« AnteriorContinuar »
Analytical Digest of Cases: Common Law Courts.
601 pearance William Wells Kilpin, sued as ridden by the stat. 2 W. 4, č. 39, 8. 11. Harris W. W. Kilpin.” An affidavit in support of a v. Robinson, 2 C. B. 908. rule for judgment as in case of a nonsuit, en- 4. Return of nulla bona, 8c., to a distringas. titled “Edward Lomax, plaintiff, 0. William Sufficiency of affidavit. — The affidavit in Wells Kilpin, defendant :" Held, sufficient. support of a motion for leave to enter an apLomax v. Kilpin, 4 D. & L. 295, S. C. 16 M. & pearance after the return of nulla bona and non W. 94.
est inventus to a writ of distringas, should show And see Appearance, 4; Distringas, 1; distinctly that everything had been done to find Ejectment, 5; Executors.
some goods of the defendant. Pinney v.
Richardson, 34 L. O. 182. 1. Copy of writ.- A writ of capias and copy served were directed to the “ sheriffs of 1. Judge's order.-— Appeal to court.-A party Middlesex, instead of “sheriff.” The defend- arrested by order of a judge may apply for his ant in consequence applied to a judge at discharge either to the court or to another chambers to be discharged out of custody, judge, and may, on such application, use affiwhich the judge refused, and ordered the writ davits to contradict or explain those on which and copy to be amended. On motion to the order was granted, and he may appeal to rescind the judge's order: Held, that though the court against the decision of such latter the capias might be amended, the copy could judge. not, and that the defendant was entitled to be If the judge secondly applied to should differ discharged, inasmuch as he was not served from the first, or if it should appear on fresh with a true copy of the writ as amended. affidavits that the person arrested was about to Moore v. M'Ghan, 4 D. & L. 267.
quit England at the time those affidavits were 2. Writ of summons. The court will amend made, though he was not so when the order alias and pluries writs of summons, by in- was made : Quære, whether in such cases the dorsing thereon the day of the date of the first judge or court ought to discharge him. writ of summons and of the return thereto, in An affidavit that deponent “ has been inorder to save the Statute of Limitations, not- formed and believes” that a party is about to withstanding the 2 W. 4, c. 39, s. 10. Culver- quit England, is insufficient to warrant an well v. Nugee, 15 M. & W. 559.
order for arrest. Where an order to hold to 3. Writ of summons.-Statute of Limitations. bail has been improperly made by a judge, the - The court will amend a writ of summons by court will not set aside the capias, but only inserting therein the character in which the discharge the defendant out of custody. plaintiffs sue, or the defendants are sued, if it, where a defendant, against whom a capias appear that the debt would otherwise be barred has issued under a judge's order, applied to by the Statute of Limitations. Christie and the court to have the money returned, on the another, assignees of Yeld, a bankrupt, v. Bell ground that he was not about to quit the and another, public officers, 34 L. 0. 136. country, and the affidavits in answer were conAnd see Arrest, 2; Ejectment, 3.
tradictory, the court referred the matter to the Master for inquiry. Graham v. Sandrinelli ;
Talbot v. Bulkeley, 4 D. & L. 317. 1. Sec. stat. by plaintiff in person.
Where 2. Variance of writ and copy.--Amendment. a plaintiff sues in person, he may in person - Where, in a writ of capias, and in the copy appear for the defendant, sec. stat., although thereof served on the defendant, it was directed that case is not provided for in the forms given to the sheriffs, instead of the sheriff of Middlein the schedule to the 2nd section of the Uni- sex: Held, that this was an irregularity; that formity of Process Act, 2 W.4, c. 39. Smith though the court or a judge might amend the v. Wedderburne, 16 M. & W. 104; S. C. 4 writ, they had no power over the copy; and D. & L. 296.
that the defendant was entitled to his discharge, 2. Sec. stat.-Where, upon service of a writ though the writ was amended, on the ground of summons on a defendant, he denies that he of the variance from it of the copy. Moore v. is the party named therein, and the person Magan, 10 M. & W.95, serving the writ consequently omits to make
3. Plaintiff's death.-Ca. sa.--A defendant the indorsement on the writ within the time arrested on a ca. sa., is not entitled to be disrequired by Reg. Gen. M. T., 3 W. 4, r. 3, the charged out of custody by reason of the plaincourt will, upon affidavit of these facts, permit tiff's death, after the delivery of the writ to the him to make the indorsement, notwithstanding sheriff, and before arrest. Ellis v. Griffith, 4 the lapse of the specified time, so as to enable D. & L. 279. the plaintiff to enter an appearance for the de
Case cited in the judgment: Cleve v. Vere, Cro. fendant according to the statute. Burrows v.
