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sary tLat the justices should proceed according to the directions of the statute which gave tliein these extensive powers. The 30th section of the act declares the penalty to be imposed upon persons trespassing in the daytime upon lands in search of game; and it contains this proviso: "Provided always, that any pcrton charged with any such trespass, shall be at liberty to prove by way of defence any matter which would have been a defence to any action at law for trespass;" and further ' that the lord or steward of the Crown of any manor, lordship or royalty, or reputed manor, &c. shall be deemed to be the legal occupier of the land of the wastes or commons within such manor, lordship or royalty." The 44lh section gives the party the right to appeal to the quarter sessions, and the 45th, as already stated, lakes away the certiorari. The 30th and 45th sections must be taken together, and as the certiorari is taken away, the most perfect liberty must be allowed to a defendant to enter upon his defence, and to prove in an information under the act, anything which he might have proved had an action of trespass been brought against him. On the occasion of this appeal coining on at the sessions, the respondent's counsel was about to prove the trespass, when the appellant's counsel with a view to save time, admitted that the rabbit bad been shot in the place in question. [Lord Denmnn, C. J.,— You admitted the trespass in fact ?] Not exactly so. The appellant admitted shooting the rabbit, but denied the trespass; for his defence was, that the land where the rabbit 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 ovcrwhich he had by the custom of the mauor a right of sporting. [Lord Denmnn, C. J.— Then in fact you are moving for a new trial > Can you find any authority for such a motion ?] There is no authority directly in point. The case that will perhaps be referred to, is that of Hex v. Justices of Carnarvon,*. The judgment of Mr. Justice Bayley in that case, uppears to be opposed to the present application. But there is a wide distinction between the two cases. The judgment there proceeded upon the peculiar circumstances brought before the Court, from which it appeared that the complaint was against the justices, not for not having heard, but for having pursued a certain course on the hearing. In this instance they have not heard the appellant at all. The judgment of Mr. Justice Holrnyd there, is clearly in favor of this application. That learned Judge said,* ** If it had appeared in this case that the sessions had heard one side, and had altogether refused to hear the other, I should have thought it the same as if the case had not been heard at all, and 1 should then have been of opinion that this mandamus ought to issue; but in this case it appears to me that this was merely a question as to the practice of the sessions, who have determined that the evidence tendered ought not to have been in
troduced with observations on the part of the advocate. I think that this Court has no jurisdiction to interfere in such a case." The justices here did not refuse to hear in a particular manner: they refused to hear at all. There appeared to be a magic in the word "poaching," which was improperly employed on the occasion, that at once decided their judgment. Yet this appellant was no poacher j he was a wine merchant at Oxford, who bad given notice of his intention to go upon this land in pursuit of rabbits for the expn ss purpose of trying his right, as a tenant of the manor, to shoot on the wastes of the manor. If any person had a right to complain of the trespass, it was the Earl of Abingdon, and not the president and fellows of St. John's Cidlege. The justices have not followed the directions of the statute, and this Court must therefore exercise its authority to cause those provisions to be observed.
Lord Denmnn, C. J.—The case now stated amounts to no more than this, that the sessions have committed a mistake in point of law. We have not the power to interfere to correct that mistake. The conviction cannot be brought up here by certiorari, the right to do that is taken away from the appellant by statute. No authority has been produced to shew that we can interfere in the way now desired. They have heard the appeal; and whether right or wrong, their decision is for this purpose fiual.
Rule refused.* — The King v. The Justices of Berks, T. T. 1837- K B. F. J.
• But see/catv. Cumber/end Justices, Monday, Feb. 1, Hil. Term, 1836. A rule had been obtained for a mandamus, commanding the justices of Cumberland to enter continuances and hear an appeal. A man named Beaumont had been convicted under the 5 (J. 4, c. 83, for refusing to maintain his wife and children. His defence was, that he had never been legally married to the woman. The magistrates on appeal against the conviction, heard part of the evidence, and then saw that that they had no power to try a question of the validity of a marriage, which must be decided in the Ecclesiastical Court.
