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in such a proceeding as to make that oath valid and binding. For the plaintiff in error, Mr. Willes argued that it was not enough to make that averment, but that the statute 23 Geo. 2, s. 4, required something more; and that in setting forth the substance of the offence it was not enough to set out the substance of the matter sworn to, and to aver that it was false, and the authority of the judge to administer the oath, and to show expressly, or by implication, that the matter deposed to was material; but that it must be shown by an independent averment that the oath was administered in a judicial proceeding, of which the court had cognizance, including in that term all proceedings in which wilful perjury is committed by a false oath, because there were several judicial proceedings which are meant to be comprised under that term, commissions of inquiry from the Crown, and others; and for that the judgment of the Court of Queen's Bench delivered by Lord Denman, 4 Q. B. 83 (Reg. v. Overton), was cited. If it were necessary for us to say how we should decide the present case, if it were not distinguishable from that, we should require further consideration; but in this case it is expressly averred that an action was pending in that court, presided over by the judge who administered the oath, and that such action was one of contract, a species of action of which the court may have cognizance; that the case came on to be tried before him; that the plaintiff in error was examined as a witness upon the hearing, and sworn by the judge; and then follows the averment of a competence of authority in that judge to administer the oath. It appears, therefore, on the present record, that the oath was administered in the course of a judicial proceeding, whereas, in the case of Reg. v. Overton, the court considered that there was no averment that the oath was administered in the course of any judicial proceeding; there the alleged defect is, that although it was administered in a judicial proceeding, it does not appear expressly that it was one over which the judge who administered it had cognizance. We think it does so appear by necessary implication, for unless he had, he could not have had power to administer the said oath so as to be valid and binding, which is the true meaning of it. We, therefore, think, that in this case the alleged defect in the averment of the substance of the charge is supplied by necessary implication, by the averment of the competency of authority in the judge to administer the oath; and we must infer that it was proved at the trial that he had lawful jurisdiction over the proceedings, and there was a sufficient averment in the indictment that the matter deposed to was material; therefore, the judgment must be affirmed.
July 3, 1851.
(Before Mr. Justice WILLIAMS.) TURNER v. WILKS AND ANOTHER. Protection statutes-Imprisonment of debtor beyond twelve months-Discharge of insolvent.
By the 7&8 Vict c. 96, s. 28, it is enacted, "that no debtor shall be imprisoned on any process for more than twelve calendar months for any debt contracted before filing his petition."
The Insolvent Debtors Court refusing to discharge an insolvent petitioner who had been in custody more than twelve months:
Held, by Mr. Justice Williams, after consulting Mr. Baron Parke, that a judge at Chambers may discharge
The insolvent, the defendant in the action, filed a petition for protection under the statutes 5 & 6 Vict.
c. 116, and 7 & 8 Vict. c. 96, in the Court for Relief of Insolvent Debtors, and came up for his examination before Mr. Commissioner Law, on the 19th of April, 1851, when he was opposed by the plaintiffs in this action, and a day was named for making the final order. On the last-named day the insolvent was again opposed, and the learned commissioner (Mr. Law) adjourned the case sine die, without protection; on the 11th of May, 1850, being the day after the last examination, the insolvent was arrested in execution in the action, and committed to the debtor's prison. After the lapse of about six months an application was made to the learned commissioner to grant him a protection order under the 7 & 8 Vict. c. 96, s. 28, but the application was refused. Subsequent applications were made to the learned com missioner, but were attended with the same result. Today,
Lewis (of Ely-place,) applied for the discharge of the insolvent, the defendant in the action, out of custody, upon affidavit of the foregoing facts, and also that more than twelve months had elapsed since the filing of the petition and the final hearing of the petitioner. Martin, the plaintiff's solicitor, opposed the application. WILLIAMS, J., doubted his power to discharge the insolvent.
Lewis admitted that he had no precedent, but relied entirely upon the words of the statute. Perhaps his lordship would be good enough to mention the nature of this application to Parke, B., who was also at chambers.
WILLIAMS, J., acceded to this request, and immediately consulted with Parke, B., after which he returned, and made an order for the insolvent's discharge, grounded upon the affidavit and the words of the act of Parliament. The insolvent was accordingly discharged.
