COMMON BENCH.

ReSEELEY AND OTHERS.--Norman, on behalf of a second execution-creditor, showed cause against an interpleader rule applied for by the sheriff.-Aspland appeared for the sheriff.-Browne, for the landlord, who had a claim for rent. Referred to Wightman, J., at chambers.

Re MORGAN,--Willes showed cause against a rule for a que warranto information.-Pashley, contrà.

Rule enlarged, that a special case may be stated. HASLOW. MORRIS.-- Willes moved for a rule to review the master's taxation of costs herein. Rule nisi. HARRISON . Bus--Argument resumed.-Phinn and Arney showed cause against a rule to enter the verdict for the defendant-Slade, Collier and F. Edwards, contrà.

Cur. ade, vult. LASTER. EASTWOOD --Hindmarsh showed cause against a rule for an injunction and an account after an award in favour of the plaintiff in an action for infringing a patent. It was not suggested that there had been any infringement since the action, nor that any profits had been made. Webster contrà Rule discharged with costs.

COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and R. VAUGHAN WILLIAMS, Esqrs., Barristers-at-law.

April 20 and May 5. ALEXANDER v. ALEXANDER. Ejectment-Will-Contingent remainder. A., by her will, devised a certain estate to her son Thomas for life, and after his death" unto the second son of the body of her said son Thomas lawfully begotten, on his attaining the age of twenty-one years; but in default of their being a second son of the body of her said son Thomas," then she gave and devised the same "unto the second son of the body of her son Christopher lawfully begotten, on his attaining the age of twenty-one years," &c. Thomas had four sons: first, Christopher Richard, and second, George, who both died in the lifetime of their father; third, William, who attained the age of twenty-one before; and, fourth, Thomas, who became ticenty-one after, the death of their father. William and Thomas were plaintiffs in the action. The defendant was the second son of Christopher, the second son of the testatric, and attained the age of twenty-one after the death of the tenant for life: Held, on the authority of Festing v. Allen, and Doe d. Rew . Lucraft, that George took a contingent re

mainder expectant on his attaining the age of twenty-one during the lifetime of his father, and therefore that the plaintiff William was entitled to recover.

This was an action of ejectment, and the defendant having been let in to defend as landlord, a case was then stated for the opinion of the court in pursuance of an order of Maule, J., and by consent of the parties. Mary Alexander died seised in fee of the premises in question, and by her last will, made Oct. 18, 1818, devised the premises as follows:

I give and devise unto my said son Thomas Alexander, all that my freehold estate situate in the parish of Vernham Dean in the said county of Southampton, and now in the occupation of Thomas Mosdell, to hold the same unto my said son Thomas, for and during the term of his natural life; and from and immediately after his decease, "I give and devise the same unto the second son of the body of my said son Thomas lawfully begotten, on his attaining the age of twenty-one years; but in default of there being a second son of the body of my said son Thomas, then I give and devise the same unto the second son of the body of my son Christopher lawfully begotten, on his attaining the age of twenty-one years; but in default of there being a second son of the body of my said son Christopher, then I give and devise the same unto the second daughter of my said son Christopher lawfully begotten, on her attaining the age of twenty-one years; but in default of there being a second daughter of the body of my said son Christopher, then I give and devise the same unto the right heirs of my said son Thomas for ever," subject to certain charges. The testatrix died in Dec. 1813, leaving Thomas Alexander her heir-at-law, who then entered into possession, and continued to enjoy the receipts until Aug. 6, 1852, when he died intestate.

Thomas Alexander, the tenant for life, had four sons and several daughters. The first son, Christopher Richard, was born 22nd Aug. 1816, and died in Aug. 1822. The second son, George, was born 8th Oct. 1820, and died in Feb. 1827. The third son, William (one of the plaintiffs), was born 26th June 1824, and attained the age of twenty-one years during the lifetime of his father. And the fourth son, Thomas (the other plaintiff), was born 25th July 1832, and attained the age of twenty-one years after the death of his father.

The plaintiff William is the heir of George, the second son of the tenant for life, and was the heir of the tenant for life at the time of his death.

George Alexander, the defendant, is the second son of Christopher, the second son of the testatrix, and attained his age of twenty-one years 14th Dec. 1853, and after the death of the tenant for life, and upon his death he claimed and has since enjoyed the rents and profits of the estate.

The question for the opinion of the court was, whether either of the plaintiffs was entitled to recover

COMMON BENCH.

possession, and if so, then judgment to be entered for such.

Rudall, for the plaintiff William, contended that George took, under the will, a contingent remainder expectant on his attaining the age of twenty-one years during the life of his father; and that when this event did not happen all the limitations failed, and then that William took as the general heir or else that he took as the heir of George. There was a second son, and therefore the event did not happen, upon which the second son of Christopher was to become entitled. (He cited Trafford v. Ashton, 2 Vern. 660; Driver v. Frank, 2 Moo. & S. 25; King v. Bennett, 4 M & W. 36; Hawkins v. Hawkins, 3 Moo. & S. 332; Doe v. Fricker, 6 Ex. 510; Doe v. Chapman. 1 H. Bl. 223; Fesling v. Allen, 12 M. & W. 279; Doe d. Rew v. Lucraft, 1 Moo. & S. 573.) The last case is precisely in point.

9366

23

Fordham, for the defendant, contended that the second son George took, on his birth, a vested remainder in fee, subject to be divested on his not attaining the age of twenty-one years; with an executory devise over in favour of the second son of Christopher. Where an estate is given, "when," on,' and "if one attains" a certain age, he takes a vested estate subject to be divested, unless there are special words to a different effect. He cited Boraston's case, 3 Rep. 20; Edwards v. Hammond, 3 Lev. 132; Brownfield v. Crowder, 1 New Rep. 324: Doe d. Hunt v. Moore, 4 East. 60; Snow v. Poulden, 1 Keen. 186; Attwater v. Attwater, 18 Jur. 50; Riley v. Garnett, 3 De G. & Sm. 629; Fearne's Con. Rem. 396; Gulliver v. Wickett, Wils. 105; Doe d. Herbert v. Selby, 2 B. & C. 929.

their application. Rudall, in reply, did not dispute the cases, but only Cur adv. vult.

