Stride v. Hill, 4 D. P. C. 709, it was decided, that to have the bail bond stand as a security, it must appear that a trial had been lost at the time of moving the rule. Here the eight days time to plead, and the fourteen days notice of trial would not expire before the 30th of the

STAY OF PROCEEDINGS ON BAIL BOND.-AFFI-month, and it could not be said, therefore,

DAVIT OF MERITS.-LOSS OF TRIAL.

On an application to stay proceedings on the bail bond, it being sworn that bail has been put in and justified, it is not necessary to shew that a rule for the allowance of bail

has been obtained.

The defendant swearing that "he is advised
and believes," he has a good defence, is
sufficient in an affidavit of merits.
A trial must have been lost at the time of
moving to stay proceedings on the bail
bond, in order that the bond shall stand as
a security.

that the plaintiff had lost a trial before the rule was obtained.

Williams, J.-I must presume with regard to the rule for the allowance of bail, it being sworn that bail were put in and justified, that all the necessary steps were taken. With regard to the second point, I think the affidavit of merits is quite sufficient, for it is made by the defendant, and if he is not acquainted with law, but only the facts of his case, he can only judge from advice of others, whether his deAs to the third point, fence is good or not. it does not appear to me, that the plaintiff is entitled to have the bail bond stand as a secuHenderson had obtained a rule to set aside rity, for the rule is, that it shall not so stand, proceedings on the bail bond, which were re-unless a trial shall have been lost at the time gular, on the ground of bail above having been put in.

of moving for the rule to stay proceedings on the bond. The rule must be absolute, but on these terms; that the defendant shall plead issuably on the 1st May, and take short notice of trial.

Rule accordingly.-Crosby v. Innes, E. T. 1837. K. B. P. C.

SERVICE IN EJECTMENT.

If there shall be reason to suppose that the person served with process is the tenant, the Court will grant a rule for judgment against the casual ejector, although he shall deny it.

Davison moved for judgment against the Service had been effected uncasual ejector.

Mansel shewed cause, and said there were three objections to the application, and pointed out first, that the affidavit with respect to the justification of bail was insufficient. It alleged that the bail had been put in and perfected, but did not state that a rule for the allowance of bail had been obtained. In the case of Rex v. The Sheriff of Middlesex in Shew v. Ward, 2 D. P. C. 116, the Court of Exchequer refused, on behalf of bail, to set aside a regular attachment against the sheriff on an affidavit of merits, and on payment of costs, when the rule for the allowance of bail had not been served on the plaintiff's attorney. The necessity of the disclosure on the affidavit of the fact of the rule for the allowance of bail having been obtained, was shewn by this decision. The second objection was to the affidavit of merits which was sworn by the defendant himself, who stated that he had a good defence on the merits," as he is advised and believes." This allegation was very qualified, but the Court required the deponent in such an affidavit to speak positively. Rex v. The Sheriff of Middlesex, 1 D. P. C. 398; Tate v. Botfield, 3 D. P. C. 218; Lane v. Isaacs, Ibid. 652; Wor. thington v. -- 2 C. M. & R. 315. If, however, the Court should be of opinion that the application should be granted, it must be only on condition of the bail bond standing as a security. The plaintiff had declared conditionally on the 7th April, and had given notice of it on the 8th, and the defendant lived more than forty miles from town. The defen- E. dant was therefore entitled to eight days time to plead, and fourteen days notice of trial, and it would be impossible for the plaintiff to avoid losing a trial. By the 5 R. G. H.

der the following circumstances:-The per-
son who had endeavoured to serve the process
had gone to the premises, and had inquired for
Mr. Cooper (who was the tenant). A person
had presented himself, but on the declaration
and notice being put into his hands, he said
that they must be for Mr. William Henry
Cooper, who was not at home, his name being
William Cooper. Inquiries were, however,
made in the neighbourhood, and on a descrip-
tion being given of the person served, it was
stated that there could be no doubt that he
was himself William Henry Cooper. This, it
was submitted, was enough.

Williams, J.-You may take your rule.
Rule granted.-Doe, d. Hunter v. Roe,
T. 1837. K. B. P. C.

344

Miscellanea.-The Editor's Letter Box.

MISCELLANEA.

IRISH PROCESS-SERVERS.

Among the "Sketches of the Irish Bar," in the New Monthly Magazine, is the following extract from an affidavit of a process-server: "And this deponent further saith, that on arriving at the house of the said defendant, situate in the county of Galway aforesaid, for the purpose of personally serving him with the said writ, he, the said depouent, knocked several times at the outer, commonly called the Hall-door, but could not obtain admittance; whereupon this deponent was proceeding to knock a fourth time, when a man, to this deponent unknown, holding in his hands a musket or blunderbuss loaded with balls or slugs, as this deponent has since heard and verily believes, appeared at one of the upper windows of the said house, and presenting said musket or blunderbuss at this deponent, threatened, that if said deponent did not instantly retire, he would send his, this deponent's soul to hell,' which this deponent verily believes he would have done, had not this deponent precipitately escaped."

