Superior Courts: Kolls.—Qwon'. Donah

right by the fact that a case has been directed to try a question raised in the suit. Mr. Stuart applied for the return of the sum deposited by the appellant on presenting the petition of appeal. The decree of ViceChancellor Knight Bruce in this case had been reversed, and a case directed to be sent to law to try the question of usury raised in the suit. The respondent made several objections, but the learned counsel submitted, that the appellant having been successful was entitled by the practice of the court to have the deposit returned.

which might be made adversely, namely, the usual order for a reference to the Master to report upon the title, when the objections now His lordship afterurged would be taken. wards, however, upon the representation that the purchase-money was only 2601., and that there was no other question between the parties but this one of the power to sell under the settlement, allowed the point to be raised on upon petition to come on with the motion, and the motion to stand over for that purpose. A petition was presented accordingly, but, Lord Langdale refused the application, stating, that for the reasons assigned in Lloyd v. Lef. 566, and Curtis v. Price, 12 Ves. 89, he Johnes, 9 Ves. 37; Bennett v. Hamill, 2 Sch. & did not think that a purchaser was entitled to be relieved from his purchase, upon the ground of the decree under which the sale was made being irregular, although had such an objection been open to a purchaser, he would have been Feb. 8th, and May 6th, entitled to be relieved in the present case.

The Lord Chancellor, after consulting with the registrar (Mr. Colville, sen.) said, he thought the deposit ought to be returned-such return would not in anywise effect the issue of the action.

Rolls Court.

Baker v. Sowter.

1847. PURCHASER.-TITLE.-DECREE.-MOTION.

The court will not, upon motion, discharge a purchaser from his purchase, upon the ground of objections which affect the propriety of the decree for sale; though where the purchase money was very small, it allowed the objections to the decree to be raised upon petition.

A purchaser is not entitled to be relieved from his purchase, upon the ground of the decree under which the sale is made being irregular.

THIS was an application to discharge an order for the payment of purchase money into court, and for a reference to the Master to tax the costs of the purchaser. The order had been originally obtained on the application of the purchaser, who now sought to have it discharged, but it had been obtained upon the supposition that a good title could be made to the property purchased without a reference as to the title. The purchaser now stated, that he had discovered the title to be clearly bad, as the estate was in settlement, and there was no person entitled to sell, so that the order for sale ought not to have been made.

Mr. Tinney and Mr. Hardy, for the motion, relied on the circumstances as above stated, and also contended, that the order having been originally obtained under an agreement as to the time when the sale should be completed, which had subsequently been abandoned, must be considered as a nullity.

Mr. Kindersley and Mr. Sheffield, contrà.

Lord Langdale said, he could not, on such an application as the present one, consider objections to the decree, which this objection amounted to. The only question which he could entertain was, whether the order sought to be discharged could stand in its present form. If it had been drawn up by agreement, and that agreement had been departed from, the purchaser might be relieved. But in that case the proper course would be, to make the order

The court will not make an order for the delivery of papers against a solicitor in his absence, because he has not complied with an order to deliver his bill, without a prerious order for the serjeant-at-arms to compel appearance.

THIS was a motion to compel the delivery of certain title deeds by a solicitor, without prejudice to any lien he might have upon them. The solicitor had not delivered his bill though an order for the delivery of it had been obtained and did not appear.

Mr. Cooper for the motion, cited Cooper v. Hewson, 2 Y. & C. 515.

Lord Langdale observed, that in that case the solicitor appeared. Here the court was asked to make an order upon a solicitor in his absence an order for the delivery of deeds and papers, because he had not delivered his bill. The proper course would be to obtain an order for the serjeant-at-arms to compel an appearance. Order made accordingly, subject to the production of an affidavit of the bill not being delivered.

Queen's Bench.
(Before the Four Judges.)

The Queen v. Turk. Easter Term, 1847.

PRACTICE.-CERTIORARI.-RETURN.

In September A. B. was convicted before magistrates of harbouring seamen, under the 78 Vict. c. 112; in November a writ of certiorari issued to remove the record of the conviction into this court; in December a return was made; and in January the points for argument were given. The conriction omitted to set out the evider taken before the magistrates. The surt discharged a rule obtained either quash

Superior Courte. Opoon's Duct.—Queen's Bench Practice Court.

the return, or to take it off the files of the court, in order that the conviction might be amended by setting out the evidence. The certiorari required the magistrates to return the record of a conviction in which A. B. was convicted of certain trespasses and contempts.

Held, that although only one offence was committed, the conviction was properly described, and that after the magistrates had

returned the right conviction it was too late to take such an objection.

A WRIT of certiorari having issued, on the fiat of the Attorney-General, to bring up a conviction, under the statute 7 & 8 Vict. c. 112, the Merchant Seamen's Act, a rule nisi was afterwards obtained to show cause why the writ should not be quashed, or why the return should not be taken off the files of the court in order that the conviction might be amended by the magistrates. The conviction was for harbouring seamen, and the defect in the conviction was, that all the evidence was not set out. The conviction took place on the 22nd Sept., on the 12th November the certiorari issued, on the 5th December the return was made, and on the 16th January the points for argument were given. The object of the application was, to enable the magistrates to supply the defect in the conviction in order that the opinion of the court might be taken on the construction of the 50th and 51st sections of the act.

