Superior Courts: King's Bench Practice Court; Common Pleas; Exchequer. the deponent had conducted the cause, or that | he-was acquainted with its merits, otherwise he appeared to be a mere stranger to the whole matter. J. Jervis submitted that it was sufficiently clear from the affidavit, that the deponent had been concerned in conducting the cause, and the spirit of the rule was therefore complied with. The affidavit, at all events, might be amended and resworn. Williams, J. said that the usual course in such cases was for the affidavit to be made by the defendant, his attorney, or agent, or by some other person who was sufficiently acquainted with the merits of the case to enable him to swear to the necessary allegations. Here there was no description of the deponent, further than that he was the clerk to the defendant's attorney. There was no allegation that he was the managing clerk, or even that he was acquainted with the merits of the cause. The affidavit therefore was insufficient, and the Court would not suffer it to be resworn, because that would be holding out encouragement to persons to draw their affidavits carelessly. The rule must be discharged, and with costs. Rule discharged.-Rowbotham v. Dupree, E. T. 1837. K. B. P. C. Common Pleas. POSSESSION OF THE POSTEA. 213 expence will lie on its proof. All the future stages of the proceedings will be conducted by the defendant, and the rule must be absolute for the redelivery of the posted to the officer. Bosanquet, J.-The defendant has substantially succeeded, and the postea should not have been delivered to the plaintiff. In trespass the defendant having pleaded Not Guilty, that the plaintiff was not possessed of the close, and a right of way, and the plaintiff having recovered 1s. damages on the two first issues, but the defendant having gained a verdict on the last issue, the latter is entitled to the possession of the postea. Ludlow, Serjeant, shewed caused against a rule obtained by Talfourd, Serjeant, for the delivery of the posted in this cause to the defendant. The action was in trespass, and was brought against the defendant for breaking and entering the plaintiff's close, and the defendant pleaded, first, Not Guilty; secondly, denying that the plaintiff was possessed of the close; and, thirdly, a right of way. At the trial the plaintiff obtained a verdict on the two first issues, with ls. damages; and a verdict was given for the defendant on the last issue. The posten had been handed over to the plaintiff, and the present application was in consequence made on the ground that the defendant had substantially succeeded in the action. The rule, however, it was submitted, must be discharged, as the plaintiff having recovered damages, strictly speaking, was entitled to the possession of the posted. The question as to whether the plaintiff was entitled to those damages, the issue on the right of way having been found against him, was one in which the Court could not now interfere. Rule absolute.-Stanley v. Long, E. T. 1837. C. P. Exchequer. RETURN OF SHERIFF.-LACHES. The sheriff having returned that he had levied the defendant's goods under a fieri facias, is precluded from excusing himself from paying over the money to the plaintiff, by shewing that the defendant had, at the time of his levy, made an application for his discharge to the Insolvent Court, and had since been discharged, the sheriff having had notice of the application of the defendant, before he made his return. Hance had obtained a rule, calling on the Sheriff of Shropshire to shew cause why he should not pay to the plaintiff the amount which he had levied on the goods of the defendant, under a writ of fieri facias, issued on the 18th January. It appeared that the goods had been levied on the 27th January. On the 21st February the sheriff was ordered to return the writ; and on the 1st March he returned that he had levied goods to the amount of 141. Os. 7d. W. H. Watson shewed cause, and stated, that on the 4th February the sheriff received notice from the defendant that he had petitioned the Insolvent Debtor's Court for his discharge on the 25th November before, and subsequently on the 8th April he was discharged. At the time therefore of the return to the writ, the defendant had a defeasible title to the goods, which was defeated by his subsequent discharge. It appeared from the cases of Brydges v. Walford, 6 M. & S. 42; and Clutterbuck v. Jones, 16 East. 78, that where the sheriff had returned fieri feci, and the defendant afterwards became bankrupt, the sheriff was not bound to pay over the money. Purke, B.-It might have been ascertained on application at the Insolvent Court, that the defendant had assigned his goods to the provisional assignee. W. H. Watson.-That assignment was only conditional, and unless the property of the goods remained in the assignee, the defendant had a title which might have been made absolute by the Court refusing to grant his discharge. It would be a hard case on the sheriff to make this rule absolute, as he would have to pay the money twice. Hance submitted in support of his rule, that Tindal, C. J.