"The office of a process-server in Ireland, appears to be, indeed, a most perilous occupation, and one that requires no common qualities in the person that undertakes it; he must unite the courage and strength of the common soldier, with the conduct and skill in stratagem of the experienced commander; for woe betide him if he be deficient in either. The moment this hostile herald of the law is known to be hovering on the confines of a Connaught gentleman's domains, (that sacred territory into which his Majesty's writs have no right to run,) the proud blood of the defendant swells up to the boiling point, and he takes the promptest measures to repel and chastise the intruder: he summonses his servants and tenants to a council of war, he stiffens their fidelity by liberal doses of the mountain dew,' (illicit whiskey,) they swear they will stand by his honour,' to the last. Preparations, as against a regular siege, ensue; doors and windows are barred; sentinels stationed; blunderbusses charged, ap: proved scouts are sent out to reconnoitre; and skirmishing parties, armed with cudgels and pitch-forks, are detached along every avenue of approach. Having taken these precautions, the magnanimous defendant shuts himself up in his inmost citadel to await the result. The issue may be anticipated; the messenger of the law is either deterred from coming near, or, if he has the hardihood to face the danger, he is way-laid, and beaten black and blue for his presumption. If he shews the king's writ,

it is torn from him, and flung back in fragments in his face. Resistance, remonstrance, and entreaties are all unavailing; nothing remains for him but to effect his retreat, if the powers of moving be left him, to the nearest where, with the help of some attorney that magistrate, not in the interest of the defendant, will venture to take a fee against his honour,' he draws up a bulletin of his kicks and bruises in the form of an affidavit, to found a motion that another writ do issue,' or as it might be more correctly worded, that another processing as the last.'" server do expose himself to as sound a thresh

THE EDITOR'S LETTER BOX.

THE Thirteen Volumes of the Legal Observer and the Two Volumes of the Monthly Record already published, form a complete History of the Law for the last seven years. They contain among many other things.-1. All the important Acts of Parliament. 2. All the New Bills which have not passed into Law. 3. The fullest information on the leading subjects relating to Law Reform; as Local Courts, General Registry, Imprisonment for Deht, Chancery and Bankruptcy Reform, &c. &c. 4. Reviews of all Publications connected with or bearing on the Law. 5. Reports of Committees and Commissioners, Parliamentary Returns. 6. Legal Biography, including Memoirs of all eminent Lawyers who have died or retired in the last seven years, with many others. 7. All the late Rules and Orders of Court. 8. Dissertations and Cases connected with Conveyancing and Property Law. 9. The Law of Attorneys. 10. Practical Points of General Interest. 11. Remarkable Trials, ancient and modern. 12. The Laws of other Countries. 13. Early Reports of Decisions, by Barristers of the several Courts, together with a variety of other matter, of daily use to the Practitioner. The General Index to the first Ten Volumes, and the subsequent Indexes render all this information easily accessible.

We have now reprinted several numbers, and complete Sets of the Legal Observer may be obtained of the Publisher, and Subscribers desiring to have any separate numbers to complete their Volumes will be supplied with them on the usual terms for a short time to come. The first Ten Volumes with a General Index may be had for 57.

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THE LONG VACATION.

Ir any journal has a peculiar right to be dull at this season of the year, we think in fairness it is ours. The Long Vacation, which particularly belongs to our profession, has now set in with almost unexampled severity. Alas! it is no vacation to us: we are condemned, although lawyers, to weather it through in town:

"Among the faithless, faithful only we." We have observed neighbour after neighbour depart; we have seen chamber after chamber shut, and door after door barred up.

The beginning of August sent off many, and during the whole of that month our particular haunts began to grow thin and desolate; but the 1st and 2d of September fairly completed the work, and we now walk about in solitude. If indeed we descry an acquaintance, he looks very much ashamed of himself, and sculks down some alley, hoping he has not been seen, and determined not to be recognized. We walk home in a melancholy mood, and the only door open to receive us is our own.