NOTE. This is the first case that has arisen under these statutes, and should be noted by practitioners.— REPORter,
COURT OF QUEEN'S BENCH.
SITTINGS AT WESTMINSTER AFTER TRINITY TERM.
(Before Lord CAMPBELL, C.J.)
Notice of action-Court-Cause of action-Special damage.
Notice of action to the clerk and bailiffs of a County Court stated that the action would be brought in the Court of Common Pleas :
Held, it would not support an action in the Court of Queen's Bench.
The notice was for breaking plaintiff's house, and taking furniture therein without expressly claiming the furniture as belonging to the plaintiff.
Held, that it would not support an action for breaking the plaintiff's house and for taking her goods. Semble, the notice should state the special damage, if any
is to be claimed in the declaration. Semble, if execution issues from the County Court against the goods of A. and the goods of B. are taken, and his house is broken by mistake, the clerk and bailiffs are, under 9 & 10 Vict. c. 95, s. 138, entitled to notice of
This was an action of trespass for beaking and enter defendant Wright pleaded, not guilty by statute; the ing the plaintiff's house and for seizing his goods. The defendants Goldsworthy and Pegler pleaded not guilty, not possessed of the goods, not possessed of the doors, and a justification under a warrant issued of the County Court.
Wright was the clerk of the Bloomsbury County Court, Galsworthy the high bailiff, and Pegler the deputy bailiff of the same court. Execution issued from that court against the goods of the plaintiff's father, and it was now alleged that they had taken the goods of the daughter under that execution.
Humfrey, Q. C., objected to the notice of action which was tendered in evidence by the plaintiff, in the first place, because it gave notice of an action to be brought in the Court of Common Pleas instead of the Queen's Bench. Secondly, 9 & 10 Vict. c. 85, s. 138, required notice in writing of such action, "and of the cause thereof," to given; and, doubtless, the object was that tender of amends might, under the same section, be made for the whole cause of action. Here the action was for breaking the plaintiff's house and for seizing her goods, claiming the goods as the goods of the plaintiff, whereas the notice was only for breaking the plaintiff's house and taking furniture therein without claiming the furniture, as belonging to the plaintiff. There was, therefore, no notice of action as to the goods, and the defendants could not, therefore, tender amends in respect of the whole cause of action. Thirdly, in the declaration and particulars 471. were claimed as special damages for hiring other goods in the place of those seized, for the consequent loss of a lodger, and for other losses. But in the notice no special damage was mentioned. The defendants could not, therefore, with effect have tendered amends. On these grounds the notice was bad; it must be construed strictly. (Lovelace v. Curry, 7 T. R. 634.) Shee, Serjt. contrà.—The alteration of the court was a mere accidental omission in the copying, and it clearly did not mislead the defendants. The act required notice of the action, and of the cause thereof, to be given; it was not necessary to state the court, and though stated erroneously, it was not binding.
Lord CAMPBELL, C. J.-You are to give notice of "such action "-that is of this action. Have you given notice of this action in the Court of Queen's Bench? There may be another action pending in the Court of Common Pleas to which this notice applies.
Pearson further contended that no notice was necessary in this action.
Lord CAMPBELL, C. J.-There is an issue joined upon it.
Pearson. It is an immaterial issue, Munday v. Stubbs, 20 L. J. 59, C. P. was in point.
Lord CAMPBELL, C. J.-There is an issue to be tried, whether material or not is not now in question—that will be a matter for the subsequent consideration of the court. I am, however, strongly of opinion that it is materialand if due attention is paid to section 138 of the statute, it seems to me impossible to contend that it is immaterial. As to the notice, it is clearly bad. The action is in Her Majesty's court, before Her Majesty herself, at Westminster, and the notice is of an action in Her Majesty's Court of Common Pleas. There may be at this moment such an action. At any rate the notice cannot apply to the present action. I think it also bad because it studiously avoids claiming the goods seized as the goods of the plaintiff, whereas the declaration claims them-a different cause of action is therefore inserted, and a tender, if made only for the cause of action stated in the notice, viz. for breaking the house, would not have been sufficient. There is also much in the objection as to the non-statement of special damage. How would a tender be made? I am of opinion that this is not such a notice as is required by the act. The verdict must be for the defendants.
