Correspondence.Allowance of Expenses by the Central Criminal Court. 353 COMMON LAW OFFICES ACT-FEES. Sir, Perceiving that by this act a new scale of fees to be taken by the officers of the respective courts is to be made out, I would beg to suggest (through the medium of your valuable journal,) the importance of making some distinction between the fees payable on actions brought to recover sums less than 201., and those brought to recover larger sums,-inasmuch as there has been already a considerable reduction made in an attorney's costs on actions under 201. although the same fees are taken by the respective offices on actions for the recovery of that or any other sum, either more or less. H. H. [We directed attention to the new fees clause on the passing of the act. Our correspondent's suggestion is important. ED.] ATTENDANCE AT ATTORNEYS' OFFICES. "To his Majesty's Justices of the Peace for the county of Middlesex, in Quarter Sessions assembled, "The first Report of the Committee appointed on the 26th day of January 1837, to inquire into the recent increased expenditure of county rates as regards the criminal jurisprudence. "Your Committee having taken into consideration the subject referred to them, have to report that it appears to them that the opeAt this time of the year, when in most ration of the act passed in the last session of offices, there is scarcely sufficient to keep parliament, for enabling prisoners indicted for clerks employed, I cannot see the necessity of felony, to make their defence by counsel or detaining them till eight or nine o'clock in attorney, has caused, and will continue to the evening, which I regret to say is the case cause, an increased expenditure of the county in many of the first-rate offices in the pro-rates, by reason of the judges, who preside at fession. I am sure if clerks were allowed to leave a little earlier, it would be considered by them a great indulgence, and be the means of insuring their exertions when their services are mostly required. I have seen the policy of shewing a favor of this description to them, and I only wish my respectable brethren in the profession would grant to the clerks that to which I am sure they are entitled. A SOLICITOR. CORONER'S INQUESTS. By 6 & 7 W. 4, c. 89, s. 1, it is enacted whenever upon the summoning or holding any coroner's inquest it shall appear to the coroner that the deceased person was attended at his death or during his last illness by any legally qualified medical practitioner, it shall be lawful for the coroner to issue his order in the form marked A., for the attendance of such practitioner as a witness at such inquest; and if it shall appear to the coroner that the deceased person was not attended at or immediately before his death by any legally qualified medical practitioner, it shall be lawful for the coroner to issue such order for the attendance of any legally qualified medical practitioner, being at the time in actual practice in or near the place where the death has happened. the Central Criminal Court, allowing expenses for counsel and attorneys in cases in which prisoners are defended by counsel. "With a view to regulate these allowances, as well as to reduce some of the allowances included in the present scale, your Committee beg to submit the following proposed scale of allowances to be made to prosecutors and witnesses at the sessions for Middlesex held at the Central Criminal Court, and at Clerkenweil, and at the Westminster sessions. [As to Prosecutors and Witnesses.] "1. All prosecutors and witnesses for the prosecution, attending the Court, under recognizance or subpoena in cases of felony or misdemeanor, as provided for in the statute 7th George 4, cap, 64, (except those hereafter mentioned) are to be allowed 3s. 6d. per day, and no more. "2. All prosecutors and witnesses attending the Court as above, whose usual place of abode is distant more than five miles from the Court, are to be allowed 3d. per mile each way for travelling expenses, in going to, and returning from the Court, and the like sum of 3s. 67. per day. "3. All prosecutors and witnesses attending the Court as above, whose usual place of abode It should be observed, by the Registration is distant more than five miles from the Court, Act, 6 & 7 W. 4, c. 86, s. 25, the jury shall in- who are necessarily detained in London more quire of the particulars therein required to be than one day, are to be allowed the further registered concerning the death, and the sum of 1s. 6d., and no more, for each night coroner shall inform the registrar of the find-they may necessarily be detained in London. ing of the jury. Are the words 6 & 7 W. 4, c. 89, s. 1, "It shall be lawful" imperative on the coroner? if so, no inquest can be taken by any coroner on a dead body without the evidence of a medical man as a witness. A COUNTY CORONER. 4. Medical men bound by recognizance or subpoenaed, and attending professionally, are to be allowed one guinea per day, and no inore. "5. All prosecutors and witnesses attending as above, who receive wages or salaries, are to be allowed not more than 1s. 6d. per day for 354 Central Criminal Court.