May 5.-JERVIS, C. J.-In this case the question turned on a few words in the will of Mary Alexander [reads the clause]; and it appears that there is a case expressly in point. It was admitted on the argument that George, the second son, satisfied the description of the person named in the will to take; but the question was as to the character of the estate which he took. For the plaintiff William Alexander, who was alone interested, although Thomas was joined with him in the action, it was contended, that the second son took by the will of Mary Alexander a contingent remainder, expectant on the determination of the estate of her son Thomas; on the other hand it was contended for the defendant, that he took an estate in fee, with an executory devise over; and the question is, which is the right construction? if the former, then the plaintiff would be entitled; if the latter, then he would not. On consideration, we are of opinion that the plaintiff's is the correct construction; in truth, this is determined by the cases of Fesling v. Allen, and Doe d. Rew v. Lucraft. If we could read the will as saying, "I give and devise to the second son of my son Thomas on his attaining the age of twenty-one," and then over, the construction contended for by the defendant would be correct; but in the case to which I last referred, under precisely similar circumstances, with stronger words in favour of the construction than the present, because "such" might have carried back the description to the person named, the court held that the contingency did not occur till attaining the age of twenty-one years, and that the estate divested on the non-happening of the contingency. Judgment for the plaintiff.

Ex parte NEWTON. Habeas corpus-Estoppel by record-Jurisdiction of inferior court. |

Where an indictment, good upon the face of it, falsely alleged that the crime had been committed within the jurisdiction of the court, and the prisoner was convicted and sentenced, and the Attorney-General having refused to issue his fint for a writ of error in fact, an application was made for a writ of habeas: Held, that the record was an estoppel, and the writ was refused.

J. H. Hodgson moved for a writ of habeas corpus to bring up the body of Francis Robert Newton, imprisoned in Horsemonger-lane gaol in execution of a sentence of the Central Criminal Court, on the ground that the commitment was for an offence committed out of its jurisdiction. The prisoner was tried in December last, and the indictment charged the prisoner first with attempting to murder, by striking with a whip; secondly, with an attempt generally, and thirdly, with feloniously wounding; he was found not guilty of the felony, but guilty of a common assault. The offence was laid in the indictment to have been committed in the parish of Lambeth, and it appeared at the trial that it was in fact committed at Beulah Spa, which is in the parish of Croydon. After the trial the prisoner applied to the Attorney-General to issue his fiat to enable the applicant to bring error; but he said that if error were stated it would be to contradict the record, and refused the application, relying on R. v. Carlisle, 2 B. & Ad. 362. A further application was then made to the Court of Q. B. on the authority of R. v. Wilkes, 4 Burr. 2551, for a mandamus to compel him to issue his fiat; but this also was refused, so that no redress could be had except by habeas corpus, and he now moved accordingly. This is an application at common law, and not under

COMMON BENCH.

the statute of Charles. The record is good upon the face of it, but Croydon is not one of the parishes enumerated in 4 & 5 Will. 4, c. 36, which creates the Central Criminal Court, and it appears that Beulah Spa is 1000 yards beyond the point of junction of the parishes of Lambeth and Croydon, and in the parish of Croydon. By 7 Geo. 4. c. 64, s. 12, offences committed within 500 yards of the boundary of two counties may be dealt with in either, as if the offence had been actually committed therein.[JERVIS, C. J.-In fact your affidavit shows that the jury have arrived at a wrong conclusion, in finding that the offence was committed within the jurisdiction of the Central Criminal Conrt; but that was a traversable fact. Suppose they had found wrongly upon any other traversable fact on the principal charge, could you have had a habeas corpus?] He never ought to have been put upon his trial. The matter was peculiarly within the jurisdiction of the jury to try if they had ever had any jurisdiction, but they could not create it for themselves. [CRESSWELL, J.-Had they not power to try the fact? JERVIS, C. J.-And they did try it. The record is an estoppel.] It is for the court to decide whether they exercised a jurisdiction which they did not rightfully possess: (Ex parte Lampon, 3 Dea. & Ch. 751.) There Lord Brougham said: "Certainly affidavits may be used for the purpose of showing circumstances not set forth in the warrant, otherwise the grossest injustice might be caused either from carelessness or design" (so here the grossest injustice may be done if they choose to exercise a jurisdiction which they do not possess); "for," he continues, "there would be nothing to prevent the cominissioners from making their warrant either false or faulty." The plea of not guilty puts in issue the question of locality; and it was for the prosecution to have proved it within the jurisdiction of the court. If a court is inferior, the first point to be established is the jurisdiction. Suppose he were tried at the Central Criminal Court for a murder in Northumberland, he would not have a fair chance. Although the certiorari is taken away, you may still show by affidavits that magistrates have no jurisdiction: (Ex parte Bailey, 23 L. J. 163, Mags. Cas.) [CRESSWELL, J.-I referred to the case of R. v. Carlisle, 2 B. & Ad.] There the court had jurisdiction, but one of the commissioners was not present at the time. Here the court makes jurisdiction for itself. Many persons imprisoned by the Court of Admiralty acting without jurisdiction have been released on habeas corpus.

JERVIS. C.J.-This is a case of great importance; and as there is no authority upon the subject, it would seem that the point has never been raised. It may be that it is so plain that there is nothing in it, and therefore it has not been raised. This is the state of things:-There is a conviction of the applicant on a record which alleges that the offence charged was committed within the jurisdiction of the court. Either that averment was traversable, and was traversed under not guilty, or the matter was pleadable and was waived by pleading over, and the jurisdiction admitted; but, if traversed by the plea of not guilty, the finding of the jury is that within the jurisdiction the prisoner committed the offence. In this state of things they seek to impeach the record, and ask for us to enter into the question, whether the record be true or not. If we are bound to enter into the question when the place is clearly 1000 yards beyond the jurisdiction, we should equally be bound to entertain the question when it is disputed. In truth, the remedy is not by this writ; but the proper way is to make application to the Attorney-General for a writ of error coram nobis; not that there is error in law, but error in fact, dehors the record. The Attorney-General has a discretion in this matter-he is bound in his office to exercise his discretion as to inquiry in the proper quarter; and, if justice requires it, he is bound to refuse the application. I looked into it when I was Attorney-General, and I refused a writ of error in the case of the Mannings, and the result of inquiry among the judges was, that it is a matter for the discretion of the officer of the Crown, subject to public opinion and the control of Parliament. That application has been made and refused, and the record remains unaltered. The proper course is to apply to the Secretary of State. The redress which you cannot have by the technical rules of law, you must obtain by the prerogative of the Crown. A

CRESSWELL, J.-I am of the same opinion. record is of so high a nature that, according to R. v. Carlisle, if you assign error in fact, that which contradicts the record, it is ill. Then we are asked to inquire, on motion, into that into which we cannot upon writ of error. Why, next we should direct the discharge of a prisoner when the record against him cannot be touched. The court cannot interfere; it must rest with the Secretary of State.