The case, notwithstanding, proceeded, in order to ascertain the costs of the other issues, and the jury ultimately found for the defendants on all the issues. Shee, Serjt. Q. C. and Pearson, for the plaintiff. Watson, Q. C. and Hugh Hill, for the defendant Wright.
Humfrey, Q. C. and Lush, for the other defendants.
The court Reported by DAVID CATO MACRAE, Esq., of the Middle Temple,
Shee, Serjt.-The statement is surplusage. need not be specified. Then, as to the second objection, seizing the goods is stated in the notice of action to be part of the cause of action; it will be intended to mean the goods of the plaintiff.
Lord CAMPBELL, C. J.-That also appears to me a very serious objection. When I was at the Bar, we always used to make the notice a copy of the declaration. Shee, Serjt.-A shorter form is now in use. It is stated that the goods were in the plaintiff's house. Surely it will be intended that the plaintiff claimed for seizing of those goods as being her own. As to the special damage, it is not necessary to state it in the notice.
Lord CAMPBELL, C. J.-Have you any authority for saying that you may lay special damage in your declaration, which is not mentioned in the notice?
Shee, Serjt.-Notice is required only of "such action and of the cause thereof." Special damage cannot be said to be the "cause of action." Jones v. Bird, 5 B. & A. 837, shows that the notice is sufficient.
May 19, 1851.
(Before the CHIEF COMMISSIONer.)
Re RICHARD PENNEFATHER.
This insolvent was committed on the 10th of March, 1849. A creditors' petition was filed on the 19th of October, 1849, by the Hon. Edward Chichester, a creditor (No. 61,066.) The affidavit accompanying the petition of October, 1849, before me, a master extraordinary for sworn at the city of Dublin, Ireland, this 15th day Ireland, of the High Court of Chancery of England.' The Act (1 & 2 Vict. c. 110, s. 112) enacts that all affidavits used in the court made in Ireland or in Scotland shall be sworn before a magistrate of the county, city,
town, or place where the affidavits are taken. The Messrs. whether a vesting order or discharge upon a petition so Lewis, of Ely-place, looking at this petition, doubted sworn would be valid. The point was mentioned to Mr. Commissioner Law, who directed Mr. Lewis to make an affidavit of the fact, after which a rule should issue giving leave to the insolvent to file a new petition, notwithstandA new petition being the one on the files of the court.
Ogle and Pearson, on the same side, contended that the only object of the notice was to enable the defendants to tender amends, and that it must, therefore, be quite immaterial whether the action was in the Queen's Bench or Common Pleas. The defendants could not injured by the mistake. That the title to the goods was sufficiently shown in the notice. If so set out in the declaration, it would have been good on general demurrer, and in all probability even on special demurrer, and that it was not necessary to claim in the notice for special damage. It was not a cause of action but a consequence of the cause of action. It was not stated in the authorized precedents.
was filed on the 30th April, 1850; a schedule was filed on the 19th April, 1851; and the insolvent was finally discharged on the 19th May, 1851. The learned Commissioner did not dismiss the first petition, probably as the Act (1 & 2 Vict. c. 110, s. 37) directs that such petition shall not be dismissed without the consent of the petitioning creditor. (Hollis v. Bryant, 4 M. & G. 578.)
May 30, 1851.
Re JOHN UPTON.
(Before the CHIEF COMMISSIONER.)
The court will order an assignee to make good any deficiency in an insolvent's estate and effects caused by the mismanagement or misconduct of the assignee. This case had been repeatedly before the court, and fully argued by counsel. The facts are sufficiently stated in the judgment, which was delivered by the court to-day after a cur. adv. vult.