—Superior Courts: Lord Chancellor. their attendance at the Court, and before the committing magistrate. "6. All children under fourteen years of age attending as above, are to be allowed one half of the above sums for their attendance at the Court. "7. No prosecutor or witness is to be allowed for his attendance before the committing magistrate, unless he shall receive a certificate from such magistrate; in which case the amount shall be ascertained by the certificate of the magistrate. "8. No witness is to be allowed his expences upon more than one prosecution on any one day, although he may be a witness upon several, unless for his attendance before the committing magistrate, and for which he may have received a certificate. [As to Counsel and Attorneys.] "9. One counsel and brief only are to be allowed for on each prosecution, unless specially ordered by the Court. "10. The fee to counsel is to vary from one to two guineas, and in no case to exceed the latter sum, unless specially ordered by the Court. "11. The fees for counsel and brief not to be allowed in any case where the prisoner has confessed the offence alleged against him before the committing magistrate, unless specially ordered by the Court. "12. The allowance to the attorney for the prosecution for brief and attendance not to exceed one guinea, unless specially ordered by the Court. 13. The above scale is to be strictly acted upon unless the Court shall, from the special any further or other allowance. If the above regulations should be adopted by the Court, your Committee beg to remind the Court that it will be necessary that they should be submitted to and receive the approbation and signature of one (at least) of the justices of gaol delivery of Newgate, under the 26th section of the bill of the 7th George 4, cap. 64. circumstances of the case, direct "Your Committee having been attended by Mr. Clark, the Clerk of the Central Criminal Court, have been informed by him that the commitments for that Court from London, Essex, Kent, and Surrey, are taken by the grand jury on the first day of each session, and that the Middlesex commitments of each week would, upon an average, occupy the grand jury one day; and he has given it as his opinion that, if the parties in the Middlesex cases were bound over to attend before the grand jury according to the date of their commitments, a considerable saving would thereby arise to the county. "Your Committee therefore recommend that a communication be made by the deputy clerk of the peace to Mr. Clark, requesting he will take the necessary measures for carrying such an arrangement into effect. "At the next quarter sessions your Committee will be prepared to make a further Report on the subject referred to them, all which your Committee submit, &c." P. LAURIE, Chairman." Mr. Clark paid all the allowances according to the above scale at the conclusion of the session. SUPERIOR COURTS. Lord Chancellor's Court. PRACTICE.-ENLARGING PUBLICATION. An order was made at the Rolls to enlarge publication to the time of passing publication. Objection, that the Master of the Rolls had not jurisdiction, (3 & 4 W. 4, c. 94) and that the affidavit to enlarge publication was not sufficient: Held, that the objection to the sufficiency of the affidavit, gave the Master of the Rolls his former jurisdiction. This was an appeal from an order of the Master of the Rolls, enlarging publication after publication passed. Mr. Wakefield for the appellant, (Mr. Ellitions to the order, one of which arose upon son was with him) said there were two objecthe statute of 3 and 4 W. 4, c. 94, regulating of the Court of Chancery. By section the the proceedings and practice of certain offices thirteenth of that act, it was enacted," that the Masters in ordinary of the High Court of cations for time to plead, answer or demur, Chancery, shall hear and determine all appliand for leave to amend bills, and for enlarging publication, and all such other matters relating to the conduct of suits in the said Court, &c. the Rolls had not jurisdiction to make the He therefore, contended, that the Master of order he had done. The second objection was, that by the universal practice in these matters, no opportunity of examining witnesses, after publication had passed, had been allowed, except upon an affidavit which negatived all knowledge of the contents of the depositions. The affidavit used on the present occasion, did not adhere to the established form, and for that additional reason, he moved that the order of the Master of the Rolls be discharged. Mr. Purry, for the party respondent contended, that the affidavit was substantially in accordance with the usual practice. With respect to the question of jurisdiction, the application had been made to the Master of the Rolls on the ground that the Masters in Ordinary had no authority, and now the same objection was urged against the Master of the Rolls' autho rity to interpose. The Lord Chancellor.-The Master of the Rolls having enlarged the time for passing publication, it was objected that his jurisdiction was taken away by a recent statute, and that all proceedings and orders on that subject were Superior Courts: Lord Chancellor. nary of the Court. It was also urged, that the affidavits of the plaintiff in support of his application did not sufficiently negative all knowledge of the contents of the depositions, after publication had passed. His Lordship said the latter circumstance took this case out of the statute, and as he thought the affidavit sufficient, he confirmed the order of the Master of the Rolls. 