WILLIAMS, J.-I am of the same opinion. This allegation of the record was just as material as any other; if they had failed to prove it, the prisoner would have been entitled to an acquittal just the same as if any other matter had not been proved. If the principle sought to be put in force were allowed, it might be applied to a case at the assizes where the question had been raised whether the crime had been

COMMON BENCH.

committed within the county, and, after an inquiry of several hours, the jury had found that it had.

CROWDER, J.-In the absence of authority we cannot interfere. The locality is generally assumed, and in this case all the parties proceeded upon the assumption that it was as laid in the indictment. Now we are called on to have the question mooted on affidavit, and the question tried whether the matter arose within 500 yards of the parish of Lambeth. That is just as much matter of fact to be proved as any other; and thee is no reason for a court of error to alter it.

J

Saturday, May 5. COOPER v. PEGG. Award-Costs in trespass-3 & 4 Vict. c. 24, s. 2. Where, after verdict, an action of trespass and all matters in difference had been referred to an arbitrator, who was to have the powers of a judge at Nisi Prius, and he found 1s. damages in the action, and awarded 51. to the plaintiff on the award, and had not certified:

Held, on motion by the defendant to strike out from the postea the words and for his costs to 40s.," that the case was within Lord Denman's Act, and that the words must be struck out.

This was a rule obtained by Ogle in Michaelmas term last, calling on the plaintiff to show cause why the words "and for his costs to 40s." should not be struck out of the postea. The action was in trespass; and it appeared that the cause and all matters in difference had been referred to arbitration, and that the arbitrator had awarded nominal damages in the cause, but had given 57. to the plaintiff as the result of the award, and had not certified for costs. The costs of the cause were to abide the event of the arbitration. By 3 & 4 Will. 4, c. 24, s. 2, costs are not to be recoverable in trespass or case, where the damages recovered are less than 40s., unless upon the judge's certificate.

Channell, Serjt. and Baddeley, now showed cause.The plaintiff has obtained substantial damages, or what is in the nature of damages; the event is that he has 5. Lord Denman's Act does not apply, for that speaks of costs recovered by the verdict of a jury. This is not the finding of a jury but the assessment of an arbitrator: (Griffiths v. Thomas, 4 Dow. & L. 109.) [CRESSWELL, J.-There there was no verdict; that makes a difference.] The damages are not in point of fact found by the verdict of a jury; the arbitrator had no power to certify. [CRESSWELL, J.Do you extend your argument to a case where instead of an award a gentleman is to give a certificate? The verdict would be entered for nominal damages and then the gentleman would certify, and the associate would alter the postea accordingly. JERVIS, C.J. -The rule of reference contains the power of the arbitrator to certify, and he has not done it.] Byles, Serjt. and Ogle contrà, were not called upon.

JERVIS, C.J.-I am of opinion that this rule must be made absolute. The arbitrator makes his award, and chooses, in making his award, to determine the separate issues: on the award the plaintiff substantially succeeds, and 57. is awarded, but that is not in the action of Cooper v. Pegg. Mr. Baddeley says that that is in the nature of damages; but it is not, but for matters not in the action, but the award. Whatever may be the effect of the agreement that the costs shall abide the event of the award, I do not say; the defendant is entitled to have the postea; the plaintiff may perhaps be entitled to tax his costs on the award, but not in the action. The damages then being a farthing, Lord Denman's Act says, that when you recover less than 40s. damages, not then, you shall have your costs, unless a certificate be given, but you shall not have your costs at all, and the master would give no costs. Mr. Baddeley says, that cannot be, because the equity is not so; I imagine because his client is concerned. The jury have found a verdict, there is a reference to an arbitrator after trial: (in the case cited the reference was before issue.) The arbitrator says, "here I am acting for the jury in finding the issue specifically, and there

can be no costs.'

CRESSWELL, J.-The defendant is entitled to have the postea altered as required, because this is within Lord Deniman's Act, which says that there shall be

no costs whatever in this case unless a certificate is given. But this case was said not to be within the Act, because the party does not recover by the verdict of the jury. What does he recover? a farthing, and that is by the verdict of the jury, or not at all. The damages are found and entered by the associate; then it is agreed that they shall be altered by a gentleman who shall give a certificate, or make his award; but you recover by the verdict of the jury, and therefore the case is clearly within Lord Denman's Act. And the parties know it, because, to obviate the difficulty caused by the Act, saying that the certificate shall be given immediately after the trial, they provide that the arbitrator shall have the powers of a

COMMON BENCH

WILLIAMS and CROWDER, JJ. concurred.

Rule absolute.

EXCHEQUER.

BUSINESS OF THE WEEK. Thursday, May 3.

Tuesday, May 8. FRYER. STURT.-Temple having on a former day obtained a rule calling on the defendant to show cause why the master should not be directed to review his taxation in this cause, inasmuch as he had allowed the expenses of a witness who had been subpoenaed and had come from Cardiff to attend the trial The cause was referred before the witness reached

Friday, May 4.

Cur. adv, vult.

TYLER v. HOOK AND ANOTHER. Shee, Serjt. and Lush The COURT made the rule absolute as far as it related to the showed cause against the rule, and Hawkins supported it.— second and third counts, and discharged it as to the first, each party to pay his costs of the rule. Rule accordingly. STONE U. JACKSON.-Montague Chambers, Q.C. and Lush showed cause.-Byles, Serjt. was not called upon. The question was, whether the facts brought the case within Barnes v. Ward.-The CoURT made the rule absolute.

Rule absolute.

Re-Byles, Serjt. moved to dispense with the concur rence of her husband in a conveyance by a married woman. She had, with the consent of her husband given in writing, left him in 1853, and had not since lived with him, nor did Order granted.

he contribute to her maintenance.