Mr. Alexander and Mr. If. C. Ilowe shewed cause against the rule. When the magistrates have good reason to believe that their decision on the matter sutimitted to their consideration may subject them to an action, they have a right to refuse to decide it; and this Court will not compel them by mandamus to do so. Rex v. Somersetshire,' Hull v. Dyer.6 [Lord Denmnn, C. J.—Have they heard all the evidence?] No, they have not. [Lord Denmnn, C. J.—Then can it be said that the case has been heard ?] The right of the magistrates to act in this manner, depends chiefly upon the general principle already stated. The words in the statute are not compulsory upon them. The words in the statute giving the
84 Superior Coitrls:
magistrates jurisdiction, pre " it ahull lie lawful." Those words gave them a discretion to hear, nr to refuse to hear a case. [Lord Denman, C. J.—But this is altogether a new state of things. They have heard half of the case. They may refuse to hear, hut if they begin to hear, they must hear the whole.] They have virtually heard the case. [Lord Denman, C. J. —How can that he said, when they have not heard the whole case, hut have stopped the party against whom they decided ?] There have been cases in which the sessions have been held justified in stopping a party, even though their decision was afterwards against him. The propriety of such a practice must depend on the particular circumstances of each case. At all events that is a matter of practice; and where the sessions have heard and decided a case, this Court will not, on an objection to their course of practice, compel a rehearing. Rex v. Carnarvon Justices.*
Per Curiam.—The magistrates have not done right in refusing to hear the whole case. The mamUimwt must go.
It is necessary that in the'notice of dishonor of a promissory note, there should be a specific allegation of presentment and nonpayment.
This was an action on a promissory note, brought by the indorsee against the indorser.
Thesiger, had in Michaelmas Term, obtained a rule to shew cause why a nonsuit should not be entered, and
Talfonrd, Serjt., now appeared to support the verdict which had been found for the plaintiff. The only question arose on the letter by which the dishonor of the note was communicated to the defendant; and it was contended that this contained as much information as the defendant had a right to expect. It was in the following terms:
"22d October, 1836.
Sir,—The promissory note for 200/., drawn by Henry Stanley, dated the 18th July last, payable three months after date, and indorsed by you, came due yesterday, and is returned to me unpaid. I therefore give you notice thereof, and request you will let me have the amount forthwith." Signed by the plaintiff, and directed to the defendant.
There were two cases in which the point here in question had been very much considered, namely; Hartleu v. Case, 4 B. & C. 339, and Solaris v. Palmer, 7 Bing. 530, and the Court would not extend the principle there laid down. In neither of those cases did the notice purport to be a notice of dishonor, but they were both mere applications from the plaintiff's attorney to the defendant for the payment of the bills. Abbott, C. J., in his judgment in Hartley v. Case, said,
? 4 Bam. & Aid. 86.
"There is no precise form of words necessary to be used in giving notice of dishonor of a bill of exchange, hut the language used must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor." In the present case the note was sufficiently described, and any reasonable mind would draw enough from its terms to shew him the object in giving the notice.
Tindal, C. J.—There is no allegation of presentment.
Talfourd, Se.rjt.—But the giving notice, implied that the note had been presented, and was tantamount to a distinct allegation of that fact. The notice must be construed as it would be by a mind accustomed to such matters, and by necessary implication, it shewed the note to have been dishonored.
Dosanquet, J.—It is quite consistent with this notice, that the bill was presented on the very morning on which the notice was given.
Talfourd, Serjt.—Such a suggestion would not present itself to the mind of any person engaged in mercantile pursuits.
Busby, in support of the rule.—The defendant pleaded that he had no notice of presentment, and of the non-payment of the note modo et formd, he. This put two facts in issue, and if the notice did not comprise both points, the defendant's plea was a good answer to the action. The question therefore was, whether the latter contained sufficient notice of these circumstances. The note being a negociable security, it was quite possible that it might not have been in the hands of the plaintiff at the time of its becoming due, but that it might have been returned to hiin on the morning after, and before he wrote the letter. There was no positive intimation that the note had been presented, and had been dishonoured. The Court could not extend the principle already laid down, but would rather see that the rule was followed strictly.
Tindal, C. J.—I do not see how the Court can distinguish this case from those already decided, of Hartley v. Case, and Solarte v. Palmer, without drawing subtle and refined distinctions, which will render the rule incapable of general practice. This letter certainly does not amount to such a notice as that the defendant is bound to see from it, that payment of the note has been refused. The Act of the 9 and 10 W. 3, c. 17, s. I, contains a form of protest, in which the two important points of notice of dishonour and non-payment are contained.
Park, J.—I am quite satisfied that any ordinary person would know what the full extent of notice intended to be conveyed by this letter, and but for these two cases, I should think the notice sufficient. We cannot, however, get over the decisions to which our attention has been pointed.
Bosanquel, J.—I am of opinion also that tho case cannot be distinguished from those already decided.
