306 Superior Courts: Vice-Chancellor.-Queen's Bench. pay what was due, and upon that payment, the shall be made or given. The six days must securities would be transferred. These, how-be calculated from the time when the order ever, might turn out to be worthless: the party was made at the special sessions, and not from who was first entitled might have paid the the time when it was served on the surveyor. mortgage and might claim the estate. He The order becomes binding on the surveyor at therefore directed the case to stand over, and the time it is signed by the justices. The first reserved the costs. section of the statute requires 21 days' notice to be given to the surveyor before such special sessions; the justices, therefore, cannot proceed to make any order unless the surveyor has had notice, and if he is then absent, it is by his own default. In this case he was actually present and heard the order made. Proser v. Hyde, Rex v. The Justices of Pembrokeshire Rex v. The Justices of Staffordshire. Anderson v. Stather, June 26 & 27, 1845. Lincoln's Inn. Queen's Bench. (Before the Four Judges.) [Reported by JOHN HAMERTON, Esq., Barrister at Law.] SURVEYOR OF HIGHWAYS. TIME FOR Mr. Serjeant Clarke and Mr. Wildman, contrà. APPEALING, 4 & 5 VICT. c. 59, s. 3. The time for appealing must date from the The 4 & 5 Vict. c. 51, s. 1, empowers justices time when the order is served on the surveyor, to adjudge and order the payment of a for he is not obliged to appear before the speportion of the highway rate in any parish cial sessions, and, although present in court, for the repairs of the turnpike road in such he would not be bound to take notice of the parish. Section 3 gives a right of appeal to the quarter sessions, if notice is given within six days after such order, judgment, or determination shall be so made or given as aforesaid. Held, that the appeal must be made within six days after the order was made at the special sessions, without reference to the time when the order was served on the appellant. order until served. Besides, the surveyor is IN pursuance of notice under the statute 4 & 5 Vict. c. 59, the surveyor of highways for the parish of Hartshorne attended at the special sessions held on the 1st of April, 1844, when the cases under the Highway Act were adjourned to the 23rd of April. The surveyor attended and was examined before the justices on the 23rd of April. At these sessions an Lord Denman, C. J., afterwards delivered order was made, under the hands and seals of the judgment of the court. This was a rule two justices, directing the surveyor to pay the for a mandamus to the justices of Derbyshire sum of 100%. out of the highway rate to the to enter continuances and to hear an appeal treasurer of the trustees of a certain turnpike against an order for the payment of money by road in that parish. On the 5th of July a the surveyor of the parish of Hartshorne to the copy of the order was served on him. On the trustees of a turnpike road. 11th of July he served a notice of appeal on the justices who made the order. On the 17th had done right in refusing to hear the appeal. The only question was, whether the sessions of October the appeal came on to be heard, Their refusal was grounded on the alleged inwhen the respondents objected, that the notice sufficiency of the notice of appeal, which was of appeal was not in time, that it should have served on the 11th of July; the order appealed been given within six days after the day of the from was adjudged to be made at the special date of the order, instead of six days after the sessions holden on the 23rd of April, and was service thereof. The sessions held, that the dated on that day. In the notice of appeal it notice of appeal was not given within the time is described as an order dated the 23rd of required by the statute, and dismissed the April. The affidavit on which the rule was appeal. In Michaelmas Term, a rule nisi was obtained stated that the order was in fact obtained calling upon the justices to show served on the 5th of July; the notice of appeal cause why a mandamus should not issue com- was duly entered, but an objection was raised manding them to enter continuances, and to by the counsel for the respondents, that the hear the appeal against the said order. Mr. Whitehurst and Mr. Willmore showed cause. The 4 & 5 Vict. c. 59, s. 3, requires notice of appeal to be given within six days after the order, judgment, or determination May 1st, before Lord Denman, C. J., Patteson, Williams, and Wightman, Js. that the same ought to have been given within notice of appeal was not given in due time, and six days after making the order, instead of six days after service thereof; the court decided Superior Courts: Queen's Bench.-Q. B. Practice Court. the notice insufficient, and dismissed the appeal. This statement raises the point, whether the order can be said to have been made on the 23rd of April, when it was agreed upon, or whether it was made on the day it was served. The order was made under the 4 & 5 Vict. c. 59, which gives power to the justices at petty sessions, on information laid before them by the treasurer of the turnpike road, and after notice of such information to the parish sur 307 until the sums sought to be allowed have been actually paid. Grove had obtained a rule to show cause why it should not be referred to the master, to davit of increase to have been paid to the witascertain which of the sums alleged in an affitaxed were not so paid, and why such sums ness at the time the plaintiff's costs were should not be refunded, and the master's allothe plaintiff's costs were taxed an affidavit of catur and judgment reduced accordingly. When increase was made by one Saffery, in which, amongst other payments, he stated he had paid to a witness named Such 41. 