Re NEWTON-The father of Francis Robert Newton, a prisoner in Horsemonger-1 ne gaol, wished to move for a habeas corpus for his son.-The COURT doubted whether they could hear him as his son's agent, and it was arranged that he should move the next morning, in order to give them

time to consider the matter.

Adjourned.

Rule absolute.

Saturday, May 5. COOPER V. PEGG.-See the reports. Re NEWTON.-J. H. Hodgson applied for a writ of habeas corpus. See the reports. Writ refused. GOLDHAM v. EDWARDS—Channell, Serjt. and T. Chambers, showed cause.-M. Chambers, Q.C. and Hawkins, in support of the rule. Cur, adv. vull.

COLLINS AND OTHERS r. JOHNSON.-Maynard moved for a rule calling on the plaintiff's attorney to show cause why he should not pay the costs of the day for not proceeding to trial, and the other costs of the cause not costs of the day, and give security for all future costs, and why in the meantime proceedings should not be stayed. It appeared that the plaintiffs were originally twelve in number and that an ap plication had been made, and an order of Jervis, C.J. under C. L. P. A. sect. 7 obtained, for the attorney to deliver the names and addresses of the plaintiffs; that the attorney had given a list, and on inquiry being made at the places mentioned in it, it appeared that some were abroad, some never lived there, and some were insolvent, but that three responsible persons were found. was set down for trial at Bristol, but the Afterwards the costs of the day were taxed, and then the three above-mentioned defendants were struck out by an order of Crowder, J. under C. L. P. A. sect. 34, on the ground that they had been made plaintiffs without their consent. The attorney said that he had been instructed by one Diamond, who professed to have the authority of the plaintiffs. Hubbart v. Phillips, 13 M. & W. 702, is an authority in favour of the motion.CRESSWELL, J. It is a very hard case, and you had better take care that you have the rule in the right form.

WOOD v. Cox. This was an action on a promissory note, tried before the Under-sheriff of Middlesex. The note was payable to the order of F. S. Keen, and indorsed to the plaintiff. The pleas were, first, that Keen did not indorse, and second, a plea of fraud by Keen and others; and the verdict was for the defendant.-Russell moved upon the judge's notes for a rule for a new trial on the ground of misdirection and that the verdict was against the evidence. The misdirection was in not telling the jury that there was no evidence to support the pleas; and that appearing to be so the COURT COLLINS . JOHNSON.-Maynard applied to the court to add to the rule in this case the alternative of rescinding the order of Crowder, J.

the same night; and also because the master had allowed the expenses of certain witnesses who were not examined in court or before the arbitrator, and who might have gone home the same day.-Slade, Q.C. and Maynard showed cause against the rule, citing Chitty's Archbold, 1488; Nelson v. Browne, 13 M. & W. 397.—M. Smith, Q.C. supported the rule. -The COURT made the rule absolute as regards the witness from Cardiff, but discharged it as regards the other witRule accordingly.

nesses.

Wednesday, May 9.

STONE AND WIFE v. JOHNSON.-In this case, which was an action by an attorney and his wife, for injuries sustained by the latter by falling into the defendant's cellar while she was making a short cut through his yard; the COURT said that Maule, J. reported that he had not reserved leave to the defendant to enter a nonsuit, and, therefore, instead of a nonsuit, there must be a new trial.

Rule absolute for a new trial. ANSTEY V. EDWARDS.-Lush showed cause against a rule, calling upon the directors of the London and County Bank to show cause why they should not pay the plaintiff the taxed costs of an action of ejectment brought against the defendant, on the ground that they were the real defendants, and had put forth the nominal defendant, who was a bankrupt, to defend the action, and so avoid the costs. For the directors certain affidavits were used, in which they and their attorney swore that they were not the real defendants, and had not authorised a defence to the action; and had only taken an interest in the result from the circumstance that they held a lease of a portion of the property as a collateral security from the defendant.-Prentice, in support of the rule, said that his affidavits showed that the action was defended by an attorney who lived in the bank, and addressed his letters from it; and that throughout the action, and the correspondence relating to it, the plaintiff had been led to believe that the action was being defended by the company.-The COURT said the affidavits against the rule were so distinct and conclusive as to the directors not

having been the real defendants, that the rule must be dis

charged; and as it had been moved with costs, it must be discharged with costs. Rule discharged.

-v. --Watson, Q.C. in a case, the names of which were not mentioned, applied for leave to move for a new trial, though the four days within which he was required to move had expired. He had told the client that there was no hope of success, but was nevertheless required to move.— JERVIS, C.J.: You have done your duty; the leave, however, cannot be granted.

April 18 and May 1. NORTHAM v. BOWDEN. Trover-Action against a wrong-doer-Possession— Right of action. This case was tried before Crowder, J. at Bodmin ; verdict for the plaintiff.

Smith, Q.C. moved for a rule to show cause why there ought not to be a new trial, on the ground that no cause of action was proved.

POLLOCK, C. B.-We are of opinion that there ought not to be a new trial. The action was an action of trover in respect of some ore mixed with gravel which had been dug out by the plaintiff under the licence that he enjoyed from the person claiming to be the owner of the field. The defendant carted away two or three cart-loads of this gravel. The real litigant parties probably were the persons who respectively claimed, adversely, the soil as against each other; the actual parties on the field of battle were, a who acted. I thought it was made out in point of person licensed under one of them and another person evidence, but there seemed to be every reason to believe that the defendant was acting at the suggestion but not under the authority of the opposite party. The plaintiff relied merely upon the apparent right arising from his having dug the gravel and ore under a licence from the person who appeared to be possessed, and as against the wrong-doer he claimed to have a title in an action of trover; the defendant. professed to have acted under the authority of some other person, but instead of bringing forward the title of the other person, he sought to obtain a verdict from the jury on the ground of there being no title in the plaintiff. Upon examining the case as reported to us by my learned brother Crowder, it certainly turns out that the plaintiff had dug the gravel in which there was also a quantity of ore; and the very point is. whether there was ore, and ore which was considered. as of some value-which was actually put to the jury who found that there was. It is very true that in one sense the licence was at an end. Mr. M. Smith said

EXCHEQUER.

it was revoked; that is not at all a correct mode of stating it, because, instead of being revoked, a parol license was merged in a regular licence by deed, confirming rather than revoking the right of the plaintiff to enjoy what he had got. Under these circumstances we are of opinion that the possessory right of the plaintiff was sufficiently made out to maintain an action of trover against a wrong-doer; we think the verdict was right, therefore there will be no rule.

