Superior Courts: Vice-Chancellor.-Queen's Bench. by J. Robey the elder. That the proceedings ought to be taken to form part of the decree, and the fact of reference having been made in the bill of review to the decree was sufficient to authorize the court to look at the whole of them. The case of Glover v. Portington was not in point, and Coombes v. Proud sanctioned the position, that the pleadings might be referred to. They also contended, that the decree was erroneous in directing the costs to be paid in the first instance, and added to the mortgage debt. They admitted that the plaintiff was not entitled to the whole relief which might be had under the general prayer for relief of the original bill, and offered to waive it. They cited Dormer v. Fortescue, 3 Atk. 124; Mathews v. Walwyn, 4 Ves. 121; Smart v. Hunt, 1 Vern. 418, note; Jones v. Kenrick, 5 Bro. P. C. 244; Wilkinson v. Beale, 4 Madd. 408; Bonham v. Newcomb, 1 Vern 214; Quarrell v. Bedeford, 1 Madd. 269. The Vice-Chancellor said, it was singular that the original bill did not ask for any account of the rent and profits received by J. Robey the elder, but only those received by J. Robey the younger. The bill certainly had a prayer for general relief, but he was not at all clear that under such general prayer for relief an account could be had against J. Robey the elder, especially when in point of law a particular account might have been had as against him, and an account as against J. Robey the younger only was asked for. It was urged upon him to correct the decree because the plaintiff might have asked for something more than he did, but it did not appear clearly what decree the plaintiff would have had, and how could he say that the decree was wrong because under it the plaintiff might have obtained more than in fact he had done, the plaintiff at the same time admitting that he could not have had a decree to the full extent under the prayer for general relief. From the bill of review it appeared that the decree was made on bill and answer, and it had been urged that other matters appeared in the answer besides those stated in the bill of review. How could he be called on to say that the decree was wrong when such matter was withheld from him? on its being brought forward it might have appeared that in point of fact something was due to J. Robey the younger that did away with the objection as to the costs. It did not appear to him that the decree on the face of it was erroneous, and therefore he should allow the demurrer. Queen's Bench. (Before the Four Judges.) Hadrick v. Heslop and another. Trinity Term, 1847. PRACTICE.-JUDGMENT AS IN THE CASE OF Where in an action of trespass on the case 383 to judgment as in the case of a nonsuit for not proceeding to trial. THIS was an action on the case for a malicious prosecution, in which one of the defendants suffered judgment by default. The plaintiff and two other persons had been examined as witnesses, and were afterwards indicted for perjury, and separate actions were brought against the defendants. These actions came on for trial at the Durham assizes; one of them (Wren v. Heslop,) was tried, and in consequence of what took place at that trial, the record in the present case was withdrawn in order that additional evidence might be procured. A rule nisi was afterwards obtained in Wren v. Heslop for a new trial on the ground of misdirection, and the case now stands for argument in the new trial paper. A rule nisi was obtained for judgment as in the case of a nonsuit. Mr. Cole showed cause, and contended that in actions of tort there cannot be judgment of nonsuit against one of the defendants after the other defendant has suffered judgment by default. In actions of assumpsit a different rule has now been established. Murphy v. Donlan Jones v. Gibson. In Harris v. Batterley it was held, that in trespass against several defendants, if any suffer judgment by default, the plaintiff cannot be nonsuited. In Stuart v Rogers the action was assumpsit, and Parke, B., expressed an opinion that there might be a distinction between actions of trespass and actions of assumpsit. Mr. Bliss contrà. There is no reason why judgment of nonsuit should not be granted in cases of tort where one of two defendants has suffered judgment by default. Before judgment, nonsuit against one would be nonsuit against both, but after judgment by default by one, the action with respect to him is at an end, and as to the other, the plaintiff has a day given him to come into court. In Parker v. Lawrencee there was an action of trespass against three defendants; one pleaded the general issue, and a verdict and damages was given for the plaintiff; the other two defendants pleaded a justification, and there was a demurrer to the pleas. The plaintiff, after obtaining a verdict against one, entered a nolle prosequi as to the other defendants, and the court were of opinion that the proceedings were regular. Lord Denman, C. J. We think this rule ought to be made absolute, unless a peremptory undertaking be given. Patteson, Coleridge, and Erle, Js., concurred. Rule accordingly. Richardson v. Chassen. Trinity Term, 1847. ASSUMPSIT.-ALLEGATION OF SPECIAL 384 Superior Courts: Queen's Bench.—Masters Extra. in Chancery.—Letter Box. agreement, the plaintiff alleged in his de- for and obtaining his discharge from imprisonclaration, "that he had been necessarily ment, and the court held that the plaintiff put to great expenses." The court held could only recover so much of the bill of costs that it was competent for the plaintiff under as was paid out of pocket by the attorney. that allegation to give evidence of charges Per curiam. Rule discharged. which he had become liable to pay to an attorney, and a value for work done in respect of the premises in question, although the charges were not paid at the time the action was commenced. MASTERS EXTRAORDINARY IN CHAN- From June 22nd, to July 23rd, 1847, both inclusive, Armitage, James, Huddersfield. July 16. Edmonds, Edmund, Newent. July 20. Phillips, Joseph, the younger, Stamford. June 25. 