The CHIEF COMMISSIONER said, this man was a cotton spinner at Sedbergh, in Yorkshire, and being in prison for debt on the 6th of April, 1848, filed his petition on the 15th April, and obtained his vesting order on the 18th. He was heard at York on the 1st July, 1848, and was discharged forthwith. Mr. John Swainson, creditor 71, and Mr. William Wearing, creditor 70, were appointed assignees, and their appointment is dated 12th July, 1848. Among other property possessed by the insolvent was his interest in a mill called Birks Mill, of which he held the lease for the unexpired term of eight years and a half, and the machinery on that mill; and in another called Milthorpe Mill. On the 16th March, 1849, Mr. Wearing files his account, and on the 12th April Mr. Swainson files his. Mr. Wearing's account was audited on the 29th of March, 1849, and a report was made to the court, before the late Mr. Commissioner Harris. This report was excepted to, and two matters only were referred back to the examiner, namely, the disposal of the insolvent's property at Birk Mill and at Milthorpe Mill; and it is upon these two particulars that an immense mass of affidavits has been filed, and very lengthened and able arguments have been addressed to the court. It appears that there was an intention to dispose of the property at Birks Mill by public auction, and the 13th of December, 1848, was the day appointed for the sale. On the morning of that day, a conference took place between the two assignees, a Mr. Fisher, and a Mr. Scot, and Mr. Holmes, landlord, about withdrawing the sale from the public to dispose of the same to Mr. Holmes, the landlord; and ultimately it was agreed that Mr. Holmes should purchase it at the sum of 5117. that out of this Mr. Holmes should deduct his claim for rent of a year and a half, and the balance should be paid by three bills, drawn on and accepted by Holmes. This was done, and the three bills so accepted were deposited with Mr. Swainson, and were ultimately paid, and the public auction was stayed. The creditors object to this proceeding, as a very inadequate sum for the machinery, and that the whole was a scheme to give to Mr. Wearing the mill at a very insufficient value. There had been a valuation of this property by five different persons: a Mr. Fisher at 1,2661.; a Mr. Savage, 1,2281.; a Mr. Maudesley, 1,1287.; a Mr. Jackman, 7867.; and Mr. Tomlinson, 7061. Mr. Fisher's valuation had been made on the supposition of the machinery remaining on the premises; 3067. being his value if such were removed. It is not stated upon what principles these other gentlemen made their respective estimates, but it is obvious that the 5117. ultimately agreed upon and paid was very far short of the value of the lowest estimate. Now, it is objected to the bonâ fides of this proceeding that really this was a scheme to give this property to Mr. Wearing. It may assist our inquiry to note the duties of assignees -first, under the provisions of the 1 & 2 Vict. c. 110; and secondly, in analogy with the kindred system of bankruptcy. By sect. 47 of the statute it is enacted "that the assignees shall, with all convenient speed after their appointment, use their best endeavours to receive and get in the estate and effects of the prisoner; and shall, with all convenient speed, make sale of all such estate and effects." Now, the repetition of the two words
"convenient speed" in this short sentence, seems to me to point out the duty of assignees in this respect very emphatically. The 62nd section of the same act, after stating that the provisional assignee shall keep his accounts from day to day, provides that every other assignee, at the end of three months at the farthest from the date of his appointment, shall file his accounts and proceed to dividend; and the following section, the 63rd, enumerates several circumstances in which the court may charge an assignee with twenty per cent., and the being guilty of waste or mismanagement of the estate is among the provisions of that section; and further, assignees are, by sect. 65, expressly made officers of the court, and liable, as such, to its control. Now, the assignees in this case did not file their accounts within the three months, but did in about six months from the date of their appointment, and thereby an injury was inflicted on the creditors; for there was owing to Mr. Holmes, the landlord of the Birks Mill, a year's rent on the 7th April, 1848, and another half-year was running on; had the assignees taken to the lease eight years-and-a-half, the land would have been entitled to a year's rent only, and to be a creditor for the other half-year, when due in November following, but by the arrangement of sale to Holmes on the 16th December following, Holmes was allowed to take in full a year-and-a-half's rent, which was deducted at the time out of the 5117. that Holmes was to give for the property at Birks Mill. I pause at this part of the case to remark that there is a great number of affidavits connected with the actual levy of the defendants; there is a distressing contradiction as to the mode in which this was effected; but I do not think it necessary to enter into this matter, for I do not see how the property could have been disposed of without the landlord being paid the 1201., the arrears then due for the rent. The second, and perhaps the most impor tant part of this inquiry then arises, is Mr. Wearing, the assignee of Upton's estate, in the possession of this mill, and how and when did this occur. December 16th was the day on which the arrangement was made with Mr. Holmes the landlord, and within a week, viz., on the 20th of December, Mr. Wearing