430 Superior Courts: Queen's Bench Practice Court; Common Pleas. that upon subsequent enquiries she stated that INDICTMENT.-CERTIORARI. An indictment for perjury having been found at the assizes for Leicester, the Court refused to grant a certiorari for its removal to London, on a suggestion that the truth of the evidence given by the defendant depended upon the result of a long series of accounts, and that a point of law was likely to be raised in the case. might either have dismissed the bill as against | been effected upon the female servant of the the defendant, the official assignee, paying him tenant in possession upon the premises, and his costs on the disclaimer being filed, or he might have brought him to a hearing, and unless the case appears to be one in which it was obligatory upon the plaintiff to have done the former, I do not know how I can hold that he has done wrong in bringing him to a hearing. He had no alternative. I acted upon this principle in Feuster v. Turner, and in Perkins v. Bradley, which were argued before me lately, and I see no reason for changing my opinion upon the principle which governed my decision in those cases. It was, however, further argued for the official assignee, that such proceedings took place immediately before the bill was filed, as made it improper for the plaintiff to make the official assignee a defendant in this suit. And Thompson v. Kendall was cited. It appears in this case, that on the 14th of April, 1840, the solicitor for the plaintiff wrote to the solicitor for the official assignee, stating that unless the mortgage was paid off, a bill would be filed. On the 20th, the solicitor for the assignee wrote to the plaintiff's solicitor, requesting that the bill might not be filed until he should have had time further to inform himself. To this, a reply was sent, telling him, as the fact was, that the bill had been filed on the 18th. Upon this state of facts, I cannot avoid observing that the costs which I am asked to give the official assignee, may have been occasioned in some degree by the precipitancy shown in filing the bill. If the letter of the 14th had not been written, or had merely informed the assignee that the bill would be filed unless the mortgage was paid off by return of post, the observation would not apply so strongly, but a letter stating the bill will be filed, unless the mortgage is redeemed, and nothing more, imports that the individual will not be made a party before he should have had time to enquire into the case. But this part of the case is not brought before me with sufficient distinctness to enable me to act on it, in giving In this case an indictment for perjury had been found against the defendant, at the last summer assizes for the county of Leicester. Whitehurst now moved for a certiorari to remove the indictment to London, with a view to its being tried by a special jury, upon an affidavit that it was believed that the truth of the alleged false evidence given by the defendant would depend upon the result of a long series of accounts, and that it was believed that a point of law would arise upon the trial. Williams, J.-Hosiers and other tradespeople understand accounts as well as knights or squires for aught I know; and as the indictment is to be tried before a judge of assize, and not at sessions, the writ should not go. Regina v. Morton, H. T. 1842. Q. B. P. C. Common Bleas. the costs of the official assignee personally PLEADING.—DUPLICITY.-NEGATIVE PREG against the plaintiff, which I should be obliged Queen's Bench Practice Court. SERVICE IN EJECTMENT. Service in ejectment on the servant of the tenant on the premises, who subsequently stated that she had delivered the declaration to her master, by whom an attorney was appointed to defend the action, was held sufficient for a rule nisi for judgment against the casual ejector. Fry moved for judgment against the casual ejector. The affidavit stated that service had NANT.-IMMATERIAL ISSUE. To a declaration in assumpsit, by the public officer of a banking company, under the 9 Geo. 4, c. 46, upon divers bills of exchange, the defendant pleaded a release by indenture executed by one I. M., therein described to be the manager of the bank, and alleged that the said 1. M. executed such indenture for and on behalf of the said company, and duly authorised in that behalf, and which execution by the said I. M., os such manager, hath been since duly ratified and confirmed by the said company. Replication, that the said I. M. did not execute as such manager on behalf of the company, nor was the said I. M. authorised in that behalf, modo et forma: Held upon spe cial demurrer, that the replication was not objectionable on the ground of duplicity, or as insolving a negative payment, and that it did not tender an immaterial issue in denying only the authority of 1. M. to Superior Courts: Common Pleas.-Law Bills in Parliament. 