178 Analytical Digest of Cases-Superior Courts: Lord Chancellor. before me, at Ballinasloe, in the county of Galway aforsaid." Upon nul tiel record pleaded: Held, that there was a variance. The note at foot is not part of the recognizance. A case depending at the petty bag side of the court may be heard and determined out of Term. Reg v. Lynch, 2 J. & L. 103. SETTING DOWN CAUSE, Master's order.-A defendant cannot, under the 116th Order of May, 1845, set down the cause for hearing and issue subpoena to hear judgment pending an order by the Master to enlarge publication as to co-defendant. An order of a Master, however obviously irregular, is binding on all parties having notice Case cited in the judgment: Reg. v. Hurley, 2 of it until duly set aside. Hughes v. Williams, 33 L. O. 566. Dru. & War. 433. See Subpoena. REJOINDER. REPORT. 1. Order nisi.-A reference to the Master was made upon petition in a cause to ascertain what was due to the plaintiff. The Master made a separate report as to part of the claim. Held, that the report was not improperly confirmed by orders nisi and absolute. Beavan v. Gibert, 8 Beav. 308. See Amendment of Bill, 2. STAYING PROCEEDINGS. 1. Two suits for same purpose.--Where two suits are instituted for the administration of the same estate, and on a decree being obtained in one of them, an application is made to stay proceedings in the other, the question always is, whether the latter suit asks anything more than can be obtained by the former. A question between the heir-at-law and next of kin as to conversion of real estate cannot be Case cited in the judgment: Ottey v. Pensam, disposed of in a suit in which neither of those parties is plaintiff. Rigby v. Strangways, 2 Phill. 175; S. C. 33 L. Ó. 282. 1 Hare, 322. 2. Interest. Confirmation. The Master's report of having computed subsequent interest does not require confirmation. Anon, 8 Beav. 314. See Exceptions to Report. RIGHT TO BEGIN. When a cause is set down upon an objection for want of parties, the defendant begins. Attorney-General v. Gardner, 2 Coll. 564. SERVICE OF COPY BILL. Attorney-General. - 23rd Order of August, 1841.-The Attorney-General cannot be proceeded against by service of copy bill under the 23rd Order of August, 1841. Christopher v. Cleghorn, 8 Beav. 314. SERVICE OF SUBPOENA. 2. An order to stay proceedings and pay the costs, obtained exparte, and without notice, is irregular. Richardson v. Moore, 33 L. 0.302. SUBPOENA TO REJOIN. RIOR COURTS. 1. Scotland. General orders.-Leave was RECENT DECISIONS IN THE SUPEasked to serve a subpoena on a defendant at Holyrood House. Held, that it was not necessary so to limit the order; and leave was given to serve it anywhere in Scotland. Blenkinsopp v. Blenkinsopp, 8 Beav. 612. 2. If a defendant is served with a copy of a subpoena without the indorsement required by 3rd Order of Dec., 1833, if he come speedily to the court, he has a right to set the service aside with costs. A defendant having obtained an order to enter an appearance for the defendant on an untrue allegation of the regularity of the service of the copy of the subpoena, the plaintiff applied to the court and got the order set aside with costs. Johnson v. Barnes, 33 L. (. 567. See Irregularity, 1. SERVICE OF NOTICE. Affidavit.-An order obtained upon an affidavit of service of notice of motion, but which service afterwards appears to have been irregular, will be discharged with costs. Brown v. Robertson, 33 L. O. 301. ORDERS ΤΟ PRODUCE AND ΤΟ DEPOSIT DOCUMENTS.-NOTICE OF MOTION- DIS- An order to deposit documents with the record A motion to discharge an order to enlarge publication will not be entertained by the court, if it cannot be heard before the expiration of the time allowed by the order. Mr. J. Parker, on behalf of the defendant, moved to discharge Vice-Chancellor Wi Superior Courts: Lord Chancellor.-Rolls. Rolls Court. 