Page images
PDF
EPUB

Digested Index to the Cases reported

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.
Jones v. Hows
Page 30
5. In a country cause, where issue is joined
in Easter vacation, and there is no notice of
trial for the Summer Assizes, judgment as in
case of a nonsuit may be applied for in Mi-
chaelmas Term. Robinson v. Taylor
€165
6. Issue being joined on the 2nd February,
and an order for the trial of the cause before
the under sheriff being obtained the next day,
a motion for judgment as in case of a nonsuit,
in Easter Term, several Court days having
passed, and no notice of trial being given, is
too early. Stacey v. Jeffries
229
7. Issue being joined on the day after Mi-
chaelmas Term, it is too soon to move for
judgment as in case of a nonsuit in Easter.
Wyatt v. Howell .

[ocr errors]

493

[blocks in formation]

1. The granting of a mandamus to a town council to give to a former officer of a corporation compensation for the loss of his office, is not a matter of right, but this Court will consider the circumstances in which his claim stands, and refuse the mandamus if the granting of it would only occasion useless litigation. The King v. The Corporation of Lyme Regis. 2. There is no ground for an application 134 for a mandamus against the Commissioners of 8. What is sufficient evidence of the defen- Woods and Forests for the non payment of dant being alive, to entitle the plaintiff to judg-poor rates, in respect of lands held by them ment on an old warrant of attorney. Jacobs for the Crown. Anon. v. Griffiths

[ocr errors]
[ocr errors]

406

375

230 3. The Court will not grant a mandamus to
compel the justices in quarter sessions to enter
continuances and hear an appeal against a
conviction under the provisions of the Game
Act, and to receive evidence of title.
Justices of Berks.

Rex v. 82

9. It is not sufficient that the deponent believes the defendant to be alive, unless it is also sworn that he believes the information he has received to be true. Reeder v. Whip. 230 10. Where it is sought to have judgment on an old warrant of attorney, with interest, the Court will order it to be referred to the pro-liberty must levy a rate to pay the interest on thonotary to compute the amount. Page v. a loan for building a new court house. Jadis 62 V. Justices of Saint Albans And see Poor, 2.

LEASE.

[blocks in formation]

A defendant in an action of libel, if he wishes to prove the publication by the plaintiff of other libels by which he was provoked to libel the plaintiff, must prove such publication by producing a copy of those libels, and must shew that they came to his knowledge previous to the publication of the libel by him upon the plaintiff. The 38 G. 3, c. 78, will not enable him to prove the publication by the mere production of the copy delivered at the Stamp Office. That statute does not enable him as it does a plaintiff, informant, or prosecutor, to dispense with the common law proof in such cases. Watts v. Fraser . 275 2. In an action for a libel contained in a newspaper, if the libel refers to another article in the same paper, the defendant may require that the article referred to shall be read as part of the plaintiff's evidence. Thornton v. Stephen

LEGACY DUTY.

115

4. Circumstances in which the justices of a

PAUPER.

Rea

481

The Court dispaupered a plaintiff where, after having given notice of trial he withdrew the record on the second day of the assizes, on the ground of its requiring amendment. Facer v. French. . 295

And see Costs, 7.

PLEADING (EQUITY).

[merged small][ocr errors][merged small][merged small][merged small]

3. A stranger to a charity joined one of the trustees thereof, in obtaining some of the charity estate in exchange for land, the joint property of the two: Held, that to an information praying a general account of the charity estate, and that the exchange of lands be set aside for the benefit of the charity, a demurrer by the stranger for multifariousness could not be sustained. Attorney General v. Cradock. 224

4. To a bill making title to equitable relief on alleged promises, a plea was put in denying the promises, and no answer was made to other allegations in the bill: Held, that the plea was bad. Denys v. Locock

[ocr errors][merged small]

An Englishman residing in India with his family, and having the bulk of his property 5. A company for working mines, created there, by his will executed there, gave legacies by deed only, with unlimited power to create to persons in India and in England, and appoin-new shares, transferrable at the discretion of

494

Digested Index to the Cases reported.

the holders, who by the transfer could discharge themselves from liability, is illegal. Blundell v. Windsor Page 307

PLEADING (COMMON LAW).