431 execute, because that in effect traversed | statement of a release, he must state not only the allegation of ratification. This was an action of assumpsit, brought by the plaintiff, as public officer of the Na. tional Provincial Bank of England. The effect of the pleadings is stated above. The defendant demurred specially to the replication, upon the three grounds of duplicity, that it involved a negative pregnant, and that it tendered an immaterial issue. that I. M. executed, but that I. M, who is a stranger to this record, had authority to do so, and he states these facts, and also that the execution was ratified by the company. It would not be enough for the plaintiff, in his replication, to deny only the execution, but he must also deny the authority of I. M., and he denies it modo et formá. He, therefore, treats the alleged ratification as evidence of Mr. Serjt. Stephen, in support of the demur- the authority of I. M. to execute the deed, rer, argued, first, that the replication was dou- and in denying the authority, he denies also ble in denying three distinct facts, namely, the the ratification. I cannot distinguish this case execution of the indenture by I. M., his cha- from Bennison v. Thelwell, aud Pigeon v. Osracter as manager, and the execution on be-borne, and upon the authority of those decisions, half of the company, any one of which would have been a sufficient answer to the plea. He cited Bro. Abr. tit. Double Plea, pl. 90; Griffin v. Yates. 1 Bing. N. C. 579; Smith v. Dixon, 7 Ad. & El. 1. Secondly, the application involved a negative pregnant, for it was to be implied, that although I. M. did not execute the indenture for the company, yet, that he did execute in some character, and the gist of the issue tendered was therefore left doubtful. Bac. Abr. tit. Pleas and Pleading. pl. 6. (Vol. 6, p. 309. 7 Ed.) shewed the principle upou which this objection was founded. Thirdly, the issue tendered was immaterial, for although the replication might be taken to admit the execution by May, and to deny his authority, the ratification of his act by the company, was left untouched. Thurman v. Wild, 11 Ad. & El. 453, was cited. Mr. Serjt. Channell, and Mr. J. Henderson for the plaintiff. The replication was not double, but put in issue several facts which amounted but to one point of answer to the plea, and this might be done. Robinson v. Raley. 8 Burr. 316; 2 Lev. 82; O'Brien v. Saxon, 2 B. & C. 908; Webb v. Weatherley, 1 Bing. N. C. 502; Bennison v. Thelwell, 7 M. & W. 512; Pigeon v. Oslorne, 9 Dowl. P. C. 511. Secondly, the doctrine of negative pregnant was now exploded, and would not be acted upon, or at all events, it was by no means so strictly followed as formerly. Thirdly, there was nothing in the plea to shew any authority on the part of I. M. to execute deeds on behalf of the company, nor was there anything in the 9 Geo. 4. c. 46, which conferred such a power on the manager of the bank. The plaintiff, therefore, when he denied his authority, in effect denied the ratification of his act. Stephen having replied Tindal, C. J.-A double pleading, is where two substantial answers are contained in one pleading, to that which precedes it, each of which is in itself a separate answer. The question here, is whether a plea which states several matters, states any more than those separate matters, which when taken together only form one ground of defence? For if so, the defendant, having a right to put them in his plea, the plaintiff is entitled to put him to the proof by his replication. The defendant, by his plea stared that which amounts to a release, and in order to make out a subcient think the plaintiff is entitled to judgment. With regard to the objection, that this replication involves a negative pregnant, I think that it cannot prevail. This is a very learned doctrine, which seems to have had very great weight, according to the law books, at an early period, but which at the present time is not so much attended to. But it would ap pear, that when a pleading is objected to on the ground of duplicity, and it is not objectionable on that score, you cannot say that it is open to the objection, that it involves a negative pregnant, because if it was otherwise, it would in effect establish a rule in this case, that although the plaintiff has a right to put in issue all these three facts as amounting only to a single ground of defence, yet he shall not, on this ancient ground of objection, avail himself of it. The object of pleading is, however, to reduce the issue to one point, involving the real question in dispute, and I do not think that this objection can prevail. What I have already said, will meet the third point contended for by the defendant, with reference to the traverse of the ratification. Coltman, Erskine, and Maule, J. J., concurred. Judgment for the plaintiff. 432 Law Bills.-State of the Chancery Cause Paper.-The Editor's Letter Box. and Lunacy to be carried to the County | STATE OF THE CHANCERY CAUSE Courts. Lord Cottenham. [For 2d reading.] For establishing Local Courts. Council to the House of Lords. [For 2d reading.] PAPER. THE Lord Chancellor, after taking his seat in Court on Thursday, the 24th instant, said some mistake had gone out among the Bar, as to what he had said about the state of the busi For making better provision for hearing Ap-ness of these Courts. He had paid some atpeals in the House of Lords. [For 2d reading.] Lord Campbell. For the better Administration of Justice in the Court of Chancery. [For 2d reading.] Lord Campbell. To enable Baptists to make affirmations, instead of oaths. Lord Denman. [For 2d reading.] For improving the Law of Evidence. [In Committee.] Lord Denman, For enabling Ecclesiastical Corporations to grant Leases. The Bishop of London. [In Committee.] For enabling Incumbents of Benefices to grant The Bishop of London. Leases. [In Committee.] To limit the Criminal Jurisdiction of Quarter Sessions. Lord Godolphin. [For 2d reading.] House of Commons. NOTICES OF BILLS. For Registering Copyrights and Assignments, and better securing the property therein. [In Committee.] Mr. Godson. For the Regulation of Buildings. [In Committee.] [In