Car. 457. Gabriel, 4 D. & L. 107. 3. At what time to be entered. Where the
4. Privilege. Queen's servant. The “So8th day after service of a writ of summons falls merset Herald” is a servant in ordinary of the on any day between the Thursday next before, Queen, with fee, and therefore privileged from and the Wednesday next after, Easter-day, the arrest
. Dyer v. Disney, 34 L. O. 231.
See Erecution, 4; Misdirection, last day for entering an appearance thereto is the Wednesday next after Easter-day, the rule
BANKRUPT. of court of Easter Term, 2 W. 4, being over- Charging in execution. — Interim order. -
Analytical Digest of Cases : Common Law Courts. Where a defendant was brought up in custody defendant, and that defendant afterwards told of a gaoler, for the purpose of being charged in plaintiff, " he should upset plaintiff's distringas, execution, and it appeared that the commis- for the writ”. (not further describing it) “had sioner of bankrupts had, on the preceding day, been left with defendant's brother, and not granted an interim order for his protection, the with him.” Crofts v. Brown, 7 Q. B. 284. court refused to allow him to be charged with 2. Continuation of process.-A writ of dis. execution. Sloman v. Williams, 4 D. & L. 49. tringas may issue within a reasonable time after
the expiration of a previous writ of summons. COGNOVIT.
Peyton v. Wood, 4 D. & L. 19; S. C. 15 Attestation. A cognovit was attested thus : M. & W. 608. -"Duly executed by the above-named R. G.,
EJECTMENT. in the presence of me, the undersigned S. B., at
1. Service. — On a motion for judgment torney on behalf of the said R. G., expressly named by him, and attending at his request ;
against the casual ejector, where other than and I do hereby declare that I subscribe my should state in terms that the deponent “serted
personal service is relied on, the affidavit name as witness to the due execution hereof by the said A. B., the tenant in possession, by;". the said R. G., and as his attorney; and that previous to the execution hereof by the said &c., and then detail the facts which it is sought
Doe d. R. G. I informed him of the nature and effect to substitute for personal service. hereof. S. B., Attorney, Birmingham.” Held, Pigott v. Roe, 4 D. & L. 88. sufficient. Phillips v. Gibbs, 4 D. & L. 275.
2. Service.--Secretary of railway company.
Personal service of a declaration in ejectment COURT BARON.
on the secretary of a railway company who are Constitution of.- Irregularity. — Waiver.- in possession of land sought to be recovered, An omission to state in the plaint, in a Court is, under the 8 & 9 Vict. c. 16, s. 135, sufficient Baron, the nature of the action, is a mere irregu- for a rule absolute for judgment against the larity, which may be waived.
casual ejector. Doe d. Burgess v. Roe, 4 In a suit in a Court Baron, the proceedings D. & L. 311. tvere alleged to have been taken at a court held 3. Consent rules.—Adverse titles.- Amend“before A., the steward of the said court, a free ment.-Where two persons delivered separate suitor thereof, and B. and C. and others, free consent rules in ejectment, each claiming to suitors of the said court:" Held, that the court defend as landlord, the one for the whole of the was properly constituted, it being alleged that premises claimed in the action, the other for a A. was a free suitor.
part of them, specifically named in the rule, Held, also, that A. was properly described as under adverse titles, the court ordered the steward of the court, though it was not alleged consent rules to be amended by confining them that he was steward of the manor.
respectively to such parts of the premises as Held, also, that the court was properly de- were really in the occupation of each party or scribed; and that it was sufficient to set forth his tenants. Doe d. Lloyd v. Roe, 15 M. & W. the names of two only of the free suitors who 431. attended. Brown v. Gill, 2 C. B. 861.
4. Particulars.-In an action of ejectment Cases cited in the judgment: Jones v. Jones, for alleged breaches of covenants contained in
5 M. & W. 523; Chet wode v. Crew, Willes, a lease, the defendant is entitled to particulars 614: Bishop r. Kare, 3 B. & Ad. 603; Rex of the breaches of covenant on which the plainv. Mein, 4 T. R. 480.
tiff relies. Doe d. Moystyn v. Eyton, 33 L.O.
527. DEMURRER, STRIKING OUT. On a rule for striking out a demurrer, under ment against the casual ejector where proceed
5. Affidavit.—On an application for judgReg. Gen. Hil. 4 W.4, r. 2, the court set it ings have been taken under 4 Geo. 4, c. 28, it aside, and struck out the pleadings connected does not render the affidavit irregular to state with it
, the defendant to pay plaintiff's costs of that a year's rent is due, if the affidavit also preparing for trial and attending to try the allege that there is no sufficient distress on the cause, and of the application to set aside the premises to satisfy half a year's rent. Doe demurrer, and take short notice of trial, or dem. Farmery v. Roe, 34 L. O. 81. judgment to be for plaintiff on the whole record. Tucker v. Barnesley, 16 M. & W. 54.