4s., and to one Kelly 37. The master allowed 31. 3s. to Such and 27: to Kelly. Such had goods of the plaintiff in his possession of the value of 157., out of which he could pay himself, and the plaintiff considered Such as paid. Afterwards the sum allowed by the master was in fact paid. The plaintiff gave Kelly an IO U for the amount allowed, Kelly giving a receipt, and this had been paid since the costs were taxed. Humfrey showed cause, and said the affidavit of increase was correct in substance. Grove, contrà, contended that the sums ought to have been actually paid, and cited Collins v. Godefroy, 1 B. & Ad. 951, and Lozez v. De Tastet, 3 B. & B. 292. veyor, to examine the state of the turnpike funds and other matters, and order what portion, if any, of such highway rate should be paid by the parish surveyor to such treasurer. The 3rd section gives power of appeal, giving to the justices six days' notice after such order, judgment, or determination shall be so made or given as aforesaid. The learned counsel who opposed the rule relied on two cases as decisive authority in their favour. Rex v. The Justices of Pembrokeshire, however, undoubtedly went upon no ground inconsistent with the opposite view. In the Michaelmas Term following, the court held, in Rex v. The Justices of Staffordshire," that the time for giving notice of appeal against an order for stopping a road must be reckoned from the order made, or proceeding had, and not from that of notice to the party aggrieved: there the words of the statute were held imperative on the court. On the other hand, the case of Rex v. The Justices of Lancashire' was cited, in Coleridge, J., on a subsequent day, after which the act gives the appeal against an order stating the facts, his lordship said :—It is not in terms similar to the present, only that the necessary to go the length of suspecting inwords are "cause of complaint," and dates it tentional fraud to the plaintiff's attorney in this from the cause of complaint, as this act does case, but the affidavit was in fact untrue and from the period of time of the order made or the practice susceptible of great abuse. given, and where the court held that the cause practice, the witnesses ought to be paid before of complaint arose at the time of serving the the affidavit of increase is made. No doubt order. The reasons assigned by Bayley, J., when the master refuses to allow the whole of are perfectly applicable in the present case, and such payments, occasional inconvenience may we think them sound in principle. There is arise, but this may for the most part be avoided an obvious distinction between the language of by care on the part of the attorney to ascertain the two statutes. The cause of complaint may other course would open the door to much fraud the proper amount of payments, whereas the well be taken to mean something affecting the party appealing, or at any rate, brought to his and abuse. I cannot refrain from observing knowledge. The period fixed in the present here, that the defendant swears he paid the act is, the making or giving of the order, judg-witnesses, whereas in fact he gave the plaintiff ment, or determination, which is too distinct a check for the purpose of paying them, nor and express to admit of being varied by any that such sums had been paid. does it appear that the plaintiff informed him gloss of construction. We think, therefore, He ought to that the sessions were right, and that the rule have stated the facts as they were, and then must be discharged. probably the master would not have allowed the payment without an affidavit from the plaintiff himself. Without any imputation of fraud, I think the rule should be absolute, as the master's allocatur was obtained by information, false in fact, but as the plaintiff ought not to pay costs, and costs are not asked against the attorney, without costs. Rule discharged. The Queen v. The Justices of Derbyshire. Queen's Bench Practice Court. AFFIDAVIT OF INCREASE. -WITNESSES. Trent v. Harrison. Rule accordingly. In Easter 308 Common Pleas-State of the Law Bills in Parliament.-Letter Box. [Reported by JOHN SCOTT, ESQ., Barrister at Law.] PRACTICE.-CHARGING PRISONER IN EXE CUTION. A prisoner in custody for a contempt of court may be charged in execution in a civil suit. THE defendant, who had been several years in custody for a contempt of this court, being brought up by habeas corpus to be charged in execution in a civil suit, objected, that inasmuch as he was not in custody under any civil process, it was not competent to the court so to charge hm. He also objected, that the word "instant" was interlined in writ after the day of the return. Channell, Sergeant, for the plaintiff, insisted, that the defendant being already in custody of the court for a contempt, it was perfectly competent to the court to charge him in execution in another suit, and that the word "instant" might, if necessary, be rejected as surplusage. Per curiam.