Page images
PDF
EPUB

Starkie, contrà, was stopped by the Court.

Per Curiam (a). It must appear by the award that the action is finally determined in favour of one of the parties, or else it cannot be ascertained how the costs are to go. The rule may be discharged on the defendant consenting that the award shall be amended by directing a verdict to be entered for the plaintiff in the replevin suit.

Rule discharged; costs of the replevin suit
to be paid to the plaintiff'; and the award,
by consent, to be amended if required.

(a) Denman C. J., Littledale and Parke Js.

1833.

In the Matter of LEEMING

and FEARNLEY.

The KING on the Prosecution of BRINDLEY against DEWHUrst.

INDICTMENT for a libel charging Brindley, the governor of the parish workhouse at Meller, in the county of Lancaster, with having cruelly treated a female pauper. The indictment was removed by the defendant into this Court, and he having been convicted at the Lancaster spring assizes, 1833, a rule been obtained for referring it to the coroner to tax costs to be paid by the defendant to the prosecutor. rule nisi had been obtained for discharging that rule,

[blocks in formation]

had

of the parish; and the defendant having

the

removed it by

certiorari into

A

K. B., was

upon affidavits which stated that the prosecution was com

convi.ted:

Held, that the

libelled party

was not the

party griev

statute 5 &

menced by the direction, and carried on at the expense, ed," within the of the select vestry of the parish of Meller; and that Brindley had stated he had nothing to do with the pro

ceedings,

6 W. & M.

c. 11..3.;

and therefore

was entitled

to costs.

1833.

The KING against DEWHURST.

ceedings, and did not give any instructions for them, and was surprised when he heard they were commenced.

F. Pollock now shewed cause. The statute 5 & 6 W. &. M. c. 11. s. 3. authorises the Court of King's Bench, where the defendant prosecuting the writ of certiorari is convicted of the offence, to give reasonable costs to the prosecutor, if he be the party grieved. Brindley is the party grieved within the meaning of the statute. It is no answer, that the members of the select vestry might, in the first instance, be liable to pay the costs of the prosecution, for Brindley must have paid them ultimately, either wholly or in part, as a rate payer.

Alexander contrà. Brindley is neither prosecutor nor party grieved, and he must be both, to be entitled to costs under the statute. The object of the statute was to prevent persons who commenced prosecutions at the quarter sessions or other inferior courts, from being put to heavier expenses in the superior courts. The prosecutors, therefore, grieved by the removal of an indictment into this Court, must be those who employed the attorney, and thereby subjected themselves to the expenses of the prosecution.. Here the attorney was employed, not by Brindley, the nominal prosecutor, but by the select vestry; the persons composing that vestry, therefore, were the prosecutors grieved by the removal of the indictment. In Rex v. Cooke (a) the prosecution had been conducted at the joint expense of various inhabitants of the parish in which the offence

(a) 1 Man. & Ry. 526.

had

had been committed; and the Court were of opinion that, as the expenses were defrayed by other persons, and not by the apparent prosecutors, these latter could not be regarded as the prosecutors within the meaning of the act. Rex v. Edwards, Hilary term 1830 (a), is also an authority to shew that the nominal prosecutor is not in this case the party grieved. There, the indictment was for an assault on a watchman, or constable, within the borough of Derby: the prosecution had been carried on by certain paving and light

(a) REX v. EDWARDS.

The reporters have been favoured by Mr. Dealtry with the following note of the above case.

The defendant was convicted and sentenced on an indictment for an assault on a watchman and night patrol, within the borough of Derby, who was also a constable of the said borough. The indictment was removed by the defendant from the sessions; and he consequently was liable to costs by the 5 & 6 W. & M. c. 11. s. 3. if the prosecutor was a party grieved within the meaning of that statute. The prosecutor took out a side bar rule to tax the costs under the statute. In Hilary term 1830, the defendant obtained a rule to shew cause why that side bar rule should not be set aside, on the ground that the prosecutor was not a party grieved within the meaning of the act; the prosecution having been carried on by the Paving and Lighting Commissioners, acting under a local act of parliament for the borough of Derby; that, although nominally the prosecution was carried on at the instance of the party assaulted, it was, in reality, at the sole expense and by the direction of the above commissioners, and they were not public officers within the meaning of the above statute, prosecuting as such. On cause being shewn, it was contended that the prosecution was carried on by the commissioners, whose duty it was to preserve the public peace within the borough of Derby, for a matter connected with their duty as commissioners; and therefore they might be considered as public officers prosecuting for a fact which concerned them as such, within the meaning of the statute.