355 directed to be made by the Masters in Ordi- | obtained by the undue influence of the defendant, Lady Shuckburgh, over the testatrix, but still that Lady Shuckburgh promised that she would hold the estates in the trusts of the codicil. The plaintiff did not desire to set aside the will, but to have the benefit of the promise. The defendant by her plea, without answering other parts, contented herself with denying the promise. They cited in support of the several points, Marriott v. Marriott, Segrave v. Kir wan,b Tring v. Edgar, Harland v. Emerson,d and Mitford's Pleadings, pussim. Carr v. Appleyard, Sittings at Lincoln's Inn, July 19 and 26, 1837. PLEADING.-NEGATIVE PLEA. Mr. Jacob supported the order of the Vice To a bill making title to equitable relief on stance. draw a plea and answer to a bill without the plea being overruled by the answer. It was for that reason that the pleader contented himself with the plea simply. The promises were repeated in several parts of the bill, and answer to these parts would overrule the plea. It is not necessary to answer immaterial interrogatories. He observed on Tring v. Edgar, Harland v. Emerson, and the other cases which are cited in the latter. This was an appeal from an order of the Vice Chancellor, allowing a plea to a bill. The bill was filed by Sir George Denys against Dr. Locock, the executor of his mother's will, and Lady Shuckburgh her daughter; and it stated among other things, the will of Lady Charlotte Denys, and several codicils to it; and that by the last codicil a legacy of 10,000l. given by a former codicil to the plaintiff her The Lord Chancellor.-In this case, a bill son, was revoked by the undue influence of Lady Shuckburgh over the testatrix. The bill had been filed by Sir George Denys for the then alleged and charged, that Lady Shuck-recovery of a sum of 10,000l., alleged to have burgh persuaded the testatrix to revoke the been bequeathed to him by Lady Charlotte legacy to the plaintiff by giving her solemn Denys, his mother, absolutely. The bill alpromise to make good to him an equal sum out leged, that by a second codicil, this bequest of the residue of the testatrix's estate, all which was changed into a life interest in the same was left to Lady Shuckburgh. And it prayed sum; and that by a third codicil it was revoked for an account of the testatrix's estate; and altogether, but under a promise obtained from that the plaintiff might be declared entitled to Lady Shuckburgh, the sister of Sir George 10,000l. out of the same, and also for the pro- Denys, that she should provide for the family duction of documents and papers in the pus-of Sir George Denys to the extent of that sum. session of the defendant, from which, when The bill further alleged, that this change in the produced, the plaintiff's title would fully ap-intentions of the testatrix had been brought pear. To this bill the defendant Lady Shuckburgh put in a plea, denying that she made such promises. about by the representations of Lady Shuckburgh, who exercised a very great influence over the mind of her mother, during the illness of which she died, and that before the exercise of that influence, Lady Charlotte Denys had expressed the greatest kindness in speaking of her son, and intimated her determination to provide for him. The bill relied on the proinise, alleged to have been given by Lady Shuckburgh, as constituting a trust for the benefit of Sir George Denys, to the extent of 10,000/., and it prayed an investment of the money. Mr. Wigram and Mr. L. Wigram, for the plaintiff, submitted that the Vice Chancellor's order was erroneous, and that the plea was bad both in substance and in form, and did not meet the allegations in the bill. The plaintiff had one time been destined to succeed to the large estates of Lord Pomfret, and for that reason Lady Charlotte Denys his surviving parent did not provide for him out of her large personal estate, all which she gave by her will to Lady Shuckburgh. It turned out that Lord Pomfret married and had an heir to his title and estates, upon which Lady Denys considering the large family of the plaintiff, made a codicil to her will, giving the plaintiff 10,0001. absolutely, which by a subsequent codicil she changed to a life estate to the plaintiff with b 1 Beatty 157, cited by Lord Eldon in Bulk. remainder absolutely to his children. Shuckburgh having heard of the codicil, actual-ley v. Wilford, 2 Clark & F. 178. ly forced her mother to revoke it. The bill alleged that the revocation of the codicil was Lady To this bill the defendant put in a plea admitting some parts, but denying others; and the Vice Chancellor held this plea good. The bill did not impeach the validity of the will or codicils; it merely sought to create a trust founded on the promise alleged to have a Strange, 666. c2 Sim. & Stu. 274. 356 Superior Courts: King's Bench. been made by Lady Shuckburgh to Lady Denys | The cause was tried at Glamorgan, before Mr. at the time of the execution of the last codicil, and it called for the production of evidence to prove that promise. Now the plea took out of the bill the allegation of the promise, and then denied that promise, leaving the case in such a state, that it must be impossible for the Court to deal with it so as to do justice between the parties. It was a very remarkable circumstance, that the case of Tring v. Edgar was the only case that could be found to support such a plea, and it was equally remarkable, that in that case the late Master of the Rolls, who allowed the plea in that case, seemed not to have had his attention directed to this peculiarity in its form. That indeed, was plain from the language of the judgment. In the same manner, the Vice Chancellor, when he allowed the present plea, seemed, from the language of his judgment, not to have been aware of the peculiar form of it. The plea must be overruled, as an attempt to do that which had been found impossible, to put in a plea to a part of a bill as a defence to the whole. Denys v. Locock, Sittings at Lincoln's Inn, July 15th and 29th, 1837. King's Bench. [Before the Four Judges.] RIGHT OF COMMON.