-Let the prisoner stand charged. Wade v. Wood. C. P., E. T., 1845. Clerks of the Peace and Justices Clerks. Real Property Deeds Registration. Administration of Criminal Justice. THE EDITOR'S LETTER BOX. THE Third Part of the Quarterly Digest of all reported cases in all the courts is now ready. The Fourth Part, which will complete the volume, will be published in November. An Articled Clerk, who has been absent through illness for 15 months, with leave, may be admitted at the expiration of his articles by application to the court. The Examiners exercise a discretion to a certain extent according STATE OF THE LAW BILLS AT THE to circumstances, without troubling the court, We last week gave a list of "Bills postponed," being those which remained on the proceedings of the respective Houses of Parliament. We now subjoin a more complete catalogue, including several important measures which were withdrawn in the course of the session, but which will probably re-appear in the next. They are as follow: BILLS POSTPONED. Ecclesiastical Courts. Debtor and Creditor. Courts of Common Law Process. but we cannot say whether they would feel justified in allowing so long a term as 15 months. We think "An Old Subscriber" on proving the loss of the original will, may be allowed to give an office copy in evidence. The Documentary Evidence Act which has just passed assist him as to the proof of the office may copy. In answer to "Leguleius," the new Real Property Act which received the Royal Assent on the 4th instant, provides, that " every deed which by force of that enactment shall be effectual as a grant, shall be chargeable with the stamp duty, with which the same deed would have been chargeable in case the same had been a release, founded on a lease or bargain and sale for a year, and also with the same stamp duty (exclusive of mortgage duty) with which such lease or bargain and sale for a year would have been chargeable." The letter of J. S. on the New Local Courts Scheme shall appear in our next number. Our old correspondent P. R. A., inquires whether anything has been done as to the repeal of the Certificate Duty, which he characterizes not only as unfair but unnecessary, because, if the government wanted the money, and considered the tax just in itself, it might be levied by a trifling duty on writs, bills in chancery, &c., which no one would feel. He understood that Sir Thomas Wilde was to present a petition. We believe nothing has been done beyond the presenting petitions from several law societies. We shall continue every session to agitate the question, and ultimately the justice of the objection must prevail. The Legal Observer, OR, JOURNAL OF JURISPRUDENCE. SATURDAY, AUGUST 23, 1845. “Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. NOTES ON THE SMALL DEBTS in order to its more complete understand ACT. 8 & 9 VICT. c. 127. He must be a bold man, whether judge, counsel, or attorney, who would undertake to give a positive opinion on the many important questions which will arise under this act. A confident writer might indeed enunciate his own view of what ought to be the true construction of the several clauses; but until that construction has been brought to bear on some case judicially before a competent court, with all appliances and means to boot," of counsel and attorney, vigilantly engaged to support or defend the interests of their respective clients, little dependence can be placed on interpretations necessarily one-sided and with imperfect means of judgment. ing, we shall dissect it into its several component parts. The enactments apply to cases where other in a sum not exceeding 201., besides costs 'Any person is or shall be indebted to any of suit, by force of any judgment obtained, or of any order for the payment thereof, or of any costs in any court, which judgment or order shall have been obtained from any court of competent jurisdiction in England." So that there are three classes of cases: 1st, judgment debts; 2nd, orders for payment of debts; and, 3rd, orders for payment of costs. And these judgments and orders are not confined to the superior courts, but extend to "any court of competent jurisdiction." When the bill on which the act is founded was first introduced, (for it passed through three editions,) it was understood to apply to judgWe observe that already several edi- ments in which the power of arrest in tions of the act, "with explanatory notes," execution had been taken away by a clause and high promises of legal and critical in the Bankruptcy Act, introduced late in elucidation, have been announced with the session of 1844. It will be observed, much pomp and circumstance. We shall however, that the remedy extends as well endeavour to avoid the error of dogma- to orders as to judgments. A plaintiff, tizing on such a subject; but it is our therefore, who has obtained a judge's order duty to assist our readers to weigh and for payment of the debt and costs, may be consider, as well the scope as the language saved the expense of entering up judg of the act, and to call their attention to such parts of it as seem to be the most important. The preamble recites, that it is expedient and