179 Sprye v. Reynell. June 3, 1847. MOTION TO DISMISS-114TH ORDER OF 1845 The right of the defendant to move to dismiss under the 114th Order of 1845, within four weeks after his answer, or the last of his an swers, if more than one, is deemed sufficient, as laid down in Dalton v. Hayter, is not affected by the decision of the Lord Chancellor in Arnold v. Arnold. gram's order of the 1st of April last, to deposit documents, &c. with the record and writ clerks, and to enlarge publication in the cause for one month. The grounds for the appeal were, first, that the notice of motion upon which the above order had been made, merely asked for the usual order to produce the documents, &c. before the examiner, and at the hearing; and secondly, that the plaintiff was not entitled to an order to enlarge publication, as he had previously given a peremptory undertaking to the defendants not to apply for a further enlargement, the time for passing publication having long since expired, and having been frequently extended. The present motion was to dismiss the whole of the above order, and had been put into the Lord Chancellor's paper In this cause, which was a cross suit, Mr. for the previous seal day, (April 22,) but in Shapter moved to dismiss the bill for want of consequence of an intimation of his lordship's prosecution on the part of one of the defendwish not to take any motions on that day, ex-ants, whose answer was filed on the 25th of cept such as were very pressing, the parties had consented that it should stand over, without prejudice. Mr. Bazalgette, also for the motion, cited Grane v. Cooper, 4 Myl. & Cr. 263, with respect to the production of the books, &c., which it would be highly inconvenient to deposit in the present case; and as to enlarging publication in the face of an undertaking to the contrary, he referred to the conditional order, No. 119, of the General Orders of May, 1845. It was true that publication had passed before this motion could have been heard, but the depositions taken during the last enlarged period might be supressed, as if it had not been for such order to enlarge, the defendant might have set down the cause for hearing under the 116th of the new orders. Mr. K. Parker and Mr. Hetherington supported the Vice-Chancellor's order, as being an usual order. Principle of the distinction adopted at the Rolls on motions relating to orders of course obtained there, between irregularity and impropriety of practice. February last. It appeared that there was no answer outstanding, and the last answer on the file was filed on the 2nd of June. Mr. Kindersley, contrà, admitted that the four weeks dating from the time when the answer of the defendant moving was deemed to be sufficient, on the expiration of which, according to the decision in Dalton v. Hayter, 7 Bea. 586, a defendant is entitled to move to dismiss, had expired; but submitted, that under the circumstances the plaintiff ought to be allowed further time; and also intimated that an impression prevailed of the Lord Chancellor having, in the recent case of Arnold v. Arnold, sup. p. 61; 10 Jur. 360, differed from the opinion expressed by his lordship, and that, according to the decision of the Lord Chancellor in that case, the time from which the four weeks was to be calculated, was the date of filing the last answer on the file. Lord Langdale said, that was not the case. The Lord Chancellor. It is not the usual Every defendant had a right to move upon his order to deposit documents, &c. with the re-own answer, but it did not follow, that because cord and writ clerks, but to produce them before the examiner, and also to the court at the hearing of the cause; besides, you cannot have what you do not ask for. I shall not make any order in respect of the order to enlarge publication. The time has elapsed, and publication has passed; it is therefore idle to come here for such a purpose. Mr. K. Parker submitted, that the plaintiff would have been entitled to the deposit and production of the documents by the ordinary practice of the court; but from some slip, the notice of motion in this case did not extend so far. The court had, however, ordered the deposit, and therefore he asked for his costs. The Lord Chancellor said, he must discharge so much of the order as directed the deposit of the documents, &c. with the record and writ clerks, as otherwise it might be converted into a precedent, that the order to produce them before the examiner would also include the deposit of them with the proper officer of the court; a practice which would be quite new to his lordship. The order having been varied, the costs could not be given to the plaintiff. he had a right to move the bill should be dismissed. The plaintiff might have a right to apply for further time. With respect to the supposed difference of opinion between himself and the Lord Chancellor in the case of Arnold v. Arnold, the supposition was quite erroneous, but if the impression existed, it was better that it should be removed. In Dalton v. Hayter, it was argued before him that the words "the last of the answers," in the 114th Order, meant the last answer on the file; he decided that this was not the meaning of those words, that they meant the last answer of the defendant moving to dismiss. Then came the case of Foreman v. motion was made to discharge an order to Gray, (vol. 33. p. 486, 9 Bea. 200,) where a amend for irregularity. He decided that it was not irregular, but afterwards, on the motion being renewed upon the ground of the order being in fact a fraud upon the court, discharged the order; a course which he was able to adopt in that case, because the cause was attached to his branch of the court. Then came Arnold v. Arnold, (vol. 33, p. 566; 9 Bea. 206,) where the motion was again made on the ground of 180 Superior Courts: Rolls.