Page images


trial of a cause. A party may often admit, with a view to á 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.

Lewis v. KNIGHT.

Jan. 31.

EREWETHER Serjt. on the part of the Defend- An undertak. -ant, a feme covert, had obtained a rule to cancel ing for a bail

bond 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 Defend

ant's attorney, filing a common appearance, the Plaintiff having been

wing veen being a mere aware of her coverture.

nullity, an application by

Defendant to Wilde Serjt., who shewed cause, admitted the Plaintiff's set it aside knowledge of the coverture, but alleged that the De- and enter a

common apfendant had been divorced à mensá et thorô for adultery, and contended that the undertaking, being a nullity, - discharged Fuller v. Prest (a), Sedgworth v. Spicer (6), — this appli

though De. cation must be discharged with costs.

fendant was a

feme covert. (a) 7 T. R. 103.

(6) 4 East, 568. T 2




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.

HOWELL v. Powlett.

[ocr errors]

When the ISSUE was joined in the above cause last term, but so Plaintiff gives - late in the term that the Plaintiff was not obliged, notice of trial a term earlier according to the practice of the Court, to give notice of than the rules trial.

The Plaintiff, however, having given notice of trial, quire, if he omits to try and having omitted to proceed to trial pursuant to pursuant to notice, his notice, the Defendant may move for Andrews Serjt. obtained a rule nisi for judgment as in judgment as

case of a nonsuit, which nonsuit, the

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

next term.

as 1832.



as in case of a nonsuit till Easter term. Dacosta v. Ledstone (a) shews that judgment as in case of a non

sofonon suit can only be moved for in the term next after issue

in 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.

Bosanguet 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.

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


[ocr errors]


Jan. 31.

ABRAHAM v. Newton.

Quare, Whe- W ILDE Serjt. had obtained a rule nisi for the exther pregnancy

amination of a female witness by the prothonotary, and imminent delivery be a under 1 W. 4. c. 22. s. 1. (a), on an affidavit that she was cause for the pregnant, expected shortly to be delivered, and would be examination

unable to attend the trial of the cause in the months of of a witness by the pro- February and Marck. The affidavit, however, not disthonotary, closing the precise time at which she expected to be under 1 W.4. C. 22.

delivered, If so, it must be shewn Bompas Serjt., who shewed cause, objected to it as by affidavits of

insufficient. competent persons, that the delivery (a) By which, after reciting will be necessary or conducive to will probably the powers given by 13 G. 3. c. 63. the administration of justice in happen about for the examination of witnesses the matter wherein such writ the time fixed in India, it is enacted, “ That all shall be applied for.” And by for the trial of and every the powers, authorities, the tenth section it is enacted, the cause. provisions, and matters contained “ That no examination or de

in the said recited act, relating to position to be taken by virtue of
the examination of witnesses in this act, shall be read in evidence
India, shall be, and the same are at any trial without the consent
hereby extended to all colonies, of the party against whom the
islands, plantations, and places same may be offered, unless it
under the dominion of his Ma- shall appear to the satisfaction of
jesty in foreign parts, and to the the Judge that the examinant or
Judges in the several courts deponent is beyond the juris-
therein, and to all actions de- diction of the court, or dead, or
pending in any of his Majesty's unable from permanent sickness,
courts of law at Westminster, in or other permanent infirmity, to
what place or county sirever the attend the trial; in all or any of
cause of action may have arisen, which cases the examinations
and whether the same may have and depositions certified under
arisen within the jurisdiction of the hand of the commissioners,
the court to the Judges whereof master, prothonotary, or other
the writ or commission may be person taking the same, shall and
directed, or elsewhere, when it may, without proof of the sig-
shall appear that the examination nature to such certificate, be re-
of witnesses under a writ of ceived and read in evidence,
commission issued in pursuance saving all just exceptions."
of the authority hereby given,





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 a fair 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.

Rule discharged.

The Mayor and Burgesses of Truro v.


Jan. 23.

Same v. Bastian.


ras no

EBT for tolls due, and of right payable to Plaintiff The corporafor and in respect of goods landed by Defendant hi

" having proved from ships upon Plaintiffs' quay: - in respect of goods a prescriptive landed by Defendant from certain ships: — and in re- right to tolls,

Held, that it spect of goods of Defendant imported into and exported from and out of a certain port or harbour: — for tolls stroyed by a

charter of generally; and for cranage and wharfage.

Elizabeth, Plea, nil debet.

granting and At the trial before Alderson J., last Bodmin assizes, confirming,

among other the Plaintiffs produced the following charter of the date things, all the of Stephen or Henry II.: – ,

ancient rights

of the corReginald Fitzroy, Earl of Cornwall:To all the barons

poration, but of Cornwall, and all knights and all free tenants, and all exempting the men, as well English as Cornish, greeting. Know ye, that inhabitants

from toll in all I have granted to my free burgesses of Triverien all free places except

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

« PreviousContinue »