The court called upon Mr. Greaves in support of the rule. The evidence intended to be inserted in the conviction had been received by the magistrates, but from some omission had not appeared in the conviction. I can find no case where such an amendment has been allowed, but the court has a discretion in the matter, if they think fit to exercise it. A conviction may be drawn up at any time till impeached directly or indirectly, either by being litigated in a court of appeal, or on a writ of habeas corpus. Rex v. Dukes, Rex v. Barker,b Rex v. Marsh, Rex v. Wakefield, Rex v. Neville, Mellish v. Richardson."

d

He also contended, on the authority of the case of Rex v. Hedingham Sible, that the certiorari which was to bring up the record of a conviction of certain trespasses and contempts, did not include trespass and contempt in the singular number.

The Attorney-General, (Sir J. Jervis,) contrà, was only called upon to answer the last objection. This certiorari is framed according to the uniform and constant course of practice. There is only one offence committed, and it is not contended that the magistrates have not returned the right conviction. In the case cited the order was for the removal of a man, his wife, and their children, and the certiorari described it as an order for the removal of the

man and his children. Here the record is properly described, unless the court holds that the plural does not include the singular.

Lord Denman, C. J. It appears to me this application is made too late. There is no doubt the court will interfere in certain cases for the purpose of preventing mischief being done, but it is difficult to see what should have interfered to prevent an application being made to amend the conviction between the months of September and January. If the court should see that any fraud had been practised, or that any person had been improperly convicted, it might, in the exercise of its discretion, grant such an indulgence, but there is no sufficient ground for the interference of the court in the present instance. On the other point I think there is no objec tion to the form of this certiorari, it is perfectly consistent with the constant course of practice. The certiorari requires the magistrates to return the record of a certain conviction, and if there had been any doubt or ambiguity, they might have returned that they had no such conviction, but they do not do so, they return a conviction which the Attorney-General says is the one he wanted.

Patteson and Wightman, J.'s, concurred.
Rule discharged.

Queen's Bench Practice Court.

Hilton v. Lord Granville. Easter Term, 1847.

PREROGATIVE OF THE CROWN.-VENUE.

The prerogative of the crown to change the venue in an action can only be exercised by the crown officers in actions coming within the class of personal in the sense of transitory.

Quære, Whether in a rule to show cause the Attorney-General has, officially, in this court, a right to the final reply.

ACTION for negligently working certain mines underneath the town of Newcastleunder-Lyne. The defendant, who was a tenant of the crown, applied for and obtained an aide le roi. The Attorney-General, at the latter part of Easter Term, applied ex officio for an order for a trial at bar, and for the summoning of a jury from the county of Middlesex.

Mr. Godson now moved for a rule to set aside this order so far as related to the summoning the jury from the county of Middlesex. The right of the crown to an order of that sort is confined to cases of a purely personal nature, and does not extend to cases affecting an inThe Attorney-General . terest in land. Churchill, (as where a case of the AttorneyGeneral v. Parsons,b) founded on a statement made in Manning's Exchequer Practice, was overruled.

The Attorney-General and Mr. Ellis showed cause in the first instance. This case is not touched by that of The Attorney-General v.

18 Mee. & Wels. 171.2 Mee. & W. 23. Bk. 3, c. 21, s. 1, p. 96.

Superior Courts: Queen's Bench Practice Court.—Common Pleas.`, lies

135

Churchill. That case merely corrected an nothing like authority for what we are now error previously existing in the profession, and asked to do, nor is there, in my opinion, any declared that the crown had no right of this necessity now shown to the court to justify it kind in an information of intrusion. There in saying that this peculiar proceeding ought the court thought such an information to be a to be adopted. I am therefore of opinion that proceeding of a real, and not of a personal the present rule must be made absolute, and nature. But here the proceeding is altogether the previous order must be discharged. of a personal nature: it was an action for As to the right of the Attorney-General to damages for negligently working mines. It is reply, I ought to say that Mr. Robinson (the entirely distinct from a proceeding in which | Master of the Crown Office) informs me, that the right to the soil is in issue. The crown in 1841, his right in a case of this sort was dehad a right to prevent, in a case like this, the nied in this court, though it was said that he issuing of the writ of nisi prius, and if so, the was allowed that right in the Exchequer. trial must, as of course, take place at bar. Mr. Justice Patteson said, that it was imposSurely if the right of the crown attached so far, sible to distinguish this case from that of The it must attach to the extent of changing the Attorney-General v. Churchill, which in his county from which the jurors were to come. This is not merely the case of a prerogative of the crown court, but is a prerogative used for the benefit, and conceded to the demand, of the subject.

Mr. Godson, Mr. Stammers, and Mr. Joseph Brown, in support of the rule. The right of the crown is restricted to actions that are personal in the sense of transitory. Where the action partakes of the nature of the realty, the crown has no prerogative of the sort now contended for. The jurors may be required to have a view. Now they can only have that by the introduction into the venire facias juratores of a clause empowering the sheriff to take the jurors to the place to be viewed. The sheriff of Middlesex would have no right to take the jurors summoned from that county into the county of Stafford to view a place situated within the bailiwick of another sheriff.