writes to a Mr. Hayhurst thus:-"I have taken the Birks Mill, formerly worked by Mr. Upton, and bought the machinery, and have to pay for them on Saturday, and I am a little short of cash." Now this letter called upon Mr. Wearing for an explanation, but not one word does he say in an affidavit after this allegation touching this matter. Mr. Holmes, the landlord, makes no affirmation respecting it. I disregard, therefore, contradiction as to alleged representations of Wearing on this matter. To my mind, there is no getting out of this statement in this letter; yet I would just note the concluding part of an affidavit of Mr. Swainson, sworn the 16th of January, 1850. After stating the mode of the arrangement with Holmes, proceeds as follows. (The learned Chief here read the extract.) Now to this part of Mr. Swainson's affidavit, Mr. Wearing makes no reply, nor offers denial or explanation. I conclude, therefore, that Mr. Swainson's statement is true, and that Mr. Wearing, with a full knowledge of what he was doing in his character of assignee of this estate, has subjected himself to make good whatever deficiency has occurred. Now, in bankruptcy, the assignees cannot bid, nor employ any one to bid for them, at the public sale of the bankrupt's estate; they cannot possess themselves of the bankrupt's property by purchase or otherwise; the rule of the court being inflexible and uniform against the transfer of any part of the bankrupt's estate, either to assignees or commissioners." This principle is clearly set forth in all treatises on this subject, and is to be found in Archbold's Practice, p. 377, and in Eden's Treatise, 203 to 307, and Montague and Ayrton, 323. I think that the evidence in the case before me justifies and demands the decision
4,3817. total amount of four valuations, divided by 4, gives 1,0951. Deduct 500l. H. paid, leaves 5951.
The order made by the court was,-"Upon reading the report of Edward Ingpen, gentleman, one of the examiners of the said court, it is ordered that the said report be confirmed to the extent of ordering Mr. Wearing to pay 5007. into court, and that the case concerning the Milthorpe Mill be referred to Charles Dance, gentleman, an examiner of the said court, for further evidence; and it is ordered that the said sum of 500l. be paid into court by the said Mr. Wearing not later than six weeks from the date hereof."
(Before Mr. Commissioner Law.)
Re E. GOODING. Discharge of debtor in execution for debt after vesting order made on creditor's petition-Effect of upon claim of creditor to prove for dividend before adjudication. Quære, does the discharge of a debtor in execution by the plaintiff operate a satisfaction of the debt, so as to disable the plaintiff from proving for a dividend made under a creditor's petition, filed previous to the discharge, and under which no schedule had been filed: Held, that a discharge of the debtor before adjudication is satisfaction; but that after adjudication it is not. This was a claim by Mr. Loosemore to prove for a dividend under circumstances which are distinctly stated in the judgment. The court delivered its opinion upon the claim to prove to-day.
Mr. Commissioner Law said,-The question is raised, whether, in this case, the discharge of the debtor in execution by the plaintiff operates a satisfaction of the debt, so as to disable the plaintiff from proving for a dividend. The vesting order was made on a creditor's petition; the insolvent did not file schedule; and that creditor, Mr. Loosemore, discharged him from custody. Mr. Loosemore now claims to prove. It happens that, after so discharging the defendant, he procured himself to be appointed assignee; and it is manifest that the court, on appointing him, was led to suppose that the insolvent was remaining in custody. These circumstances, however, do not affect the question of proof. That question is the same as if the claim were by some other person, not being petitioner nor assignee. The case is one of dividend without adjudication. The court comes to the business in ignorance of creditors, and acts under the instruction of the 62nd section of the statute, which in such case requires the dividend to be made among those who shall prove their debts. Can, then, Mr. Loosemore prove? I think not. The law says that one who has had his debtor in executiou and discharged him, has ceased to be a creditor. It has been urged that property which passed by the vesting order, is held in trust for those who were creditors at the date of the vesting order. Such are not the terms of the vesting
order. The words are, "in trust for the creditors who shall be entitled to share in a dividend." This sends us for information to the dividend clause which I have already mentioned, by which we find that those are entitled who shall prove their debts. Mr. Loosemore has no debt. He has done that by which he ceased to be a creditor. This court has decided that where the debtor has been discharged by his plaintiff after adjudication, the right to dividend is not lost. But it is not inconsistent with this, to decide that in the present case it is lost. When dividend is made after adjudication, the same 62nd section gives a different criterion of the right to dividend, expressly referring us to the sworn schedule. There may be errors in the schedule, and these are open to correction; but if it has been correctly sworn to, the debts which it discloses are the debts on which dividend is to be paid. A debt which had been already lost by discharge of the person from execution, would not properly stand as an existing debt on swearing to the schedule. This distinction, thus warranted by the