Not only do our friends, in this season, scorn any thing like business, but they endeavour, with great industry, to look like any thing but lawyers. If we could, from our own quiet retreat, see the occupations of the profession at this moment, it would be very amusing. The gentleman pulling away in a boat, near Richmond, with a straw hat, and without his coat, is in reality a learned Judge in Equity. The person clothed from head to foot in Lincoln green, blazing away at the partridges, is a Queen's Counsel of considerable eminence at the Equity bar. The little man, with a jockey's jacket and boots, is a learned Judge, and VOL. XIV.-No. 418.

has a place on the "cushion in Westminster Hall;" and that gay young gentleman, with a sailor's dress, looking something like the steward of a steam-packet, is a learned Bencher of Lincoln's Inn, and a Queen's Counsel to boot. He is now at Brighton, teaching a pastry-cook how to eat ice. Then again, look at that knot of jolly fellows on board the steam-boat. They belong to the Northern circuit, and are all rising young men. They are coming back "to revise" soon, but at present they are on their way to Constantinople! Thus wisely do our friends endeavour to forget their labours for a time,-dulce est desipere in loco; and before October is ended they will all return, resume their old black coats, and become again quiet and orderly members of society.

In this state of things, however, we may be pardoned if our columns are not so interesting as in a busier season. How can we record events at such a time, for what can possibly happen? We have the greatest difficulty, in fact, in keeping our contributors together; they always grow restive in September; they no longer submit to our editorial sway; they return us proofs unread—

"Each lad takes his rifle, and hies him awa'." We only wonder we get on as well as we do. Our club-our Hilary Club-which we introduced to our readers some time about last Christmas, has for the present dispersed. Mr. Cheveril is shooting grouse in the north; Mr. Latimer is daudling along the sands with his children at Eastbourne; and the last thing we heard of Tom Coterie was, that he was yachting it at Southampton. However, we shall soon hope for better things; and in the mean time we must do the best we can. October will

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"Let there be a preliminary hearing of every cause, before any evidence is gone into, for the purpose of ascertaining whether there are any and what questions of fact to be determined before a decree can be made, and of putting those questions (if any) into a way to be tried or proved, or (if there be no such question) of making a decree on the pleadings. And for this purpose let frequent days be appointed, on which such hearing may take precedence of all other business.

Let Judges be appointed, who may be called Judges of Circuit in Equity,' cempetent (not merely to control a viva voce examination, but) to preside at a trial by jury, and sufficient in number to perform the duties hereinafter mentioned. Let such Judges be removed from the exercise of their profession; and let them be provided at the expense of the country, and placed, in respect both of rank and emolument, on a footing with the puisne judges of the Courts of Common Law.

"Let the defendant, if sui juris, be required, in answering the different allegations of the bill, to specify which of them he controverts, and which of them he puts the plaintiff to prove in a formal way, the rest being admitted by the answer, either absolutely, or for the purposes of the suit, or with the qualification therein mentioned.

"If the plaintiff, being sui juris, serves a subpoena to rejoin, let him be at liberty, with such subpoena, to serve the defendant with notice, that he does not contest the whole of the answer; and let him specify such new matter, if any, contained in the answer, as he admits either absolutely, or for the purpose of the suit; and such, if any, as he merely puts the plaintiff to prove in a formal way.

"Let it be the rule, that any party, who is sui juris, and puts his adversary to prove what he ought to have admitted, or contest that of which formal proof ought to have satisfied him, will (whatever may be the result of the suit) be ordered to pay the costs, or additional costs, thereby occasioned.

"When the cause is at issue let the plaintiff be bound within a short limited time to set it

down for a preliminary hearing; and in default of his so doing, let any defendant be at liberty to move, upon notice, that the bill be dismissed with costs.

"At the preliminary hearing, it may appear that there is no question of fact between the parties to be settled before a decree can be made. This may appear upon the pleadings, and upon the notice (if any) served by the plaintiff with the subpoena to rejoin; or by further admissions which they might be advised to make at the hearing. In either case, the and admissions, if any. Court would make a decree upon the pleadings,

"If at the preliminary hearing it should appear, that any question of fact required to be sent to proof or trial before a decree could be made, the Court would make a proper order for proof or trial thereof; thus

"If an allegation were made, affecting the interest of a party, not sui juris, and the husband or guardian of such party did not require an opportunity of contesting the point, the Court, unless it saw good reason to the contrary, would consider such a party as merely putting his adversary to formal proof of the allegation.

"If a party be put by his adversary merely to the formal proof of an allegation, the Court would give him leave to make formal proof thereof accordingly; and this would most commonly be the the case with regard to written instruments or public documents not admitted by the adverse party. Under such an order he should be at liberty to prove it by affidavit, which course he would always take, where the witness was willing to make an affidavit. But, if the witness refused to make an affidavit, the party should subpoena him to appear before the Judge of Circuit, giving notice to the adverse party of the time and place of proof. The witness would then be examined viva voce. It would be unnecessary for counsel to attend, The solicitors, and in many cases, the solicitor for the proof only, would be sufficient. The Judge would be charged with the duty of watching the proof, if made against a party who did not attend, or was not sui juris; and he should report not the evidence itself, but the result of the evidence (viz. that the allegation was proved or not proved), unless he saw reason to make a special report.