Collman, J.—I am of the same opinion. I do not know, however, that our decision is so unfavourable as might be conceived for merSuperior Courts:
cantile men, for it is proper that they should draw their notices in a proper form.
Rule absolute.—Boulion v. Welch, E. T. 1837. CP.
FINES AND RECOVERIES ACT. COSTS.
Charges fur business done under the fines and Recoveries Act, in preparing an affidavit of verification of the certificate of acknowledgment of a married woman, and procuring it to be sworn, tyc, are not taxable.
Hoggins had obtained a rule, calling on John Branson, an attorney of the Court of. King's Beucb, to shew cause why his bill of costs delivered to the person on whose behalf the application was made, should not be referred to the prothonotary to be taxed. The bill amounted to about 60/., and the items, by which it was contended that it was made taxable, were charges for busiuess done in preparing an affidavit verifying the certificate of the taking an acknowledgment of a married woman, under the statute 3 & 4 W. 4, c. 74, (the Fines and Recoveries Act.)
Wilde, Serjt., shewed cause and admitted that charges for such business, done under the old practice, would undoubtedly have rendered the bill taxable, because it was supposed that they were proceedings done in a cause, but the peculiar jurisdiction formerly possessed by the Court in such matters, would not in any way atfect the proceedings under the new act. All business done in Court, must be conducted by an attorney; such proceedings as those charged for, might be carried on by any persou, not an officer of the Court.
Hoggins, in support of bis rule, submitted, that the material question for the consideration of the Court was, whether these were proceedings "at law or in equity," which were the words used by the act of parliament (2 G. 2, c. 23, s. 23). Charges for drawing and engrossing an affidavit of detit, to hold a party to bail, and for money paid for swearing &c, had lieen held to lie charges which were within the statute, Winter v. Payne, 6 T. R. 645. The charges here were of a similar description: they were fur drawing and engrossing an affidavit of acknowledgment; and for attending the married woman before the commissioner; and attending to get the affidavit sworn; for inouey paid for the outh and exhibit, as well as for attending to bespeak an office copy of the inroliiient. These were charges for business done in Court, and were therefore at law. The inrobui-ut of the certificate of taking an acknowledgment, and of the affidavit of verification, were charges done in Court by the 85thsection of the Hues and Recoveries Act.
Tindal, C J. —Charges fur inrolling a deed, in the Court, will nut make a bill taxable.
Hoggins, went on to cite Feame v. Wilson, 6 B. & C. 86; Smith v Wailleworth, 4 B. & C. 3>>4; and Leihbridge v. Lusmore, 1 D. & R. 511; the effect of the decisions in which was,
Common Pleas. 85
that the Court would put a liberal construction on the act, and would, if possible, draw charges within the operation of what had been called a beneficial statute. It was provided by the 89th section of the particular act, having reference to this case, that the Court of Common Pleas should make certain regulations for the mode of proceeding, and for the examination of married woman, as well as the matters to be mentioned in the certificates and affidavit verifying the same, and touching the fees and charges to be paid for copies of the same, and "also the fees and charges to be paid for taking acknowledgments of deeds, and for examining married women, and for the proceedings, matters, and things required by this act to be had, done, and executed, for completing and giving effect to such acknowledgments and examinations." This provision clearly embraced the present case.
Park, J.—That section refers to the fees to be paid to the commissioners, which are regulated by the rule of H. T., 4 \V. 4.
Tindal, C. J., said, the rule must be discharged. The first statute relating to attorneys was the 3 Jac. 1., c. 7, s. 1, by which all attorneys were required to give a true bill of their charges to their masters and clients, or their assigns, concerning the suits which they had for them, subscribed with their hands, before they should charge them with any of the same fees. The statute of 2 G. 2, c. 23, s. 23, declared that certain things should be done before any attorney should commence or maintain any action for the recovery of any "fees, charges, or disbursements at law, or in equity," from his client. These statutes, it was evident, referred to charges incurred iu the course of a suit, and the Court seemed rather to have stretched their power in holding in ex parte Prickett, 1 N. R. 266, that a charge for suing out a writ of dedimuspotestatem for the acknowledgment of a fine, was within the meaning of the statute. The Act under which this application was made, was entitled, " An Act for the Abolition of Fines and Recoveries, and for the substitution of more simple modes of assurance," a title which clearly shewed that the charges in this bill were not taxable. Although the deed was inrolled in Court, yet that was not a proceeding in a suit, but was merely a conveyance from one person to another.
