8 Abstracts of Resent Statutes. and medical certificate and notice transmitted to him in every such case as aforesaid; and that each of them the said clerk of the said commissioners and clerk of the peace shall, at all times within five clear days next after he shall receive every such notice or copy of order and medical certificate as aforesaid, enter in a register to be provided for that purpose the Christian and surname of the insane person to whom such notice or copy shall relate, and also of the persons by whose order and upon whose medical certificate or certificates such insane person shall be confined, and the house in which such insane person shall be confined, according to the form directed by the said act: Penalty for neglect, five pounds each offence. case such house shall have been licensed by the justices in sessions, to the clerk of the peace, then and in every such case such proprietor or resident superintendent shall forthwith transmit every such notice and copy of statement so omitted to be sent or transmitted to the clerk of the metropolitan commissioners or clerk of the peace, or to the clerk of the metropolitan commissioners and clerk of the peace, as the case may require. 6. Every metropolitan commissioner appointed or to be appointed under the said recited act, being a practising barrister, shall be allowed and paid for the time he shall be employed in executing the duties of his office after the same rate, and in the same manner, and out of the same fund or funds, as by the 3. Whenever any patient confined in any said act is provided concerning the payment house licensed under the said recited act shall or allowance of commissioners being physibe removed or discharged therefrom, or shall cians: Provided, that not more than two of die therein, the proprietor or resident super- the said commissioners at any one time shall intendent of such house shall, within two clear be capable of receiving such payment or aldays next after such removal, discharge, or lowance; and if more than two of such comdeath, transmit a written notice thereof, and missioners shall be practising barristers, such (in case the patient so dying shall be a parish payment or allowance shall be made to such pauper patient, then) also a copy of the state-two of such barristers as the Lord Chancellor ment of the cause of his or her death, in the said act directed to be made, certified and according to the forms respectively prescribed by the said act, or as near thereto as may be, to the said clerk of the said commisioners, if 7. Every proprietor and resident superinthe house wherein the patient shall then have tendent of any house licensed under the said died, or from which he shall have been re-recited act who shall knowingly and wilfully moved or discharged, shall have been licensed by the said commissioners, but if such house shall have been licensed by the justices in sessions, then such proprietor or resident superintendent shall transmit one such notice to the clerk of the commissioners, and one other such notice to the clerk of the peace. 4. All copies of orders and medical certificates, and notices of admissions, and also of removals and deaths, which have been transmitted to the clerk of the metropolitan commissioners or to any clerk of the peace since the 11th August 1832, under the said recited act, and which have not been registered by the said clerk of the metropolitan commissioners or the said clerk of the peace, as the case may be, shall be registered forthwith by the said clerk of the metropolitan commissioners or clerk of the peace, as the case may require, in the same manner as in this act is provided for the registry of orders, medical certificates, and notices of admissions, removals, and deaths, hereafter to be transmitted to the said clerk of the metropolitan commissioners and clerk of the peace respectively. 5. Where any insane person shall, since the 11th Aug. 1832, have died in or been removed from any house licensed under the said act, and the proprietor or resident superintendent thereof shall not have transmitted notice of such death or removal, with a copy of the statement of the causes of death in every case where the insane person so dying shall have been a parish pauper patient, to the clerk of the metropolitan commissioners, and also, in or other person intrusted with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, shall direct. neglect to transmit any notice, copy of order, medical certificate, or statement by this act required to be by him transmitted, shall be deemed guilty of a misdemeanor; and all complaints, informations, and prosecutions of and for offences against this act shall be made and prosecuted, and all fines, penalties, or forfeitures shall be recovered, levied, and applied, by such persons and in such and the same manner respectively as in the said recited act is provided respectively concerning the offences against the said act, and the fines, penalties, and forfeitures thereby imposed; and every provision whatsoever in the said recited act contained concerning actions and suits commenced and brought against any person for any thing done in pursuance of the said act shall be applicable and applied to all actions and suits which shall be commenced or brought against any person for any thing done in pursuance of this act, as if the same provisions were here repeated and applied to the said last-mentioned actions and suits. 