« PreviousContinue »
Superior Courts : King's Bench.
83 sary that the justices should proceed according troduced with observations on the part of the to the directions of the statute which gave them advocate. I think that this Court has no these extensive powers. The 30th section jurisdiction to interfere in such a case.” The of ihe act declares the penalty to be imposed justices here did not refuse to hear in a parupon persons trespassing in the daytime upon ticular wanner : they refused to bear at all. lands in search of game; and it contains this There appeared to be a magic in the word proviso: “Provided always, that any per-“ poaching," which was improperly employed son cbarged with any such trespass, shall be at on the occasion, that at once decided their judgliberty to prove by way of defence any matter ment. Yet this appellant was no poacher ; he which would have been a defence to any action was a wine merchant at Oxford, who had given at law for trespass ;” and further that the notice of his intention to go upon this land in lord or steward of the Crown of any manor, pursuit of rabbits for The express purpose of lordship or royalty, or reputed manor, &c. trying his right, as a tenant of the inanor, to shall be deemed to be the legal occupier of the shoot on the wastes of the manor. If any land of the wastes or commons within such person had a right to complain of the trespass, manor, lordship or royalty.” The 44th sec it was the Earl of Abingdon, and not the tion gives the party the right to appeal to the president and fellows of St. John's College. quarter sessions, and the 45th, as already stated, The justices have not followed the directions takes away the certiorari. The 30th and 45th of the statute, and this Court must therefore sections must be taken together, and as the exercise its authority to cause those provisions certiorari is taken away, the most perfect to be observed. liberty inust he allowed to a defendant to enter Lord Denman, C. J.-'The case now stated upon his defence, and to prove in an informa- amounts to no more than this, that the sessions tion under the act, anything which he inight have committed a inistake in point of law. have proved had an action of trespass been We have not the power to interfere to correct brought against him. On the occasion of this that mistake. The conviction cannot be appeal coming on at the sessions, the respon- brought up here by certioruri, the right to do dent's counsel was about to prove the trespass, that is taken away from the appellant by when the appellant's counsel with a view to save stalute. No authority has been produced to time, admitted that the rabbit had been shot in shew that we can interfere in the way now the place in question. (Lord Denman, C. J.,- desired. They have heard the appeal; and You admitted the trespass in fact?] Not whether right or wrong, their decision is for exactly so. The appellant admitted shooting this purpose final. the rabbit, but denied the trespass ; for his Rule refused.* - The King v, The Justices defence was, that the land where the rabbit of Berks, T. T, 1837. & B. F. J. was shot, was part of the waste of a manor of which the Earl of Abingdon was the lord, and of which he the appellant was a tenant, and
* But see Rex v. Cumberland Justices, Monover which he had by the custom of the manor day, Feb., 1,
por day, Feb. 1, Hil. Term, 1836. A rule had a right of sporting.' (Lord Denman, C. J.- been obtained for a mandamus, commanding Then in fact you are moving for a new trial ? the justices of Cumberland to enter continuCan you find any authority for such a motion ?] | ances and hear an appeal. A man named There is no authority directly in point. The Beaumont bad been convicted under the 5 G. case that will perhaps be referred io, is that of 4, c. 83, for refusing to maintain his wife and Rer y. Justices of Carnarvon, a. The judg. children. His defence was, that he had never ment of Mr. Justice Buylev in that case, been legally married to the woman. The mauppears to be opposed to the present applica- gistrates on appeal against the conviction, tion. But there is a wide distinction between heard part of the evidence, and then saw that the two cases. The judgment there proceeded that they had to power to try a question of the upon the peculiar circuinstances brought be validity of a marriage, which must be decided fore the Court, from which it appeared that in the Ecclesiastical co
in the Ecclesiastical Court. the complaint was against the justices, not for
| Mr. Alexunder and Mr. IV. C. Rowe shewed not having lieard, but for having pursued a cause against the rule. When the magistrates certain course on the hearing. In this instance have good reason to believe that their decithey have not heard the appellant at all. The
sion on the matter submitted to their conside. judgment of Mr. Justice Holroud there, is ration may subject thein to an action, they clearly in favor of this application. That have a right to refuse to decide it ; and this learned Judge said, “If ii had appeared in Court will not compel them by mundamus to this case that the sessions had heard one side. I do so. Rex v. Somersetshire, Hull v. Dyer.a and had altogether refused to hear the other,
(Lord Denman, C. J.-Have they heard all I should have thought it the same as if the case
the evidence?] No, they have not. [Lord had not been heard at all, and I should then
Denman, C. J.-Then can it be said that the have been of opinion that this mandamus ought case bas been heard ?] The right of the mato issue ; but in this case it appears to me that gistrates to act in this manner, depends chiefly this was merely a question as to the practice upon the general principle already stated. The of the sessions, who have determined that the words in the statute are not compulsory upon evidence tendered ought not to have been in
them. The words in the statute giving the a 1 Barn & Ald. 86. b Ibid. 88. c 1 Harrison & Woll. 82. Ibid 83.