Assignment in criminal case.—The court, on 1. What affidavit must state.-An affidavit davit, permitted the plaintiff in error in a
motion and reasonable grounds shown by affifor the purpose of obtaining a distringas to criminal case to assign errors without attending compel appearance must state an endeavour to in person. Murray v. The Queen, 7 Q. B. 700. serve the writ of summons at the defendant's residence, and must specify where the residence
EVIDENCE. was. A distringas obtained on affidavits not Pleading.-In an action of trespass against describing the residence was set aside on three defendants, where a verdict is found for motion.
the plaintiff against two of the defendants, the The want of such description is not supplied court will not grant a rule for a new trial on by a statement that the copy of writ of sum- the affidavit of the other defendant, stating that mons was left with the defendant's brother for he is willing to give up the advantage of a
Analytical Digest.-Nisi Prius Cause Lists--Middlesex.
603 verdict in his favour, in order that certain facts upon such judgment, the court will not dismight be given in evidence for the defence on charge her out of custody on the ground that a subsequent trial which were not admissible she has no separate property. Beynon v. Jones, on the former trial by reason of an error com- 15 M. & W. 566. mitted in the pleadings. Spencer v. Harrison
Case cited in tbe judgment : Doyley v. White, and others, 33 L. 0. 284.
Cro. Jac. 323. EXECUTION. 1. Speedy.--A verdict having passed for the Scire facias.-Judgment.-Where executors plaintiff at the trial of this cause, which took move for judgment on the sheriff's return of place in the vacation, the judge granted a certi- " nil” to a writ of scire facias, the affidavit in ficate for immediate execution. The same day support of the application must statə that prothe plaintiff gave notice of taxation of his costs, bate has been taken out. Vogel and another, and on the following day taxed them, signed executors of Ann Vogel, v. Thompson, 34 L. O. judgment, and issued execution : Held, on 232. motion to set aside the judgment and subsequent proceedings, that the plaintiff was regular See Sale. in the course that he had pursued, and that he was not bound to take out a rule for judgment, Accused party.—Coroner.-Where a prisoner or to wait four days before proceeding to sign is committed for trial under a magistrate's warjudgment. Alexander v. Williams, 4 D. & L. rant, on a charge of murder, quære, whether 132.
this court can grant a writ of habeas corpus to 2. Arrest after death of judgment creditor.- bring him before the coroner sitting upon the A writ of ca. sa., issued in the life-time of the body of the deceased. Semble, per Coleridge, J., judgment creditor, may be executed after his that they can. Such power will, at any rate, be death. Ellis v. Griffith, 16 M. & W. 106. exercised only where a case of necessity is Cases cited in the judgment: Cleve v. Veer, Cro. shown. And this court refused the writ where
Car. 459: Thoroughgood's case, Noy, 73. the ground suggested was, that the party 3. Married woman.- Where an action is charged was to be identified before the coroner, commenced against a feme sole, who marries and it was not shown that such identification during the pendency of it, and the plaintiff ob- could not be effected without producing the tains judgment against her in her name when party. In re Cook, 7 Q. B. 653. sole, and she is taken under a ca sa. sued out [To be concluded in the next number.]
Sir R. Sydney
C. J. Jones
S. J. Macdonald (stayed) Dt. Bolton
Cope (stayed) Prom. Chester S. B. Hamer
S. J. Wilkinson (stayed) Prom. Howard M. Fraser
S. J. Whiteway (inj.) Prom. Mardon and P. Allington and Co. Bastone and another, executrix, &c.
(inj.) Dr. Chadwick Elderton and H.
S. J. Wm. Toogood (inj.) Prom. Campbell and A.
viring executors Dt. Williamson and H.
Sci. fa. Wadeson
S. J. Parish and another Dt. Helme and Johnson
Pro, Carlon and h.
Kearsey and Co.
Sharpe and Co.
Prom. Lewis and L.
Beevor and B.
Eject. Vizard and Co.
Clarke and Co.
Clutterbuck (inj.) Carter, exors., &c. Pro. Bell
S. J. William Richards Indt, Bourdillon and Sons
Indt. Sandys and P.
Pro. Freeman and B.
Coode and Co.
Bridges and Co.
Nisi Prius Cause Lists-Middlesex.--Letter Box.