8. The provisions in the said recited act contained concerning the meaning and construction of words and phrases in the said recited act shall extend and be applied to the like words and phrases in this act. Notices of New Books - Superior Courts : House of Lords. 9 NOTICES OF NEW BOOKS. qualifications of every general rule. On the contrary, the author has, he would hope, sucAn Elementary and Practical Treatise on the ceeded in compiling such a statement of the Commencement of Personal Actions, and practice, upon which he professes to treat, as the Proceedings therein to Declaration, in may be readily comprehended, and remembered without difficulty, even by uninitiated the Superior Courts at Westminster, comprising the Changes effected by the Uni- that this work will be found peculiarly adaptprofessional students. To such, it is considered formity of Process Act (2 W. 4, c. 39), ed, being written upon the assumption of the and Recant Rules of Court. With an Ap - | reader's previous ignorance, for the most part, pendix of the Statute, the Rules referred even of the terms from time to time employed. to, and appropriate Practical Forms. By The practitioner, to whom much of the elemenWilliam Atherton, Esq., of the Inner tary portion of the work may appear superfluTemple, Special Pleader. London: Saun-ous, will, at the same time, find a simple arrangement of the practice, which he must now ders and Benning. 1833. adopt, unencumbered with details of the former This is a useful book, on the Commence- | practice, excepting so far as the present dement of Personal Actions, and the pro- of the recent Rules of Court which apply pends upon it. The Appendix of Forms, and ceedings up to and including the Declar- to the commencement of actions, may, peration. It also comprises the means of sav-haps, enhance the work, in a practical point ing the Statute of Limitations, and the proceedings to Outlawry. The following practical matters are also added: particulars of the plaintiff's demand, settlement of actions, end the practice by summons and order. We do not exactly understand why the author has limited his labours to these subjects, unless it be (which we do not find stated in the present book) that he intends in a second volume to complete the work. The more useful as a guide the treatise may be, up to the delivery of the declaration, the more will the practitioner regret that at that stage of his journey he loses the author's assistance. We shall leave Mr. Atherton to explain his own views, by the following extract from the preface: of view. "The questions, to which so general a measure as the Uniformity of Process Act must have been expected to give rise, and several of which are still undecided, the author has stated, and considered at large : and, although, in some cases, a certain conclusion can hardly as yet be arrived at, it has not been deemed either impracticable, or useless, to define where the difficulties lie; and thus to apprize the practitioner, in what cases he may act without hesitation, and where his course is problematical. Very the language of those parts of the statute, of particular attention has been bestowed upon which the meaning has been considered doubtful: and the writer is not aware that, in this respect, his labours have been anticipated by any author earlier in the field.” The work appears to be carefully executed, and the authorities and practical forms diligently collected. The addenda to the book comprises the alterations recently made by the Rules of A knowledge of the Practice of the Courts | Court, of last Trinity Term, the Law Amend has been thought to be almost, if not altoge- ment Act, 3 & 4 W. 4. c. 42; the Limither, unattainable from books: and this opi- tation of Real Actions Act, 3 & 4 W 4. c. nion, until a recent period, was at least plausi-27; and the Uniformity of Process Amendble. The practice differed widely in the various | ment Act, 3 & 4 W. 4. c. 67. Courts in many respects it was founded upon obsolete technical customs; in others it was quite arbitrary. There was difficulty, also, in bringing questions of doubt to any satisfactory test; since the practice, where not declared by Rules of Court, or ascertained by unquestionable usage, lay entirely in the discretion of the Judges, aided, perhaps, by the traditions of their officers. The diversity here alluded to has recently been, in great measure, put an end to: