Imágenes de páginas
PDF
EPUB

106

Superior Courts : Queen's Bench Practice Court.- Common Pleas. stantially succeeded in the action upon the whole upon issues on which he has not succeeded record, and therefore ought to have the general are taken away, and the costs of the issues costs of the cause.

found for the defendant are directed to be de. Hugh Hill, contrà, submitted that neither ducted from the plaintiff's costs. Under this party was entitled to the general costs: at rule the defendant cannot claim the costs of the common law neither plaintiff nor defendant cause. The rule H. T., 4 W. 4, c. 7, directs, could claim costs; therefore the right to them that in the case of several issues, a verdict and depended upon certain statutes and rules of judgment shall pass at the trial against either court; the first of these being the Statute of party in respect of the issues which he has Gloucester, 6 Edw. 1, c. 1, which gave cost to a failed to establish, and that he shall be liable to plaintiff where he recovered damages. Then the other party in respect of all costs occacomes 23 H. 8, c. 15, which gives costs to a de- sioned by such issues. Under this rule the fendant in certain actions where the plaintiff defendant can only claim the costs of the issues has been nonsuited, or a verdict passes against found for him at the trial. The taxation him at the trial : this was extended to all should therefore be reviewed on that principle. actions by 4 Jac. 1, c. 3. Under these statutes

Rule absolute. it is clear that a defendant was never entitled to any costs if the plaintiff succeeded at the trial

Common Pleas. in any cause of action. Norris v. Waldron, (2 Wm. Blackstone, 1199.) Then come the rules Bowyer v. Cook. Easter Term, 1847. of Hil. Term, 2 W. 4, r. 74, and 4 W. 4, r. 7 ; TRESPASS AFTER NOTICE.-COSTS UNDER 3 but these merely give to the defendant the costs & 4 VICT. c. 24.-SUGGESTION ON THE of any issues found for him. Now it is admit

RECORD. ted that the defendant in this case is entitled to the costs of the issues found for him, but not

Where, in an action for a trespass committed the general costs of the cause. It is said that

after a notice not to trespass, the damages he has succeeded on the whole record. That

recovered are under 40s., and the judge at is not so. What is there to show that the

the trial does not certify, the plaintiff is general costs of the cause are included in the

entitled to enter a suggestion on the record issues on the two counts found for the defend

of such notice, in order to obtain his full

costs. ant, without reference to the third count, which was found by the jury for the plaintiff? If we

A notice that, unless the defendant removed refer to the form of entry of arrest of judgment

certain stakes in such a manner as should in Tidd's Forms, (8th ed. 332,) the entry is,

be satisfactory to the plaintiff, a further "we omit to give judgment upon the verdict

action would be brought, is a sufficient notice aforesaid ;" how then can it be said that the de- not to trespass within the meaning of the 3 fendant has succeeded upon the whole record,

8. 4 Vict. c. 24, with reference to the quesCur, ad. vult.

tion of costs in a second action of trespass

for continuing to keep up such stakes. Wightman, J., (25th Feb.,) delivered the judgment of Erle, J. In this action, which

TRESPASS for breaking and entering the was for defamation, the declaration contained plaintiff's close, continuing there certain stakes three counts; and at the trial the verdict was and earth, and causing to flow thereon a stream for the defendant on two counts, and for the of water. Pleas, not guilty, secondly, a traverse plaintiff on the third. The judginent upon the that the close in question was the plaintiff's, third count was afterwards arrested. The postea and thirdly leave and license. At the trial of was given to the defendant, and the Master the cause before Parke, B., at the last Bedfordtaxed the costs of the cause to him. A rule shire assizes, it appeared in evidence that a nisi for a review of the taxation was subse- previous action of trespass against the now dequently obtained, and I am of opinion that it fendant for diverting the water-course in quesshould be made absolute on the ground that tion, and driving the same stakes in the plainthe defendant is only entitled to the costs of tiff's ground, had been put an end to by the those issues which were found for him. Be- acceptance on behalf of the plaintiff of 40s. fore the statute of 23 Hen. 8, the defendant Two months afterwards the plaintiff's attorney was not entitled to any costs. By that statute wrote and sent to the defendant the following and the 4 Jac. 1, c. 3, the defendant was en