[ocr errors]

1. Pleas in abatement are within the 8th rule of the 2 W. 4. Ryland v. Wormwald 135 2. Payment, unless pleaded, cannot be proved in mitigation of damages in an action of debt. Belbin v. Bott 183 3. Several breaches being assigned in the declaration, some of which are bad, and the jury having given a general verdict, the Court will not arrest the judgment, but will grant a venire de novo. Leach v. Thomas 214 4. It is necessary that in the notice of dishonor of a promissory note, there should be a specific allegation of presentment and non payment. Boulton v. Welch 84

[ocr errors]

5. The defendants being a company incorporated by statute, had the power of pleading the general issue. The Court refused to permit them to plead, denying that the plaintiff was possessed of a reversionary interest which was alleged to be injured, in addition to the plea of the general issue. Fisher v. Thames Junction Railway Company . 407

6. A rule nisi having been obtained for leave to plead the coverture of the plaintiff puis darrein continuance, the Court refused to dispense with the affidavit under 2 R. G. H. T. 4 W. 4, that the matter of the plea had arisen within eight days of the time of pleading. Powell v. Duncan 293 7. The rules of Court 1 R. G. H. T. 4 W. 4, have reference to proceedings in scire facias on a judgment, and they must therefore be entitled of a day certain. Collins v. Beau439

mont

8. The defendant having pleaded that the bills were indorsed by one J. E., who pretended to be his agent, without authority, and the plaintiff having replied denying that the bills were indorsed by J. E., the Court refused to set aside a demurrer to the replication, assigning for cause that an immaterial issue was raised. Walker v. Cattey

134

whether an action of debt can be maintained by an indorsee against the drawer of the bill, such drawer being also the person who indorsed the bill to the plaintiff. Spencer v. Newton Page 82

12. Case for disturbance of a right of common: Held, that the replication 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 commonable, and that some of them being admitted to be so, the issue thus tendered had been properly found for the defendant. Bowen v. Jenkins .356

13. In order to comply with the rule of Hilary Term, 4 W. 4, as to stating the grounds of demurrer in the margin, it is sufficient to state them without adding that the party demurring intends to rely on those grounds. Groves v. Brown.

13

[blocks in formation]

PRACTICE (EQUITY).

9. Semble, that an affidavit of the assignees of a bankrupt, that they have nothing to do with an action, is a sufficient answer to an 1. An inquisition finding G. B. of unsound application for leave to plead the bankruptcy mind, incapable of managing his lands, &c., of one of several plaintiffs, since the com- but capable of taking care of himself, is conmencement of the action. Staples v. Holds-tradictory and bad: but a new commission worth may be issued on the original petition. In re Bennett

100

165 10. In assumpsit for the value of trees, the defendant pleaded that the trees were not 2. A cause set down for further directions taken up properly, were not of a certain num- at the Rolls, was ordered to be advanced and ber, and were not delivered within a certain put in the list of short causes, on the applica time: Held, that the plea was bad for dupli- tion of one party, the other opposing it, but city, in traversing both the taking up and the not alleging that the cause was not fit to be delivery, but was not bad for specifically fixing heard as a short cause. Such an order rethe number of the trees which were the sub-garding the mode of hearing causes is not ject of the contract. Smith v. Dickson. 60 subject to appeal; semble. Hutchinson v. 11. A rule to set aside a demurrer as irre-Stephens gular, and to sign judgment as for want of a plea under the New Rules, H. T. 4 W. 4, s. 2, must be a rule to shew cause, and cannot be absolute in the first instance. Quare,

[ocr errors]

258

3. Held, that a cause which could not be stated without argument, ought not to be set down for hearing as a short cause, without the consent of the defendant. Kerr v. Cusac 259

Digested Index to the Cases reported.

4. Depositions were taken under an ex parte commission, and publication duly passed. A second commission, in which both parties joined, was issued before, but not executed until after publication of the former depositions had passed: Held, that the depositions taken under the second commission were irregular. The proper course would have been to obtain an order to enlarge publication under the former, or to discharge the order to pass that publication. Heap v. Haworth. Page 58 5. An order was made at the Rolls to enlarge publication at the time for 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. Carr v. Appleyard 354 6. A solicitor, who entered an appearance to a bill on behalf of infants, parties thereto, without authority or due inquiry, was held liable to the costs thereby incurred, and the appearance so entered was discharged. Richards v. Dadley . 452

[ocr errors]
[ocr errors]

PRACTICE (COMMON LAW).

[ocr errors]

1. A plaintiff need not reside within the county, in order to give the County Court jurisdiction under the 23 G. 2, c. 23. Prichard v. Macgill 183 2. A rule having been drawn up upon reading a paper writing," that was held to be a sufficient description of the document. Platt v. Hall 117 3. Where the assignee of a lease proceeds against his tenant for breaches of covenants to pay rent and repair, the Court will not compel the delivery of particulars, with dates and sums. Sowter v. Hitchcock 375

[ocr errors]

4. The defendant having been outlawed in May, and having obtained judgment as in case of a nonsuit in the February following, on which in March he obtained a habeas to charge the plaintiff in execution, his outlawry is a sufficint ground for setting aside the habeas. Aldridge v. Buller 199 5. Where a plaintiff obtained a verdict, and the defendant then applied for a rule for a nonsuit, or for a new trial, and on argument the rule was discharged as to the nonsuit, but made absolute as to the new trial, on the ground that improper evidence had been admitted, and the defendant did not draw up the rule; but it was drawn up by the plaintiff, and served by him on the defendant, who then said that he would not try the case a second time, the Court held that he must be taken to have abandoned his rule, and that the plaintiff was entitled to sign judgment, and tax costs in the same manner as if no rule had been obtained. De Rutzen v. Lloyd

.