Supcrior Courts : Common Pleas.
magistrates jurisdiction, are “it shall be law- “ There is no precise form of words necessary ful.” Those words gave them a discretion to to be used in giving notice of dishonor of a hear, or to refuse to hear a case. [Lord Den- | bill of exchange, but the language used must mun, C. J.-But this is altogether a new state | be such as to convey notice to the party what of things. They have heard half of the case. the bill is, and that payment of it has been They may refuse to hear, but if they begin to refused by the acceptor.” In the present case hear, they must hear the whole.) They have the note was sufficiently described, and any virtually heard the case. [Lord Denman, C.J. reasonable mind would draw enough from its -How can that be said, when they have not terms to shew him the object in giving the heard the whole case, but have stopped the notice. party against whom they decided :] There Tindal, C, J. There is no allegation of have been cases in which the sessions have been presentment. held justified in stopping a party, even though. Tulfourd, Serjt.-But the giving notice, their decision was afterwards against him. I implied that the note had been presented. The propriety of such a practice must depend and was tantamount to a distinct allegation of on the particular circumstances of each case. that fact. The notice must be construed as it At all events that is a matter of practice; and would be by a mind accustomed to such matwhere the sessions have heard and decided a | ters, and by necessary implication, it shewed case, this Court will not, on an objection to the note to have been dishonored. their course of practice, compel a rehearing, | Bosanquet, J.-It is quite consistent with Rex v. Carnarvon Justices.e
this notice, that the bill was presented on the Per Curiam. The magistrates have not very morning on which the notice was given. done right in refusing to hear the whole case. | Tulfourd, Serjt.-Such a suggestion would The mandamus must go.
not present itself to the mind of any person Rule absolute.
engaged in mercantile pursuits.
Busby, in support of the rule.-The defenil
ant pleaded that he had no notice of present. Common pleas.
ment, and of the non-payment of the note PROMISSORY NOTE.
modo el formá, &c. This put two facts in issue,
and if the notice did not comprise both points, It is necessary that in the notice of dishonor the defendant's plea was a good answer to the of a promissory note, there should be a spe- action. The question therefore was, whether cific allegation of presentment and non- the latter contain
the latter contained sufficient notice of these payment.