PARKE, B.-I think, as I expressed at the time Mr. Montague Smith made the motion, that the plaintiff is not only entitled irrespective of the metal, the tin ore which was part of the mass thrown out, but also entitled to the possessory right in the sand and gravel which, by the permission of the lord, he was to examine for the purpose of selecting ore from it. I think he had a right to the entire mass as against a wrong-doer. The defendant not having proved his title, as my Lord said, he must be considered as a wrongdoer. That does not apply merely to the tin, or a part of it, but he had a right to the whole mass till he had abandoned it.

PLATT, B.-The plaintiff had reduced the whole mass into his possession; that is entirely sufficient as against a wrong-doer.

MARTIN, B.-I am entirely of the same opinion. If he had a right to the gravel and soil for the purpose of getting any mineral that could be found in it, there was a possession of the whole, and that entitled him to maintain an action against wrong-doer.

Rule refused.

GROUND v. SCOTT.
Ejectment-Occupation-Adverse possession..
Action of ejectment. Tried before Pollock, C.B.
at Cambridge, without a jury, at the last assizes.
Verdict for the plaintiff.

Willes moved for a new trial on the ground that the verdict was against the weight of the evidence. POLLOCK, C.B.-This case was tried before me at Cambridge. We have read over the whole of the evidence, and we are all of opinion that there ought to be no rule; in other words, that the verdict which was pronounced by the court was perfectly correct. There does not appear to have been any occupation on the part of the defendant which could be set up as an adverse possession for more than twenty years. It means a possession without payment of rent. The defendant had been occupier, in some way or other, certainly, for thirty-three years, but the cottage was built in 1833, and the Inclosure took place in the year 1840; at the time of the Inclosure the commissioners treated the land as being open land, and they allotted it to the plaintiff. A cottage was built on the waste, and was occupied together with certain other land upon which some hovels were built, and in respect of which the defendant claimed compensation under the Act, and received 50l. as compensation; and in the deed under which the compensation was received the defendant distinctly admitted that the hovels were built upon the land belonging to the plaintiff. Notice to quit having been given, the defendant gave up every part of the property except that upon which the house actually stood; and the question that I had to decide at the trial appears to me to have been this, whether there was any distinction between the mere spot upon which the house was built and the rest of the land that was occupied along with the house and on which the hovels were built? And it appeared to me to be the result of the evidence that there was not; and if the defendant was bound to give up possession of the rest of the land that certainly had been occupied with the house, it appeared to me to be quite clear that the defendant was equally bound to give up the very soil and spot upon which the house was built; and the defence of the defendant appeared to me to be referable not to any actual title that could be made out as the clear result of any fact, whether by occupation without paying rent, or by nything that might be considered as a possessory right of any sort, or adverse possession, but it appeared to me that the defendant had considered that The actual building of the house gave him an interest En the soil different from that which he had as to the st of the land, for which notion it appeared to me here was no foundation. There is no doubt, as in many ther cases, the evidence was not all one way, because he wife of the defendant certainly gave evidence that bey had never paid rent, and that they had occupied ithout paying rent for 33 years; but, upon the whole se before me, I thought it was not true that, looking it in the best light, it was a possession upon the art of the defendant's wife, so to say, at the time of e trial: that was the view I took of it. I have read er the whole of the notes laid before my learned thers, and they have come to the conclusion that view was right. Therefore in this case there will Rule refused.

no rule.

EXCHEQUER.

Held, under the circumstances, that the bill and envelope should be read together, that it was enough to constitute a good delivery of the attorney's bill, and satisfied the statute.

This was an action brought to recover the balance of a bill of costs alleged to be due to the plaintiff upon a guarantee, and was tried before the judge of the Co. C. at Wem, Shropshire, 18th Dec. 1854. The plaintiff claimed 421. 4s. 10d. The representative capacity of the defendants, and that their testator left assets, were admitted.

The plaintiff was surviving partner in the late firm of "Walmsley and Lucas," who carried on business at Wem aforesaid, as attorneys and solicitors. On the 11th Aug. previously, duplicates of certain bills, No. 1, 2, 3, were signed by the plaintiff and inclosed in an envelope and put into the post-office at Wem, addressed to "Mr. John Robinson, 46, Brunswick-road, Liverpool," the bankrupt; and on the same day plaintiff's clerk also left duplicates of same bills, also signed by plaintiff, in an envelope, at defendant's residence, James Roberts, in Wem, with his servant (he being then from home), addressed to "The executors of the late Mr. John Roberts."

Bill No. 1, the petitioning creditors' costs up to the choice of assignees, which amounted, as taxed, to 521. 4s. 10d., was headed, "In the matter of the bankruptcy of John Robinson," and signed thus-“1854, Aug. 11th. This is the bill of Walmsley and Lucas. William Lucas, surviving partner of the said firm of Walmsley and Lucas."

Bill No. 2, the costs up to the meeting for certificate, amounting to 181. 8s. 9d., was also headed. "In the matter of the bankruptcy of John Robinson," and signed in the same manner as bill No. 1.

Bill No. 3, being the costs of obtaining the bankrupt's certificate, was headed and signed in same manner as bills Nos. 1 and 2.

No letter or note accompanied the bills, and neither the names of the defendants nor their testator were mentioned either at the head or in any part of the said bills.

No duplicates or copies were sent to the other defendant, Mr. John Roberts.

The judge refused to nonsuit, and it appeared by the evidence that, in Sept. 1848, plaintiff and his late partner Samuel Walmsley were applied to by one John Robinson, a cheese-factor living at Leighton, near Nantwich, to take out a fiat in bankruptcy against him on his own petition, which they consented to do on receiving the following_guarantee: "To Messrs. Walmsley and Lucas, In consideration of your issuing a fiat in bankruptcy against John Robinson, late of Leighton in the county of Chester, cheesefactor: I hereby undertook to pay the expenses of such proceedings in case the estate of the said John Robinson shall not be sufficient to discharge the same and not to exceed the sum of 807. Witness my hand this 25th day of Sept. 1848, John Roberts." James Bolderston being appointed trade assignee, he gave a retainer to Mr. Wm. Kennys Tyrer, solicitor, Liverpool, as his solicitor. Bolderston died, and the assets received under the bankruptcy amounted to 821. 4s. The sum applicable to the solicitor's bill of costs amounted to 471. 15s. 2d. Tyrer stated in evidence that, although he was appointed solicitor to the assignee, there was an understanding between him and Walmsley and Lucas, that upon the conclusion of the business the profits should be put together and divided.