The Attorney-General claimed the right of reply, and

Lord Denman said, that at least is a clear prerogative of the crown.

The Attorney-General. The objection as to the view has nothing to do with the case, for if that could operate to prevent the application of the rights of the crown, it would operate in cases of proceedings purely personal, which confessedly it would not.

Lord Denman, C. J. It appears to me that the case of The Attorney-General v. Churchill has in substance decided the present. Mr. Baron Parke, in delivering the judgment of the court there, says,-"This question must be determined, as such always are, by authority, viz., by precedent and the decisions and dicta of judges and text-writers." In speaking of the dicta of text-writers, the learned judge did not mean to say that text-writers could create the law, for it is curious enough that that very case of The Attorney-General v. Churchill arose out of the mistake of a most learned living textwriter, who had misapplied a case which is to be found in Savill's Reports. But though text-writers cannot create the law, they may show what has always been treated as law. That would in fact be by producing precedents. Now here there are no precedents: there is

d 8 M. & W. 891.

Lyster and Eaton v. Edwards.

opinion was rightly decided. The plaintiff here was compelled by the nature of the action to lay the venue in Staffordshire, and the crown had no right to come here and as a matter of prerogative alter that venue, for the case referred to distinctly confined the power of the crown in thus changing the venue to actions of a transitory nature.

Mr. Justice Wightman and Mr. Justice Erle concurred.

Order for summoning the jurors from Middlesex discharged.

The Attorney-General then, on behalf of the crown, made a suggestion to the effect that a fair trial could not be had in Staffordshire, and on that suggestion asked for a rule to show cause why the venue should not be changed. Rule granted.

After a summons obtained before a judge at chambers has been abandoned by the party obtaining it this court will not entertain an application to compel such party to pay the costs consequent thereon. The mode of enforcing payment (if at all) is by another summons at chambers.

Dowling, Serjeant, moved for a rule, calling upon the defendant to show cause why he should not pay the costs occasioned to the plaintiff by a summons which the defendant had taken out before a judge at Chambers, and afterwards abandoned. He was proceeding to state the circumstances, but without hearing him further,

The Court said, without expressing any opinion as to whether or not the right to costs existed, it was clear the only mode of proceeding (if at all) was by a judge's summons, in the same way as the matter had commenced, and therefore, that the present application could not be entertained.

Rule refused.

Exchequer.-Business of the Courts.-Proceedings in Parliament.-Letter Box.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, JUNE 12, 1847.

"Quod magis ad NOS

Pertinet, et nescire malum est, agitamus."

HORAT.

OPERATION OF THE COUNTY
COURTS ACT.

law practice in actions of ejectment, when the declaration has not been served on the tenant in possession personally, but it is THE diversity of decision and practice, shown to the satisfaction of the court that which was predicted as the inevitable con- it has come to his knowledge in due time, sequence of the establishment of the furnishes a clear and obvious analogy, and County Courts, without effective superin- the reported cases on this branch of practendence or appellate control, begins tice, it might be imagined, would guide the already to excite dissatisfaction. Conflict- judges of the County Courts in deciding as ing decisions are reported to have taken place on various points of greater or less practical importance. From a multitude of communications received on the subject we shall refer to a few instances, selected upon a consideration of the extensive application of the principles involved in them.

The rules of practice settled by the judges of the superior courts, so far as they apply to cases in which the summons to appear to a plaint has not been personally served, would seem to admit of a great variety of construction.

to the nature of the evidence necessary to show that the service of the summons had " come to the knowledge of the defendant ten clear days before the return day." We have only heard of a single instance in which any judge of a County Court has adopted this view. In nearly every district a different rule is laid down, as to what evidence shall be necessary to satisfy the judge that the summons has come to the knowledge of the defendant. Some judges are satisfied, if the bailiff's assistant swears that he left the summons at the deThe 6th rule provides, that "every such fendant's supposed residence more than summons must be served ten clear days ten days before the return day. It is before the holding of the court at which it thence assumed that the service must have shall be returnable," whilst rule 11 pro- come to the defendant's knowledge in due vides, that "in all cases where a summons time. Other judges require, that the sumto appear to a plaint shall not have been mons-server should swear, that he reserved personally, and the defendant shall quested the person to whom he delivered not appear at the return day, it must be the summons to deliver it to the defendant proved to the satisfaction of the judge, upon his return; whilst other judges rethat the service of such summons has come quire evidence that some inmate of the deto the knowledge of the defendant ten fendant's house promised to deliver the clear days before the said return day." summons to the defendant upon his return Without discussing how far the latter home; and we understand one or more of regulation may be considered expedient or the judges have been so strict as to require necessary, we may venture to remark, that some evidence of subsequent declarations it does not appear to be peculiarly compli- made by the party with whom the sumcated, or to suggest any extraordinary dif- mons was left that it had come to the deficulties of construction. The common fendant's hands. If the proof of service is VOL. XXXIV. No. 1,005.

H