letter : titled to costs in case the plaintiff was non

“Hemel Hempstead, 8th August, 1845. suited, or a verdict found against him. These “Sir,–We are directed by Mr. Bowyer to statutes give the defendant no right to costs give you notice that unless you divert the where the verdict was in part for the plaintiff. course of the water so as to prevent its flowing By the 8 & 9 W. 3, c. 11, s. 2, the defendant over his land and ditch, and restore the ditch became entitled to costs if he obtained judg- to its former state, and remove the earth, ment on demurrer, but that has no application stumps, stakes, and other encroachments on here. Therefore, until the rules of H.'T., 2 W. his land and fence in the parish of Ippoletts in 4, and H. T., 4 W. 4, the defendant in such a such a manner as shall be satisfactory to him, case as this was not entitled to any costs. a further action will be brought against you Those rules, as it appears to me, give him only previous to Michaelmas Term." the costs of the issues found for him. By the

(Signed,) “SMITH & GROVER.” rule H. T., 2 W. 4, r. 74, the plaintiff's costs “To Mr. John Cooke."

Superior Courts : Common Pleas.-Exchequer.

107 The present action had been brought for an of the legislature. Then by the provisions of omission to comply with the terms of this the 2nd section of the 3 & 4 Vict. c. 24, disletter, and the jury, under the direction of the entitling a plaintiff to any costs where he relearned judge, had found a verdict for the covers less than 40s. damages, unless the judge plaintiff, in respect only of the continuing of certify, &c., the operation of the act is not left the stakes by the defendant, damages 20s. to what would otherwise have been its full The learned judge, upon this verdict, refused effect, and incorporating the whole together, to certify for costs under the statute 3 & 4 the effect will be, that in all actions of trespass, Vict. c. 24, s. 2, and a rule nisi had been ob- except where the trespass has been committed tained to enter a suggestion on the record of after a notice not to trespass, the plaintiff shall notice not to trespass having been served pre-only be entitled to his full costs in the event of viously to the action, in order to entitle the the judge certifying. In the case of Daw v. plaintiff to costs.

Hole, 15 Law J., N. S., 2 B. 32, it is true, a Peacock now showed cause. In this case contrary decision was come to, but there the the judge at the trial refused to certify that the attention of the court was not called to the trespass was wilful and malicious, and it is now fact of the statute which took away costs havsought, notwithstanding, to obtain full costs ing been repealed, and to the true effect of the for the plaintiff under the 3rd section of 3 & 4 existing statutes. On the whole, therefore, it Vict. c. 24, which provides that plaintiffs are seems to me that as a matter of right the plainnot to be deprived of costs in actions of tiff in an action of trespass on land is entitled trespass where notice not to trespass has been to his costs after notice has been served. The previously given. The first point is, whether next question of whether or not the trespass or not in the case of a written notice, as here, was committed after notice given, depends on the entering of a suggestion on the roll is the whether the continuance of the stakes in the course necessary to be taken in order to obtain ditch operated as a trespass, and that it did so the costs. In the present case the judge might I own appears to me to be quite clear, both on have certified at the trial, for by the case of Sher.- principle and according to the cases. Then, win v. Swindall, 12 M. & W. 783, where the the only remaining question is, what, in a case trespass complained of had been committed like the present, is the proper course for a after a warning not to do so, it was held that plaintiff to take in order to entitle himself to the judge had power, under the 2nd section of costs. He is not bound by the circumstance the 3 & 4 Vict.c. 24, to certify that the trespass of the judge at the trial not having certified, as was "wilful and malicious" so as to give full in this case no certificate was necessary. The costs, and that the 3rd section was intended right to costs otherwise is made by the statute only to prevent that act interfering with the 8 & to depend on the giving of a notice, and the 9 W.3, c. 11, s. 4. The second point is, that record, which ought to show that the plaintiff the notice served is not such as the act con- is entitled to costs, is here silent as to notice, templated. The only trespass here was in re- from it the plaintiff appears to have no right to spect of the continuance of the stakes, and the costs. He, however, now comes to the court notice is not positively to remove the stakes, or and contends that he is within the statute which not to commit a trespass, but simply that unless gives costs, and ought to have an opportusomething were done, an action would be nity to show that sufficient notice has been brought. In Holmes v. Wilson, 10 Ad. & E. given. For this purpose the mode of proceed503, where the trespass complained of was a ing is by a suggestion on the record, and by continuance of an erection, the notice given re- that means alone the plaintiff's right can be quired in direct terms the removal of the properly and effectually secured, and, theretrespass. It was submitted, therefore, that the fore, I think the rule ought to be made abnotice in the present case was insufficient. solute.