Bill No. 1 on the file of the Court of Bankruptcy at Liverpool is headed thus :

"Walmsley and Lucas, Wem, Salop, Solicitors; Tyrer, Liverpool, Agent. In the matter of John Robinson, a bankrupt. Petitioning creditors' costs up to the choice of assignees, taxed at 521. 4s."

Tyer had received 371. 158. 2d. on account of bill No. 1; and the sum of 10%. remained in the hands of the official assignee, applicable to the solicitor's bill of costs.

thus: "Tyrer, Liverpool, Solicitor. Bill No. 2, on file of the same court, was headed Re Robinson. Bill of costs to meeting for certificate, taxed at 187. 88. 9d."

The Co. C. judge determined that there was a sufficient delivery of the bills; that the guarantee extended to bills Nos. 1 and 2; that the guarantee did not extend to the certificate bill No. 3; that plaintiff was entitled to recover the balance due on bills Nos. 1 and 2; that the balance then due to plaintiff on bills Nos. 1 and 2 was 221. 18s. 5d., for which sum he gave judgment.

EXCHEQUER.

ance. He contended also that this was not a guarantee, but a primary liability. Taylor v. Hodson, 14 L. J. 310, Q. B. was cited as in point; and the judgment of Wightman, J. read, that this was no "Bill" within the meaning of the Attorneys and Solicitors Act, as it in no way shows who is the debtor. The questions for the opinion of the court were first, was there a good delivery of the bills Nos. 1 and 2? secondly, are the defendants liable to the plaintiff on the guarantee in respect of bills Nos. 1 and 2? thirdly, ought the payment charged to have been paid to Walmsley of 111. 8s., or any part; if so, how much to be disallowed?

Phipson for respondents -The plaintiff contended that the delivery of the bill of costs was sufficient. That the liabilities of the testator John Roberts was a collateral one, depending upon the insufficiency of the estate of the bankrupt Robinson to discharge the costs incurred, and therefore that the bill was properly made out in the form it which it was delivered without debiting Mr. Roberts as a principal debtor. That the testator's guarantee extended to bills Nos. 1 and 2, and that the plaintiff was the proper party to recover the balance due on both these bills. That the bill No. 2 was incurred to Mr. Tyrer, an agent of Walmsley and Lucas. That the 117. 8s. was properly allowed in the amount of the bill No. 1, Mr. Walmsley being himself the party to whom the amount was due for expenses, independently of the question whether any payment had been made to him by any person on account of his disbursements: (Bank of England v. Anderson, 3 Bing. N. C. 589, 600; Cosens v. Graham, 21 L. J. 206, C. P.)

POLLOCK, C.B.-There seems to be a case of Manning v. Glyn, Jones's Exch. Ir. Rep. 513, to the effect that in order to satisfy the statute (similar in this respect to the English Act, I apprehend), the bill should have been addressed to the debtor.

Gray.-Yes; both parties were aware of that case, and perhaps it ought to have been brought before the attention of the court. [Phipson.-In Phipps v. Daubeny, 20 L. J. 273, Q. B., a case in the Ex. Ch.; that case of Manning v. Glyn is approved of by Parke, B., although it was not at all necessary for the decision of the point before the court.]

POLLOCK, C.B.-We are all agreed as to the answer which should be given to the first question asked in this case. Was there a good delivery of the bills, Nos. 1 and 2? The bill itself was not addressed to any one, nor did it show at the beginning or in any other part for whom it was intended, but that bill was put in an envelope properly directed to the parties sought to be charged, and properly sent or delivered. I think, under the circumstances of this particular case now before the court. it was sufficient. According to the Irish case, it would not be, but that in its particulars differs from the present. Suppose it had been a letter put into an envelope directed and put in in the same way this bill was, that letter would have been sufficiently addressed; and why not this bill? The envelope and inclosure are to be read together; and as we think there was a good delivery of the bill, the judgment of the court below was correct. As to. the second question, I am of opinion defendant is not liable to bill No. 2; the business was done by another person on the retainer of a different individual. In answer to the third question we are of opinion part ought to be allowed and considered as being settled in account. The allowance of 31. a-day for three days for a distance of forty-eight miles is exorbitant; it should be reduced from 31. a-day to two guineas.

PARKE, B.-The bill inclosed in an envelope addressed to the defendant is sufficient, I think, taking the bill and letter together, to satisfy the statute. In reference to the observation, it would seem, from the. report that I made upon the Irish case of Manning v. Glyn, in Phipps v. Daubeny in the Ex. Ch., perhaps I did not pay quite so much attention to it as I should have done if it had been requisite to the decision of the points then before the court. I do not say it is. wrong or correct, but merely if it should again arise, I should like to reconsider it. As to the other questions in this case, I concur with the Chief Baron. PLATT, B.-concurred. MARTIN, B.-I think the bill and envelope satisfy Judgment for the defendant.

the statute.

BUTLER v. MEREDITH.

HOUGH v. EDWARDS.

Enlarged till next Term, reference to the master in the meantime to report the facts. HUNTER v. WESTMINSTER IMPROVEMENT COMMISSIONERS.Enlarged, and to be put in the peremptory paper. KNOWLES v. HOLDEN AND OTHERS.-Griffiths showed cause against a rule for a prohibition to the Co. C. judge of Lan cashire, on the ground that title was in question. It was contended that as the matter had been referred by consent to arbitration, the objection as to title being in question was waived.-PARKE, B.: You cannot, by attending the court,

give it jurisdiction if it had none before.-Milward, contrà,

not called upon.

Rule absolute.