circumstances. The note being a negociable This was an action on a promissory note, security, it was quite possible that it might not brought by the indorsee against the indorser. have been in the hands of the plaintiff at the
Thesiger, had in Michaelınas Term, obtain time of its becoming due, but that it might ed a rule to shew cause why a nonsuit should have been returned to him on the morning not be entered, and
after, and before he wrote the letter. There Talfourd, Serjt., now appeared to support was no positive intimation that the note had the verdict which had been found for the been presented, and had been dishonoured. plaintiff. The only question arose on the | The Court could not extend the principle al. letter by which the dishonor of the note was ready laid down, but would rather see that the communicated to the defendant; and it was rule was followed strictly. contended that this contained as much infor- | Tindal, C. J.-I do not see how the Court mation as the defendant had a right to expect. can distinguish this case from those already de. It was in the following terms:
cided, of Huriley v. Case, and Solarte v. Palmer, " 22d October, 1836. without drawing subtle and refined distinctions, Sir. The promissory note for 2001., drawn which will render the rule incapable of general by Henry Stanley, dated the 18th July last, practice. This letter certainly does not amount payable three months after date, and indorsed to such a notice as that the defendant is bound by you, came due yesterday, and is returned to see from it, that payment of the note has to me unpaid. I therefore give you notice | been refused. The Act of the 9 and 10 W. 3. thereof, and request you will let me have the c. 17, s. 1, contains a form of protest, in which amount forthwith.” Signed by the plaintiff, the two important points of notice of dishonour and directed to the defendant.
and non-payment are contained. There were two cases in which the point! Park, J.-I am quite satisfied that any ordi. here in question had been very much nary person would know what the full extent considered, namely; Hartley v. Case, 4 B. of notice intended to be conveyed by this letter. & C. 339, and Solarle v. Palmer, 7 Bing, and but for these two cases, I should think the 530, and the Court would not extend the notice sufficient. We cannot, however. get principle there laid down. In neither of those over the decisions to which our attention has cases did the notice purport to be a notice of been pointed. dishonor, but they were both mere applications Bosanguel, J.-I am of opinion also that the from the plaintiff's attorney to the defendant case cannot be distinguished from those already for the payment of the bills. Abbolt, C. J., decided. in his judginent in Hurtley v. Case, said, Collinan, J.-1 am of the same opinion. I
do not know, however, that our decision is so @ 4 Barn, & Ald. 86.
unfavourable as might be conceived for mere
Superior Courts : Common Pleas.
cantile men, for it is proper that they should that the Court would put a liberal construction draw their notices in a proper form.
on the act, and would, if possible, draw charges Rule absolute.-Boulton v. Welch, E. T. I within the operation of what ha
within the operation of what had been called a 1837. C. P.
beneficial statute. It was provided by the 89th section of the particular act, having reference
to this case, that the Court of Common Pleas FINES AND RECOVERIES ACT.-costs. should make certain regulations for the mode Charges for business done under the Fines
of proceeding, and for the examination of
| married woman, as well as the matters to be and Recoveries Acl, in preparing, an n mentioned in the certificates and affidavit veri. davit of verification of the certificate of. I fying the same, and touching the fees and acknowledgment of a married womun, and
charges to be paid for copies of the same, and procuring it to be sworn, C., ure not lax- | “ also the fees and charges to be paid for able.
taking acknowledgments of deeds, and for exaHoggins had obtained a rule, calling on mining married women, and fur the proceedJohn Branson, an attorney of the Court of (ings, matters, and things required by this act King's Bench, to shew cause why his bill of to be had, done, and executed, for coinpleting costs delivered to the person on whose behalf and giving effect to such acknowledgments the application was made, should not be re- and examinations.” This provision clearly ferred to the prothonotary to be taxed. The embraced the present case. bill amounted to about 601., and the items, by Park, J.-That sectiun refers to the fees to which it was contended that it was made tax. be paid to the commissioners, which are regu. able, were charges for busiuess done in pre-lated by the rule of H. T., 4 W.4. paring an affidavit verifying the certificate of Tindal, C. J., said, the rule must be disthe taking an acknowledgment of a married charged. The first statute relating to attorwoman, under the statute 3 & 4 W. 4, c. 74, neys was the 3 Jac. 1., c. 7, s. 1, by which all (the Fines and Recoveries Act.)