words of the act, rests upon an intelligible principle. An insolvency without adjudication will not interfere with a creditor's right of suit. He holds his right untouched by the insolvent law. He holds it, then, on the usual terms, namely, that if after execution against the person he discharges the person, he discharges the debt. An adjudication alters the law between the parties, substituting a new relation between them under the decree of this court. The mode henceforth of acting against property is through the judgment which stands on behalf of the whole body of creditors, and which can only be put in execution under the discretion of the court. În the liability of person also a new state of things ensues. The unlimited power of the creditor is gone together with its incidents. It may be pronounced that in future no creditor shall take or detain the person. Or it may be that some or all are permitted to do so for a limited time; but it is no part of the decree of this court, nor in the spirit of it, that any creditor, though such qualified power is accorded to him, shall be required to exercise it. Those who have not already arrested an insolvent are not compelled to procure a detainer. So one who has before arrested compulsion, and a compulsion resting on no principle, if, is not compelled to continue a detainer. It would be a by discontinuing the detainer, he should forfeit his claim to dividend. I say, then, that without adjudication an insolvency has no prospective consequences; is not pleadable; avails nothing for the debtor: a plaintiff detains him as long as he thinks fit; but, if he voluntarily discharges him, he cannot be retaken; and the satisfac tion of the debt, which was inchoate by the capture, becomes complete. This is quite consistent with the principle that, when an insolvency has been attended with adjudication, the qualified right of detainer exists only under the special sanction of this court; so that he who is left for some specified time at the mercy of his creditors may be discharged by those who have had him in custody, and may remain unmolested by the rest; or, till the period arrives, he may be more or less deprived by them of his liberty. It is no part of the law of this court, that when the insolvency shall be referred into adjudication, the creditor who originally detained shall be incompetent to waive the privilege which, by the terms of that adjudication, may be continued to him. The justice of the distinction, namely, that a discharge before adjudication is satisfaction and after adjudication is not, will easily be recognised. We are all familiar with the practice for a detaining creditor to send a discharge shortly before the hearing, thereby making it impossible for the debtor to obtain for himself the benefit of an insolvency. In 1838 I proposed a remedy for this injustice, and pressed it upon the authorities when the act of 1 & 2 Vict. was in progress. But they were deaf to my
remonstrances, and the injustice is unremedied. Surely it is fit, that one who thus perversely sends his debtor a discharge, should do so on the usual condition that such discharge operates a satisfaction of his particular debt; that, while it damages the debtor, it should also have its usual result to the creditor. A plaintiff in such case causes the insolvency to be abortive for the other party, and prevents the contemplated change of relation between him and his creditors from being matured; from the moment of that discharge he remains liable to each of those who continue creditors; the insolvency has done something against him, nothing for him. It is, then, a just consequence to him whose act causes such defeat of hopes, that that act should have to himself the ordinary effect. He takes from the defendant the benefit of the stathte: why not then from himself also? It is, however, no less clear that, in the other case, when an insolvency has been perfected by coming to judgment, and the debtor has got for himself the benefit of it, the same thing would not be a just consequence. The law is new modelled. Individual satisfaction can never again be sought by any process. The law has interposed, not in the ordinary way between A. and B., but between A. and the entire body of his creditors; and, though the policy of the law does in certain cases still prescribe a limited liability of person, there is no ground for saying, that the law exacts, against the discretion of a creditor, that he should be the inflictor of the penalty. He is entitled to say that his position is changed; he has acted for others as well as for himself; he can no longer wield the power which the general law gave him as a plaintiff; but he has gained other objects in its place; title to existing property for all creditors, and special means, through this court, of resorting to future property if it should arise. The rights of all, with the duties and the risks of all, are made the same. In the present case, Mr. Loosemore knowingly substituted one state of things for another, as affects himself. He discharged the judgment-debt, taking a fresh written promise having its own dimensions. On this the insolvent remains liable. Mr. Loosemore has the benefit of it. It was by his own act, the liberation of the debtor, that he got that benefit. That act made adjudication impossible. If there had been adjudication, a new promise would not have availed for that debt. The claim would have remained cognizable in this court, and this court only. Mr. Loosemoore has made his election. He has discharged the debt which otherwise he would be competent to prove, and he has acquired a new right, on which there can be no proof.