-The first and second issues the sheriff was concluded by his return. Bewere beside the merits of the case, the real sides, he shewed on his own affidavit that bequestion being the right of way. Upon that fore the return, he had received notice of the point, it must be seen, the defendant will be en-defendant's application to the Insolvent Court. titled to receive costs, for the great burden of It was his duty to have applied for an enlarge ment of the time for the return; but as he had farm, and dispose of it, unless 100%. were paid been guilty of negligence, the Court would not for the same by the incoming tenant; and interfere to relieve him. that the latter was compelled to pay 1007. to Parke, B.-The present position of the she-prevent the dung from being carried away, riff arises entirely from his own negligence, or the Court might have been disposed to assist him. In this respect the present case is different from those which have been cited. The sheriff has had plenty of opportunity of ascertaining the real position of the defendant, by searching the Insolvent Court, but he neglected to do so, and he must now be concluded by his return. Rule absolute without costs.-Tidd v. Smith the Younger, E. T. 1837.-Excheq. PLEADING.-VENIRE DE NOVO.-WHEN Several breaches being assigned in the declaration, some of which are bad, and the jury having given a general verdict, the Court will not arrest judgment, but will grant a venire de novo. This was an action of assumpsit, and in the declaration the following facts were alleged: That the defendant was about to quit a farm, which he held of the plaintiff, at Michaelmas, and that he undertook to see him paid by the incoming tenant, five shillings an acre for dressing the fallow for the first ploughing, and three shillings an acre for every other ploughing, as well as two shillings an acre for drawing the land; that it was agreed that the defendant should be paid for the grass seeds already sown in the ground, and one shilling a load for dung when driven on the land; and that if the incoming tenant should desire to purchase the clover, hay, or any meadow hay, a valuer should be appointed by each, and the corn was also to be bought at a fair valuation. That the agreement being so entered into, a negociation was commenced between the plaintiff and defendant for the retaking of the farm, and that the plaintiff agreed to let it to the defendant from the following Michaelmas as a yearly tenant, for 1807., and 17. 10s. land tax, provided the defendant could find sufficient sureties for the payment of the rent. It was also agreed that the defendant on quitting the farm should not carry away any straw, threshed or unthreshed, nor any dung, the produce of the farm, at that time on the farm. Mutual promises were then averred, that the defendant became a yearly tenant from 1832 to 1834, on the terms mentioned, and that the plaintiff was ready to perform all the stipulations in the first agreement mentioned, and that the incoming tenant was desirous of purchasing the clover and meadow hay and corn of the defendant, and that the plaintiff was ready to appoint a valuer, and requested the defendant also to fix on some person to value it, and to sell it to the incoming tenant on the terms laid down in the agreements. Then, among other breaches assigned, it was alleged that the defendant "threatened" to carry away from the farm the dung, the produce of the and also that the defendant threatened to carry away the dung unless divers sums, exceeding one shilling a load were paid him; and also that the defendant threatened to commit further waste, if the incoming tenant did not pay him 20., and that the latter was compelled to pay that sum. The defendant pleaded, traver sing all the breaches, and issue was thereupon joined. The cause was tried before Patteson, | J., at the Pembrokeshire summer assizes, in 1835, and a general verdict was found for the plaintiff on all the breaches, with 207. damages. Evans obtained a rule to arrest the judg ment on the ground that the breaches above referred to were bad, and E. V. Evans, and Leach, now shewed cause. The remedy claimed by the defendant was not such as he was entitled to. Admitting the breaches to be bad, he could have a venire de novo only, and not an arrest of judgment. When the jury give general damages on a declaration consisting of several counts, and it afterwards appears that one or more of them is defective," was one of the cases pointed out in Tida's Practice, 922, in which a venire de novo was grantable. Eddowes v. Hopkins, Doug. 377; Grant v. Astle, Doug. 722; Angle v. Alexander, 3 Bing. 359; Richardson v. Mellish, 7 Bing. 119; and Day v. Robinson, 1 Adol. & Ellis. 554, were all to the same point. In Trevor v. Wall, 1 T. R. 151, it was true, the Court refused a venire de novo, and arrested the judgment. Parke, B.