attorneys were required to give a true bill of Wilde, Serit., shewed cause and admitted their charges to their masters and clients, or that charges for such business, done under the their assigns, concerning the suits which they old practice, would undoubtedly have render- had for thein, subscribed with their hands, beed the bill taxable, because it was supposed fore they should charge them with any of the that they were proceedings done in a cause, same fees. The statute of 2 G. 2, c. 23, s. 23, but the peculiar jurisdiction forinerly pos. | declared that certain things should be done besessed by the Court in such matters, would fore any attorney should commence or mainnot in any way affect the proceedings under tain any action for the recovery of any “fees, the new act. 'All business done in Court, charges, or disbursements at law, or in equity,'' must be conducted by an attorney; such pro. from his client. Tliese statutes, it was evident, ceedings as those charged for, might be car- referred to charges incurred in the course of a ried on by any person, not an officer of the suit, and the Court seemned rather to have Court.
stretched their power in holding in ex parte Hoggins, in support of his rule, submitted, Prickett, 1 N. R. 266, that a charge for suing that the material question for the consideration out a writ of dedimus potestatem for the acknowof the Court was, whether these were proceed- ledgment of a fine, was within the meaning of ings "at law or in equity," which were the the statute. The Act under which this appliwords used by the act of parliament (2 G. 2, cation was made, was entitled, “ An Act for the e. 23, s. 23). Charges for drawing and engross- Abolition of Fines and Recoveries, and for the ing an affidavit of debt, to hold a party to bail, substitution of more simple modes of assurand for money paid jor swearing &c., had ance," a title which clearly shewed that the been held to be charges which were within the charges in this bill were not taxable. Although statute, Winter v, Puyne, 6 T. R. 615. The the deed was inrolled in Court, yet that was charges here were of a similar description : not a proceeding in a suit, but was merely a they were for drawing and engrossing an affi- conveyance from one person to another. davit of acknowledgment; and for attending / Park, J., said that there could be no doubt the married woman before the commissioner; that the statute of 2 G. 2, c. 23, was a beneand attending to get the affidavit sworn; for ticial statute; that he was of opinion that the inoney paid for the oath and exhibit, as well as Court had already carried its authority in its de. for attending to bespeak an uffice copy of the cisions upon it to the very utmost verge. The inrolusent. These were charges for business | present case was not a suit at law, or in equity, done in Court, and were therefore at law. and was not within the act. Many deeds were The inrolment of the certificate of taking an inrolled in the Court, but that was only for acknowledgment, and of the affidavit of verifi- their proper and safe custody, and their jürolcation, were charges done in Court by the ment did not come within the meaning of the 85th section of the Fines and Recoveries Act. statute.
Tindul. CJ.-Charges for inrolling a deed, Busanquel, J., and Coleman, J.concurred. in the Court, will not inake a bili taxable. I Rule discharged.-In re Branson, E. T.
Hoggins, went on to cite Fearne v. Wilson, 1837. C. P. 6 B. & C. 86; Smith y Warlleworth, 4 B. & C. 364; and Lethbridge v. Luxmore, 1 D. & R. 511; the effect of the decisions in which was,
Superior Couris: Erchequer.
1 Lord Abinger, C. B.-The attorney is en. ATTORNEY'S LIEN.-BANKRUPT.
titied to his lien on the award for his costs,
but the residue belongs to the assignees. It An altorney having brought an action for an
must be referred to the master, in order that uncertificated bunkrupt, in which the plain
the account of the costs of the action and of tif was nonsuited, but the mutter having
wong the award, as to both of which the attorney is been referred to an arbitrator, who ararded a certain sum to be due to the plaintiff, the 101. money lent.
entitled, inay be fixed; but he cannot have the
The surplus inust be paid attorney will be en:itled to his lien on the
into Court. anurid for the costs of the action and the
Rule accordingly. Junes v. Turnbull, E. award, but will have no claim for money lent | T. 1837. Exchequer. to enable the plaintiff to perform the icork on rohich the cause of action vous founded, and the residue will belong to the assignees of the bankrupt.