just to give creditors a further remedy [than they possessed] for the recovery of debts due to them. 1. The first clause is very lengthy, and ment, and proceed at once under this act. So also, an order for the payment of costs, either at law or in equity, may be enforced in like manner. All this, in the words of the preamble, " is expedient and just." a In order to give the court jurisdiction over evidence. See the decisions, p. 321, post. the case, the judgment must be proved by legal In courts of limited jurisdiction, ques- property or means of payment he still hath tions have frequently arisen on the power and [4th] the disposal he may have made of of a plaintiff to split his demand, and sue any property since contracting such debt." for a sum less than was really due, in order By a subsequent section, the 18th, to bring it within the sum cognizable by power is given to either of the parties to the local court. Here, however, it would a suit, or in any other proceeding before any seem that no such question can be raised, such commissioner or court, to summon because the judgment or order will be witnesses, with or without the production conclusive as to the amount. Still, if the of books and writings. Presuming that plaintiff admit part payment, or it may be this power extends to proceedings under voluntarily, or for some plausible reason, the 1st section, the hearing before the deduct a sum which will bring the amount commissioner or court will be a very imunder 207., the court might decide, for portant matter, and cannot be conducted aught we know, that the case came within without professional assistance, although its jurisdiction. So much for the nature the 6th section provides that it shall not of the cases comprehended under this be requisite for any party, whether creditor or debtor, to employ either counsel or attorney. enactment. 2. We come next to the proceedings which the plaintiff may take, supposing his case to be within the provisions of the statute. Thus we read : 4. The next provision is somewhat extraordinary, viz., "that such creditor shall also, if such commissioner or court think "The creditor so having obtained a judgfit, be examined by such commissioner or ment or order, may obtain a summons from Court touching his claim against the any commissioner of the court of bankruptcy debtor, and shall, if the debtor think fit, for the district in which such debtor shall reside be interrogated before such commissioner or be, or from any court of requests or con- or court by the debtor touching the claim science, or inferior court of record for the against him." recovery of debts, or other court for the recovery of small debts, within the jurisdiction permit a defendant to impeach the validity Is it intended by this examination to of which such debtor shall reside or be, having of the judgment of the Court of Queen's a judge who shall either be a barrister at law, or a special pleader, or an attorney who shali Bench, or order of the Court of Chancery, have practised as an attorney for not less than which is sought to be enforced? A judg ten years in one of her Majesty's superior ment has always been considered the best courts of common law, which summons such and most conclusive evidence of a debt, commissioner of the court of bankruptcy, or and the only course of proceeding, in case such court, shall be authorised and required to of mistake or injustice, has been to apply grant according to the form in the schedule." to the court by whom it was made to This summons is to be obtained upon set aside or amend it; and it has not the application of the creditor, by a peti- been deemed competent for another and tion or note in writing, according to the an inferior tribunal to interfere with it. form in the act, viz: "Be pleased to Here, however, it seems that some petty summon C. D. to answer touching the court of request may undertake to investi debts due to me by the judgment or order gate the propriety of a judgment of the on my behalf." highest court in the realm; and if the 18th It will be observed that this power is section be applicable to this class of cases, not limited to the courts in whose district all the witnesses who were examined in the defendant generally resides, but ex- the superior court on which a verdict and tends to those in which he may be, so that judgment were obtained, may be rehe can be summoned under the provisions examined with other witnesses, and this of the act, if he tarry long enough to enable new-fangled court may upset the decision the bailiff to call on him. of the Lord Chief Justice. of the court of 3. The act then provides that the debtor appearing before such commissioner or court at the time appointed, It is probable that this provision was intended to apply only to some other class of cases not mentioned in the new powers "Shall be examined by the commissioner or courts will put a construction on the of the court, or perhaps the judges of these court, and shall, if the creditor think fit, be interrogated by the creditor summoning him, clauses not leading to the absurdity we touching [1st] the manner and time of his have mentioned. contracting his debt; [2nd] the means or 5. After the proceedings thus instituted, prospect of payment he then had; [3rd] the and the examination thus provided for, |