A witness in a cause tried in the Superior Court, cannot recover expenses for loss of time in attending such trial.
This was a plaint to recover payment for six days' attendance at the Court of Common Pleas, as a witness on behalf of the defendant.
On the part of the defendant, it was attempted to be shown that the plaintiff had been paid 10s. for his loss of time, but this was positively denied by the plaintiff, who stated that all he had received was 2s., with two subpœnaes.
The defendant's attorney then submitted, upon a string of authorities, which he cited from Harrison's Digest, Law Journal, &c., that the claim was not recoverable in law.
His HONOUR observed, that it was quite clear a party could not, in strict law, recover for loss of time as a witness. It was his duty
to administer the law, and he must therefore decide in favour of the defendant; although he could not help feeling that such a decision was accompanied by great hardship so far as the plaintiff was concerned.
The plaintiff said he had tried the question, in the hope that he should have met with justice as well as law.
His HONOUR repeated, that he was bound to administer the law as he found it; and intimated that parties should insist upon payment for their loss of time before they gave evidence.
The defendant's attorney applied for costs, but which his Honour refused.
ROBINSON . EVANS. Joinder-Practice.
Where a trespass took place in July, and arising out of it an assault was committed in August, they are two distinct causes of action, and cannot be joined in the same plaint.
In such case the court will require the plaintiff to elect on which he will proceed.
This was an action to recover 10%. as compensation in damages for an assault, and a further sum of 101. dainages for a trespass. Fry (counsel) appeared for plaintiff.
here two distinct causes of action, the alleged trespass having taken Wakeling (attorney), for defendant, submitted that as there were place in July, and the assault complained of in August, the plaintiff must make choice of one or the other, as the two actions could not be combined in one plaint.
Fry contended that the one was identified with the other. His HONOUR Concurred with Mr. Wakeling, that they were separate causes of action occurring in two separate months in the The only question therefore, was, which the plaintiff would
Fry said he would try the question of assault. Evidence having been adduced in support of the plaintiff's case, Wakeling addressed the court in mitigation of damages, and His HONOUR gave judgment for 40s., but refused costs, observing that it was a case which ought not to have been brought into this court at all, the police court being the fittest tribunal for settling matters of this nature, where they might be disposed of at a much less expense.
The jurisdiction of this court is not ousted by the fact of the plaintiff having already taken proceedings for the same matter before a magistrate under the Police Act.
Lewis submitted, that as this case had already been decided by a magistrate, the plaintiff could not avail himself of this court as a Court of Appeal.
His HONOUR said he should like to see the act under which the original summons issued.
Lewis said it was the Police Act, under which any party unlaw fully detaining property could be summoned before a magistrate. The plaintiff had availed himself of that enactment, and the magistrate decided that he had no claim to the property in question.
His HONOUR.-Primâ facie I think I have jurisdiction. Wakeling (for plaintiff.)-Undoubtedly. The rule of law at the police court is, that the plaintiff himself cannot prove the facts, and in this case the plaintiff had no witness.
The case proceeded, and judginent was given for the defendant; but there was no feature in it of legal interest.
AYRES v. WHITE. Practice.
This court will not entertain a judgment summons, where the parties had not observed the order of the court, but had made arrangements between themselves, differing in terms from such order.
This was a judgment summons. Since the order for payment the plaintiff had received from the hands of the defendant 5s, for which he gave the defendant an I. O. U., in order that the payment should not interfere with the judgment of the court. The judg ment summons was issued for the balance due upon the judgment, exclusive of the 58. received.
His HONOUR said, that where parties chose to arrange matters out of court, he should leave them to settle their own affairs,