observed, "This case was argued a very long while ago. It has been delayed in consequence of a difference of opinion among the judges, which has not altogether been removed, even at the present moment." It was argued on May 27, 1850, and judgment was given 26th February, 1851. Surely a system in which a short plea, of daily occurrence, cannot be dealt with without so much doubt and delay, is not about to be modified too soon. Plaintiff had leave to amend on usual terms.

Regina v. Hill, 15 Jurist, 470; 2 Denison's C. C. 254.

An incompetent witness is defined, by Mr. Best, in his excellent Manual of the Law of Evidence, p. 148, to be one whose testimony the judge is bound, as matter of law, to reject. Of those whom the jealousy of the common law discarded as such, there were, not many years ago, numerous and comprehensive classes; of late, however, a more enlightened policy has begun to prevail; objections of several kinds to the reception of evidence have been removed by various statutes, and, perhaps, the chief remaining disqualification is about to be removed, to some extent at least, if not entirely. In the present case, a class of witnesses was, for the first time, judicially decided to be competent, which the progress of medical science has succeeded in distinguishing from similar classes which were and remain clearly incompetent. As the office of a witness is solely to relate facts, he must be clearly unfit if he cannot both observe, retain and communicate in some way or other. Thus we find it laid down in text books that idiots, persons of non-sane memory, and those who are deaf, dumb and blind are incompetent; and the same is said of lunatics, except in their lucid intervals. But insanity is now found to be sometimes partial, not only in time, by intermitting, but also in extent, as touching only one or more matters. Men are to be found constantly mad and irrational on one or two points, yet constantly lucid and sensible on all others. These are all, in some sense of the word, lunatics (although some only there are whose delusion is of a nature to render restraint advisable); and as they do not generally enjoy intervals of total lucidity, i. e. on all points, they would fall within the class of incompetent persons above mentioned, but never within the exception to it. The distinction, however, between monomania, or partial lunacy, and total, though intermitting insanity, is now recognized by the Court of Criminal Appeal. The prisoner was

convicted of the manslaughter of a lunatic under his charge; and the question reserved was, whether the evidence of one, Donelly, also a lunatic, ought to have been admitted. Donelly was proved to have a delusion about numerous concomitant spirits, but to be always perfectly rational on all subjects disconnected with his delusion. His knowledge of the nature and obligation of an oath was sufficient. Lord Campbell, C. J., in delivering the judgment of the court, said "I am glad that this case has been reserved; it is one of great importance, and ought to be solemnly decided." And adopting a dictum of Parke, B.-"Supposing a man called as a witness has a delusion, it is for the judge to examine him as to the nature of an oath and his sense of religion, and then to say whether he is competent as a witness; and then the judge, having determined as to the admissibility of his testimony, it is for the jury to decide what credit is to be given to his evidence. . . . He may be cross-examined as to the state of his mind; and witnesses may be called to prove that his mind is so diseased that no reliance can be placed upon his statements; but in the absence of evidence to discredit his testimony, it would be competent for the jury to hear what he said and to act upon it." It would almost seem, from the tone of these observations, that lunacy generally will, like other grounds of exclusion, go rather against the credibility than the competency of a witness who is not obviously and entirely insane; and that judges will leave the degree of insanity and its connection with the subject of the testimony entirely to the appreciation of the jury.



Jones v. Harrison, 20 Law J. Exch. 166; S. C. 15 Jur. 337; Latham v. Spedding, 15 Jur. 576.

ALTHOUGH, strictly speaking, the superior courts still have a concurrent jurisdiction in every case, yet the term is specially applied to those cases only in which a plaintiff suing in one of them may recover his costs, and in this sense alone must it in general be taken. Previous to the Extension Act, plaintiffs in a superior court always got their costs, unless the defendant entered a suggestion, and by it showed that the case was none of those in which concurrent or exclusive jurisdiction was retained by the superior courts; and by this means the end was attained, but not unfrequently at such expense, to say nothing