20. THE EDITOR'S LETTER BOX. The additional names of persons who have Term will be found at p. 350, ante. These names could not be included in the former list, as they were not received at the time it was printed. The judges have thought it proper to allow their insertion nunc pro tunc. THIS action was brought upon an agreement by which the defendant agreed to assign to the plaintiff the lease of a public house, together with the fixtures. The declaration set out the agreement and alleged a breach, and contained an allegation by way of special damage, "that the plaintiff had been necessarily put to great expenses, amounting to a large sum of money, &c." The defendant paid into court the sum of 125l. In support of the allegation in the declaration, the plaintiff proved that he had employed an attorney and a surveyor with respect to the title and value of the premises, and had become liable to pay them for the work done. These charges and expenses were not paid before the cause came on for trial. The case was tried at the sittings after Hilary Term last, and admitting the evidence in support of these two items, a verdict was found for the plaintiff for a larger amount than the defend-given notice of admission on the Roll for next ant had paid into court. In Easter Term last, a rule nisi was granted, calling upon the plaintiff to show cause why there should not be a new trial, or why a verdict should not be entered for the defendant. The question raised for the opinion of the court being, whether under this allegation in the declaration, evidence was admissible of those which the plaintiff had made himself liable to pay, but which had not been actually paid when the action was brought. Mr. Watson aud Mr. Warren showed cause, and relied on the case of Dixon v, Bell, where in an action for wounding the plaintiff's son, per quod servitium amisit, the plaintiff was entitled to recover the amount of the surgeon's bill, although it had not been paid, but that he could not recover physician's fees which had not been paid. A rule for a new trial was afterwards applied for, and refused on other grounds, and this point was not mentioned to the court, Dixon v. Bell. In Jones v. Lewis,h the words used were "forced to pay," but the fair meaning of the words "being put to expense," must mean having employed an agent to whom a person is under a legal obligation to pay. Mr. Humfrey and Mr. Cleasby contrà. There is a difference between payment and liability to pay. The plaintiff, in his declaration, has used words which only extend to money actually paid, and he now asks the court to extend the meaning of the expression, so as to include liability to pay. In Pritchet v. Boevey, the allegation in this declaration was, that the plaintiff had been forced and obliged to pay, and did pay large sums of money in applying i Some of the articles which a contemporary does us the honour to take from our pages are duly cited, but others are borrowed without the proper acknowledgment; doubtless, this omission is unknown to the editor. The entire List of the Public and General Statutes shall be given in the next or following week. Each number will contain some of the New Statutes, accompanied or followed by the necessary notes and explanations. 66 We have applied for the report mentioned by The grievance stated by E. C., relating to the Ipswich County Court, shall be noticed. Our new arrangements will enable us to afford more space to the Original Reports of recent and important Decisions. Two more recent Statutes relating to the Law, will be found at pp. 365, 366, ante. The others will speedily follow. We have disposed of some of the arrears of Correspondence, and the rest will be duly at tended to. The letters of "An Old Subscriber," "Civis," and "X." have been received. Communications to be addressed to the Editor, at the Legal Observer Office, 32, Bell Yard, Lincoln's Inn The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, AUGUST 21, 1847. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. ་་ཀང ELECTION RECOGNIZANCES AND SELECT COMMITTEES. pay the costs and expenses due and payable by the petitioners to any witness summoned in their behalf, or to the party who shall appear in opposition to the petition. Each of the sureties must make an affidavit of sufficiency, setting forth that he is possessed of real or personal estate of the clear value of the sum for which he enters into the recognizance, ultra the amount of his just debts. The affidavit of sufficiency THE elections throughout the kingdom having now been brought to a close, we may conveniently consider the course of procedure to be adopted by those who are dissatisfied with the result in any particular case, and shall determine before the meeting of parliament, which is expected to be in November next, to appeal to that is annexed to the recognizance, which must which in all such cases is the tribunal of the last resort-a select committee of the House of Commons. contain the name and usual place of residence of the sureties, so that they may be readily identified. The recognizance must be entered into, and affidavits of sufficiency sworn before the examiner of recognizances, (an officer appointed by the Speaker,a)or before a justice of the peace, and in the latter case they are certified by the justice and delivered to the examiner. The petitioners may dispense with sureties by paying 1,000l. into the Bank of The law with respect to the trial of controverted elections