130 6. An affidavit stating a rule nisi to compute to have been left in the letter box of the defendant's chambers, and which the depo

495

[merged small][ocr errors][merged small]

8. The usual number of calls, &c. must be made, in order to serve a defendant with a copy of a writ of summons, to entitle the plaintiff to a distringas, although the defendant may have said that he would take good care that he was not served. Clayton v. Marshum

[ocr errors]

263

9. A writ of habeas corpus need not be moved for where the application is to discharge a defendant out of custody, on the ground of a defect in the writ de contumace capiendo. Rex v. Hewitt . 310

10. Where an execution upon a warrant of attorney is improperly taken out for the whole sum intended to be secured, instead of being limited to one instalment, the proper course is to set right the execution, not to set it aside altogether. Hartland v. Cue 59

11. A writ of summons, bearing date the 17th April, 1830, which is served on the 17th April, 1837, will be set aside for irregularity. Briggs v. Bernard

28

12. If a summons to plead several matters is taken out, and it is made returnable at 11 o'clock on the morning after enlarged time for pleading expires, it is a stay of proceedings. Spencely v. Shouls

45

13. Where a defendant has been arrested at nine in the morning, the delivery of the copy of the capias to him at seven in the evening, is not a sufficient compliance with the 4th sec. of the 2 & 3 W. 4, c. 9, which requires it to be delivered " upon or forthwith after" the arrest. Shearman v. M'Knight. 292

14. Where a defendant's residence cannot be discovered, but service of copies of the writ of summons having been effected after the usual calls and appointments, at the two last known places of abode of the defendant, as well as on an agent, who states himself to be in communication with the defendant, the Court will, under certain circumstances, grant a distringas to compel an appearance. Grindley v. Thorn . 279

15. A copy of the rule and allocatur must have been left with the defendant, in order to bring him into contempt. Dalton v. Tucker.

359

[blocks in formation]

496

Digested Index to the Cases reported.

.

PRISONER.

. Page 13

1. The warden cannot be compelled to judge when a prisoner is supersedable, in order to discharge hin under the 88th rule H. T. 2 W. 4, but the defendant must apply to a Judge, or to the Court. Robinson v. l'resswell ,30

18. The names of the examiners need not with," and to omit the commencement of the be mentioned on the application for a rule nisi suit. Williams v. Calverly. for a commission to examine witnesses abroad, but when cause is shewn will be time enough. Fearon v. White Page 358 19. The plaintiff has no longer any right to obtain judgment against a defendant for 5, for his neglecting to enter an appearance, the statute under which it was claimed, the 9 & 10 W. 3, c. 25, s. 33, being repealed. Thomas v. Nokes 341 20. The Court will not grant a rule for the discharge of a defendant out of custody on the ground of the capias being directed to "the constable of the Castle of Dover," instead of to "the constable of Dover Castle." Frank v. James 375 21. The plaintiff's attorney having in the 3. A defendant having been in custody more particulars, by mistake, given credit for a sum than twelve months is entitled to his discharge, claimed by the defendant, the Court will per- having been taken in execution for 18. damages mit the particulars to be amended. Preston v. recovered in ejectment, and more than 201. Whiteheart costs, the latter not being within the act. Doe, 22. Service of a notice of an intended ap-d. Williams v. Sinclair plication for a certiorari on one justice who was present at the making of an order at quarter sessions, and upon another, who was absent, is not sufficient under the 13 G. 2, c. 15.

[ocr errors]

407

An objection to the sufficiency of the notice is not too late after the writ has issued, although the consequence may be that the time in which a writ can be sued may pass, and a fresh writ cannot be obtained.

The parties in an appeal are competent to object to the notices. Rex v. Rattislaw. 262 23. Cases where defendants are in custody on final process do not come within the rule 1 R. G. H. T. 2 W. 4, s. 76, and where a defendant gave a cognovit while in custody on a ea. sa., there being no attorney present on his behalf, the Court refused the benefit of the rule. France v. Clarkson 439 24. The substitution of 1837 for 1836, as the date of the writ of summons, and of the word defendant for defendants, and the award of venire being directed to the "then" sheriff, in the issue, are irregularities which should be amended on an application to a Judge at Chambers, and not to the Court. Ikin v. Plevin

[ocr errors]