-Vice-Chancellor.-V. C. Knight Bruce. Vice-Chancellor of England. irregularity, and he again held that the order was regular. Then the motion was renewed before the Lord Chancellor, who directed the Exeter and Crediton Railway v. Buller. May 25, 1847. NOTICE OF MOTION.-COSTS. In a hostile suit between the directors of a railway company: Held, that the solicitor of a company would be liable for the costs of an interlocutory application, in case it should appear that he had acted without the authority of the company. notice to be amended, by striking out the application to discharge the order for irregularity and moving upon the merits, which the Lord Chancellor had the jurisdiction to entertain, though he had not, as the cause was before the Vice-Chancellor Wigram. His lordship then referred to the distinction, which will be found stated in Foreman v. Grey, (vol. 33, p. 566,) between the course pursued at the Rolls in respect to orders obtained there as of course, in A BILL was filed in this case by three dicauses before some other branch of the court, rectors of the Exeter and Crediton Railway and orders so obtained in causes attached to the Company against the remaining seven, and in Rolls Court; and observed, that if he were to April last an injunction was granted to redischarge orders of course obtained at the Rolls strain the defendants from working and leasin causes attached to other branches of the ing the said railway, and from forming any court upon any other ground than strict irregu- junction with the Bristol and Exeter Comlarity, he should draw into the Rolls Court pany, or any other company working upon questions connected with the merits of all the the broad gauge. causes in which orders of course had been obtained at the Rolls, although they were before other judges of the court. In the case of Arnold v. Arnold, he was quite sure that the Lord Chancellor did not differ from him, for it so happened that his lordship met him immediately after he had made his decision, and told him what he had done. Mr. Rolt and Mr. Follett now moved, on behalf of the defendants, that the bill might be taken off the file, and the suit dismissed, on the ground that it was instituted in the name of the Exeter and Crediton Railway Company without due authority. The notice of notion purported to be on behalf of the company, and was signed by the solicitor of the company. Mr. Bethell, for the plaintiffs, objected to the notice on the ground that in case of the motion being refused, there was no one who could be made liable for costs. He claimed to appear on behalf of the company, and if his honour refused the application with costs, the order made would be that the company should pay the costs of the motion refused in favour of the company. Vice-Chancellor Knight Bruce. [Note by the Reporter.-There appears to have been some perplexity caused by not distinguishing the questions directly involved in the decision in Arnold v. Arnold, from a question not decided, nor capable of being decided in it, but as to which it is inferred from the Lord Chancellor's decision in that case, that he would differ from the Master of the Rolls if it was brought before him. The questions in Arnold v. Arnold were two; that referred to by Lord The Vice-Chancellor overruled the objecLangdale above, relating to the course adopted tion, and said that if it should turn out that at the Rolls upon motions to discharge the solicitor had, in instituting these proceedorders of course; 2nd, the question of the con- ings, acted without the authority of the comstruction to be put upon the words "the pany, the court would make him pay the last answer;" in the 33rd section of the 16th costs. Order and the last of several answers in the 66th Order of 1845, which both the Lord Chancellor and Lord Langdale held to mean the answer of the last of several defendants. The question in which