completely so, in fact, as far as relates to the commencement of actions; the practice affecting which is considered in the following pages. The alterations, by which this uniformity has been effected, are simple in their principle, and are immediately derived from an act of the legislature, and from rules sanctioned by the Judges of the respective Courts. "In a treatise such as the following, it is now, in consequence, no longer necessary to burden or confuse the memory of the reader, by perpetual digression, or numerous nice SUPERIOR COURTS. House of Lords. A foreign sovereign having a right to sue A plaintiff having obtained an order to amend after answer is put in to his original bill, and after a cross bill is filed against him, 10 Superior Courts: House of Lords. is bound to answer the latter before he can compel an answer to his amended bill. The appellant's original bill, filed in 1827, stated that one Justo de Machado, his agent, appointed to receive certain indemnity funds, set apart by the French Government, in pursuance of certain conventions between that Government and Spain, to satisfy the claims of the subjects of the King of Spain on France for damage done and losses sustained during the revolutionary war, and charged that Machado sold out the said funds in France, transferred the proceeds to this country, and deposited above 200,000%. of them with the respondents, Hullet & Co., in the name of one Achilles de Pereira. Machado's secretary; and it prayed that the defendants might answer the matters charged in the bill, and might pay into the bank of England, to the credit of the cause, the balance of the monies so deposited with them and then in their hands. The respondents demurred to the bill, chiefly on the ground that a foreign sovereign is not entitled to sue in the Courts of Equity in England. But their demurrer on that point was overruled by the then Lord Chancellor, and his decision was confirmed upon appeal to this House, whereby it was established that a foreign sovereign may sue, on behalf of his subjects, in our Courts of Equity as well as at law.a The respondents then put in their answer to the bill, and in a few days after filed a cross bill against the King of Spain and others, stating that his Catholic Majesty had in his possession or power various documents and accounts, and also personal knowledge of divers transactions, the full communication and discovery of all which was material to their defence to his suit, and praying in the usual way that his majesty may answer all the matters in their cross bill charged against him. stated as made by the Vice Chancellor and affirmed by the Lord Chancellor, the King of Spain now appealed to this House. Wetherell, in support of the appeal, argued The Attorney General and Sir Charles that the bill of the respondents was not technically or substantially a cross bill. It described the appellant differently from the description of him in the original suit, whereas a cross bill is only properly maintainable against the same plaintiff. It contained allegations and charges which had no foundation in truth, and had no relation to the matter of the original suit, and therefore not necessary to the respondents' defence against it. It was morally impossible for a foreign sovereign to swear an answer to a bill in our Court. Being admitted to sue as a sovereign, he could not sink his political capacity in the natural person. The law of nations external to his kingdom; and to swear to an forbids the sovereign's taking an oath in matters answer before a commissioner from our Court of Chancery in the face of his own subjects, would be tantamount to an abdication of sovereignty, as it would be acknowledging a supeof the matters inquired into by the cross bill, rior. The appellant had no personal knowledge and he tendered an officer of his own government to put in an answer on his behalf, to give to be liable to all the consequences, as residing all the information that could be required, and within the jurisdiction and subject to the control of the Court. The rule of practice as to answers to cross bills was dispensed with in and married women,-and why not in the case cases of peers, corporations, infants, lunatics, of a king? There being no precedent in this case, the House might make one. Sir Edward Sugden and Mr. James Rusbill of the respondents was strictly according sell, for the respondents, maintained that the to the principle of cross bills, and had for its The appellant, in the year 1830, more than object bona fide a discovery of matters essential a year and a half after the respondent's anto the defence of the respondents to the oriswer, obtained an order to amend his bill; that ginal suit. The appellant was bound to give order was set aside for irregularity, on the to the respondents the justice he asked for application of the respondents, but was after- himself; and coming as a suitor in this