E. Lewis deft's at.
Dt. In person
Dı. Elmslie and P.
Proms. H. Phillips
Ca. Bolton and Co.
Great Western Rail. Co. Maples and Co.
Ca. Newbon and E.
Hooper, Esq., and another Ca, Kilgour and P.
Pro. Phillipps and N.
Pro. Elmslie and P.
Tro. Eject. W. Smith
Dt. Abbott and Co.
Pro. In person
Covt. Gregory and Co.
S. J. Grazebrook and another Tres. Rhodes and L.
Pro. Baker and Co.
wall Rail, Co. S.J. Scott and another Cort. Tyrrell
Ca. Walker and G.
Pro. Chester and Son
Pro. In person
Pro. King and A. В.
Tres. or Case Bucknell and
Tres. and Ejt. C. Robson
Pro. Wright and Co.
Tres. Hird and Son
Tres, E. Clark
Charlton and another Pro. Weeks
Pro. Hindman and I.
Dt. Rickards and W.
Ejc. Jennings and Co.
Hodgson and B.
THE EDITOR'S LETTER BOX. The observations on the Stamp Act from a
Correspondent at Walsall are acceptable. The Legal Almanac, Year-Book, and Diary, Several complaints have been received for 1848, is in a forward state. Any further of the late or irregular delivery, and delay in information to be contained in it, should be the transmission by post, of The Legal sent immediately. The prospectus is
Observer. Our readers will please to notice ready.
that a change has taken place in the publishing The service of H. T. H. will, we think, be of the work. Orders should now be addressed deemed sufficient. The business he mentions to Messrs. A. Maxwell & Son, Law Booksellers seems not incompatible with that of a solicitor. and Publishers, 32, Bell Yard, Lincoln's Inn. The short interval once a week could not be The work is regularly published at 9 o'clock objected to, and if it were, the intended extra on Saturday mornings, and will be sent by that service would amply make it up.
The Legal Observer, , DIGEST, AND JOURNAL OF JURISPRUDENCE,
SATURDAY, OCTOBER 30, 1847.
“ Quod magis ad NOS
OPERATION OF THE COUNTY , ingenuity manifested in construing the
schedules and rules so as to multiply the
number of payments-the indisposition to Those who have been vaunting of the relinquish the claim to a fee in any parsuccessful operation of the County Courts ticular case--and the sordid spirit displayed Act appear to liave been somewhat pre- generally by the officers of every grade. mature in their announcements. The act Whether the complaints arising from this has not been long enough in force to have source are well or ill founded, they have given it a fair trial under any circum- become loud enough to reach the govern. stances, and the result, so far as the experi- ment; and we understand her Majesty is ment has been tried, can scarcely be con- about to issue an order, with the advice of her sidered matter for unqualified congratula- Privy Council, directing that fixed stipends tion. Indeed, when the evidences of shall in future be paid to the judges, clerks, success are inquired into, it will be found and bailiffs of the County Courts, in lieu of that they consist exclusively of a reference fees. By this proceeding, it must be adto the number of plaints entered and dis- mitted, the new courts will be placed on a posed of since the establishment of these better and more satisfactory footing, and a courts. The new tribunals, say their ad- scandal removed from the administration mirers, number their suitors by tens of of justice. thousands, and are, therefore, eminently The order for the substitution of fixed successful; and although many who argue salaries instead of fees is authorised by the thus have probably omitted to take into 39th section of the act, which provides, account the number of cases disposed of " That it shall be lawful for her Majesty, in the several Courts of Request, which with the advice of her Privy Council
, to were abolished and the jurisdiction trans- order that the judges, clerks, bailiffs, and ferred to the County Courts, it must be officers of the courts holden under this act, admitted that, in one sense at least, the or any of them, shall be paid by salaries conclusion founded on an estimate of the instead of fees, or in any manner other multitude of suitors is not altogether ill-than is provided by this act.” And the founded. The income of the various following section provides,—“That the officers connected with the County Courts greatest salaries to be received in any case has been heretofore derived from the pay- by the judges and clerke of the courts ment of fees, and, of course, the multipli- holden under this act shall be 1,2001. by a. cation of plaints proportionably increased judge, and 6001. by a clerk, exclusive of the amount of their incomes. The adoption all salaries to his clerks employed in the of this objectionable and long condemned business of the courts, and other expenses system, in relation to the officers of the incidental to his office with a proviso, County Courts, has already created infinite that it shall be lawful for the Commisdissatisfaction. Statements, probably very sioners of her Majesty's Treasury to exaggerated, are current, as to the allow such sum as they Ishall in each No. 1,025.