"Where an allegation was contested the Court would order it to be tried before a Judge of Circuit in Equity, either with, or perhaps without a jury, according to the nature of the question, and would fix the county or place in which it should be tried.

"Where an allegation was admitted subject to a qualification, or where an allegation happened to be intimately connected with an allegation of the adverse party either as being qualified by it or otherwise, the Court would send such a question or questions to be tried as would decide the real point in dispute: and it would do this with the less difficulty, as, not being embarrassed by the technicalities which attend the sending of an issue to be tried in a feigned action, it could mould the question so

Practical Points.-Changes in the Law.

as to comprise any qualification or circum-
stance essential to the justice of the case.
"The trial of a contested allegation would
or might be attended by counsel: the witnes-
ses would be examined viva voce, and liable to
be cross-examined: the Judge would take
notes of the evidence, as is done at nisi prius,
but he would not report the evidence, unless
an application should be made for a new trial:
he would only report the verdict whether gene-
ral or special, in case of a trial by jury, or his
own finding, whether general or special, in
case of a trial without jury.

"The number of Judges of circuit should be sufficient to allow all the allegations sent to proof in any Equity cause to be tried within six months after issue joined; and consequently sufficient to enable a Judge of circuit to hold a sitting at least twice a year in every county: and it would probably be desirable to have more frequent sittings in Middlesex and London. For the latter purpose, some of the Judges of circuit would for certain periods be in town; and in order to secure the appointment of efficient persons to the office, and sustain their rank, it might be arranged, that they should take by rotation the sittings in Middlesex and London, and have some portion of the Court business allotted to them."

347

proof. The conversation on the race course by no means amounted to an agreement to submit to the sole decision of Lord Charles Fitzroy; and the letter of Shaw was at most only an agreement that something should be thereafter done in the matter by him. The plaintiff, therefore, cannot rest his case at all on the ground of the award. The next question is, whether he is entitled to recover back his own stake. Now it was deposited to abide the event of the race, subject to the decision of the stewards. If the stewards have become incompetent to decide the question, it must be decided by the tribunal to which all matters of fact are legally referrible, namely, a jury. Even if the plaintiff had given notice in due time that he should require his stake to be returned, this being a legal horse-race, I have great doubt whether it is recoverable; the agreement being that it should be deposited to abide the event, which agreement cannot, as it seems to me, be varied without the assent of the parties. If, however, the case rested on that point, I should wish a rule to be granted, in order that it might be more fully considered, inasmuch, as there is an authority to the contrary. But here there was no demand made, and no rescission of the contract, before the race was run; the stake, therefore, remains in the defendant's hands until it be determined by due course of law who is the winner-that is, by

PRACTICAL POINTS OF GENERAL the stewards, if they are competent to deter

INTEREST.

HORSE-RACE.

The following case may be of importance some of our readers in this racing season.

mine it, if not, by a jury. The plaintiff may now submit the case to the stewards, if they are competent to entertain it; if not, he may bring an action, and shew himself to be the wintoner, by shewing that Shaw's horse was thorough bred, and that his own was not.

Marryatt v. Broderick, 2 M. & W. 369.

CHANGES IN THE LAW IN THE LAST SESSION OF PARLIAMENT, 1837.

No. X.

REAL ACTIONS.

1 Vict. c. 28.

Semble, that a party subscribing to a legal horse-race cannot recover his stake from the stakeholder after the race has been run, and before the stakeholder has paid over the money. At all events, he cannot recover it unless he demanded it before the race was run. Where the rules of certain races provided that all disputes should be settled by the stewards, and two stewards had been named, one of whom, on a dispute arising as to which horse was entitled to the stakes of a race, gave his opinion in writing, that the plaintiff was entitled to THIS is "An act to amend an act of the third them: Held, that the plaintiff could not recover the stakes on the award of that steward and fourth years of his late Majesty, for the Lialone, although it appeared that the other stew-mitation of Actions and Suits relating to Real ard had stated that he would acquiesce in Property, and for simplifying the remedies for whatever his colleague did. To make the sole award of the latter available, it must be clearly trying the rights thereto." shewn, that both the disputing parties, and the stakeholder also, submitted to his sole authority.

It recites that doubts have been entertained as to the effect of 3 & 4 W. 4, c. 27, intituled "An act for the limitation of actions and suits relating to real property, and for simplyfying the remedies for trying the rights thereto," so far as the same relates to mortgages and it is expedient that such doubts should be removed:

Parke, B., said,-I am of opinion, that there is no ground for this rule. If there was no agreement varying the written rules of the races, there could be no valid arbitration with out both the stewards concurring. To make an award by one binding, there must be clear proof that both the disputing parties, and probably also the clerk of the course, submitted it is therefore declared and enacted as folto his authority; and I think there is not such lows:

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