counwards restored on the ground that the accept-try, he could not import his prerogatives with ance of the 20s. costs was a waiver of the irregularity.c The bill being accordingly amended, the respondents obtained an order from the Vice Chancellor, giving them a month's time to answer that amended bill after the appellant had answered their cross bill, and that order was affirmed, on appeal, by the Lord Chancellor. A motion was subsequently made to the late Lord Chancellor, to the effect that the appellant might put in an answer to the cross bill by an officer commissioned by him for that purpose, or that his own answer to it might be taken without oath. That motion was refused; and the order of refusal was, upon re-hearing, confirmed by the present Lord Chancellor. From this order, and from other orders made in both causes, among which was that above a See 1 Dow. & Clark, 169. b 13th New Orders. 1 Russ. & Myl., 1-7. him, but should submit to the rules of our Court like all other suitors. The laws of Eng land recognized no distinction between suitors. The law on this matter was fully laid down in Colvin's case, and in the case of the Columbian Government v. Rothschild. The law of nations had nothing to do with the matter, and the analogy with peers, corporations, infants, or lunatics, did not hold. The Lord Chancellor, who was assisted by Lord Wynford and Lord Plunkett in hearing the case argued, said there was no necessity to postpone their judgment. Although the King of Spain was justly allowed to sue in our Court in his political capacity, yet he did not import any privileges that could displace the practice as applying to other suitors. Lord Lyndhurst, in moving the judgment of this House upon d 7 Co. Rep., 29, 30. • 1 Simon, 94. Superior Courts: K. B. Practice Court; Common Pleas; Exchequer. 11 that the defendant had been summoned to answer the plaintiff in an action "on the case," and then declared "on promises." the demurrer, said that the appellant was on the same footing with the respondents, meaning clearly that he was liable to all the rules to which other suitors submitted, and the deci- Barnewall supported the demurrer, and consion in the case of the Columbian Government tended, that since the passing of the Univ. Rothschild went on the same view. formity of Process Act, the 2 & 3 W. 4. c. 39, The orders of the Courts below were af- an action ou promises" was a new form of firmed, with costs. action, and consequently different from an ac 66 The King of Spain v. Hullet & Co., 19th tion "on the case;" he referred to the first and 20th of August, 1833 King's Bench Practice Court. BAIL.-NOTICE OF JUSTIFICATION. form given in the schedule in the act. There was consequently a variance between the form of action stated in the process, and the form in which the plaintiff declared. He cited King quer held that "a writ of summons being to v. Skiffington, in which the Court of Excheauswer the plaintiff in an action of trespass on the case, followed by a declaration in assumpsit, is irregular, and may be set aside." The rules of T. T. \ W. 4., as to notice of justification, do not apply to country bail. In this case country bail had been filed at the Judge's chambers on the 6th of May. Notice of justification was given on the same day for the 8th. It was objected, when the bail came up to justify, that four days' notice of justification had not been given, as required by Judgment for the plaintiff -Wilson v. Prime, the rules of Trinity Term, 1 W. 4., and there-T. T. 1833. K. B.P. C. fore that they could not pass. Putteson, J. was of opinion that the rule referred to only applied to cases where the bail were put in and justified at the time of putting in. Here the bail had not been put in and justified at the same time, and therefore the rule did not apply. Bail_justified.-Smith's bail, T. T. 1833. K. B. P. C. SETTING OFF JUDGMENTS.-CAPTAIN AND OWNERS.-VERDICT. The amount of a verdict cannot be set off against that of a judgment. Taunton, J.-The action "on promises" is an action "on the case." There is nothing in the objection.* Common Pleas. RESCUE. SHERIFF'S RETURN.-BAILIFF. The Court will grant an attachment absolute in the first instance against rescuers, where the sheriff returns a rescue from his bailiff. In this case the Sheriff returned, that having made his warrant to his bailiff to take the defendant, the bailiff took him accordingly, and Application to set off judgments. In this kept him until A. B. and certain other persons case the plaintiff in the first action had reco-rescued him out of the bailiff's custody. vered against his owners a sum of 1147. 85, and for that amount had signed judgment and issued execution. The money was levied, and in the hands of the sheriff, with notice to retain it. In the second action, which was by the owners against the captain, a verdict was found in favour of the owners for 1437. 