Park, J., said that there could be no doubt that the statute of 2 G. 2, c. 23, was a beneficial statute; lhat he was of opinion that the Court had already carried its authority in its decisions upon it to the very utmost verge. The present case was not a suit at law, or in equity, and was not within the act. Many deeds were inrolled in the Court, but that was only for their proper and safe custody, and their inrolinent did not come within the meaning of the statute.
Bosanquet, J., and Cullman, J. concurred. Rule discharged.—In re Branson, E. T, 1837. C. P.
ATTORNEY'S LIKN.—BANKRUPT. /In attorney having brought an action for an uncertificated bankrupt, in which the plain tiff teas nonsuited, but the matter having been referred to an arbitrator, who awarded a certain sum to be due to the plaintiff, the attorney will be entitled to his lien on the award for the costs of the action and the award, but will have no claim for money lent to enable the plaintiff to perform the work on which the cause of action was founded, and the residue will belong to the assignees of the bankrupt. Piatt had obtained a rule under the 1st section of the Interpleader Act, under the following circumstances. The plaintiff was a builder, and bad become bankrupt in the month of July 1835, since which he had not obtained his certificate. He commenced an action in October 1836, against the defend.int to recover the balance of a claim in respect of some repairs done j but on the cause coining on for trial he was nonsuited, as it appeared that the credit had not expired. An arrangement was made, however, that the cause should be referred to an arbitrator, and he made an award, finding 124/. due to the plaintiff, after the deduction of the costs of the nonsuit. The assignees of the plaintiff under the fiat claimed tnis sum, but the attorney for the plaintiff nlso set up a claim for his costs in the action which be had brought, as well as for 40/. money lent for the purpose of enabling the plaintiff to proceed with the work on which the cause of action was founded. The plaintiff had also brought an action on the award, and this rule was obtained on behalf of the defendant.
Chandless now appeared for the assignees, and urged that it was money which they were entitled to claim, and on which, therefore, the attorney would ha*e no lien. He cited Crofton v. Poole, 1 B. and Adol. 5f,8, where it was held that the assignees of an uncertificated bankrupt were entitled to claim money due from a defendant iu respect of work and labour done, and materials provided by the bankrupt. The attorney clearly had no lien for the 401. lent, and the costs which he claimed were incurred in bringing an action for money to which the assignees were entitled.
Parke, B.—Would not theattorneyhave had a lien on the award as against the plaintiff?
Chandless.— If the assignees had brought an action against the defendant, he could not have pleaded the plaintiff1* attorney's lien, and the matter must be decided exactly on the prin iple of a case of that description.
Parke, 15.—The original claim for work, labour, and materials, would merge into that on the award, and if the award is called for by the assignees, they must allow the attorney the same lien upon it as he would be entitled to against the bankrupt. The award, besides, is in the possession of the attorney, who might have refused to give it up until his lien on it.was paid, if claimed by the assignees, in order that they might commence an action on it.
Lord Abinger, C. B.—The attorney is entitled to his lien on the award for bis costs, but the residue belongs to the assignees. It must be referred to the master, in order that the account of the costs of the action and of the award, as to both of which the attorney is entitled, may be fixed ; but he cannot have the -ID/, money lent. The surplus must be paid iutu Court.
Rule accordingly. Jones v. Turnbull, E. T. 183/. Exchequer.
AWARD.—ASSESSMENT OF DAMAGES.
la assumpsit for goods sold and delivered, the defendant having pleaded payment of 30/. of the money sought to be recovered, and acceptance in satisfaction by the plaintiff, but the latter having replied, specially traversing the allegation of acceptance, and alleging the money received to be in another and different cause of action, an award on a reference, finding for the defendant a* to 31., and for the plaintiff as to the residue, was held sufficiently certain, and fixed the damages at 2II
fV. H. Watson moved to set aside an award that had been made in this action, on the ground of its uncertainty. It was an action of assumpsit for goods sold and delivered, and the defendant pleaded non assumpsit except as to 30/., and as to that sum payment, and acceptance in satisfaction by the plaintiff. The plaintiff replied that the 30/. was paid on another and different cause of action, and specially traversed the acceptance of it in satisfaction of that amount, parcel of the sum mentioned in the declaration. The cause was referred to arbitration, and an award was made by the arbitrator who found for the defendant upon the plea of non assumpsit, as to 3/. parcel of the sum of 30/. in the plea mentioned, and for the plaintiff as to the residue. It was now contended that the award was uncertain, inasmuch as that the arbitrator had uot assessed the damages. The new assignment, coupled with the plea, did not admit the exact sum 2II. to be due. In the ca«e of Cousins v. Paddon, -2 C. M. & R. 547, the issue was on the plea of non payment, and a sum less in amount than that pleaded was proved to have been paid. That case was therefore distinguishable from the present.