-But that was because the Court of error could not award a venire, when the proceedings had commenced in an inferior Court. Evans, in support of his rule, pointed out Holt v. Scholefield, 6 T. R. 691, as a distinct authority in favour of his application. Sicklemore v. Thistleton, 6 M. & S. 9, was also to the same effect. Eddowes v. Hopkins, was an application to amend the entry of the verdict, by the notes of the judge, and all the other cases were in the Court of Error. Parke, B., said that the case must go down again. The Court knew well that the defendant had been guilty of all the breaches, but could not tell to what amount on each. The case of Holt v. Scholefield must be held to be overruled as to this point; and if the Court of Error had the power to grant a venire, of a certainty a Court with original jurisdiction could also do so. The rule must be absolute for a venire de novo, unless the parties could come to some arrangement. Alderson, B., pointed out that in Holt v. Scholefield, although Grant v. Astle was referred to, this point was not argued, but the chief point was the sufficiency of the declaration. Rule accordingly.-Leach, esq. v. Thomas, E. T. 1837.-Excheq. Municipal Corporations (England). Letters Patent to Trading Companies. Offences against the Person. Burning or destroying Buildings and Ships. Punishment of Death. Central Criminal Court. Clerks' of the Peace Documents. 215 NOTICES OF MOTIONS FOR THE NEXT SESSION OF PARLIAMENT. To abolish Imprisonment for Debt, unless Attorney General. Repeal of the Usury Laws. Dr. Bowring. Repeal of the Poor Law Amendment Act. Rating of Tenements Mr. Fielding. Mr. Sanford. DISSOLUTION OF PARLIAMENT. Parliament was prorogued by the Queen in person on Monday last, the 17th instant, and was on the same day dissolved. As usual, we pass by all political matters, and record in our pages the following passages from the address of the Speaker of the House of Commons, relating to the alteration in the Law of Wills and the Criminal Law-the only topics of a legal nature which were adverted to: "We have passed an act establishing simple and definite rules for the execution of wills. This measure, we confidently expect, will be found to be most beneficial, and will be received with satisfaction, because it tends to promote concord and happiness among a large portion of the community, by giving certainty and security to the transmission of property. "The initigation of the severity of the criminal law has engaged our most serious attention, and we have materially diminished the number of cases in which capital punishment is to be inflicted. In framing these measures we have proceeded with the benefit of experience, which has shown that those punishments alone are effectual which carry with them a large portion of public sympathy and feeling, and we cordially rejoice that we have so far been able to give effect to those wise and humane principles of criminal legislation which have been generally diffused and approved. We entertain a confident hope that our efforts to mitigate the severity of the law will this day be sanctioned by your Majesty's approbation, and hereafter by the judgment of an enlightened and grateful people." From her Majesty's Speech we are entitled only to make the following selection: 216 Miscellanea.-The Editor's Letter Box. MISCELLANEA. ANCIENT OFFICERS ON THE PLEA SIDE OF THE QUEEN'S BENCH. The Act 1 Victoria, c. 30, having enacted that certain offices in the Courts of Common Law shall be abolished, and a more effective and uniform establishment formed, it may be useful to notice the several officers of Court, and their duties, as anciently described. They are as follows: "First in order comes the office of Chief Clerk, who is stiled in the records of the court, Capitalis clericus domini regis ad placita in cu ria ipsius domini regis coram ipso rege irrotuland. assignatus, (that is, chief clerk of the lord the king, assigned to inroll pleas in the court of the king himself, before the king himself) His duty is, first, to issue out all the process of the court on the plea side, or in causes between party and party, where the proceedings are by bill; secondly, he is to attend the court whereever the same is held; thirdly, to record and enter the rules and orders of the court; fourthly, to inroll the pleadings and judgments of the court; fifthly, to file posteas and writs of error, and all special and common bails; sixthly, to keep remembrances of all writs and records of judgments, and to do such acts by himself or substitutes as are hereinafter mentioned. The chief clerk formerly attended and sat in the court." The several officers appointed by and under the chief clerk, are : "First, the Secondary, or deputy to the chief clerk, is verbally appointed by the chief clerk. His duty is to assist the chief clerk in the execution of his office, by attending the court wherever the same is held; and after the rising of the court, he attends at his office in the Temple every afternoon in term time, and every morning and afternoon in the vacation, to sign judgments, and to examine all matters referred to him by the court, and to make his report thereon to the court; to tax costs and attorneys bills when referred to him; to take the acknowledgment in court of all deeds to be inrolled, all bails justified in court, affidavits sworn in court; and to charge the marshal with the custody of all persons brought into court by habeas corpus; to swear attorneys in open court, and cause their admissions to be inrolled; to discharge recognizances of bail upon the defendant's surrender to the custody of the marshal; to nominate special juries; to record the verdicts of the juries upon trials at bar; to draw up special verdicts found upon such trials, and to make certificates of all judgments to be registered