-PLEADING. Cuse for disturbance of a right of common. The defendant pleaded that he was possessed of certain lands, and that the occupiers of these lands had a right of common on the locus in quo, and that the cattle mentioned in the declaration, were his commonable cattle, levant and couchant. Replication, that "all the said cattle were not the defendant's cattle." Held, that the replica tion must be taken most strongly against the party pleading it, and that the word "all," being ambiguous, must be taken to deny that any cattle of the defendant were common able, and that some of them being admitted to be so, the issue thus tendered had been properly found for the defendant. Justice Patteson, when the right of the defendant to put cattle on the common having been proved, the learned Judge thought that the form of the replication did not properly raise the question of surcharge; and he refused to receive evidence that some of the cattle put upon the common by the defendant, were not the defendant's own cattle. As to the first plea, the right of the plaintiff was clearly made out. A verdict was, therefore, given for the plaintiff with nominal damages on the first issue, and a verdict for the defendant on the second issue. Leave was, however, reserved for the plaintiff to move for a new trial. A rule to shew cause why the verdict should not be set aside, and a new trial granted, had accordingly been obtained, on the ground that the evidence had been improperly rejected. Mr. Evans was heard in support of the rule. The allegation that all the cattle were not the defendant's commonable cattle, is the same as that some of them were not so. If they were not, they ought not to have been on the com mon, and the plaintiff was entitled to seize them. [Mr. Justice Patteson.-The declaration treated the defendant as a stranger. The plea raised the question of title, and then the plaintiff, instead of new assigning, put this replication upon the record, and the question was, whether the traverse in the replication would be taken to mean that some of the defendant's cattle were not commonable. I relied at the trial upon the authority of Ellis v. Rowles, which was cited to me out of Rosdo not now think it in point.] That case is discoe; though on looking at the report itself, I tinguishable from the present. That was trespass: this is case. There the defendant justified tiff replied that the defendant had surcharged taking the cattle damage feasant, and the plainthe common. Greene v. Jones, is an authority here. It was there held, that in a plea of justification to an action for assault and battery, stating that the defendant arrested the plaintiff under a writ, it was not necessary to allege that the writ was delivered to the sheriff before the arrest, for it would be so intended. If any of the cattle here, were not the commonable cattle of the defendant, the declaration here Case for disturbance of a common by turning would be sustained. [Mr. Justice Patteson.on cattle. The declaration did not state that By this form of pleading, the number of comboth plaintiff and defendant were commoners, monable cattle were not made material. but that the plaintiff was entitled to a right of defendant might defend for those which were common, and that the defendant had put cat-commonable. The plaintiff ought not to have tle on the common to his injury. The defen- taken issue in this way.] There is no necessity dant first denied the plaintiff's right to com- for a new assignment. The statement here is mon; and, secondly pleaded that at the several sufficient; for the meaning of the words that times when, &c. the defendant was possessed" all the said cattle were not " commonable, of land in the parish, and that the occupiers of this land had a right of common on the locus in quo; and that the cattle mentioned in the declaration were the defendant's commonable cattle, levant and couchant. The plaintiff in his replication took issue on the first plea; and as to the other, he said, that "all the said cattle were not the defendant's cattle." The question intended to be raised was, whether the defendant had not surcharged the common. The is, that some of them were not, though the rest might be commonable. [Mr. Justice Palleson.-This is like a traverse of days and times. Suppose that in trespass the defendant was to plead that on certain days in the week he had a right to go on the land, and you were to answer that he had no right to go on the land on all the days in the week.] That would not raise the a Willis, 638: b 1 Wms. Saund. 297. Superior Courts: King's Bench; King's Bench Practice Court. 