102

25. Cases of misnomer of plaintiffs are not contemplated by the 11th section of the act of 3 & 4 W. 4, c. 42. Lindsay v. Wells. 14, 61 26. The fact of a defendant having called twice on the plaintiff's attorney and offered to settle the action, before taking an objection to an irregularity in the copy of the writ of summons, is a waiver of the objection. Briggs v. Bernard 133

27. 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. Remmington v. Baker

[ocr errors]
[ocr errors]

28

28. Semble, that it is an irregularity in the issue to make the venire returnable" forth

2. A defendant is not entitled to his discharge under the 48 G. 3, c. 123, when he has not been actually in custody within the walls of a prison for twelve months, but has lived for some portion of the time in the rules. Barnard v. Symonds - 182

62 4. A person committed for contempt of Court, is to be considered as in custody for a criminal act.

The discretion of the marshal to grant the rules does not extend to commitments of that nature.

The prisoner must apply to the Court for the rules. In re Gompertz

10

5. If it is clearly shewn that the residence of the plaintiff in the cause cannot be found, the notice of the defendant's intention to apply for his discharge under the 48 G. 3, c. 123, may be served on the attorney in the cause. Grainger v. Wilkes

QUO WARRANTO.

. 116

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

Digested Index to the Cases reported.

is precluded from excusing himself from paying over the money to the plaintiff, by shewing that the defendant had, at the time of his levy, made an application for his discharge to the Insolvent Court; and had since been discharged, the sheriff having had notice of the application of the defendant before he made Page 213 2. It seems that where a man is lawfully taken by the sheriff, under the authority of a writ of attachment, for contempt issuing out of Chancery, but is detained in custody after he has become by the rules imposed by the 1 G. 4, and I W. 4, c. 36, s. 11, entitled to his discharge, trespass will not lie against the sheriff for such a detainer, but the party's remedy, if any, must be by an action on the case. At all events the sheriff, in such a case, cannot be treated as a trespasser ab initio.

his return. Tidd v. Smith .

As there are two classes of cases of contempt mentioned in the statute; and as the provisions relating to them differ from each other, the party claiming to be discharged must give distinct notice to the sheriff of the sort of contempt for which he has been imprisoned, and of the matter in consequence of which he is entitled to his discharge. Smith v. Egginton 116

3. Where there is a claim set up to goods seized by the sheriff, he should apply to the Court within the first four days of the succeed. ing term; and in the event of laches in this respect, he will have to pay the costs of both parties. Beale v. Overton

SLANDER.

45

[blocks in formation]

497

contract, to order an account of profits equivalent to a specific performance. Moss v. Baldock Page 340

SURETY.

A. undertook to do certain work for a com

pany, and was to be paid in a manner prescri-
bed in the bond. B. became a surety to the
bond. A. obtained advances on the bond
from the company to a greater extent, and in
a manner different from that which was pre-
scribed in the bond. A. did not complete the
work. The company employed C. to finish
the work, and paid him a sum smaller than
had been in the first instance agreed on with A.
Held, that an action would lie against the
surety for non-performance of the work, but
that the damages under these circumstances,
administrator of Laycock.
must be merely nominal. Warre v. Calvert,

ΤΑΧΑΤΙΟΝ.

. 389

[merged small][merged small][merged small][merged small][ocr errors][merged small]
[blocks in formation]

1. Affidavits stating facts to have been proved at a trial before the undersheriff, but which do not appear on the undersheriff's notes, are admissible in shewing cause against a rule for a new trial, on the ground of the verdict being against evidence. Lilley v. Johnson . 231

1. A purchaser of an estate having agreed to complete his purchase if the vendor would do certain acts, died intestate before the acts required to better the title were done: Held, on a bill filed by the purchaser's heir at law, 2. The defendant being under terms to acthat, on the vendor's doing what was agreed cept short notice of trial, there can be no on, the purchase money should be paid out of countermand, and the plaintiff having given the intestate's personal estate. Fowell v. Fow-notice of countermand, the defendant was 225 held entitled to the costs of the day. Don

ell

. 117

2. In a bill for specific performance, char-caster v. Cardwell ging acts of ownership as an acceptance of 3. Unless the defendant's attorney will swear title, it appeared that the defendant took pos- that he has been misled, the Court will not session of the estate under an agreement dis- grant a rule for a new trial, on the ground tinct from the contract to purchase, and with that the plaintiff gave him notice, in answer a saving as to the title: Held, that the acts to an application for particulars, that certain done to the estate did not amount to an accep- objections on which he intended to rely were tance of the title, without the usual inquiry. set forth in an answer to a bill filed by the Frazer v. Benett 195 defendant in Chancery, and were matters of 3. Circumstances, in which the Court felt law, when in reality they turned out at the justified, without evidence of the nature of the trial to be matters of fact. Corrill v. Cattle 45

.

« PreviousContinue »