But the Court were of opinion that the nominal prosecutor, the party assaulted, was not a party grieved within the meaning of the statute; nor were the commissioners public officers prosecuting, as such, within the meaning of the statute, and therefore they discharged the rule.

1833.

The KING

against DEWHURST.

1833.

The KING against DEWHURST.

ing commissioners, acting under a local act for that borough, and the Court were of opinion that the nominal prosecutor was not a party grieved within the meaning of the statute, nor were the commissioners public officers prosecuting as such.

DENMAN C. J. Rex v. Edwards decides this case.

LITTLEDALE and PARKE Js. concurred.

Rule absolute.

1833.

June 12th.

DOE dem. WILLIAM HENRY LEACH and JAMES Wednesday, WHALLEY WICKHAM, against FREDERICK WHITAKER.

EJECTMENT for two messuages, two dwellinghouses, and four stables, four hay-lofts, four coachhouses, four out-buildings, and forty acres of land,

At a court 1812, before

baron, held in

the steward of a manor, two copyhold tene

ments were granted to W. R., and J. F., habendum for their lives and the life of the longest liver of them successively, at the will of the lord, according to the custom of the manor, at the yearly rents of 26s. 4d. and 7s., all services therefore due, and a heriot when it should happen; and the said W. R. was admitted tenant; but the admission and fealty of J. F. were respited until, &c.

In 1825, the lessees of the manor, by deed, appointed C. L. steward of the manor, with full power to hold courts baron and customary courts, and to do all acts usual to be done by stewards in relation thereunto; and they more especially authorised him to make any voluntary grants of customary or copyhold lands within or parcel of the manor, and to give licenses to demise, or otherwise, as he, the said C. L., should think fit, and either in or out of court, as fully as the lessecs might or could do.

At a court baron held out of the manor, in 1825, J. F. (who survived W. R.) surrendered to the lords lessees the above-mentioned copyhold messuages, and the lessees, by C. L. their steward, granted them again to W. H. L. and J. W. W., habendum for their lives, and the life of the longest liver of them successively, according to the custom of the manor, at the yearly rents of 26s. 4d. and 7s., and all services therefore due, and a heriot for each of the said tenements when it should happen, according to the custom of the manor; and J. H.L. and J. W. W. were admitted tenants.

Held, that it was no objection to this grant that J. F., the surviving life under the grant of 1812, was never admitted tenant: Nor that two rents were reserved, without distinguishing how much was payable for each tenement, the same rents having been reserved by a former grant in 1771: Nor that a heriot was reserved for each tenement when it should happen, according to the custoin of the manor; for if a heriot was not demandable for each tenement, the claim could not be enforced; but that would not avoid the grant.

Held, secondly, that a customary court cannot be held out of the manor unless there be a custom to warrant it; and if one be held out of it without such custom, it is void, and such things there done, as are required to be done at a court, such as presentments by the homage, imposing fines, levying fines, and suffering recoveries, are void.

But, thirdly, that, as the lord may grant to, or admit a copyhold tenant, not only out of court, but also out of the manor, the grant of 1825, if it had been made by the lord, would have been good, though it purported to have been made at a void court.

Held, fourthly, that a steward cannot, in his mere character of steward, admit a copyhold tenant out of the manor.

Fifthly, that as C. L., by the deed of 1823, had a special authority to make any voluntary grants, either in or out of court, as fully as the lessees of the manor could do, he might take the surrender, and make the grant in question out of the manor; and that although he professed, in making the grant, to act only as steward, and not as the special agent of the lord, the grant so made might operate as a grant made by the lord's attorney, and was therefore valid. Sixthly, that although, in general, to make a party tenant by copy of court roll, his admission ought be notified, for the information of the tenants, at the next or some other court, and a regular entry of it made by certificate, presentment, &c. ; yet, as the proceed. ings at this void court were entered by the steward on the court rolls, as if done at a valid court, the tenants must, at a following court, after the admittance, have had information of what had been done, and that was sufficient.

VOL. V.

E e

situate

« PreviousContinue »