GARNER. MEIKLAM-Lush showed cause against a rule to set aside a judge's order, which directed certain proceedings to be set aside; it appeared defendant had given his address as at 43, Bryanstone-square, and attempts had been made to effect service upon him of a writ of summons there, but defendant's residence it was alleged was in Scotland, the copy, writ, &c. had been left at Bryanstone-square, and defendant had applied to a judge, who had made an order to set the proceedings aside. It is said the proceedings taken as to the service of the writ, &c. were nugatory, and no notice need have been taken of them; but it the defendant shows, as he does, that the plaintiff intended to act upon them, and defendant reasonably satisfies the court of that fact, it will be sufficient: it cannot be said that defendant should lie by; if so, and a judgment was obtained against him, it would be said, then if he applied to set aside these proceedings, he was guilty of laches and should have applied earlier.-Willes

contrà.

Judge's order to be amended by striking out the costs

from it; proceedings to be set aside. GUARDIANS OF THE POOR OF THE HERTFORD UNION v. KIMPTON.-Lush moved to quash certiorari, and that a procedendo issue. Under the Nuisance Removal Act (11 & 12 Vict, c. 123, s. 3), exclusive jurisdiction was given to the Co. C., and this claim was for expenses incurred by them from defendant's neglect; this court has no jurisdiction in the matter, and the certiorari issued improvidently: (Reg. v. Harden, 22 L. J. 299, Q. B.

Rule nisi.

RICKARDS. SHEPPARD.-Thrupp showed cause against a rule for a prohibition to the Co. C. judge of Essex; it was moved on the ground that the sum claimed exceeded 507. and

that the judge therefore had no jurisdiction, but there being two distinct causes of action, the judge himself struck out one, and gave judgment for the other.-PARKE, B.: The plaintiff must himself do all that in the proper way.-Lush, contrà, not called upon. Rule absolute.

EXCHEQUER CHAMBER. Monday, May 7. (Before ALDERSON, B.) TRUSCOTT v. BROWN.-Petersdorf showed cause against a rule to set aside a nonsult and for a new trial.-Kerr contrà. Rule absolute on payment of costs. DEBENHAM. GEORGE.-Manisty showed cause against a rule to set aside the verdict for the plaintiff for a new trial.Hawkins contra. Rule absolute.

CARD. CHESTER.-Hawkins showed cause against a rule to show cause why the verdict for the plaintiff should not be set aside and a new trial had, on the ground that no issue or notice of trial had been served. The notice, it was alleged, had been left with a girl of twelve years of age, who was servant to the laundress, at the office of the attorney in Chancery-lane, at seven o'clock on a Saturday evening, but it was sworn that it never reached the attorney's hands; he had offered to pay the costs of the day, which had been refused.-Fry contrà Rule absolute, costs to abide the event; cause to be tried at the sittings after term, without any further notice NOKES. BOUTHELLIER -Hawkins moved for a rule calling on an attorney of the court to show cause why he should

of trial.

not pay over 687, 10s.

under the C. L. P. A.

Rule nisi.

THOMAS . NULLING.-Francis moved for an injunction Rule nisi for injunction, unless the defendant consent to a rule to keep an account; to be heard at chambers. TINNEY . HAMMOND.-(Tried before the Secondary of London.)-This was action for trespass and false imprisonment: verdict for the plaintiff for 751. - Hawkins moved for a new trial on the ground that the damages were excessive. Rule nisi.

BAIL COURT. Reported by T. W. SAUNDERS, Esq., of the Middle Temple, Barrister-at-Law.

Monday, May 7.

(Before COLERIDGE, J.) Ex parte THE REV. LIONEL BULLER. Mandamus-King's College, Cambridge. A fellow of King's College, Cambridge, had been deprived of his fellowship and expeiled the college by the provost and fellows, upon a charge of fraud and perjury, not supported by any evidence which could have sustained the charge at law, but nevertheless in conformity with the statutes of the college. Against this sentence he appealed to the visitor of the college, who affirmed the sentence. Upon an application to this court for a mandamus to the provost and fellows to restore him to his fellowship:

them.

BAIL COURT.

Held, that under the circumstances the writ could not go. Chambers, Q.C. moved on behalf of the Rev. Lionel Buller, for a rule for a mandamus to be directed to the Provost and Fellows of King's College. Cambridge, commanding them to restore Mr. Buller to his fellowship of which he had been deprived by From the affidavit of the applicant it appeared that King's College, Cambridge, consists of a provost and seventy fellows and scholars, founded by a charter of Henry 6, and having a code of statutes for its regulation and government, the Bishop of Lincoln being the visitor. That by one of the said statutes it is enacted: "quod si contra aliquem scholarium vel sociorum dicti nostri Regalis Collegii super hæresi simonia, perjurio manifesto vel super aliquo alio crimine consimiliter enormi per testes idoneos præpositi sive præpositi et aliorum nominatorum superius judicio approbandos, vel per facti evidentiam reus manifesti apparuerit then the party may be expelled the college," &c. That in the year 1823 he was admitted a fellow of the college. That in 1814 a suit in Chancery was instituted against him by one Adolphus Feistel, to compel payment of the profits arising from his fellowship, and in pursuance of a decree such proceeds were accordingly paid over to the said Feistel. That in Dec. 1849 he was summoned by the provost and fellows to answer a charge of fraud and perjury, under a summons for the purpose, and that on the 5th of the same month he attended a meeting of the provost with having in Dec. 1845 committed fraud and perand fellows accordingly. That he was then charged jury in a certain answer put in by him to the said bill in Chancery, to which charge he declared he was not guilty. That thereupon the answer so filed by him, and the depositions of certain parties, were read. That he then requested an adjournment to answer the charge, which was granted, when he again attended a meeting of the provost and fellows. That at such meeting the charge of fraud and perjury, in support of which the answer and depositions were read, was convicted of fraud and perjury per evidentiam facti, abandoned; but he was by the provost and fellows by a comparison of two letters written by him, and his answer in Chancery. That previous to such meeting he requested the provost and fellows to allow him to produce witnesses, and adduce evidence in his defence. That in consequence he demanded That afterwards, and before he had an opportunity of an adjournment of the case, which was refused him. hearing the particulars of the further charge then to be made against him he was turned out of the room in which the provost and fellows had so met. That certain letters were read over, of which he requested a copy, but which he was refused. That he was ordered out of the room by the provost, and when he was recalled he was then informed by the provost that he had been unanimously found guilty of fraud and perjury, and expelled. That he was thereupon, without calling or hearing any witnesses for or against him, expelled and removed from his fellowship, and from thence has been deprived of all emoluments and advantages from his said fellowship. That he has requested them to restore him, which they have refused to do. That in Dec. 1818 he appealed against his expulsion to the then Bishop of Lincoln, and that he was informed by him that the decision was final and conclusive, and that no appeal lay to him against the said decision. It further appeared that in Dec. 1853 he again appealed to the present Bishop of Lincoln against the decision, and that in the following January he received a copy of his decision, in which, after adverting to the fact that he had carefully gone through all the documents furnished him by the college and Mr. Buller, comprising (as he assumed) everything material to the case, and after going minutely into the purport of those documents, he finds "that the provost and fellows, in declaring that the Reverend Lionel Buller ground of manifest perjury, had before them sufficient had incurred the forfeiture of his fellowship on the evidence of the fact; and as, moreover, the meetings before which Mr. Buller was summoned were rightly convened and duly constituted, their decision is final, and I pronounce the said Reverend Lionel Buller to be for ever excluded from King's College."