Rose, in support of the rule, was not called The rest of the court concurred. upon.

Rule absolute. Wilde, C. J. I think the rule ought to be made absolute. The statute 22 & 23 Car, 2,

Erchequer. c. 9, took away costs generally in actions of Ivimey v. Marks. Easter Term, 1st May, 1847. trespass where the damages were under 40s., and, except by that statute, there was nothing ATTORNEY'S BILL. to deprive a plaintiff of costs up to the passing of the 8 & 9 W. 3, c. 11. The effect of this Where an attorney's bill contains charges for latter statute was to give costs, and not to take business done in the Court of Chancery and them away, and it is a qualification of the pre- also in a Common Law court, it should vious statute of Charles. Then, by the 3 & 4 mention each court in which such business Vict. c. 24, the statute of Charles was re

was done. Therefore, where a bill stated pealed, so far as related to personal actions, that some of the charges were for business and the plaintiff, in an action of trespass there- done in the Court of Chancery, and it did upon, became entitled to costs, for the only not appear in what court the other business statute which took them away was repealed, was done, except that the items showed that and to hold that the statute of William takes it must have been in one of the superior away costs, would be to give it a contrary effect common law courts. Held, insufficient, to that which appears to have been the object under the 6 8. 7 Vict. c. 73.

CHANCERY.- COMMON LAW.

[ocr errors]

108

Superior Courts: Exchequer.-Legal Obituary. Debt for work and labour as an attorney of Hill v. Humphreys, 2 B. & P. 343, which is and solicitor. Plea, that no signed bill was much more to the purpose; there it was held delivered or sent to the defendant, as required that if an attorney introduces into his bill items by the statute (6 & 7 Viet. c. 73, s. 37.) Re- not within the 2 Geo. 2, c. 23, and fail, because plication, that a signed bill was delivered upon it was not properly delivered according to that which issue was joined. At the trial, before statute, he must fail altogether, and cannot rePlatt, B., it appeared that a bill was delivered, cover for such items only. When a bill is depart of which was stated to be for business livered under the 6 & 7 Vic. c. 73, the whole done in a suit in Chancery, which was headed of it must be taxed; and if it contain charges by mistake Churchill ats. Marks," instead of for business done in chancery, and also at

Marks ats. Churchill.The other part of common law, and does not state in what court the bill related to a suit between the defendant of common law the business was done, it is the and one Erskine, but it did not appear in what same as no bill at all. I think this is not court the business was done, except that some such a bill as another attorney could fairly of the items, such as charges for summonses advise the defendant as to the propriety of for time to plead, attending judges' clerks, &c., having it taxed. showed that it must have been in one of the Parke, Rolfe, and Platt, Bs, concurred. superior courts of common law. It was ob

Rule absolute. jected, on the part of the defendant, that there was no sufficient delivery of a signed bill, as

LEGAL OBITUARY, required by the statute. The learned judge directed a verdict for the plaintiff, reserving leave for the defendant to move to enter a nonsuit.

1847, April 7.-William Brookman Violett, of A rule nisi having been obtained, Farrer showed cause. The bill clearly shows Banwell

, near Cross, Somersetshire, Solicitor. that part of the business was done in the Court Aged 24. of Chancery. The reversal of the names of the

April 9.-John Allison, of Huddersfield, Soplaintiff and defendant was a mere clerical licitor. Aged 70. error, by which the defendant could not have April 14.-John Curwood, Barrister-at-Law; been misled. Therefore, at all events, the called to the bar 1796. plaintiff is entitled to recover for this portion April 15.-Charles Dodd of Billiter Street, of the bill. Walter v. Lacy, 1 Man. & G. Solicitor. Aged 70. 54 ; Drew v. Clifford, Ry. & Moo. 280. Under the 42nd section of the 6 & 7, Vict. Inner Temple, Barrister-at-Law.

April 15.-William Gray Polson, of the c. 73, the defendant might have laid the Called 24th Nov. 1809.