in the counties of Middlesex and York. By rule or order of court made in Easter term, 5 Jac. 1, he has the custody of all money paid into court, and for keeping thereof is paid twenty shillings for every hundred pounds, and after that rate for every greater or lesser sum; and for every sum under ten pounds he is paid two shillings. But this duty is now performed by the signer of the writs, as his deputy. "Secondly, the Clerk of the Rules, holds his place for life, by appointment in writing under the hand and seal of the chief clerk. His duty is to attend the court, and take minutes of the rules and orders made by the court in civil actions between party and party, and to draw up the same, and inake copies thereof when required; and to file and copy all petitions and affidavits on the civil side, and to do such other business as he is ordered to do by act of parliament, or by the court. "Thirdly, the Clerk of the Papers (till lately there were two clerks of the papers) who holds his office by writing under the hand and seal of the Chief Clerk for life. He attends the court at Westminster every day during the sitting thereof, and at his office every afternoon in term time; he reads the rules of court, affidavits, records, deeds, libels, suggestions, and other matters on the plea side of the court. All special pleadings on the pleas side of the court in causes by bill, are left with the clerk of the papers, who makes copies of such special pleadings, and when issue is joined thereon, makes up the same into paper books, and sets down all causes to be argued in court on writs of error and demurrers, or other special matters, and delivers copies thereof to the judges. This officer also claims the copying of all special pleadings, and making up the paper books, where the proceedings are by original writ; and in Michaelmas term 1734, the court determined the right with him; but he had anciently nothing to do in such cases. By several orders of court made in Trin. 2 Jac. 1, Trin. 16 Car. 2, and Mich. 2 W. & M., no attorney, or clerk attending here in court, shall deliver to any attorney or clerk attending here in court, or to any other person, or shall receive from any attorney, or clerk attending here in court, or from any other person, any special plea that ought to be put into the office of the clerk of the papers, or copy of the same plea, before the plea is put into the office of the clerk of the papers; and such copy, after the plea is put in, shall be made by a clerk attending in the said office of the clerk of the papers, and signed with the hand of one of the clerks there attending: penalty for the first offence ten shillings, to be paid to the box for the use of the poor; for the second offence twenty shillings, and for the third offence to be expelled the court. Fourthly, the Clerks of the Dockets, commitments, and satisfactions, holds his office for life, by appointment under the hand and seal of the chief clerk. He makes and keeps an alphabetical docket of the judgments, and all other entries upon record in the said court, on the plea side, and enters commitments and satisfactions. (To be continued.) THE EDITOR'S LETTER BOX. The Letters of "Legalis;" W. A.; and B. W. H. shall be inserted. The Queries of H. P. W.; P. F.; and "A Subscriber," have been received. We thank "An Old Subscriber" for his suggestion, and will follow it as speedily as practicable. CHANGES IN THE LAW IN THE thorise a solicitor so to practise in Equity, yet LAST SESSION OF PARLIAMENT, 1837. No. III. ATTORNEYS AND SOLICITORS. I VICTORIA, c. 56. Ir will be observed, that the most impor- it enables him to recover his costs. It has been several times decided, that a country solicitor, though practising in the name of a London agent who was admitted in Chancery, cannot recover any costs in that Court. By the above clause, it is clear that such costs may now be recovered; but it seems that the attorney cannot practise in his own name, but must use the name of a solicitor who is on the roll of the Court of Equity. We do not, however, see the necessity of that form of proceeding, as the new act expressly provides, that the attorney or solicitor shall be subject to the jurisdiction of the Court as fully as if admitted. The 3d clause settles the fees to be paid on examination and admission of attorneys and solicitors. The fees hitherto paid for admission in the three Common Law Courts amounted generally to 77. or 81., though a considerable part of this sum was not demanded; and perhaps the whole of it, with the exception of 1s., was illegal. The sum is now fixed at 11. 1s. 6d. for admission in each Court, and 17. Os. 6d. for the examination, making together 21. 2s.; and as one admission is sufficient, this is all that need in future to be paid. The fees of admission in Chancery, remain at the sum which was usually paid before this act, viz. : 17. 17s. The other clause of the act, extending to Graduates of the London and Durham Universities the privilege which belonged to those of Oxford, Cambridge and Dublin, of being admitted as attorneys after three years' service of clerkship, appears to offer a proper inducement to persons of superior K. 437; Turner v. Ford, 11 L. O. 116; 1 M. a Hockley v. Bantock, 7 L. O. 235; 2 M. & & C. 1. P |