AWARD.-ASSESSMENT OF DAMAGES. Plutt had obtained a rule under the 1st section of the Interpleader Act, under the follow
In assumpsit for goods sold and delivered, the iny circumstances. The plaintiff' was a builder,
defendant having pleaded payment of 301. of and had become bankrupt in the month of
the money sought to be recovered, and accepJuly 1835, since which he had not obtained
tance in satisfaction by the plnintiff, but the his certificate. He commenced an action in
lutter having replied, specially traversing (October 1836, against the riefendant to recover
the allegation of acceptance, and alleging the balance of a claim in respect of some re.
the money received to be in another and pairs done; but on the cause coming on for different cause of action, an ancard on a reirial he was nonsuited, as it appeared that the
ference, finding for the defendant us to 31., credit had not expired. An arrangement was
and for the plaintiff as to the residue, was made, however, that the cause should be re
held sufficiently certain, and fixed the da. ferred to an arbitrator, and he inade an award,
mages at 271. finding 1241. due to the plaintiff, after the deduction of the costs of the nonsuit. The W. H. Watson moved to set aside an award assignees of the plaintiff under the fiat claimed that had been made in this action, on the this sum, but the attorney for the plaintiff also ground of its uncertainty. It was an action of set up a claim for his costs in the action which assumpsit for goods sold and delivered, and the he had brought, as well as for 401. money lent defendant pleaded non assumpsit except as to for the purpose of enabling the plaintiff to pro- / 301., and as to that sum payment, and acceptceed with the work on which the cause of ance in satisfaction by the plaintiff. The action was founded. The plaintiff had also plaintiff replied that the 301. was paid on anobrought an action on the award, and this rule ther and different cause of action, and specially was obtained on behalf of the defendant. I traversed the acceptance of it in satisfaction
Chundless now appeared for the assignees, of that amount, parcel of the sum mentioned and urged that it was money which they were in the declaration. The cause was referred to entitled to claim, and on which, therefore, the arbitration, and an award was made by the attorney would have po lien. He cited Crofton arbitrator who found for the defendant upon vi Poole, i B. and Adol. 568, where it was held the plea of non assumpsit, as to 31. parcel of that the assignces of an uncertificated bank- the sum of 301. in the plea mentioned, and for rupt were entitled to claim money due from a the plaintiff as to the residue. It was now condefendant in respect of work and labour done, tended that the award was uncertain, inasmuch and materials provided by the bankrupt. The as that the arbitrator had not assessed the da. attorney clearly had no lien for the 401. lent, mages. The new assignmert, coupled with and the costs which he claimed were incurred the plea, did not admit the exact sum 271. to in bringing an action for money to which the be due. In the case of Consins v. Paddon, assignees were entitled.
2 C. M. & R. 547, the issue was on the plea of Purke. B.-Would not the attorney have had non payment, and a sum less in amount than alien on the award as against the plalntiff? that pleaded was proved to have been paid.
Chandless.- If the assignees had brought an That case was therefore distinguishable from action against the defendant, he could not the present. have pleaded the plaintit's attorney's jien, and Purke, B.-The replication takes issue on the matter inust be decided exactly on the the plea with a special inducement, and it is prin:iple of a case of that description.
not a new assignment. The defendant alleges Parike. B.-The original claiin for work, that he paid, and the plaintiff received 301. in labour, and materials, would merge into that on satisfaction of so much of the demand ; and the the award, and if the award is called for by the plaintiff replies that it was in another and dif. assignees, they must allow the attorney the ferent cause of action, and that he did not resame lien upon it as he woulit be entitled to ceive it in respect of this claim in the present against the bankrupt. The award, besides, is action. The arbitrator finds for the defenin the possession of the attorney, who might dant upon that issue as to 31., and for the have refused to give it up until his lien on it was plaintiff as to residne. By that finding the dapaid, if claimed by the assigaees, in order that mages are assessed at 271. they might commence an action on it. ! Alderson, B.—The finding of the arbitrator
Superior Courts : Exchequer.- Parliamentary Proceedings. is in fact a direction that the verdict shall be
House of Cammons. entered for the plaintiff with 271, damages.