Aged 73. whole bill before the taxing officer of the Court of Chancery, who is empowered by

April 17.-H. Scott of Hull, Solicitor. that section to request an officer of the common

Aged 40. law courts to assist him in taxing it. With April 17.-Henry Kensit of Bedford Row, respect to the other portion of the bill, the Aged 80. charges themselves clearly show that they are April 19. At Madeira, John Boscawen for business done in one of the superior courts Monro, Esq., of the Middle Temple, Barristerof common law. All that is required by the at-Law; called to the bar Trinity Term, 1817. statute is, that the bill should give substantial information of the court in which the business Master of the Crown Office. Aged 41.

May 9.-George Barne Barlow, Assistant is done. Engleheart y. Moore, 4 Dow & L. 60. (Parke, B. referred to Levis v. Primrose, 6 Q.B.

May 9.-- Frederick George Cox, of Bennett's Rep. 265; and Martindale v. Faulkner, 2 Com. Hill, Doctors' Commons, Proctor. B. Rep. 706.)

May 12.-William Eastwood, of Todmorden, Peacock, in support of the rule, (being di- Solicitor, Aged 35. rected by the court to confine himself to the May 13.-George Suttell Wilson, M. A., point as to the plaintiff's right to recover for Barrister-at-Law, of Gray's Inn, aged 48; the business done in Chancery,) argued that called to the bar Michaelmas Term, 1831. this was different from the case of two separate bills. Here the items were so blended toge- Fields, Solicitor. " Aged 63.

May 13.-Joseph Blower, of Lincoln's Inn ther, that the defendant could not tell whether he might with safety proceed to tax the

May 15.---J. Edwards, of Plas Llanddausaint,

amount, for unless one-sixth of the whole was taken off,

Anglesey, Solicitor. he would have to pay the costs of the taxation.

May 16.-Charles Attwaters, of Queen Street, Pollock C. B. The rule must be absolute. Cheapside, Solicitor, aged 41. The case of Walter v. Lacy occurred before May 19.-John M‘Dowall, of the Inner the 6 & 7 Vic. c. 73, which renders every part Temple, Barrister-at-Law; called to the bar of an attorney's bill liable to taxation; so that 29th Jan., 1841. the distinction between those parts of the bill which are taxable and those which are not no 7, New Inn, Strand, Solicitor.

May 21.-David William Crammond, of longer exists. With respect to Drew v. Clifford, the point was reserved by the judge at nisi prius ; but no motion was ever made, There is a case

APPEALS.

} appeal

Third day { Same to Birmingham School

. } }

}

do,

do.

exons.

Chancery Cause Lists.

109 CHANCERY CAUSE LISTS.

Third day Hargrave v. Hargrave, fur. dirs, and costs.

Thirds Bagshaw v. Parker.
Lord Chancellor.

day 1

}

Same v. Same.
Trinity Term, 1847,

To present petition, Stourton v. Jerningbam.
AT WESTMINSTER.

Third day, Wheatley v. Wheatley.
Ditto, Humble v. Fenwick.

Part heard, Attorney-General v Wright, fur

dirs, and costs.
Masters & War-
S.O.G. Attorney-Gen. dens, &c. of the appeal

Same v. Same, supple. bill.
City of Bristol

After Term, Gordon v. Abdy, fur. dirs, and costs.

Third day, Wilkinson v. Charlesworth, fur, dirs. S. O. Black Chaptor do.

and costs and petn. S. 0. Johnson Reynolds fur. dirs.by ord.

fur, dirs, S. 0. Watts Hyde

Smith v. Earl Effingham, appeal Not before

and costs. S. 0, Caton Rideout do.

31st May
Dean of Ely
Bliss

Same v, Same.
do.

supple. Perry Meddowcroft

After Term, Hooper v. Denoon. 9 causes

. S, O. Blair

Bromley

do.
Rawlins
Moss
do.

Bourne v. Mole,
Dale
Hamilton 3 appeals.

After Tm. Same v. Elkington,
Hobson
Everett appeal.

Same v. Same.
Law

Law

do. Lenaghan Smith

do.

Third day, Attorney-General v. Pretyman, fur
Eversfield
Troup

dirs, and costs and petn.

do.
Allen

Knight
do.