Parke, B.—The replication takes issue on the plea with a special inducement, and it is not a new assignment. The defendant alleges that he paid, and the plaintiff received 30/. in satisfaction of so much of the demand ; and the plaintiff replies that it was in another and different cause of action, and that he did not receive it in respect of this claim in the present action. The arbitrator finds for the defendant upon that issue as to 3/., and for the plaintiff as to residue. By that finding the damages are assessed at 27/. Alderson, B.—The finding of the arbitrator
is in fact a direction that the verdict shall be entered for the plaintiff with 27/. damages.
Rule refuged.—King v. Earl of Dundonald, E. T. 183/. Excheq,
JUDGMENT AND EXECUTION. SUGGESTION.—
If there has been un application made to a Judge nt chamber/ In stay proceedings, and he has refuted to interfere, and the defendant could not apply earlier, the Court trill suffer a suggestion to be entered to deprive the plaintiff of costs, eren after final judgment and issue of execution.
W. H. Watson moved to set aside the judgment in this case, so far as related to the costs, and to enter a suggestion under the Bath Court of Requests Act (45 Geo. 3, c. 62,) u less sum than 5/. having been recovered by the plaintiff. It appeared that the writ had issued on the 17th January, and an appearance was entered for the defendant under the act, and the defendants fullered judgment to go by default. Final judgment was signed on the 25ih February, and the costs were taxed. A Ji. fa. was issued on the 1st March. The application could not have been made earlier. Bond v. Baitei, 3 D. P. C. 808. Godson v. LloiId, 4 D. P. C. 157. Badley v. Oliver, 1 C. & A1 L'19.
Ormeder shewed cause, and contended that the application came too late. Hippesley v. Laying, 4 B. & 0. 363.
Parke, B.—The only question is, whether the defendant should not have applied to a Judge at chambers to stay proceedings.
W. H. Watson.—That was done, but the Judge refused to interfere.
Parke, B.—Then the rule must he absolute.
Rule absolute.—King v. Gale, E. T. 1837. Excheq.
PARLIAMENTARY PROCEEDINGS, ©mis? at ILarai.
BILLS FOR SBCOND READING.
To establish Local CourU. ,
Education and Charities. I r ,„ ,
Pluralities Prevention. > LordBrougham
Residence of Clergy. J
Concealment of Births.
Commissions for taking Irish and Scotch
Affidavits The Lord Chancellor.
To amend the Limitation of Real Actions Act Lord Abingcr.
ftouit of Common's.
BILLS TO BE BROUGHT IN.
To establish Local Courts...Mr. Roebuck.
To abolish Grand Juries Mr. Prime.
To consolidate and amend the Laws relating to Copyright, in Booke, Musical Compositions, Acted Dramas, Pictures aud Engravings, to provide remedies for the violation thereof, and extend the Term of its duration Mr. Serjeant Talfourd,
To extend the suffrage of Householders.
To amend the Marriage Act. Mr. Wilks. Parish Vestries—To abolish Plural Voting.
To amend the Law relating to the Property Qualification of Members.
Mr. Warburton. To alter and amend the Law relating to Mortgages on Ships and Vessels.
Mr. G. F. Young. To amend the Law of Costs and the General Issue Sir F. Pollock.
To enable Tenants for Life of Estates in Ireland to make Improvements in their Estates, and to charge the Inheritance with the Monies expended in such Improvements Mr. Lynch.
To repeal the Septennial Act, 1 G. 1, c.
38 Mr. Wm. Williams.
Mr. D'Eyncourt. To regulate and restrain the Power of Judges to Commit for Contempt.
FOR SECOND READING.
To declare and amend the Law relating to the Custody of Children of tender age, and to regulate the operation of the Writ of Habeas applicable thereto.
Mr. Serjeant Talfourd. To amend the Law of Controverted Elections Mr. C. Buller.
To amend the Law of Patents.
Mr. Mackinnon. To amend the Law as to Offences against
the Person Mr. A. Trevor.
For regulating the Expenses at Elections,
To consolidate and amend the Law relating
to Bribery at Elections. Mr. Hardy. Repealing Usury Law on Bills of Exchange. Freemens' Admission Bill. Final Register of Electors." Boundaries of Boroughs. To amend the Bankrupt Laws.
To amend the Law of Wills.
The Attorney General.
» This bill is withdrawn.