357 same issue which is raised on these pleadings. | of Barnes v. Hunt,d does not apply. Such We admit that he may have a right for some would be the state of things, if, under the of the cattle, but not for all. This case is the pleadings supposed, all the cattle were not same in substance as that of Burnes v. Hunt.clevant and couchant The question is, whether, The declaration there charged several trespasses as the replication is now framed, it means "all," on divers days: the plea alleged that on the said in the same sense upon the issue now tendered. several days the defendant committed the said If it means that no one has been put upon the several trespasses by licence of the plaintiff; common that is levant and couchant, that is an and the defendant replied, that the defendant issue to the country, and the plaintiff would of his own wrong, and without the cause al- then have to shew that the defendant did not leged, committed the said several trespasses, keep any cattle on the common, that came &c.; and it was held that evidence which co- within that description. But if he means that vered some, but not all of the trespasses proved, some of the cattle might be levant and couchdid not sustain the justification. In the same ant, it would shew that the defendant was enmanner in this case, the justification was shewn titled to a verdict pro tanto, but would not by the replication not to be an answer to the admit for how much. We think that the word action, for it was too general; and admitting"all," being ambiguous in its signification, the defendant's right to common, he had surcharged it. The defendant justified for all the beasts, as for his commonable cattle, levant and couchant; the plaintiff replied, that all of them were not commonable cattle. This fully raised the question of surcharge, and the plaintiff was entitled to a verdict if every one of the cattle put on the common did not come within the justification. Lord Denman, C. J.-This was an action on the case for disturbance of a common by turning on cattle. The defendant pleaded that he had a right to turn on cattle in respect of certain lands which he occupied; and that the cattle turned on were his own cattle, levant and couchant. The plaintiff replied that all the cattle mentioned in the declaration were not the defendant's cattle, levant and couchant, and it was admitted in fact that the action had been brought for a surcharge. The learned Judge who tried the cause thought that instead of this general replication there ought to have been a new assignment, and he refused evidence to show that some of the cattle were not the defendant's commonable cattle. We think that the learned Judge was right. Ellis v. Rowles was relied on at the trial, but we do not think that it was in point. We think that for the purpose of this plea the number was immaterial. The number being immaterial the defendant would have a right to aver a claim for any number he pleased. By the replication the plaintiff admits the right of cominon, and that the cattle in the plea are the same as those mentioned in the declaration; but he traverses that all those so mentioned were levant and couchant. But as it is admitted that some were so, the defendant has a right to apply his plea to them, since he has asserted in his plea that his cattle were, levant and couchant, and since that assertion has not been denied. The declaration here was in general terms, for a disturbance of the right of common. If the plaintiff had said in his declaration that the defendant had put in some cattle which were not levant and couchant, and the defendant had said that he did not, he must have failed, unless he could have shewn that all the cattle he put on the common were levant and couchant. This shews that the case c 11 East 451. must be taken most strongly against the party pleading it, and that the traverse as here stated means to deny that any cattle of the defendants were levant and couchant; and as some of them were admitted in this instance to be so, the verdict which has been given for the defendant on this issue is a right verdict, and must not be disturbed. Rule discharged.-Bowen v. Jenkens, T. T. 1837.-K. B. F. J. King's Bench Practice Court. AFFIDAVIT OF DEBT.-FORM. It is not enough to allege in an affidavit of debt, that the defendant is indebted to the plaintiff "on an account stated between them." Archbold had obtained a rule nisi for the delivering up of the bail bond to be cancelled, on the ground of a defect in an affidavit of debt. The affidavit stated that the defendant was indebted to the plaintiff, " for money found to be due to this deponent by the said Eliza Lucy Vestris, on an account stated between them." The objection was that it should have been "an account stated and settled by and between them." W. H. Watson shewed cause, and submitted that the allegation was sufficient. In the forms of declarations given in R. G. T. T. 1 W. 4, the words were "on an account then and there stated between them," and if the allegation suggested were adopted, no greater certainty would be obtained. Archbold, contrà, urged that all the affidavit stated might be quite true, and yet nothing due to the plaintiff from the defendant. The Court would not think the defendant should be held to bail, when the debt was stated with so much uncertainty. Coleridge, J., was of opinion that the test suggested in support of the rule was a good one to try the affidavit. It was quite consistent with it that no debt was due, and the affidavit was therefore bad. The rule must be absolute. Rule absolute. Hooper v. Vestris, T. T. 1837. K. B. P. C. d 11 East, 451. |