trial of a cause. A party may often admit, with a view to a reference, a fact which it might be expedient to dispute if he proceeded to trial.

ALDERSON J. The moment it is established that the Judge must exercise a discretion, there is an end of this question; for he cannot exercise his discretion without trying the cause: and as to admissions, they are often made for the purpose of argument. In this case, it might well happen that the Defendant admitted the bankruptcy, because he had a good defence on the contract, and therefore abstained from troubling the Plaintiff to prove the bankruptcy.

Rule absolute.

1832.

BARTHROP

V.

ANDERTON.

LEWIS v. KNIGHT.

Jan. 31.

MEREWETHER Serjt. on the part of the Defend- An undertakant, a feme covert, had obtained a rule to cancel ing for a bailbond given to an undertaking for a bail-bond given by her attorney to the sheriff by the sheriff; and to stay all proceedings on the Defendant's the Defendant's attorney, filing a common appearance, the Plaintiff having been being a mere

aware of her coverture.

Wilde Serjt., who shewed cause, admitted the Plaintiff's knowledge of the coverture, but alleged that the Defendant had been divorced à mensâ et thorô for adultery, and contended that the undertaking, being a nullity, Fuller v. Prest (a), Sedgworth v. Spicer (b), this application must be discharged with costs.

nullity, an application by Defendant to

set it aside and enter a pearance, was

common ap

discharged with costs, though Defendant was a feme covert.

(a) 7 T. R. 107.

(b) 4 East, 568.

T 2

Mere

1832.

LEWIS

v.

KNIGHT.

Merewether. The object of the application is the stay of proceedings, actual and possible, against the Defendant on her entering a common appearance; a protection to which her coverture fully entitles her.

Sed per Curiam. The Defendant is not in custody. The undertaking is a mere nullity, and the application must be

Discharged with costs.

Jan. 31.

When the Plaintiff gives notice of trial

a term earlier
than the rules
of court re-
quire, if he

omits to try
pursuant to
his notice, the
Defendant
may move for
judgment as
in case of a
nonsuit, the

next term.

ISS

HOWELL v. POWLETT.

SSUE was joined in the above cause last term, but so late in the term that the Plaintiff was not obliged, according to the practice of the Court, to give notice of trial.

The Plaintiff, however, having given notice of trial, and having omitted to proceed to trial pursuant to notice,

Andrews Serjt. obtained a rule nisi for judgment as in case of a nonsuit, which

Wilde Serjt. opposed, on the ground that, according to the statute (14 G. 2. c. 17. s. 1.) judgment as in case of a nonsuit, can only be given where, after issue joined, the Plaintiff neglects "to bring such issue to trial according to the course and practice of the Court." Here issue was joined in Michaelmas term too late for the Plaintiff to give notice of trial according to the practice of the Court; he could not have obtained judgment of that term; and the notice actually given being a mere irregularity, the Defendant could not move for judgment

as

as in case of a nonsuit till Easter term. Dacosta v. Ledstone (a) shews that judgment as in case of a nonsuit can only be moved for in the term next after issue joined, when there is time for a trial in the term in which issue is joined.

TINDAL C. J. The general understanding has been, that whenever a party has given notice of trial, he is bound to proceed pursuant to his notice, and that if he fails to do so the Defendant is entitled to move for judgment as in case of a nonsuit. If the Plaintiff has chosen here to expedite the proceedings a step, he cannot afterwards recede, and the Defendant is entitled to his rule.

PARK J. concurred.

BOSANQUET J. The Plaintiff is allowed till a certain time before he can be called on to give notice of trial; but if he chooses to give notice before that time, and fails to observe that notice, he is guilty of a default, and must take the consequence.

ALDERSON J. The statute contemplates a default wherever notice of trial has been given and not observed. The "course and practice of the Court" applies to the period at which the Plaintiff can go to trial, and he can go to trial after issue joined and notice given, although he might not have been compellable to give notice at the period in question.

Wilde now consented to give a peremptory undertaking, and upon that, the rule was

Discharged.

(a) 2 H. Bl. 558. and 2 Archbd. G. P. 151.

1832.

HOWELL

บ.

POWLETT.

1832.

Jan. 31.

ther pregnancy and imminent delivery be a cause for the

ABRAHAM V. NEWTON.

Quare, Whe- WILDE Serjt. had obtained a rule nisi for the examination of a female witness by the prothonotary, under 1 W. 4. c. 22. s. 1. (a), on an affidavit that she was pregnant, expected shortly to be delivered, and would be unable to attend the trial of the cause in the months of February and March. The affidavit, however, not disclosing the precise time at which she expected to be delivered,

examination of a witness

by the prothonotary, under I W. 4.

c. 22.

If so,

it

must be shewn

by affidavits of competent persons, that the delivery will probably happen about the time fixed for the trial of

the cause.

Bompas Serjt., who shewed cause, objected to it as insufficient.

(a) By which, after reciting the powers given by 13 G. 3. c. 63. for the examination of witnesses in India, it is enacted, "That all and every the powers, authorities, provisions, and matters contained in the said recited act, relating to the examination of witnesses in India, shall be, and the same are hereby extended to all colonies, islands, plantations, and places under the dominion of his Majesty in foreign parts, and to the Judges in the several courts therein, and to all actions depending in any of his Majesty's courts of law at Westminster, in what place or county sever the cause of action may have arisen, and whether the same may have arisen within the jurisdiction of the court to the Judges whereof the writ or commission may be directed, or elsewhere, when it shall appear that the examination of witnesses under a writ of commission issued in pursuance of the authority hereby given,

will be necessary or conducive to the administration of justice in the matter wherein such writ shall be applied for." And by the tenth section it is enacted, "That no examination or deposition to be taken by virtue of this act, shall be read in evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the Judge that the examinant or deponent is beyond the jurisdiction of the court, or dead, or unable from permanent sickness, or other permanent infirmity, to attend the trial; in all or any of which cases the examinations and depositions certified under the hand of the commissioners, master, prothonotary, or other person taking the same, shall and may, without proof of the signature to such certificate, be received and read in evidence, saving all just exceptions."

The

The Court, without laying down any general rule, but expressing some doubt whether this was a case contemplated by the late, act, thought that at all events the affidavit was insufficient. It ought to have been deposed by competent persons, that there was ground for believing that the delivery would take place before the time of trial, or so near as to render the attendance of the witness perilous.

a fair

Rule discharged.

1832.

ABRAHAM

V.

NEWTON.

The Mayor and Burgesses of TRURO v.

REYNALDS.

Jan. 23.

Same v. BASTIAN.

DEBT for tolls due, and of right payable to Plaintiff The corporafor and in respect of goods landed by Defendant tion of T. from ships upon Plaintiffs' quay: - in respect of goods landed by Defendant from certain ships: - and in respect of goods of Defendant imported into and exported from and out of a certain port or harbour: - for tolls generally; and for cranage and wharfage.

Plea, nil debet.

At the trial before Alderson J., last Bodmin assizes, the Plaintiffs produced the following charter of the date

of Stephen or Henry II.:

"Reginald Fitzroy, Earl of Cornwall:-To all the barons

having proved a prescriptive right to tolls, Held, that it was not destroyed by a

charter of Elizabeth, granting and confirming,

among other

things, all the ancient rights of the corporation, but exempting the

of Cornwall, and all knights and all free tenants, and all men, as well English as Cornish, greeting. Know ye, that I have granted to my free burgesses of Triverieu all free places except

inhabitants from toll in all

London:

Held, that this exemption applied to the tolls of all other places (except London), but not to the tolls of T.