Committee.] Mr. F. Maule. Mr. F. Maule. Municipal Corporations. [In Committee.] To consolidate the Queen's Bench, Fleet, and Marshalsea Prisons. Sir J. Graham. [Passed] For the Improvement of certain Boroughs. Smail Debt Courts Bills for Leicester, (jurisdiction 157.) The important Law Bills now in progress in the Upper House, are unusually numerous, namely, three introduced by the Lord Chancellor, three by Lord Cottenham, three by Lord Campbell, one by Lord Brougham, two by Lord Denman, two by the Bishop of London, one by Lord Godolphin; and we may add, one intended to be renewed by Lord Langdale, for consolidating and amending the law of attorneys. tention to the matter, and found that it would be necessary to make further transfers of causes. He would take an opportunity of conferring with some of the leaders on the subject. His Lordship soon afterwards handed down, through the registrar, a paper to Mr. Wakefield, who had just come in, and after receiving it back, with an observation from Mr. Wakefield that it was correct, his Lordship read a statement from it to this effect: Causes before the Master of the Rolls 81 33 Making in all.......... 215 Of these 215 causes, 98 were set down for hearing last year-that is from the 1st of November to Christmas, and 117 have been set down this year. All the causes that were set down before November last, are disposed of. THE EDITOR'S LETTER BOX. We have been obliged to postpone several communications, but hope to insert them in our next number. The letters of "A Young Solicitor;" "A Country Subscriber;" "Vindex," and "A Subscriber," have been received. We are informed that there is an error in a note to Gibson v. Haines, p. 411, ante. The Lord Chancellor did not say any thing as to "the convenience to the clerks in Court," but in reply to Mr. Romilly's application on behalf of the six clerks, to know his lordship's opinion as to what part of the bill, the prayer, according to the 23d new order, "that a party, on being served with a copy of the bill, may be bound, &c." should be inserted; his lordship said it appeared to him to be "a substi tution for the prayer for subpœna,” and really it is surprising how a different interpretation could be put on that order. "A West Riding Solicitor," and others who have written on the present opportunity for pressing the repeal of the certificate duty, shall be attended to. The papers on legal examination distinctions, and extra judicial oaths, shall be considered at the earliest opportunity. The Legal Observer. MONTHLY RECORD FOR MARCH, 1842. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. DEBATES IN PARLIAMENT RELATING TO THE LAW. PROCEEDINGS IN LUNACY. THE following is the substance of the debate which took place on the 8th instant on the introduction of this bill. The Lord Chancellor said, that pursuant to the notice he gave last night, he was about to lay upon the table a bill to amend and improve the law, or rather the proceedings in cases of lunacy, and would in a few words endeavour to lay before their lordships the general scope of his bill. In cases where amendments like the present were proposed, it was important to consider the actual state of the law, what were the evils to be remedied, and what the nature of the remedy proposed. As to the state of the law, their lordships were aware that there were certain standing commissioners to whom petitions in lunacy cases were referred. Those commissioners were men most competent to the discharge of the duties confided to them, but their jurisdiction was limited to a distance not exceeding twenty miles from the metropolis. Beyond that distance commissions in lunacy cases were sent to persons of whom the Lord Chancellor had no knowledge, and who had little or no experience in such delicate matters, and hence sometimes arose serious mistakes, which entailed very considerable expense on the estates of the lunatics. He would now say a word as to how the expences of those commissioners were defrayed. The commissioners were paid by fees, which were charged on the estates of the unfortunate lunatics. In the same way the commissions of bankrupts were paid by fees out of the bankrupt's estate, until the practice was altered by the bill brought in for that purpose by his noble and learned friend (Lord Broughain), who then held the great seal. The expences in lunacy cases were great, and pressed heavily upon the estates of VOL. XXIII. No. 710. that unhappy class of persons. As illustrations of the pressure of those fees he would state the amount of those received by the commissioners in a few instances. In the case of Lord Portsmouth, which he would admit was an unusual one, and where there were six commissioners, instead of the ordinary number of three, the amount paid to those six was 1,0717. In the case of Mr. Davis, where there were only three commissioners, the amount which they received in fees was 3467. 