Third day, Gwynne v. Jones, fur, dirs, and costs.
Pearce
Pearce

Senhouse v. Hall,

do.
Dunston
Paterson

| Newman v. Allen
do.

Same v. Same.
Dobson

Lyall
Robinson Wall

Short, Holloway v. Jacobs,
Butlin
Masters do.

Third day, Swayne v. Swayne.
Westwood Slater

Leake v. King
do.
4 causes

Third day Same v. Snow
Hards

Same v. Bridger

do.
Ditto

Ditto
Smith
Winstanley Smith

Williamson v. Gordon.
Scawin
Watson appeal.

Haddy v. Haddy.

Attorney-Gen. v. Bingham.
Barrow
do.

Harrey v. Tipple.
Ditto
Jackson

Watts v. Christie.
Glascott Lang

do.

Thorns v. Bowyer
Okill
Whittaker do.

Same v. Same

fur, dirs, and costs.
Williams

Powell
do.

Freeman v. Day
Ditto
Davis

Thorns v. Thorns suppl.
Dawson

Paver
do.

Wormald v. De Lisle.
Ditto
Ditto

Read v. Strangways.
Attorney-Gen. Pearson

Wood v. Marquis of Londonderry.
Ditto
Steward do.

Madeley v. Harborne
Ditto
Hill

Same v. Same.
Wood
Rowcliffe 2 appeals.

llele v. Lord Bexley

Same v. Powyer
Master of the kiolls.

Same v. Donovan

Butcher v. Knowles. (JUDGMENTS reserved.)

Eardley v. Owen

Same v. Same Attorney-General v, Magdalen College, Oxford.

Same v. Lloyd
Allfrey v. Allfrey.

Wellesley v. Earl of Mornington.
Samev. Same.
Elderton v. Lack.

Vice-Chancellor of England.
Lee o. Lockbats, 7 causes.

PLEAS, DEMURRERS, CAUSES,
Stand over, Dean of Ely v. Gayford, six pleas.

Beale v. Alston, dem.
CAUSES.

White v. Jackson, objection as to parties.
SA.J. B. Hope v. Hope and two

Potter v. Warren, dem.
Part heard, A. J. Hope v. Same

petitions. {H B. Hope c. Same

Lovell v. Andrew, objection as to parties.

Ditto v. Goude S.O. to file suppl. bill, Heles v. Lord Bexley, Same

Hickson v, Smith. , Same, exons. Part heard, Cburchman v. Capon, fur. dirs. and S.O.G. Amey v. Walker, 2 causes.

Suith v. Bury and Ipswich Railway Company, costs.

} }

{ Dinning

NEW CAL'SES.

Barneby }2 appeals.

{ Hidgkinson

}

}

AND

FURTHER DI

PLEAS AND DEMURRERS.

RECTIONS.

}

[blocks in formation]

{Samev. Wilson, cause.

Ware v. Rowland, fur. dirs. pt. bd.

[ocr errors]

}

Wastell v. Leslie, 8 causes, exons, and fur. dirs.
Evans v. Crosbie.
Fussell v. Hooper, fur, dirs, and costs.

Cooke v. Cholmondeley
Sutton v. Clifford, fur, dirs, and costs.

Hackett v. Clifton ditto.
6th day ( Attorney-General v. Grainger

of Governors of Christ's Hospital by order.
Term. v. Grainger
S.O. Webb v. Webb.

Byrn v. Hay.
llerring v. Hay.
Hiles v. Moore
Same v. Gleadow
Same v. Moore
Carpenter v. Bott, exons.
Edwards v. Priestly, fur. dirs, and costs.
Steward v. Forbes.
Tinslay v. Genese.
Bourne v. Dufaur, fur. dirs, & costs and petn.
Jarvis v. Bullas.
Paynton v. Kingdon, 3 causes.
Williains v. Jones, 2 causes.
Robinson v. Smith, fur, dirs. and costs.
Waller v. Westcott, ditto.
Cochran v. Fearon, exons.
Dickinson v. Callbeck.
Bowers v. Thorne, fur. dirs, and costs.
Short, Dehany v. Scott, ditto.
Fagge v. Fagge,
Dallimore v. Ogilvie, fur. dirs. and petition.
Anning v. Hurley, fúr, dirs, and costs.
Rippin v. Dolman, litto.
Morrison v. Hoppe
Ditto v. King
Rimell v. Wheatley.
Perry v. Howell.
Attorney-Gen. v. Croft.
Bateman v. Wilks.
Short, Tyacke v. Dash,
Ditto Same v. Mayn.
Rand o. M.Malon, exons, and fur. dirs.
Kincaid v. Nunn.
Beech v. Ford.
Hewlett v. Wellington, fur. dirs, and costs.
Major v. Major, 2 causes.
Brierley v. Andrew.
Lewis v. Damer.
Rand v. M‘Mahon, exons.
24th May, Chambers v. Waters, exons.
Hunt u. Peacock.
Hickson v. Manwaring.
Brewster v.