is now governed chiefly by the statute 7 & 8 Vict. c. 103, and the analysis of its numerous and somewhat complicated provisions, will be rendered more simple and concise by limiting the consideration to petitions following a general election, and questioning the return of a member, or members, upon ordinary England on the account of the examiner, grounds. Bearing in mind that every election petition must be subscribed "by some person claiming therein to have had a right to vote, or to be returned or elected, or alleging himself to have been a candidate, at the election." and taking a bank receipt, which is delivered to the examiner, who thereupon becomes trustee for the sum so paid in, for the same purposes for which the recognizance is required; but this payment does not absolve the petitioners from the necesBefore the petition is presented, how-sity of also entering into a recognizance. ever, the person or persons subscribing it, The recognizances having been duly enor some of them, must enter into a recog- tered into, the election petition must be nizance for 1,000l., with one or more left with the examiner, who certifies by an sureties, (not exceeding four,) in the same endorsement thereon, that the recognizance or a separate recognizance for the ad- has been entered into, with the affidavits ditional sum of 1,000%., the condition being, of sufficiency, or that money has been paid that the petitioners shall pay all costs and into the bank as a substitute for sureties, expenses which the committee selected to as the case may be. On or before the day try the matter of the petition shall adjudge to be payable by the petitioners, and also a Under the stat. 7 & 8 Vict. c. 103, s. 5. VOL. XXXIV. No. 1,015. S 386 Election Recognizances and Select Committees. of presenting the petition, the names of the or place in the United Kingdom, do ques sureties, with their residences, are entered tion the same within fourteen days next, in a book kept at the examiner's office, and and so within fourteen days next after any this entry, with the recognizances and new return shall be brought in." When a affidavits, may be inspected by all parties petition specifically alleges payment of interested. If the sureties are objected to money by a member, or with his privity, for insufficiency or any other ground, the after the election, in furtherance of any ground of objection must be stated in writ- contract to bribe or corrupt electors, the ing under the hand of the objecting party return of the member involved in such or his agent, and delivered to the examiner transaction, may be questioned within not later than at noon of the eleventh day twenty-eight days after payment of the after the presentation of the petition, if the money; but in ordinary cases the presurety reside in England, and not later scribed period is, fourteen days from the than noon of the fifteenth day after the day on which the usual sessional orders presentation of the petition, if the surety are passed at the commencement of the reside in Ireland or Scotland. Upon the session. after notice in the Gazette, stating that the seat is vacant, or that the sitting member will not defend his election or return, to present a petition praying to be admitted as parties to defend the return, or to oppose the prayer of the election petition. The persons so petitioning may be parties with the sitting member, if he be a party opposing the petition, or in the room of the sitting member if he decline to appear and support his return. receipt of such written objection, the ex- The sitting member whose return is imaminer exhibits in his office a notice that peached may give notice of his intention he has received such a statement of objec- not to defend the return, and in that case tion, and fixes a day for hearing the same, he cannot afterwards appear as a party which must not be less than three, or more against the petition complaining of his rethan five, days after the statement of ob- turn; nor can he sit in the house, or vote, jection has been delivered to him. The after such notice, until the petition against examiner may examine witnesses upon him has been disposed of. It is competent, oath, or receive affidavits, either to support however, for any persons claiming to have or answer the objection taken to the had a right to vote at an election, within sureties. He may adjourn the inquiry, if fourteen days after the presentation of an he think fit, and award costs to be paid by election petition, or within twenty-one days either party to the other; and in all cases his decision as to the sufficiency of the sureties is final. If a surety die, and his death is stated as a ground of objection, the petitioner will be allowed to pay into the Bank of England, to the examiner's account, the sum for which the deceased was bound, within three days after notice of the objection. When the examiner decides that the objection taken to a surety is valid, he reports the fact to the Speaker, who submits it to the house. If no objection is The responsibility of the proceedings, taken to the sureties, or the examiner con- preliminary to the presentation of an elecsiders the objections taken are not well tion petition, falling peculiarly upon the founded, he reports in due time that the professional agents of the parties concerned, sureties are unobjectionable; and a list of we have deemed it expedient to refer to the petitions in respect of which he has so them somewhat in detail. The constitureported is kept at his office for inspection. tion of the tribunal appointed to try the In concluding this part of the subject, it merits of an election petition, although a may be necessary to add, that the only matter of considerable public interest, and persons entitled to