it is supposed that the Lord Chancellor would differ from the Master of the Rolls if it came before him, is the construction to be put upon the similar words, "the last of the answers" in the 114th Order giving the right to dismiss, which Lord Langdale, in Dalton v. Hayter, held to mean the last answer of the defendant moving to dismiss, though there might be other defendants whose answers were still outstanding. It seems to have been assumed, that the Lord Chancellor would put the same construction on these words as he has put upon the similar word in the 33rd section of the 16th and the 66th Order, and therefore, in construing the 114th Order, would differ from the Master of the Rolls, an assumption which appears to the writer to be somewhat hastily made.] Blagrave v. Blagrave. April 21st and 22nd, 1847. PRACTICE.-RECEPTION OF EVIDENCE. A tenant for life in remainder filed a bill against a tenant for life in possession, and a tenant in tail in remainder also filed a bill against the same party, and evidence was taken in each suit, the defendant not consenting that the evidence in one cause should be read in the other. The court refused to allow that course to be taken, there being no proof that the witnesses were dead or incapable of being examined. THE defendant's counsel, Mr. Wigram and Mr. Craig, in these cases, applied that one of the suits should be ordered to be stayed until the report by the master on the other. Mr. Russell and Mr. Glasse, counsel for the plaintiffs, would agree to this if the defendant Superior Courts: V. C. Knight Bruce.-Queen's Bench. would consent; but the evidence in both suits should be read in that cause which should be allowed to go on. The defendants declined this. The following cases were cited: Nevil v. Johnson, 2 Vern. 447; Barstow v. Palmer, Prec. in Ch. 233; Daniel's Chancery Practice, vol. i. p. 832, second edition; Carrington v. Cornock, 2 Sim. 567; Byrne v. Frere, Moll. 157; and city of London v. Perkins, 3 B. P. C. 602. Mr. Lloyd appeared for another defendant. Vice-Chancellor Bruce. Were the point before me substantially a point decided by the House of Lords in The City of London v. Perkins, or any other, of course there would be no room for argument. I must necessarily decide according to that case. Subject to that question, as to the decision of the House of Lords, I am not aware that the point is governed by decision. In the case in the House of Lords the question arose upon a custom; the parties there were substantially the same. The question was, as I understand it, between the city of London and the public, and although the different individuals may have been before the court in each case, yet the partics were substantially the same. There are other cases in which the same observation may apply. The case here stands thus: There is a tenant for life in possession of an estate, subject to a series of limitations under a particular will, and he is also a tenant for life of certain personalty which stands settled upon a corresponding series of limitations. The tenant for life happens to be the trustee as to the real estate; he is not the trustee as to the personal estate settled. Two suits are instituted against him under the will in respect of alleged mismanagement, alleged improper treatment of the real and personal estate, of both of which he is tenant for life, and of one portion of which he is also a trustee. One of these suits is instituted by the person who is next tenant for life, subject to the contingency of the tenant for life not having issue: the other suit is instituted by the first tenant in tail in existence, who comes behind or after the reversionary tenant for life and tenant for life in remainder, who has instituted the other suit which I have mentioned. The evidence which is the subject of the present discussion has been taken in the suit in which the next tenant for life in remainder is the plaintiff, as I understand the matter. The question is, whether, without proof, and without suggestion, either that the witness thus examined is dead, or is, or has been, unable to be examined, shall be examined in, and therefore for, the purposes of the suit in which the first tenant in tail is plaintiff. I am of opinion that I am not required by authority, and I ought not in point of principle, to allow the evidence to be so read. Queen's Bench. 