It was now contended that the decision of the provost and fellows was bad, inasmuch as the inquiry was conducted in a manner and upon principles contrary to the rules of law: first, in being conducted to a certain extent behind the applicant's back; secondly, in deciding upon a question of perjury upon a comparison of statements made at different times, and without the proof of two witnesses: (2 Russell on Crimes, 644; Rex v. Harris, 5 B. & A. 926; Rex v. The Bishop of Ely, 2 T. R. 290.)

COLERIDGE, J.-I think this rule cannot be granted, and there is certainly no precedent whatever for it. It is now well settled that where a visitor has acted in his visatorial capacity, we have no power to sit in judgment upon his decision if it be erroneous. All that this court can do is to put the visitor in motion, and, having done so, we cannot review his decision. In Rex v. The Bishop of Ely, 5 T. R. 476, the language upon the point is very strong, and it was admitted that we had no power to compel the visitor to correct his ju however erroneous,

+

BAIL COURT.

after hearing the merits upon the appeal. In giving judgment Lord Kenyon says: "It was settled in Philip v. Bury, 2 T. R. 346, in which determination the profession has ever since acquiesced, that this court has no other power than that of putting the visatorial power in motion (if I may use the expression), but that if the judgment of the visitor be erroneous we cannot interfere in order to correct it. Now here the visitor received the appeal; each party disclosed his case to him; the whole merits of the case were before him, and he has exercised his judgment upon the whole. If, therefore, we were to interfere, it would be for the purpose of controlling his judgment. But any interference by us to control the judgment of the visitor would be attended with the most mischievous consequences, since we must then decide upon the statutes of the college, of which we are ignorant, and the construction of which has been confided to another forum." But it is said that the mandamus may go to the provost and fellows. It may, however, be answered that a party who is in the position of Mr. Buller puts himself voluntarily within a peculiar system of law and assents to being bound by it, and he cannot therefore complain that that system is not in accordance with that which is adopted by the common law. Mr. Buller has applied to the bishop and he has affirmed the sentence. If this mandamus were to go, the answer would be that they have adjudicated. The rule must be refused. Rule refused.

Tuesday, May 8.

HASKETH 2. FLEMING.

C. L. P. A. 1852-ss. 2 and 18. The plaintiff having issued a writ of summons against the defendant under sect. 2 of the C. L. P. A. 1852, Schedule (4) No. 1, specially indorsed, applied to a judge upon affidavits (stating facts showing efforts to serve him), for leave under sect. 27 to proceed under the Act as if personal service had been effected; whereupon an order was made. Subsequently the defendant applied to this court to set aside such order, upon the ground that, at the time of issuing the writ and down to the time of swearing the affidavit upon which the motion was made, he (the defendant) was out of the jurisdiction:

Held, that under these circumstances the defendant ought to have been proceeded against as provided for by

sect. 18:

Held also, that the motion was in the right form, viz. to set aside the judge's order.

On a former day a rule had been obtained on the part of the defendant calling upon the plaintiff to show cause why the order of Williams, J. made under sect.. 17 of the 15 & 16 Vict. c. 76 (C. L. P. A. 1852), for leave for the plaintiff to proceed under the provisions of the Act as if personal service of the writ of summons had been effected, should not be set aside.

The writ in the present case was in the ordinary form for a person within the jurisdiction, and was specially indorsed. An application was made to a judge at chambers, under sect. 17, for leave as before stated, upon an affidavit which set forth facts which induced him to grant an order under the section. Upon moving for the present rule affidavits were used showing that the defendant was abroad at the time. In answer, however, affidavits were used stating that at the time the writ issued it was believed he was within the jurisdiction.

By sect. 18 of the above statute, it is enacted that in case any defendant being a British subject is residing out of the jurisdiction, it shall be lawful for the plaintiff to issue a writ of summons in the form contained in the schedule (A), marked No. 2, and the time for appearance is to be regulated by the distance from England of the place where he is residing; and the court or a judge, upon being satisfied by affidavit that there is a cause of action, &c. and that the defendant was personally served, or that reasonable efforts were made to effect personal service and that it came that the plaintiff shall be at liberty to proceed in the to his knowledge, &c., may direct from time to time action in such manner and subject to such conditions as to the said court or judge may seem fit; provided that the plaintiff shall be required to prove the amount of his debt, &c. either before a jury upon a writ of inquiry or before one of the masters, &c.

Lush now showed cause.-The affidavit upon which the order was obtained showed that the defendant was supposed to be residing within the jurisdiction of the court, which is all that is required. [COLERIDGE, J.Suppose a man is residing at such a distance from this country that thirty or forty days would be given him to appear in, supposing the writ issued under section 18, and nevertheless you issue this process under the supposition that he is in England and get an order to proceed-at the end of eight days judgment may be signed against him, when he may have received the summons and be ready to appear. When it is shown what is really the fact, namely, that he is out of the jurisdiction, does not the case come within a different category? The meaning of the words "supposed to reside," in the 2nd section, is that it shall not be necessary absolutely to swear that he is within the jurisdiction.] If the objection takes that form the rule should have been to have set aside the writ itself.

Kemplay in support.-The writ is not of itself open