of the risk of failure (for to frame a suggestion accurately was a matter of much nicety), as to make the permission to enter a suggestion, in many cases, no great boon to a defendant. By the 11th and 13th sections of the Extension Act this evil is remedied, for plaintiffs are never to have costs if they recover less than 207., or in cases of tort 57., until, upon their showing that the superior court had exclusive, or at least concurrent jurisdiction, a judge at chambers or the full court make an order to that effect. But the difference is not limited to shifting the burden and making the plaintiff establish his right to costs, instead of obliging the defendant to negative it; it extends further, for the plaintiff may now lose his costs, if the court or judge do not think fit to grant a rule or make an order, in cases in which formerly no sufficient suggestion to deprive him of them could have been entered. Such, at least, is the interpretation put upon the 13 & 14 Vict. c. 61, s. 13, by the present case, which arose on the following facts :-the defendant, living more than twenty miles from the plaintiff, paid 121. 7s., after being served with a writ for 127. 13s., and subsequently paid 6s. into court, which the plaintiff accepted and procured an order from a judge at chambers enabling him to get his costs taxed by the Master. The Court of Exchequer made a rule to rescind the order absolute, the judge (Martin, B.) who had made it fully concurring, as he had only made the order in deference to the course which Mr. J. Williams had adopted in a similar case. It was powerfully urged in argument, that as "may" could not be taken to give a discretion to the judge in those cases in the 13th section, in which the jurisdiction of the superior courts was exclusive, the same word could not cease to be imperative when applied to the other cases mentioned in that section. The court, however, held that the natural meaning of "may" was permissive, and was not to be construed "shall," except when regarding a public duty. Martin, B., expressly states his opinion to be, that "may" is permissive as to every branch of sect. 13. It is not quite clear from the report whether Pollock, C. B., concurs in this view or no; but the point is of no practical importance, as no judge would exercise his discretion by refusing costs in a case of exclusive jurisdiction. The second case is a practical illustration of the beneficial working of the substituted system. The plaintiff got 40s. damages in trespass for a wrongful distress; one of the pleas was "not possessed." Now, in a very recent case, Timothy v. Farmer (7 C. B. 814), it was held, that no suggestion could be entered under similar circumstances, on the ground that title was in question (which it was not really in either case). But there, observes Lord Campbell, C. J., the

initiative lay on the defendant, who was, he suggests, concluded, by his having pleaded "not possessed," from asserting that title did not come in question. But now the onus is on the plaintiff, and we think it clear that he is bound to show that he could not sue in the County Court, by establishing the fact that the title did really bonâ fide come in issue, not merely that the defendant had so pleaded that it possibly might have come in issue. Accordingly, an order made by Patteson, J., on the supposition that title was put in question, and that if so, he had no discretion, was discharged.

Here we may also notice Parker v. Great Western Railway Company (20 Law J., Exch. 112), in which a very strong opinion was expressed by the Court of Exchequer that the right of appeal given by the 13 & 14 Vict. c. 61, did not affect the right to remove by certiorari a plaint from the decision of which an appeal might be had; and also the case of In fe Brookman v. Wenham (20 Law J. Q. B. 278), in which a rule nisi had been obtained for an attachment against the judge of a County Court for not returning a certiorari for removing a plaint which had been brought to recover 361. 16s. upon a bill, when Erle, J., sitting in the Bail Court, although he discharged the rule upon another point, held that the writ of certiorari was valid, inasmuch as the Extension Act must be construed to leave the power of issuing a certiorari as it stood under the 9 & 10 Vict. c. 95, which provides for it in some cases.


Wakeman v. Lindsay, 19 Law J., Q. B. 166; Kerby v. Harding, 20 Law J. Exch. 163.

A DISTRESS for rent in arrear is perhaps the most valuable, and certainly the most familiar instance in which a man may lawfully obtain redress by his own act. More than common interest, therefore, attaches to any decision upon the forms which attend or the restrictions which limit its use. The remedy was, however, but a cumbrous one, until the power of selling the distress was given by statute. This was given by the 2 Will. & M. s. 2, c. 5, which at the same time imposes certain obligations, one of which is, in substance, that effectual notice of the distress should be given to the tenant. This notice should be in writing, and usually, in practice, consists of two parts; the first informing the tenant wherefore and by whom the distress is levied upon such of his goods and chattels as are therein stated to be mentioned in the other part, which is in the

form of an inventory or catalogue. As, at common law no such notice was necessary; the landlord had only to take the goods upon the premises for which the rent was due, to impound them and convey them to some public or private pound, and if the latter, to give notice of its locality; so the tenant could, by seeing what was taken to the pound, know easily to what the distress extended. This information he now gets from the inventory part of the notice, and these two cases turned upon what was sufficiently explicit as such. In the earlier case the inventory, after specifying various articles, concluded, " and any other goods and effects that may be found in and about the said premises, to pay the said rent and expenses of this distress." Everything on the premises was intended to be taken, and was actually taken; and the court, not without some reluctance, held the form sufficient, as it would just bear that interpretation. In the latter case the inventory, after likewise specifying divers chattels, ended thus," and all other goods, chattels and effects that may be found in and about the said premises, that may be required in order to satisfy the above rent, together with the expenses." The court thought these terms too vague, and that they did not point out any certain goods, chattels or effects, other than those specified, and accordingly, except as to those, they held the subsequent sale to have been illegal for want of the requisite notice. Had the conclusion ended with the word "premises," and had everything been taken, it would have been otherwise, on the authority of the previous case. The principle to be deduced from these two cases is, that the person distrained upon has a right to know exactly which of his chattels are taken and which are not. is not, indeed, requisite that this should be attained by his being furnished with a strictly accurate catalogue of all that are seized, but he must have information sufficiently certain to enable him to gather clearly, as to any one chattel in particular, whether it is meant to be included in the distress or not. This he may do if he is informed that "all on the premises," or "all in the parlour," or "all in one corner of the room," are taken, as certainly, though not as easily, as if each were specified; but he has no means of knowing to which " so many as may be required," or "all that may be wanted," to pay the rent and expenses, may or may not apply. He can neither know which he may still lawfully dispose of, nor judge whether the distress. be excessive, or not.


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