108.; and in fact in this case the fees absorbed the whole of the unfortunate man's estate. In the recent case of Mr. Gundry the fees amounted to 220., and in another case, which occurred in the country, and where there was only one commissioner, who sat four days, the fees amounted to 751. Such an amount of fees pressed, as he had said, very heavily on the estate of lunatics; so much so indeed, that where the estate was small the friends of the lunatic were afraid to apply to the Lord Chancellor, for they were well aware that the consequence of the lunacy commission would be to consume the estate, and he would be left without adequate protection as to person, and very little as to property. He had said, that many of those to whom commissions were directed in the country were quite inadequate to the duties thus imposed on them; and it often happened that commissions were quashed for irregularity. A new commission was to be issued, and thus the expense had to be gone over again. A case of this kind occurred with respect to a person named Holmes. The cominission was sent down, and as soon as it was returned it was quashed for irregularity. Another commission was sent down, and the expense thus occasioned amounted to 5,200/., not including the fees before the master. The remedy which he proposed in the bill to be laid on the table was to appoint two perma nent commissioners, who would preside in cases of lunacy in town and also in the country. Those two, who would be men of ability and distinction at the bar, would be paid not by fees, but by fixed salaries; and then there would be a fixed and regular system applying to all cases. 2 G 434 Debates in Parliament relating to the Law. But this was not all. At present lunacy cases were decided by a jury of twenty-four, as there must be the assent of twelve at least to make the inquisition, and return their verdict. These twenty-four jurors acted in the nature of a grand jury. They were paid one guinea per day each day the inquiry lasted, and he need not observe that this item of expenditure formed a very considerable portion of the expense of lunacy commissions. In the case of Lord Portsmouth the fees to the jury amounted to 410. 11s.; in the case of Taylor, whose estate was a very small one, to 1757. In the case of Davenport the jury fees came to 315.; and in that of Lady Kirkpatrick to 1937. When these were added to the very large amount paid to the commissioners, their lordships would at once perceive the ruinous effect such a trial must have on a small estate of a lunatic. To diminish this expense as far as possible his bill proposed to vest in the Chancellor a discretionary power to have the case tried, in certain cases, with a jury of twelve, who need not be unanimous in their finding. He would thus have two men of learning and distinction at the bar, who would attend to country as well as town cases. men, accompanied by a barrister, and he was happy to say that that plan had worked admirably well. He would propose to make the two commissioners visitors ex officio, with power at any time to visit by themselves, or with the ordinary visitors, and he had no doubt it would be productive of much benefit. These were the general outlines of his bill. The details he would reserve for the committee. Lord Brougham said, he would gladly adopt some such measure as that now proposed by his noble and learned friend. In the main he concurred with him, but he would rather reserve anything like detail to a future and more convenient stage. He was glad to know that the system of visiting had worked so well, and that those appointed to those duties had discharged them so faithfully. He had no objection to the abolition of the office of Clerk of the Custodies, but that, also, he would defer any observation upon to a future stage. Lord Cottenham would also avoid entering into the details of the bill, but he must say, that to the principle of appointing two commissioners, who were to go through the country, he had objections, for he did not think they would be able to go to the different parts where their services might be required. There was another point on which he pro- He would also hesitate before he allowed the posed a change. It was well known that interests of lunatics to be removed from the under the present system after the finding of care of the Masters. As to the proposition of the jury and the return of the commissioners abolishing the office of Clerk of the Custodies, there were certain inquiries to be made at the and paying him a compensation out of the Masters' offices, and from information which suitors' fund, he must protest against the latter he had received on the subject he learned that part of the plan. He could not consent that sometimes a year and a half elapsed from the the funds of one class of suitors should be apreport of the commissioners to the appoint-plied to quite another class, or to a purpose ment of a committee to take care of the person for which they were not intended. and estate of the lunatic. In one case two years were allowed to elapse before the ap- The Lord Chancellor said, that when the proper time came for discussion of the measure in detail, he should be able to show how the Local Courts billa could be made available for some of the purposes of this bill. As to the suitors' fund his noble and learned friend must know that part of it arose from the accumulation of the funds of lunatics as well as others. Lord Cottenham.-So far as they did, he would not object to their proposed application, but beyond that he would not go. Lord Brougham saw no more inconsistency in giving from the suitors' fund to that of lunatics, than in giving the funds of one suitor to help another; but he repeated, the best time for this detail, would be when the bill was in committee. Lord Campbell asked, would the two commissioners sit together or separate? The Lord Chancellor said that only one would sit, except on some special and important occasions, when the Chancellor would have the power to direct the second commissioner to sit. In the case of Lord Portsmouth the usual number of commissioners was doubled. a It appears from this that the Lord Chancellor has still a local court bill in reserve. |