Thorpe, 2 causes.
Moyer v. Measures,
Short, Allen v. Allen, rehearing and fur. dirs.
Darnell v. Swift.
Taylor v. Webley, fur. dirs, and costs.
Nokes v. Earl of Kilmorey.
Ward v. Price.
Halford v. Stone.
Sheffield v. Von Donop.
Milroy v. Milroy } fur. dirs, and costs.
Ditto v. Dean
Hoole v. Roberts ditto.

Bonsfield v. Mould, 2 causes pt.bd.
S.O.G., Teed v. Carruthers, 5 causes, fur, dirs.
22nd May, Arrow v. Mellersb.
Barker v. Birch,
Same v. Same,
Wills v. Same.
22nd May, Sagar v. Petty.
22nd May, Rees v. Williams.
Smith v. Smith,
Scholfield v. Bourdieu.

Indigent Blind School v. Bird, fur. dirs, and costs.

Heming v. Archer, 5 causes, ditto.
Kendall v. Davies.
Ricketts v. Bell.
Lester v. Archdale.
Pettigrove v. Rogers, 3 causes.
Wool v. Townley:
Darby v. Browning.
Wood v. Hardisty, exons.
Smith v. Whitmore.
Davies v. Currie, exons, and fur. dirs.
Bennett v. Boughton, 5 causes.
Duke of Beaufort v. Phillips.
Llewellyn v. Morgan.
Vinkers v. Oliver, fur. dirs. and costs.
Jefferson v. Ford.
Clive v. Beaumont.
Swaffeld v. Orton.
Campbell v. Underwood.
Hewett v. Snare, fur, dirs, and costs. •
Chambers v. Harman, ditto.
Aitken v. Haram,

ditto.
Hervey v. Hewitt, 2 causes.
Gregson v. Willoughby.
Walbrook v. O'Bryen, fur. dirs, and costs.
Shaw v. Wild,

ditto.
Inglis v. Bromley,

ditto.
Bupce v. Turner.
Melland v. Gray, fur, dirs, and costs.
Child v. Walker.
Elliott v. Elliott, fur. dirs, and costs.
Cunningham v. Murray, ditto.
Burchet v. Howitt.
Scholfeld v. Calmac.
Lewis v. Puxley, fur. dirs, and costs.
Gellan v. Morrison,
Massey v. Duncan.
Pearse v. Sinbins
Ditto v. Orchard.

{

}

Vice-Chancellor TU igram.
CAUSES, FURTHER DIRECTIONS, AND EXCEPTIONS.
Swinnerton v. Heming, dem.
Michs. T., Menzies v. Desanges.
Williams v. Teale, 4 causes, pt. hd.
Ditto v. Ditto.
Hicks v. Graham.
Attorney-General v, Ward.
Shipton v. Rawlins.
Ditto v. Deal.
Ditto v. Rawlins

Phillipson ». Gatty.
28th 5 Chapman v. Plumbly,
May | Ditto v. Steward.
To fiu , Moor v. Vardon,
a day | Ditto v. Lachlan.

Smart v. Smart.
S Steedman v. Poole

Ditto v. Cole.
Fraser v. Spencer, 2 causes.

22nd May, Laycock v. Johnson, fur, dirs, and costs.

} }

}

Vice-Chancellor Knight Brure.
CAUSES, FURTHER DIRECTIONS, AND EXCEPTIONS.
To fix a day, Sibson v. Edgeworth, 2 dems.
Knill v. Chadwick, demr.
Smith v. Smith, 3 causes.

« AnteriorContinuar »