object to sureties are, the one which the parties to an election pesitting member who is petitioned against, tition usually consider of the first importor electors petitioning and admitted as ance, is the result of a statutory arrangeparties to defend an election or return. ment of a complicated nature, in which the The time limited for presenting election avowed object has been, to exclude the petitions is not fixed by act of parliament, parties or their agents from having any but depends upon the orders of the house, voice, or exercising any direct influence. passed soon after the meeting of parlia- A brief analysis of the law under which ment. The usual order in reference to election committees are appointed must this matter is, "That all persons who will therefore suffice. question any returns of members to serve On the day after the expiration of the in parliament for any county, city, borough, 'time allowed for questioning the return of Election Recognizances and Select Committees. 387 members, the Speaker appoints a "Gene- than fourteen days before the day appointed ral Committee of Elections," consisting of for the choice. All parties interested may six members whose returns are not ques- attend the general committee" at the tioned. If this appointment be not ques- day and hour so appointed. tioned within three days, it is absolute. If Where the petition involves an objection any vacancy occur, it is supplied by the to particular voters, there is another proSpeaker's warrant. The general com-ceeding preliminary to the actual appointmittee being sworn to perform their duties ment of the select committee. Before six without fear or favour, meet at a time and o'clock P. M. on the sixth day next before place appointed by the Speaker; but in the day appointed for choosing the select order to transact business four members committee, any party intending to object must be present and concur in the appoint- to particular voters must deliver to the ment of a selcet committee, as hereafter explained. clerk of the general committee, lists of the voters intended to be objected to, disOn the next meeting of the house after tinguishing the general heads of objection, the notification of the appointment of the and inserting the names of the voters to general committee, the clerk reads over whom such objections are alleged to apply. the names of the members, and those who Four members, at least, of the general claim exemption upon the ground of age, committee must concur in choosing the as being more than 60 years old, or upon members of the select committee, which grounds of a temporary nature, are ex-consists of one member from the chairman's cused, and excluded from an alphabetical panel, and four members from the panel in list made out by the clerk of the house. rotation. Each panel serves for a week, The list with these omissions is referred to beginning with the panel first drawn by "the general committee," who select in the clerk, and omitting from the account the first instance from 6 to 12 members, those weeks in which no select committee who form what is called "the Chairman's is to be chosen. Members are disqualified Panel." The chairman of every select from serving on any select committee, who committee is appointed from this panel. have voted at the election, or who are The remaining members in the alphabeti- parties to, or related (by kindred or affinity cal list are divided by "the general com- in the first or second degree) to the sitting mittee" into five panels, containing as member, or the party on whose behalf nearly as may be an equal number of the seat is claimed. When the four memmembers. This division is reported to the bers of the select committee have been house, and the clerk decides by lot the appointed by the general committee, such order of the panels, and distinguishes each by the number denoting the order in which it has been drawn. The panels so numbered are returned to "the general committee," and constitute the panels from which members are chosen to serve on select committees. appointment is notified to the members of the chairman's panel, who choose from amongst themselves a chairman for the select committee so appointed, and communicate to the general committee the name of the member so chosen as chair man. All election petitions, as well as the re- After the four members of the select ports of the examiner concerning the committee are appointed by "the general sureties to such petitions, are referred to committee," and the selection of the chair"the general committee," which directs man by "the chairman's panel," has been the preparation of a list of election petitions communicated, the parties to the petition, in respect to which the recognizances are as well as the sitting member and those unobjectionable and the proceedings not admitted to defend the return, are called suspended. The "general committee in, and the names of the members of the choose committees to try election petitions select committee and of the chairman are in the order in which the petitions stand in read over to them, and they are directed to the list, exercising a discretionary power withdraw, but at the expiration of half an as to the number of committees to be hour are again called in, and may then obchosen in each week, having regard to the ject to the chairman, or to all or any of the number of committees already sitting on four members chosen, as disqualified to sit election petitions, and to the number to and act on the select committee. The obbe appointed. Notice of the time and jections of the petitioners to the constituplace appointed for choosing every com- tion of the committee is first heard, and mittee is published in the votes, not less then the objections of the sitting members, |