BILLS TO BE BROUGHT in. Rule refused.--King v. Eurl of Dundonald, To establish Local Courts. Mr. Roebuck. E. T. 1837. Excheq,
To abolish Grand Juries ......... Mr. Prime.
To consoligate and amend the Laws relating JUDGMENT AND EXECUTION.-SUGGESTION.- to Copyright, in Books, Musical Compocosts.
sitions, Acted Dramas, Pictures aud EnIf there hne been an application made to al gravings, to provide remedies for the vio
Judge ul chambers to stay proceedings, lation thereof, and extend the Term of and he has refused to interfere, and the its duration ..... Mr. Serjeant Talfourd, defendant could not apply earlier, the Court will suffer a kuggestion to be entered to
To extend the suffrage of Householders. deprive the plaintiff of costs, even after
Mr. Hume, final judgment and issue of execution.
To amend the Marriage Act. Mr. Wilks, W. H. Wutson moved to set aside the judg
indo Parish Vestries – To abolish Plural Voting. ment in this case, so far as related to the costs,
Mr. Wakley. and to enter a suggestion under the Bath Court To amend the Law relating to the Property of Requests Act (45 Geo. 3, c. 62,) a less sum | Qualification of Members. than 51. having been recovered by the plaintiff.
Mr. Warburton. It appeared that the writ had issued on the To alter and amend the Law relating to 17th January, and an appearance was entered for the defendant under the act, and the de
Mortgages on Ships and Vessels. fendants suffered judgment to go by default.
Mr. G. F. Young, Final judgment was signed on the 25th Feb
ned on the 25th Feb To amend the Law of Costs and the Generuary, and the costs were taxed. A fi. fu, was ral Issue ....... ........ Sir F. Pollock. issued on the 1st March. The application To enable Tenants for Life of Estates in could not have been made earlier. Bond v. 1 Ireland to make Improvements in their Bailey, 3 D. P. C. 808. Godson v. Lloyil,
Godson v: Lloyd Estates, and to charge the Inheritance 4 D. P. C. 157. Badley v. Oliver, 1 C. & M.
with the Monies expended in such Im. 219. Orowder shewed cause, and contended that
provements..................... Mr. Lynch. the application came too late. Hippesley y. To repeal the Septennial Act, 1 G. 1, c. Luying, 4 B. & C. 363.
38. ..................Mr. Wm. Williams. Parke, B.—The only question is, whether
Mr. D'Eyncourt. the defendant should not have applied to a To regulate and restrain the Power of Judge at chambers to stay proceedings.
Judges to Commit for Contempt. W. H. Watson.-That was done, but the
Mr. Charlton, Judge refused to interfere.. Parke, B. Then the rule must be absolute.
FOR SECOND READING. Rule absolute.--King v. Gule, E. T, 1837. To declare and amend the Law relating to Excheg.
the Custody of Children of tender age,
and to regulate the operation of the Writ PARLIAMENTARY PROCEEDINGS.
of Habeas applicable thereto.
Mr. Serjeant Talfourd.
To amend the Law of Controverted ElecHouse of Lards.
tions, ..................... Mr. C. Buller. BILLS FOR SECOND READING. To amend the Law of Patents. To establish Local Courts.
Mr. Mackinnon. Education and Charities.
To amend the Law as to Offences against Pluralities Prevention.
the Person ....... ... Mr. A. Trevor. Residence of Clergy.
For regulating the Expenses at Elections, Judges' Opinions.
Mr. Hume. Concealment of Births.
To consolidate and amend the Law relating Shire-halls.
to Bribery at Elections. Mr. Hardy.
Repealing Usury Law on Bills of Exchange. Recorders' Courts.
Freemens' Admission Bill.
Final Register of Electors.a
Solicitor General. Turnpike Roads continuance.
To amend the Law of Wills.
The Attorney General. Act.... ............. Lord Abinger.
a This bill is withdrawn.