158.4d. A rule nisi for a new trial was, however, obtained in the Court of Exchequer, in which the action was brought, and was still pending. The present application therefore was to set off the two amounts against each other. Patteson, J., was of opinion, that as the owners had not obtained a judgment, the present application could not be sustained. Rule discharged, with costs.-Garrick v. Jones and others-Jones and others v. Garrick, T. T. 1833. K. B. P. C. DEMURRER.-PROOFS.-UNIFORMITY OF It is no ground of demurrer that the decla- Demurrer to a declaration. In this case the declaration, in setting out the process, alleged f 1 Simon, 94. Wilde, Serjt., moved for a rule absolute in the first instance for an attachment against the rescuers, on the authority of Sir W. Jones, 197, cited in Com. Dig. Rescous, D. 4. The Court, on that authority, granted the rule accordingly. Rule granted.-Gobby v. Dewes, T. T. 1833. Com. Pl. Court of Exchequer.. INTERROGATORIES.-WITNESSES' EXPENCES. -COMMISSION. Since the 1 W. 4. c. 22, it is discretionary with the Court whether they will allow the expences of foreign witnesses brought over for the purposes of a cause, or only the costs of a commission. This was an action against the defendant for the breach of an agreement in not procuring for the plaintiff a situation abroad, and for the expences the plaintiff was put to in removing himself and family, and returning. The jury gave 5007. damages. Two witnesses, sons of a 1 Dowl. Prac. Cas. 686. 12 Superior Courts: Exchequer.—Sittings of the Master of the Rolls. the plaintiff, had been brought from Barbadoes for the purpose of proving the plaintiff's case. They were sworn to be essential. The master, in taxing costs, had allowed the expences of their journey here and back, and during their stay here, amounting altogether to 3807. SITTINGS OF THE MASTER OF IN AND AFTER MICHAELMAS TERM, 1833. Richards having obtained a rule nisi for re- The Sittings will take place in the Mornings at viewing the master's report, and for disallow. ing the expences of the witnesses' voyage here and back Erle shewed cause, and referred to Tremain v. Barrett, a where it was held that if a witness is bond fide sent for from a foreign country, Ten o' Clock. for the sake of his testimony in an intended Monday, November 4< upon those Erle. The whole case rested two witnesses. Prudence might require that The 1 W. 4. they should be brought over. c. 22, gives the Court power to examine wit Tuesday nesses in any of his majesty's foreign posses- Friday sions; but the act is not obligatory: it is op tional with the party whether he shall apply to the Court or not. The party in the wrong ought to indemnify the other side. Monday At Westminster.-General Petitions, and Petitions and Further Directions by Consent. At Westminster. Causes, Further Directions, and Ex 5 6 7 ceptions in the Ge neral Paper. 8 11 12 13 Richards, in support of the rule. The ex- Saturday pences of commissions under that act are in the discretion of the Court. The affidavits do not shew for what purpose the witnesses were Wednesday brought over. Bringing over two witnesses, and keeping them here from November to Both could not May, could not be material. be wanted. The Saturday At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper. 9 At Westminster. Causes, Further Di rections, and Ex ceptions, in the General Paper. At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper. At Westminster. Causes, Further Di 15 16 18 Lord Lyndhurst, C. B.-A party having no power to compel the attendance of witnesses Friday abroad, to prevent injustice, the 13 G. 3. c. 63, gave the Court power to issue a commission for the examination of witnesses in India, and the 1 W. 4. c. 22, has extended that power over all his majesty's foreign possessions. master has exercised no discretion in this case, It apthinking himself bound by the cases. pears to me, that it is for the discretion of the Wednesday Court in each particular case. But we will consult with the Judges of the other Courts, and if we are of opinion that it will depend upon the facts of each particular case, we will refer it back to the master to inquire. Vaughan, B.-There is no provision in the Friday act altering the jurisdiction or discretion of the Court. In a late case in the King's Bench, the master allowed the costs; but the question is now before Mr. Justice Parke. 22 rections, and Ex ceptions, in the General Paper. At Westminster. Causes, Further Directions, and Petitions by Consent; and Causes, Further Directions, and Exceptions, in the General Paper. At Westminster. Causes, Further Di Upon a subsequent day, Vaughan, B., who tried the cause, expressing his opinion that it Saturday M'Alpine v. Coles, T. T. 1833. Excheq. a 6 Taunt. 89. 23 rections, and Ex 25 ceptions, in the Ge neral Paper. At the Rolls.-At 10 o'clock, to swear in Solicitors, and General Petitions. At the Rolls.-Short 27{ Causes. Tuesday 26 Wednesday |