181 three seats in a coach from Y. to L., namely two inside and one outside. When the coach had proceeded about half the journey, B. takes up more passengers than he was licensed to carry, whereupon A. and the other person inside leave the coach, and the passenger outside, not then being able to obtain the luggage, goes on to the end of the journey. Held, that B. was not entitled to recover from A. the sum agreed to be paid for the seats, nor was he entitled to recover anything under the indebitatus count for work actually performed. THIS was an action brought by the plaintiff, a coach proprietor, against the defendant for the sum of 41. 4s., being the sum alleged to be due for three seats in a coach from Yarmouth to London, two inside and one outside. The declaration contained two counts, one setting out that the plaintiff reserved for the defendant certain places in the coach, and averred that he was ready and willing to carry him; the other was for work and labour. The defendant pleaded-1. Non assumpsit. 2. That the plaintiff did not reserve and secure to the defendant the said seats, nor was he ready and willing to convey him as in the declaration alleged. The jury found a verdict for the plaintiff on the first, and for the defendant on the second issue. It appeared that the defendant took three places in the coach, one for himself, one for his wife, and one for his servant outside. The coachman having taken up more passengers than he was licensed to carry, the defendant and his wife, after travelling about half the journey, left the coach and took a chaise, the servant not being able to obtain the luggage from the coach went on to the end of the journey. The defendant when he took the places paid 17., and the fare for one outside place was one guinea. Mr. Watson, in Michaelmas Term last, moved for a rule to show cause why a verdict should not be entered for the plaintiff for the sum of 31. 4s. on the first count, or why a verdict should not be entered for the plaintiff on the indebitatus count, with one shilling damages. The court refused the rule on the first point, being of opinion that the reservation of seats mentioned in the declaration meant that the plaintiff reserved for the defendant three of the lawful seats in the coach, namely, two out of the four inside, and one out of the thirteen outside, and that inasmuch as the plaintiff had taken up a larger number of passengers than he was licensed to carry, that the defendant had a right to rescind the contract and leave the coach. Mr. Crowder and Mr. M. Smith now showed cause against the rule for entering a verdict on the second count, with 1s. damages. They contended that the contract was entire to carry the three persons the whole journey, and as that contract was broken by the plaintiff, he was not entitled to recover any portion of the sum agreed to be paid. The person outside was in A. contracts with B., a coach proprietor, for fact prevented by the plaintiff from leaving the (Before the Four Judges.) Pickford v. Lacon. Hilary Term, 1847. ASSUMPSIT.-WORK AND LABOUR. 182. •Superior Courts: Common Pleas:-Chancery Sittings. coach, and although that person was taken to Friday Saturday Mr. Archbold contrà. The defendant has Monday derived a partial benefit from the labour of the Tuesday plaintiff sufficient to raise an implied assumpsit. Wednesday Per Curiam. Rule discharged. Common Pleas. Thursday { 3{ Pinney v. Richardson. Easter Term, 1847. ENTERING AN APPEARANCE. NULLA BONA, &c., TO A DISTRINGAS.— SUFFICIENCY OF AFFIDAVIT. The affidavit in support of a motion for leave Monday Friday Thursday . Power, on behalf of the plaintiff, moved for leave to enter an appearance for the defendant after a return by the sheriff of nulla bona and Saturday non est inventus to a writ of distringas. The Monday affidavit on which he moved was that of the Tuesday sheriff's officer, and it stated that the deponent Wednesday went with the writ of distringas to the residence of the defendant on the 20th, 22nd, and 23rd days of January, and that on each occasion he saw a female whom he informed of the nature of his business; that she in reply each time informed him that the defendant was not at home, and that she did not know when he would be, and on the first occasion added that she was keeping the shop that the defendant formerly occupied. By the Court The affidavit is not sufficient. N. B. (Petition-day) unopposed Petitions and Appeals. The 2d Seal-Appeal Motions and Appeals. Appeals. (Petition-day) unopposed Petitions and Appeals. 13 Appeals. 14 15 16 17 19 21 The 4th Seal-Appeal Motions and Appeals. The General Petition-day. Such days as his Lordship is occupied in the House of Lords excepted. |